On March 13, 2020, pursuant to section 1135(b) of the Social Security Act, the Secretary of the United States Department of Health and Human Services (HHS) invoked his authority to waive or modify certain requirements as a result of the consequences of the COVID-19 pandemic, as determined by the Centers for Medicare & Medicaid Services (CMS). In addition to the blanket waivers issued by CMS on March 13 for many Medicare provisions, on March 25 and March 27 CMS granted the following waivers requested by Tennessee and the Tennessee Hospital Association related to federal Medicaid and Medicare requirements:

Waviers Requested by TennCare

• Suspension of PASRR Level I and II assessments –
  • Allows Pre-Admission Screening and Annual Resident Review (PASRR) Level I and II assessments to be waived for 30 days.
  • Allows all new admissions to be treated like exempted hospital discharges.
  • Provides that after 30 days, new admissions with mental illness or intellectual disability should receive a resident review as soon as resources become available.
• Provision of Services in Alternative Settings –
  • Allows facilities, including NFs, ICF/IDDs, PRTFs and hospital NFs, to be fully reimbursed for services rendered to patients relocated to an unlicensed facility if the placing facility continues to render services and Tennessee, as applicable, determines that the unlicensed facility meets minimum standards and relocation was done to ensure the health, safety and comfort of beneficiaries and staff.
• Provider Enrollment –
  • Allows reimbursement of otherwise payable claims submitted by out-of-state providers not enrolled in the Medicaid program of Tennessee, as applicable, provided that the following current CMS requirements are met for such reimbursement: (1) the services for which reimbursement is sought is provided outside the applicable state, (2) the National Provider Identifier is on the claim, (3) the provider is approved under Medicare or another state Medicaid plan, and (4) the claim is for services furnished. Significantly, for the duration of the public health emergency, CMS has waived its current requirement for such reimbursement that the claim represents either (a) a single instance of care furnished over a 180-day period or (b) multiple instances of care furnished to a single participant, over a 180-day period. The practical effect of this waiver is that, during the declared emergency, Tennessee may reimburse any single out-of-state provider not enrolled in the Medicaid program of Tennessee, as applicable, for multiple instances of care provided to multiple Medicaid participants even if furnished within the same 180 day period, provided that the other CMS requirements for such reimbursement are met (effectively, permitting any number of Medicaid patients to be moved, or evacuated, out of state for treatment).
  • Allows provisional, temporary enrollment of providers enrolled with another state Medicaid agency (SMA) or Medicare.
  • Allows provisional, temporary enrollment of providers not already enrolled with another SMA or Medicare without having to satisfy an array of screening requirements provided that Tennessee, as applicable, meet various other requirements, all as further described in the waiver letters issued to Tennessee.
  • Allows discontinuance of provider revalidation.

Waivers Requested by Tennessee Hospital Association

Hospitals, Psychiatric Hospitals, and CAHs:

• EMTALA – Allows hospitals, psychiatric hospitals, and CAHs to screen patients at a location offsite from the hospital’s campus to prevent the spread of COVID-19.
• Verbal Orders – Allows for additional flexibilities related to verbal orders where readback verification is still required but authentication may occur later than 48 hours.
• Reporting Requirements – Allows hospitals to report patients in an intensive care unit whose death is caused by their disease process but who required soft wrist restraints to prevent pulling tubes/IVs later than close of business next business day, provided any death where the restraint may have contributed is reported within standard time limits.
• Patient Rights – Waives requirements for hospitals with respect to: (1) timeframes in providing a copy of medical record, (2) patient visitation, including the requirement for written policies and procedures on visitation of patients who are in COVID-19 isolation and quarantine processes, (3) seclusion.
• Sterile Compounding – Allows used face masks to be removed and retained in the compounding area to be re-donned and reused during the same work shift in the compounding area only.
• Detailed Information Sharing for Discharge Planning for Hospitals and CAHs – Waives the requirement to provide detailed information regarding discharge planning. Hospitals no longer are required to assist patients, their families, or the patient’s representative in selecting a post-acute care provider by using and sharing data on quality and resource use measures.
• Discharge Planning for Hospitals – Waives all requirements related to post-acute care services to expedite the safe discharge and movement of patients among care settings, and to be responsive to fluid situations.
• Medical Staff – Allows for physicians whose privileges will expire to continue practicing at the hospital or CAH and for new physicians to be able to practice in the hospital or CAH before full medical staff/governing body review and approval.
• Medical Records Timing – Waives requirements related to medical records to allow flexibility in completion of medical records within 30 days following discharge and for CAHs that all medical records must be promptly completed.
• Flexibility in Patient Self Determination Act Requirements (Advance Directives) – Waives requirements for hospitals and CAHs to provide information about its advance directive policies to patients. This does not apply to requirements for hospitals and CAHs to receive information about the presence of a policy regarding the facility’s recognition of advanced directives.
• Physical Environment – Permits non-hospital buildings/space to be used for patient care and quarantine sites, provided that the location is approved by the State.

Skilled Nursing Facilities

• Staffing Data Submissions – Provides relief to long term care facilities on the requirements for submitting staffing data through the Payroll-Based Journal system.
• Pre-Admission Screening and Annual Resident Review (PASARR) – Waives certain requirements related to PASARR for nursing home residents who may also have a mental illness or intellectual disability:
  • Level I screens are not required for residents when they are being transferred between nursing facilities (inter-facility transfers) and staff cannot enter nursing facilities due to quarantine.
  • If the NF is not certain whether a Level I evaluation had been conducted at the resident’s transferring/evacuating facility, a Level I can be conducted by the admitting facility during the first few days of admission as part of intake.
  • If there is not enough information to complete a Level I evaluation, the NF must document this in the resident’s case files.
  • Level II evaluations and determinations are also not required preadmission when residents are being transferred between NFs.
  • Residents who are transferred will receive a post admission review which must be completed as resources become available.
• Physical Environment – Allows for non-SNF buildings to be temporarily certified as and available for use by a SNF in the event there are needs for isolation processes for COVID-19 positive residents which may not be feasible in the existing SNF structure. Waives certain conditions of participation and certification requirements for opening a NF if the state determines there is a need for a temporary COVID-19 isolation and treatment location.
• Resident Groups – Permits the facility to restrict having in-person meetings.
• Training and Certification of Nurse Aids – Allows SNFs and NFs to employ individuals, who have not met certain training and certification requirements, longer than four months to assist with potential staffing shortages.

Home Health Agencies

• Reporting – Provides relief to Home Health Agencies on timeframes related to OASIS Transmission including extension of the 5-day completion requirement for the comprehensive assessment and waiver of the 30-day OASIS submission requirement.
• Home Health 42 C.F.R. § 484.55(a) – Allows home health agencies to perform initial assessments and determine patients’ homebound status remotely or by record review

Hospice

• Volunteer Requirement – Waives the requirement that hospices are required to use volunteers.
• Comprehensive Assessments – Waives certain requirements related to update of the comprehensive assessments of patients. Hospices must continue to complete the required assessments and updates, however, the timeframes for updating the assessment may be extended from 15 to 21 days.
• Non-Core Services – Waives the requirement for hospices to provide certain non-core hospice services, including the requirements for physical therapy, occupational therapy, and speech-language pathology.

Home Health & Hospice

• Onsite visits for both HHA and Hospice & Aide Supervision – Waives the requirements for a nurse to conduct an onsite visit every two weeks. Includes the requirements for a nurse or other professional to conduct an onsite visit every two weeks to evaluate if aides are providing care consistent with the care plan as this may not be physically possible for a period of time. Temporarily suspends the 2-week aide supervision requirement by a registered nurse for home health agencies, but virtual supervision is encouraged during the period of the waiver.

This authority is retroactive to March 1, 2020. The emergency period will terminate, and section 1135 waivers will no longer be available, upon termination of the public health emergency, including any extensions. The state Medicaid agencies are expected to quickly issue emergency policy updates to implement these changes to their respective state programs.

Tennessee Waiver: https://www.medicaid.gov/state-resource-center/disaster-response-toolkit/federal-disaster-resources/88881

Tennessee Hospital Association Waiver: http://d31hzlhk6di2h5.cloudfront.net/20200327/3d/e3/44/74/0ca4e7525daa5b26b4539467/TN-Hospital_Association-Waiver_Approval_Letter-3-26-2020.pdf