Department of Health & Human Services
Centers for Medicare & Medicaid Services
7500 Security Boulevard, Mail Stop S2-26-12
Baltimore, Maryland 21244-1850
October 29, 2020
Interim Medicaid Executive Director
Louisiana Department of Health
628 North 4th Street
P.O. Box 91030
Baton Rouge, Louisiana 70821-9030
Re: Section 1135 Flexibilities for Hurricane Laura Requested in September 16, 2020 Communication
Dear Ms. LeBlanc:
On August 23, 2020, the President of the United States issued a proclamation that Hurricane Laura constitutes an emergency by the authorities vested in him by the Constitution and the laws of the United States, including sections 201 and 301 of the National Emergencies Act (50 U.S.C. 1601 et seq.), and consistent with section 1135 of the Social Security Act (Act). On August 26, 2020, pursuant to section 1135(b) of the Act, the Secretary of the United States Department of Health and Human Services invoked his authority to waive or modify certain requirements of titles XVIII, XIX, and XXI of the Act as a result of the consequences of Hurricane Laura, to the extent necessary, as determined by CMS. These waivers or modifications are intended to ensure sufficient health care items and services are available to meet the needs of individuals enrolled in the respective programs and to ensure that health care providers that furnish such items and services in good faith, but are unable to comply with one or more of such requirements as a result of Hurricane Laura, may be reimbursed for such items and services and exempted from sanctions for such noncompliance, absent any determination of fraud or abuse. This authority has a retroactive effective date of August 22, 2020. The emergency period will terminate, and section 1135 waivers will no longer be available, upon termination of the public health emergency (PHE), including any extensions.
Your communication to CMS on September 16, 2020 detailed a number of federal requirements that pose issues or challenges for the health care delivery system in Louisiana and requested a waiver or modification of those requirements during the Hurricane Laura PHE. Attached, please find a response to your requests for waivers or modifications, pursuant to section 1135 of the Act, to address the challenges posed by Hurricane Laura. This approval addresses those requests related to Medicaid, Medicare, and the Children’s Health Insurance Program (CHIP), as applicable. To the extent the requirements the state requested to waive or modify apply to CHIP, the state may apply the approved flexibilities to CHIP. In addition to the Medicaid and CHIP 1135 waivers approved via this letter, there are a number of other flexibilities already in place that may also support the state’s response to Hurricane Laura. To streamline the section 1135 waiver request and approval process for the COVID-19 PHE, CMS issued a number of blanket waivers for many Medicare provisions, which primarily affect requirements for individual facilities, such as hospitals, long term care facilities, and home health agencies. CMS blanket waivers already in place due to the COVID-19 PHE will be available to health care providers for the duration of the COVID-19 PHE and the Hurricane Laura PHE. Please refer to the current blanket waiver issued by CMS.
Also, as previously communicated, the state may continue to use the Medicaid and CHIP section 1135 waiver flexibilities previously approved for the COVID-19 PHE through the end of the COVID PHE period (currently scheduled to end on January 21, 2021 unless extended by the Secretary), and/or the Hurricane Laura PHE, whichever ends later.
CMS continues to work on the additional waiver or modification requests not currently reflected in the attached approval. For those waiver or modification requests that require approval under authority other than section 1135, such as under applicable regulations, through an amendment to the state plan, or through a section 1115 demonstration, my staff will continue to work with your team to review and make determinations regarding approval as quickly as possible.
Please contact Jackie Glaze, Deputy Director, Medicaid and CHIP Operations Group, at (404) 387-0121 or by email at Jackie.Glaze@cms.hhs.gov if you have any questions or need additional information. We appreciate the efforts of you and your staff in responding to the needs of the residents of the State of Louisiana and the health care community.
Anne Marie Costello
Acting Deputy Administrator and Director
STATE OF LOUISIANA
APPROVAL OF HURRICANE LAURA FEDERAL SECTION 1135 WAIVER REQUESTS
CMS Response: October 29, 2020
To the extent applicable, the following waivers and modifications also apply to CHIP.
Extend pre-existing authorizations for which a beneficiary has previously received prior authorization through the end of the public health emergency
If prior authorization processes are outlined in Louisiana’s state plan for particular benefits, CMS is using the flexibilities afforded under section 1135(b)(1)(C) of the Act that allow for waiver or modification of pre-approval requirements to permit services approved to be provided on or after August 22, 2020, to continue to be provided without a requirement for a new or renewed prior authorization, through the termination of the public health emergency, including any extensions (up to the last day of the emergency period under section 1135(e) of the Act), for beneficiaries with a permanent residence in the geographic area of the public health emergency declared by the Secretary.
Suspend Pre-Admission Screening and Annual Resident Review (PASRR) Level I and Level II Assessments for 30 days
Section 1919(e)(7) of the Act allows Level I and Level II assessments to be waived for 30 days. All new admissions can be treated like exempted hospital discharges. After 30 days, new admissions with mental illness (MI) or intellectual disability (ID) should receive a Resident Review as soon as resources become available.
Additionally, please note that per 42 C.F.R. §483.106(b)(4), new preadmission Level I and Level II screens are not required for residents who are being transferred between nursing facilities (NF). If the NF is not certain whether a Level I had been conducted at the resident's evacuating facility, a Level I can be conducted by the admitting facility during the first few days of admission as part of intake and transfers with positive Level I screens would require a Resident Review.
The 7-9-day timeframe for Level II completion is an annual average for all preadmission screens, not individual assessments, and only applies to the preadmission screens (42 C.F.R. §483.112(c)). There is not a set timeframe for when a Resident Review must be completed, but it should be conducted as resources become available.
State Fair Hearing Requests and Appeal Timelines
Louisiana requested flexibility to temporarily extend the timeframes for individuals to request Medicaid fair hearings in fee for service and managed care delivery systems. CMS approves a waiver under section 1135 that allows applicants and beneficiaries to have more than 90 days to request a fair hearing for eligibility or fee-for-service appeals though the end of the public health emergency. This waiver supplements the timeframe in 42 C.F.R. §431.221(d), which requires states to choose a reasonable timeframe for individuals to request a fair hearing not to exceed 90 days for eligibility or fee-for-service appeals.
CMS cannot waive parts of the Medicaid managed care regulations at 42 C.F.R. Part 438, Subpart F related to appeals of adverse benefit determinations which occur before fair hearings for managed care enrollees or parts of 42 C.F.R. Part 431, Subpart E. However, CMS is able to modify the federal timeframes associated with appeals and fair hearings. Therefore, CMS approves the following through the end of the public health emergency:
- Modification of the timeframe for managed care entities to resolve appeals under 42 C.F.R. §438.408(f)(1) before an enrollee may request a State fair hearing to no less than one day in accordance with the requirements specified below; this allows managed care enrollees to proceed almost immediately to a state fair hearing without having a managed care plan resolve the appeal first by permitting the state to modify the timeline for managed care plans to resolve appeals to one day so the impacted appeals satisfy the exhaustion requirements.
The requirements of 42 C.F.R. §438.408(f)(1) establish that an enrollee may request a State fair hearing only after receiving a notice that the Managed Care Organization (MCO), Prepaid Inpatient Health Plan (PIHP) or Prepaid Ambulatory Health Plan (PAHP) is upholding the adverse benefit determination but also permits, at 42 C.F.R. §438.408(c)(3) and (f)(l)(i) that an enrollee's appeal may be deemed denied and the appeal process of the managed care plan exhausted (such that the State fair hearing may be requested) if the managed care plan fails to meet the timing and notice requirements of 42 C.F.R. §438.408. Section 1135 of the Act allows CMS to authorize a modification to the timeframes for required activities under section 1135(b)(5) of the Act. CMS authorizes the state to modify the time line for managed care plans to resolve appeals to no less than one day. If the state uses this authority, it would mean that all appeals filed between August 22, 2020 and the end of the public health emergency are deemed to satisfy the exhaustion requirement in 42 C.F.R. §438.408(f)(1) after one day (or more if that is the timeline elected by the state) and allow enrollees to file an appeal to the state fair hearing level.
- Modification of the timeframe under 42 C.F.R. §438.408(f)(2) for enrollees to exercise their appeal rights to allow more than 120 days to request a fair hearing when the initial 120th day deadline for an enrollee occurred during the period of this section 1135 waiver.
In addition, CMS approves a modification of the timeframe, under 42 C.F.R. §438.408(f)(2), for managed care enrollees to exercise their appeal rights. Specifically, any managed care enrollees for whom the 120-day deadline described in 42 C.F.R. §438.408(f)(2) would have occurred between August 22, 2020 through the end of the public health emergency, are allowed more than 120 days to request a State fair hearing.
Louisiana currently has the authority to rely upon provider screening that is performed by other state Medicaid agencies (SMAs) and/or Medicare. As a result, Louisiana is authorized to provisionally, temporarily enroll providers who are enrolled with another SMA or Medicare for the duration of the public health emergency.
Under current CMS policy, as explained in the Medicaid Provider Enrollment Compendium (7/24/18), at pg. 42, Louisiana may reimburse otherwise payable claims from out-of-state providers not enrolled in the Louisiana Medicaid program if the following criteria are met:
- The item or service is furnished by an institutional provider, individual practitioner, or pharmacy at an out-of-state/territory practice location– i.e., located outside the geographical boundaries of the reimbursing state/territory’s Medicaid plan,
- The National Provider Identifier (NPI) of the furnishing provider is represented on the claim,
- The furnishing provider is enrolled and in an “approved” status in Medicare or in another state/territory’s Medicaid plan,
- The claim represents services furnished, and;
- The claim represents either:
- A single instance of care furnished over a 180-day period, or
- Multiple instances of care furnished to a single participant, over a 180-day period
For claims for services provided to Medicaid participants enrolled with Louisiana Medicaid program, CMS will waive the fifth criterion listed above under section 1135(b)(1) of the Act. Therefore, for the duration of the public health emergency, Louisiana may reimburse out-of-state providers for multiple instances of care to multiple participants, so long as the other criteria listed above are met.
If a certified provider is enrolled in Medicare or with a state Medicaid program other than
Louisiana, the state may provisionally, temporarily enroll the out-of-state provider for the duration of the public health emergency in order to accommodate participants who were displaced by the emergency. With respect to providers not already enrolled with another SMA or Medicare, CMS will waive the following screening requirements under 1135(b)(1) and (b)(2) of the Act, so the state may provisionally, temporarily enroll the providers for the duration of the public health emergency:
- Payment of the application fee - 42 C.F.R. §455.460
- Criminal background checks associated with Fingerprint-based Criminal Background Checks - 42 C.F.R. §455.434
- Site visits - 42 C.F.R. §455.432
- In-state/territory licensure requirements - 42 C.F.R. §455.412
- Must collect minimum data requirements in order to file and process claims, including, but not limited to NPI.
- Must collect Social Security Number, Employer Identification Number, and Taxpayer Identification Number
- OIG exclusion list
- State licensure – provider must be licensed, and legally authorized to practice or deliver the services for which they file claims, in at least one state/territory
- Louisiana must also:
- Issue no new temporary provisional enrollments after the date that the emergency designation is lifted,
- Cease payment to providers who are temporarily enrolled within six months from the termination of the public health emergency, including any extensions, unless a provider has submitted an application that meets all requirements for Medicaid participation and that application was subsequently reviewed and approved by Louisiana before the end of the six-month period after the termination of the public health emergency, including any extensions, and
- Allow a retroactive effective date for provisional temporary enrollments that is no earlier than August 22, 2020.
Under section 1135(b)(1)(B), CMS is also approving Louisiana’s request to temporarily cease revalidation of providers who are located in Louisiana or are otherwise directly impacted by the emergency.