Updated Thursday, April 2, 2020

CMS 1135 waivers allow the U.S. Dep’t of Health and Human Services Secretary to temporarily waive or modify certain Medicare, Medicaid, Children’s Health Insurance Policy (CHIP), and Health Insurance Portability and Accountability Act (HIPAA) requirements to ensure that sufficient health care items and services are available to meet needs during a declared public health emergency.  Individual health care providers and associations may trigger additional waivers through feedback and requests to the Assistant Secretary for Preparedness and Response or CMS Regional Offices.

As 1135 waiver authority only applies to federal requirements, state administrations may also waive, suspend or relax health care provider laws and regulations for licensure or state-specific conditions of participation.  During the current public health emergency, many state hospital associations are petitioning their state executives and departments of health requesting temporary relief from regulations that are viewed as impediments to their COVID-19 response.

The following is a chronology of Kansas’s waiver and flexibility authorization process during the 2020 COVID-19 declared emergency:

A. CMS Blanket Waivers: Link  On March 13, 2020, CMS granted the following blanket waivers:

Provider Enrollment Flexibilities

  • Suspended certain Medicare enrollment screening requirements, including site visits.
  • Allow licensed providers to render services outside their state of enrollment.
  • Establish a toll-free hotline for providers to enroll and receive temporary Medicare billing privileges.

Flexibility and Relief for State Medicaid Agencies

  • Permit out-of-state providers to render services.
  • Suspend certain provider enrollment and revalidation requirements.
  • Allow providers to provide care in alternative settings.
  • Waive prior authorization requirements.
  • Suspend certain pre-admission and annual screenings for nursing home residents.

Enforcement Activities

  • Suspend non-emergency survey inspections.

B. Duration of CMS Blanket Waivers: The waivers will last for the duration of the declared emergency, unless terminated sooner (42 USC § 1320b-5).

C. Governor of Kansas Executive Order No. 20-08: Link  On March 20, 2020, Governor Laura Kelly issued and executive order that temporarily expanded telemedicine (i.e., telemedicine services or telehealth) and addressed the following licensing flexibilities:

Telemedicine Services

  • Suspended any statute, rule or regulation that require physicians to conduct an in-person examination of a patient prior to issuing a prescription or order administration of medication, including controlled substances.
  • Allow physicians not licensed to practice medicine in the state to treat patients in Kansas, providing that the out-of-state physician advise the Kansas State Board of Healing Arts (Board) in writing of his or her practice via telemedicine and holds an unrestricted license to practice medicine and is not the subject of an investigation or disciplinary proceeding. The Board is authorized to extend this allowance to other healthcare professionals regulated by the Board when deemed both necessary or appropriate and consistent with public safety.
  • Physicians under quarantine or self-quarantine are permitted to practice telemedicine.
  • Authorized the Board to grant temporary emergency licenses to practice any profession it regulates, determined to be qualified by the Board, for the purpose of preparing for, responding to, and mitigating any effect of COVID-19.
  • Authorized the Board to temporarily waive any other regulatory requirements falling under the Board’s enforcement authority for the purpose of preparing for, responding to, and mitigating any effect of COVID-19.

D. Additional 1135 Waivers Granted by CMS to the Kansas Department of Health and Environment: Link  On March 24, 2020, CMS approved the following waiver and flexibilities related to Medicaid:

  • Temporarily suspend Medicaid fee-for-service prior authorization (pre-approval) requirements.
  • Extend pre-existing authorizations for which a beneficiary has previously received prior authorization, on or after March 1, 2020, through the end of the public health emergency.
  • Suspend Pre-Admission Screening and Annual Resident Review (PASRR) Level 1 and II assessments for 30 days. All new admissions can be treated like exempted hospital discharges. After 30 days, new admissions with mental illness or intellectual disability should receive a residential review as soon as resources become available.

Provider Enrollment

  • Authorized to reimburse out-of-state providers for multiple instances of care to multiple participants, so long as all other applicable criteria is met.
  • Authorized to provisionally, temporarily enroll providers who are certified and enrolled with another state Medicaid agency (SMA) or Medicare for the duration of the public health emergency.
  • Waives the following screening requirements with respect to providers not already enrolled with another SMA or Medicare:
    • Payment of the application fee;
    • Criminal background checks associated with fingerprints;
    • Site visits; and
    • In-state/territory licensure.
  • Authority to enroll providers who are not currently enrolled with another SMA or Medicare so long as the state meets the following minimum requirements:
    • Must collect minimum data requirements to file and process claims, including, but not limited to NPI; and
    • Must collect Social Security Number, Employer Identification Number, and Taxpayer Identification Number, as applicable, to perform the following screening requirements:
      • OIG exclusion list; and
      • State licensure – provider must be licensed to practice or deliver services for which they file claims, in at least one state/territory.
    • Must allow a retroactive date for provisional temporary enrollments that is no earlier than March 1, 2020.
  • CMS will temporarily cease revalidation of providers who are located in Kansas.
  • Provider enrollment emergency relief efforts apply to CHIP, to the extent possible.

State Fair Hearing Requests and Appeal Timelines

  • Allow enrollees to have more than 90 days, up to an additional 120 days, for an eligibility or fee-for-service appeal to request a state fair hearing.
  • Allow modification of the timeline for managed care plans to resolve appeals to 1 day, so that a managed care enrollee may proceed almost immediately to a state fair hearing.
  • Allow managed care enrollees an additional 120 days to request a state fair hearing when the initial 120-day deadline would have occurred between March 1, 2020, through the end of the public health emergency

Duration of Approved Waivers

  • Unless otherwise specified, the 1135 Waivers are effective March 1, 2020, and will terminate upon termination of the public health emergency.

E. The Kansas State Board of Healing Arts Statements: Link  On March 26, 2020, the State Board of Healing Arts (Board) issued the following emergency actions and guidance statements in an effort to facilitate immediate access to care during the declaration period:

Emergency temporary licensure

  • Available for all health care professions regulated by the Board, through application. Requirements for this licensure are any of the following:
    • Currently hold a valid, full, active, and unencumbered license in another state to engage in the same profession; or
    • Have held an active or exempt license in Kansas within the past 2 years, and such license was not suspended or revoked as a result of Board investigation or discipline; or
    • Currently hold a valid federally active license.

Expedited practice options for:

  • Physicians:
    • Through the Interstate Medical Licensure Compact for eligible physicians as described in Kan. Stat. Ann. § 65-28,133.2(k).
    • Exempt licensees may work at a local health department or indigent healthcare clinic.
  • Physician assistants:
    • Exempt licensees may work at a local health department or indigent healthcare clinic.
    • The Board has temporarily modified the following requirements for a physician assistant (PA) engaged in practice for the purpose of preparing for, responding to, and mitigating effects of COVID-19, within the scope of education and training, the PA must notify the Board in writing within 30 days:
      • Limited waiver of physician supervision for Emergency Department and Intensive Care Unit coverage.
      • Suspended enforcement of limitation on number of Pas that can be supervised at an off-site clinic.
      • Suspended enforcement of initial 100% chart review requirements for new PA/supervision physician relationship.
      • Limited waiver of practice agreement protocol and documentation requirements, allowing PAs to practice, for no more than 30 days, under the supervision of any licensed Kansas physician even if that physician is not the PA’s documented supervising or substitute supervising physician.
    • Respiratory therapists:
      • Special permits for students enrolled in an approved RT program and practice under the supervision of a licensed respiratory therapist.
      • Temporary licenses, valid for 6 months, for those who meet requirements for permanent licensure except the exam.
    • Radiologic technologists:
      • Temporary licenses, valid for up to 180 days, for those who meet all qualifications for licensure except the exam.
    • Physical therapists and physical therapy assistants:
    • Exempt licensees may work at a local health department or indigent healthcare clinic.
    • Temporary permits, valid for up to 1 year, for those who meet requirements for licensure except for the exam.
    • Occupational therapists and Occupational therapy assistants:
      • Temporary licenses, valid for up to 1 year, for those who meet requirements for licensure except for the exam.

Telemedicine services

  • For providing telemedicine for Kansas patients without securing a license to practice, the Board has issued a Practice of Telemedicine Form: COVID-19 Pandemic Link

Guidance Statements

  • Technical violations of the Healing Arts Act or other applicable practice act by healthcare providers that do not endanger or defraud the public, which are committed in the course of good faith COVID-19 response efforts during the Kansas emergency declaration period, will generally not be treated as a disciplinary matter by the Board.
  • Violations of any mandatory quarantine provisions issued by the Kansas Department of Health & Environment, Governor, or CDC that are both willful and substantive are considered to constitute unprofessional conduct if the licensee continues to interact with patients or other healthcare providers in violation of such mandates.
  • Any licensee found to have taken advantage of the COVID-19 crisis for personal gain in a fraudulent, misleading, or unethical manner that constitutes unprofessional conduct under the Healing Arts Act, the Board will consider such conduct to be an aggravated violation of the Healing Arts Act or other applicable practice act and will exercise its full authority to impose discipline for such conduct, including suspension or revocation.
  • The Board cautions health care providers to ensure that they are complying with the standard of care and standards of professional conduct in regard to any prescription order for “off-label” uses of drugs that may be in limited supply.
  • Physicians should carefully consider whether performance of non-urgent procedures is appropriate during this time. Such considerations should include whether those procedures expose healthcare workers and patients to increased risk of exposure to coronavirus and whether those procedures will expend resources and materials that are, or may become, in short supply and needed to address potential spikes in COVID-19 patients in Kansas.