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Section 1135 Waiver Flexibilities - Rhode Island Coronavirus Disease 2019 (Second, Third & Fourth Request)

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

May 18, 2020

Womazetta Jones, Secretary
Rhode Island Executive Office of Health and Human Services
3 West Road
Cranston, Rhode Island 02920

Re: Section 1135 Flexibilities Requested on March 16, 2020; Second Request Section 1135 Flexibilities Requested on March 26, 2020; Third Request Section 1135 Flexibilities Requested on April 7, 2020; Fourth Request Section 1135 Flexibilities Requested on May 4, 2020.

Dear Secretary Jones:

The Centers for Medicare & Medicaid Services (CMS) granted an initial approval to the state of Rhode Island for multiple Section 1135 flexibilities on March 27, 2020.  Your follow-up communication to CMS on March 26, 2020, April 7, 2020, and May 4, 2020 detai1ed a number of additional federal requirements that also pose issues or challenges for the health care delivery system in Rhode Island 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 25, 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 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 Rhode Island and the health care community.

Sincerely,

Calder Lynch
Deputy Administrator and Director

STATE OF RHODE ISLAND
APPROVAL OF FEDERAL SECTION 1135 WAIVER REQUESTS

CMS Response: May 18, 2020

To the extent applicable, the following waivers and modifications also apply to CHIP.

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.

Provision of Services in Alternative Settings

CMS approves a waiver under section 1135(b)(1) of the Act to allow facilities, including NFs, intermediate care facilities for individuals with intellectual and developmental disabilities (ICF/IDDs), psychiatric residential treatment facilities (PRTFs), and hospital NFs, to be fully reimbursed for services rendered to an unlicensed facility (during an emergency evacuation or due to other need to relocate residents where the placing facility continues to render services) provided that the State makes a reasonable assessment that the facility meets minimum standards, consistent with reasonable expectations in the context of the current public health emergency, to ensure the health, safety and comfort of beneficiaries and staff.  The placing facility would be responsible for determining how to reimburse the unlicensed facility.  This arrangement would only be effective for the duration of the section 1135 waiver.

HCBS Settings Requirements for Specified Settings

Pursuant to section 1135(b) (1)(B) of the Act, CMS approves a waiver to temporarily allow services provided under the 1915(c) HCBS waiver program, the 1915(i) HCBS State plan benefit, and the Community First Choice State plan option at 1915(k) to be provided in settings that have not been determined to meet the home and community-based settings criteria.  This waiver applies to settings that have been added since the March 17, 2014, effective date of the HCBS final regulation (CMS 2249-F/2296-F), to which the HCBS settings criteria currently applies, to accommodate circumstances in which an individual requires relocation to an alternative setting to ensure the continuation of needed home and community-based services.

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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