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CMS Approves Additional Medicaid Section 1135 Waivers in Light of COVID-19

By Procopio Partner Robert G. Marasco and Associate Rachael A. Harrington

California is fighting for more flexibility in treatment options to best assist the healthcare providers in the state to battle the COVID-19 outbreak and get the best care to those in need.  Part of that fight is to seek additional waivers from the Centers for Medicare and Medicaid Services (“CMS”).  CMS has granted the following additional waivers in California:

Medicaid Fee-For-Service Prior Authorization Requirements:  California may waive or modify the state plan prior authorization requirements and processes for benefits through the fee-for-service delivery system and can extend prior authorizations, which a beneficiary has already received through the fee-for-service delivery system, through the end of the declared public health emergency.

State Fair Hearing Requests and Appeal Timelines: California may provide managed care entities with no less than one day to resolve appeals before an enrollee may request a State fair hearing, which allows enrollees to proceed with a hearing request almost immediately. In addition, enrollees have more than 90 days, up to an additional 120 days, to request a hearing for an eligibility or fee for service appeal.

Provider Enrollment: California may provisionally, temporarily enroll providers who are enrolled with another State Medicaid Agency or Medicare. California may also reimburse out-of-state providers for multiple instances of care to multiple participants, so long as specific requirements are met. 

For providers not already enrolled, CMS will waive specific screening requirements (e.g., payment of application fee, fingerprint-based Criminal Background Checks, site visits, and in-state licensure requirements).

Provision of Services in Alternative Settings: California may permit facilities, including nursing facilities, intermediate care facilities for individuals with intellectual and developmental disabilities, psychiatric residential treatment facilities, and hospital nursing facilities, to be fully reimbursed for services rendered to an unlicensed facility, under specific conditions.

Find the complete CMS announcement and full details here, and more information on the specific waivers here.

Robert G. Marasco is the leader of Procopio's Health Care practice group. He aids clients in a wide spectrum of business situations. In the civil context, he acts as an outside general counsel to a variety of businesses advising on various legal and business matters, and also leads the strategic litigation needs of these businesses. In the health care context, Robert advises clients, including independent physician associations, foundation-based physician groups, and other medical practices on health care compliance and fraud and abuse, the Anti-Kickback Statute, the Stark Law, and defends clients against OIG health care audits and False Claims Act matters and governmental investigations. He also advises on compliance with health care privacy laws such as HIPAA and the California CMIA, investigates data privacy compliance, and responds to data breaches. Additionally, Robert has extensive experience representing hospital medical staffs in disciplinary proceedings and is authorized by the CA Society for Healthcare Attorneys to serve as a hearing officer for such matters.

Rachael A. Harrington provides counsel to hospitals, medical staffs, and physician groups with a focus on policy review and development, corrective action, medical staff credentialing and privileging, and judicial review hearings.  She provides legal advice to medical staffs on a range of legal issues including industry-specific laws related to state and federal reporting requirements, fair procedure hearing rights, and peer review protections.  She further assists medical staffs in regular policy review and bylaw revisions and updates. In addition, Rachael assists in defending hospitals in whistleblower claims and litigation.