COVID-19 Update: What the president’s declaration of national emergency means for health care facilities

On March 13, 2020, President Trump declared a national emergency in response to the COVID-19 (coronavirus) pandemic. As described by the president in his news conference, this declaration will “confer broad new authority to the secretary of Health and Human Services” who will “be able to immediately waive provisions of applicable laws and regulations to give doctors and all hospitals and health care providers maximum flexibility to respond to the virus and care for patients."

As noted by the president, this gives the Department of Health and Human Services (HHS) authority to issue 1135 waivers after the secretary of HHS has declared a public health emergency, which Secretary Azar did regarding COVID-19 on January 31, 2020.

In response to the declaration of national emergency, the Centers for Medicare and Medicaid Services (CMS) has announced the following blanket waivers:

• Hospitals
  • Waiver of requirements to allow acute care hospitals to house inpatients in excluded distinct part units where the bed is appropriate for inpatient care and needed due to capacity issues related to the emergency.
  • Waiver to allow acute care hospitals with excluded distinct part inpatient psychiatric units to relocate inpatients from the psychiatric unit to an acute care bed/unit, if appropriate for psychiatric care, as needed as a result of the emergency.
  • Waiver to allow acute care hospitals with excluded distinct part rehabilitation units to relocate inpatients from the rehabilitation unit to an acute care bed/unit, if appropriate for rehabilitation care, as needed, as a result of the emergency.
• Critical Access Hospitals
  • Waiver of the 25 bed limit.
  • Waiver of the 96 hour length-of-stay limit.
• Skilled Nursing Facilities (SNF)
  • Waiver of the three-day prior hospitalization requirement for coverage of a SNF stay for those patients needing to be transferred to a SNF as a result of the emergency.
  • Waiver of 42 CFR 483.20 of timeframe requirements for Minimum Data Set assessments and transmission.
• Long-Term Acute Care Hospitals (LTCH)
  • Ability to exclude patient stays where the LTCH admits or discharges patients in order to meet demand of the emergency from the 25-day average length-of-stay requirement.
• Home Health Agencies
  • Ability for Medicare Administrative Contractors to extend the auto-cancellation date of Request for Anticipated Payment during the emergency.
• Durable Medical Equipment
  • Permission for contractors to waive replacement requirements such that the face-to-face requirement, a new physician’s order and new medical necessity documentation are not required when equipment is lost, destroyed, irreparably damaged or otherwise rendered unusable as a result of the emergency.
• Provider Enrollment
  • Establishing a toll-free hotline for physicians, non-physician practitioners and suppliers to enroll and receive temporary Medicare billing privileges.
  • Waiver of application fee, fingerprint-based criminal background checks and site visits.
  • Postponement of all revalidation actions.
• Provider Locations
  • Waiver of the requirement that out-of-state providers be licensed in the state where they are providing service if licensed in another state. (Note that this applies to the Medicare/Medicaid requirement only. It does not waive state licensing requirements.)

Additionally, President Trump specifically requested hospitals to activate their emergency preparedness plans. HHS has stated that the plan should include the delay of elective procedures. The hospital conditions of participation (42 CFR 482.15) require that: “The hospital must comply with all applicable Federal, State, and local emergency preparedness requirements. The hospital must develop and maintain a comprehensive emergency preparedness program that meets the requirements of this section, utilizing an all-hazards approach.”

Additional waivers are likely. The declaration of a national emergency gives authority to the secretary of HHS to temporarily waive or modify certain Medicare, Medicaid and Children’s Health Insurance Program (CHIP) requirements to ensure that sufficient health care items and services are available. Examples include:

• Conditions of participation or other certification requirements
• Program participation and similar requirements
• Preapproval requirements
• Requirements that physicians and other health care professionals be licensed in the state in which they are providing services, so long as they have equivalent licensing in another state (this waiver is for purposes of Medicare, Medicaid and CHIP reimbursement only – state law governs whether a non-federal provider is authorized to provide services in the state without state licensure)
• Emergency Medical Treatment and Labor Act (EMTALA) sanctions
• Stark self-referral sanctions