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Section 1135 Waiver Flexibilities - Puerto Rico Coronavirus Disease 2019

Department of Health & Human Services
Centers for Medicare & Medicaid Services
7500 Security Boulevard, Mail Stop S2-26-12
Baltimore, Maryland 21244-1850

April 14, 2020

Luz E. Cruz-Romero
Medicaid Director
Puerto Rico Medicaid Program
Puerto Rico Department of Health
P.O. Box 70184
San Juan, Puerto Rico 00936-8184

Re: Section 1135 Flexibilities Requested in April 10, 2020 Communication

Dear Director Cruz-Romero:

On March 13, 2020, the President of the United States issued a proclamation that the COVID-19 outbreak in the United States constitutes a national 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 March 13, 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 the COVID-19 pandemic, to the extent necessary, as determined by the Centers for Medicare & Medicaid Services (CMS), to ensure that 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 the COVID-19 pandemic, may be reimbursed for such items and services and exempted from sanctions for such noncompliance, absent any determination of fraud or abuse. This authority took effect as of 6PM Eastern Standard Time on March 15, 2020, with a retroactive effective date of 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. 

Your communication to CMS on April 10, 2020, detai1ed a number of federal Medicaid and the Children’s Health Insurance Program (CHIP) requirements that pose issues or challenges for the health care delivery system in all counties in Puerto Rico and requested a waiver or modification of those requirements.  Attached, please find a response to your requests for waivers or modifications, pursuant to section 1135 of the Social Security Act, to address the challenges posed by COVID-19.  This approval addresses those requests related to Medicaid and CHIP.

To streamline the section 1135 waiver request and approval process, CMS has issued a number of blanket waivers for many Medicare provisions, which primarily affect requirements for individual facilities, such as hospitals, long term care facilities, home health agencies, and so on.  Waiver or modification of these provisions does not require individualized approval, and, therefore, these authorities are not addressed in this letter.  Please refer to the current blanket waiver issued by CMS.

CMS continues to work on the additional waiver or modification requests that are 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 Puerto Rico and the health care community.

Sincerely,

Calder Lynch
Deputy Administrator and Director

PUERTO RICO
APPROVAL OF FEDERAL SECTION 1135 WAIVER REQUESTS

CMS Response: April 14, 2020

State Fair Hearing Requests and Appeal Timelines

Puerto Rico requested flexibility to temporarily delay scheduling of Medicaid fair hearings.  CMS approves a waiver under section 1135 that allows enrollees to have more than 90 days for an eligibility or fee for service appeal to request a fair hearing.  The timeframes in 42 C.F.R. §431.221(d) provides that states/territories can choose a reasonable timeframe for individuals to request a fair hearing not to exceed 90 days for eligibility or fee-for-service issues. 

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 March 1, 2020 through the end of the public health emergency, are allowed more than 120 days to request a State Fair Hearing.

Provider Enrollment 

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 territory may provisionally, temporarily enroll the providers for the duration of the public health emergency:

  1. Payment of the application fee - 42 C.F.R. §455.460
  2. Criminal background checks associated with Fingerprint-based Criminal Background Checks - 42 C.F.R. §455.434
  3. Site visits - 42 C.F.R. §455.432
  4. In-state/territory licensure requirements - 42 C.F.R. §455.412

CMS is granting this waiver authority to allow Puerto Rico to enroll providers who are not currently enrolled with another SMA or Medicare so long as the territory meets the following minimum requirements:

  1. Must collect minimum data requirements in order to file and process claims, including, but not limited to NPI.
  2. Must collect Social Security Number, Employer Identification Number, and Taxpayer Identification Number (SSN/EIN/TIN), as applicable, in order to perform the following screening requirements:
    1. OIG exclusion list
    2. 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
  3. Puerto Rico must also:
    1. Issue no new temporary provisional enrollments after the date that the emergency designation is lifted,
    2. 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 Puerto Rico before the end of the six month period after the termination of the public health emergency, including any extensions, and
    3. Allow a retroactive effective date for provisional temporary enrollments that is no earlier than March 1, 2020.

These provider enrollment emergency relief efforts also apply to the Children’s Health Insurance Program (CHIP) to the extent applicable. 

Duration of Approved Waivers

Unless otherwise specified above, the section 1135 waivers described herein are effective March 1, 2020 and will terminate upon termination of the public health emergency, including any extensions.  In no case will any of these waivers extend past the last day of the public health emergency (or any extension thereof).

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