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Section 1135 Waiver Flexibilities - Alabama Coronavirus Disease 2019 (Second Request)

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

May 8, 2020

Stephanie McGee Azar
Commissioner
Alabama Medicaid Agency
501 Dexter Avenue
Montgomery, Alabama 36103-5624

Re: Section 1135 Flexibilities Requested in March 26, 2020 Communication (2nd Request)

Dear Ms. Azar:

The Centers for Medicare & Medicaid Services (CMS) granted an initial approval to the State of Alabama for multiple section 1135 flexibilities on March 23, 2020.  Your follow-up communication to CMS on March 26, 2020, detailed a number of additional federal requirements that also pose issues or challenges for the health care delivery system in Alabama and requested a waiver or modification of those additional requirements.  Attached, please find a response to your requests for waivers or modifications, pursuant to Section 1135 of the Social Security Act (Act), to address the challenges posed by COVID-19.  This approval addresses those requests related to Medicaid and the Children’s Health Insurance Program (CHIP).  To the extent the requirements the state requested to waive or modify apply to CHIP, the state may apply the approved flexibilities to CHIP.  This applies to the waivers included below, as well as the 1135 waivers granted to the state on March 23, 2020.

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 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 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. 

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.

This letter is in response to all requests submitted to CMS.  If the state/territory determines that it has additional needs, please contact your state lead and CMS will provide the necessary technical assistance for any additional submissions.

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 Alabama and the health care community.

Sincerely,

Calder Lynch
Deputy Administrator and Director

STATE OF ALABAMA
APPROVAL OF FEDERAL SECTION 1135 WAIVER REQUESTS

CMS Response: May 8, 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 Alabama’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 March 1, 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.

Provider Enrollment

Alabama currently has the authority to rely upon provider screening that is performed by other State Medicaid Agencies (SMAs) and/or Medicare.  As a result, Alabama 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 (PDF, 586.81 KB) (7/24/18), at pg. 42, Alabama may reimburse otherwise payable claims from out-of-state providers not enrolled in Alabama Medicaid program if the following criteria are met:

  1. 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,
  2. The National Provider Identifier (NPI) of the furnishing provider is represented on the claim,
  3. The furnishing provider is enrolled and in an “approved” status in Medicare or in another state/territory’s Medicaid plan,
  4. The claim represents services furnished, and;
  5. The claim represents either:
    1. A single instance of care furnished over a 180-day period, or
    2. Multiple instances of care furnished to a single participant, over a 180-day period

For claims for services provided to Medicaid participants enrolled with Alabama’s 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, Alabama 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 Alabama, Alabama 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:

  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 Alabama to enroll providers who are not currently enrolled with another SMA or Medicare so long as the state 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. Alabama 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 Alabama 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.

Under section 1135(b)(1)(B), CMS is also approving Alabama’s request to temporarily cease revalidation of providers who are located in Alabama or are otherwise directly impacted by the emergency. 

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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