In the event of a national disaster or emergency under the Stafford Act or the National Emergencies Act and a Public Health Emergency Declaration by government officials, the Department of Health and Human Services (HHS) Secretary can temporarily waive certain Medicaid and Medicare criterion, which are commonly referred to as 1135 Waivers.  By way of example, 1135 Waivers or modifications include, but are not limited to:

• Conditions of participation or other certifications requirements;
• Program participation and similar requirements;
• Licensing requirements;
• Preapproval requirements;
• Stark self-referral sanctions;
• Performance deadlines; and
• Limitations on payment for health care items and services to Medicare Advantage (MA) enrollees by non-network providers.  For additional information regarding 1135 waivers, please click here.

In response to the ever-evolving Novel Coronavirus 2019 (COVID-19) pandemic, the Centers for Medicare & Medicaid Service (CMS) and the Office of Medicare Hearings and Appeals (OMHA) modified their guidance on Medicare appeals for Fee for Service (FFS), Medicare Advantage (MA), and Part D participants.

Under new guidance, Medicare-approved bodies, such as Medicare Administrative Contractors (MACs), Qualified Independent Contractors (QICs), and Independent Review Entities (IRE), hearing appeals prior to the COVID-19 pandemic may now:

• Allow extensions for filing appeals;
• Waive requests for timeliness requirements for additional information to adjudicate appeals;
• Allow appeal processing even with incomplete Appointment of Representation forms (however, any communication will only be sent to the beneficiary);
• Process requests for appeals that do not meet the required elements using information outlined within the applicable appeals requirements; and
• Utilize all flexibilities available in the appeal process so long as requests are made in good faith.

The OMHA remains open and hearings/appeals continue to move forward as scheduled.  Unless expressly told otherwise by the adjudicating body, appellants should proceed to appear for scheduled hearings and conferences via teleconference.

Providers should expect less Medicare Parts C, D, and PACE audits, which ultimately could lead to an appeal.  In conjunction with the appeals guidance waivers, CMS modified its scheduled program audits by focusing on noncompliance leading to serious risks or complaints alleging infection control concerns.  For more information on audits,  please click here.

Please note that Section 1135 Waivers are temporal in nature.  The Secretary may extend 1135 Waivers at his discretion.  Lastly, 1135 Waivers pertain only to federal requirements, which means applicable state regulations still apply. 

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