COVID-19 Update: CMS Waiver Information for Private Practice Physicians and Non-Physician Practitioners

By Hal Katz and Tamar E. Hodges

President Donald Trump declared the coronavirus pandemic a National Emergency on March 13, 2020. This declaration granted the Department of Health and Human Services (HHS) Secretary Alex Azar authority to relax certain Medicare, Medicaid, and Children’s Health Insurance Program (CHIP) requirements set forth in Section 1135 of the Social Security Act. The primary purpose of this waiver is to give providers greater flexibility to meet the needs of Medicare, Medicaid, and CHIP beneficiaries during an emergency.  CMS may issue “blanket waivers” after a declaration of a public health emergency when it determines many “similarly situated providers” would require certain waivers. CMS requires providers to put the state licensing agency and CMS Regional Office on notice if it intends to modify their operations in light of such waivers, although the blanket waivers are essentially automatic and, therefore, do not require the provider to submit a request. The waiver is in effect through the duration of the emergency or until CMS terminates the waiver.

Healthcare providers, including Private physician and Non-Physician Practitioners (NPPs), may submit waiver requests in addition to relying on the blanket waivers. The 1135 Blanket Waivers most applicable to physicians and NPP in private practice would be modification of the provider enrollment and conditions of participation requirements, provider locations and state licensure requirements for reimbursement, and durable medical equipment requirements. Other 1135 Waivers commonly requested include modification of the hospital privileges renewal requirement, verbal order authentication limitations, self-referral restrictions under Stark, and HIPAA regulations.

Provider Locations Requirement

Prior to the National Emergency Declaration, CMS required Part B providers to be licensed in the state where they provide services. For example, a physician licensed only in Missouri could not bill CMS for services she provided to a Medicare or Medicaid beneficiary at a clinic in Illinois. Currently, under the 1135 Waiver, the above scenario plays out differently; she could bill Medicare Part B or Illinois Medicaid for services she provided to the patient. However, physicians and NPPs should be aware of the varying out-of-state licensure requirements under its respective Medical Practice Act regardless of relaxed state credentialing requirements during a public health emergency.

Provider Enrollment

Physicians seeking to bill CMS for reimbursement of services provided to Medicare Part B, Medicaid, or CHIP beneficiaries for the first time must complete a form CMS-855I for enrollment. Other enrollment requirements include payment of the $595 application fee[1] (42 C.F.R. 424.514), site visit verification process by a CMS National Site Visitor Contractor (NSVC) who inspects the physician’s office ( 42 C.F.R. 424.517),  and background screening requirements (42 C.F.R. 424.518).  Once CMS approves a provider’s enrollment application, the provider is required to revalidate their enrollment information every five years to remain in the program (42 C.F.R. 515). In light of COVID-19, CMS authorized a blanket waiver for the former three requirements for new enrollees and postponed the revalidation process. Additionally, CMS established a toll-free hotline for physicians and NPPs to enroll for temporary Medicare billing privileges and decided to expedite pending or new enrollment applications.

Physicians should strongly consider taking advantage of these waivers during the COVID-19 pandemic. The national primary care provider shortage, coupled with the reduction of the healthcare workforce as care settings attempt to minimize transmission, make accessing health care a challenge during these times. CMS has incentivized providers to become Medicare enrollees and providers should also determine the modifications to the regulatory requirements of their state Medicaid and CHIPS program. CMS is also incentivized because it has an interest in promoting the health of its beneficiaries and tracking and monitoring the impact of COVID-19.[2]

Practical Tips

Although the majority of physician practices are not equipped to test their patients for COVID-19 for various reasons, the practitioner should still follow the Centers for Disease Control and Prevention’s (CDC) guidelines[3] for evaluating and testing persons for COVID-19. The provider should then assess the patient’s likelihood of having coronavirus. If a test is warranted, the physician should coordinate testing with their local or state health department, the emergency room of hospitals she has privileges with, or the commercial lab she typically uses.  If a test for COVID-19 is not warranted despite the patient exhibiting signs and symptoms of a fever, cough, or difficulty breathing, the physician or NPP should complete other laboratory and diagnostic testing to rule out illnesses such as influenza, sinus infection, common cold, or pneumonia. Many providers are either cancelling non-emergency visits or diverting symptomatic patients to urgent care or emergency rooms as an infection prevention measure. However, for providers who continue to see patients for wellness checks or problem visits should implement sufficient processes to reduce the risk of COVID-19 transmission.

[1] This is the 2020 calendar year fee. CMS may adjust the fee each year.

[2] CMS developed a new lab test billing code specific to testing for SARS-CoV-2 (the virus which causes COVID-19) to track the number of beneficiaries being tested.

[3] CDC: Evaluating and Testing Persons for COVID-19 (Mar. 9, 2020).