CMS Response to North Carolina's Hurricane Dorian Waiver Request

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

September 17, 2019

Mr. Dave Richard, Deputy Secretary
North Carolina Department of Health and Human Services Division of Medical Assistance
2501 Mail Service Center
Raleigh, North Carolina 27699-2501 

Re: Hurricane Dorian 1135 Waiver Requests

Dear Mr. Richard:

We received your requests for waivers and flexibilities to address the impacts of Hurricane Dorian. The Secretary of the Department of Health and Human Services, Alex M. Azar II, has declared a public health emergency for North Carolina, and has authorized the Centers for Medicare & Medicaid Services (CMS) to exercise authority under section 1135 of the Social Security Act to waive certain requirements of the Medicare, Medicaid and Children’s Health Insurance programs during the emergency period. Attached you will find responses to your requests for waiver authorities pursuant to CMS authority under Sections 1135 of the Social Security Act, to the extent needed to respond to the challenges posed by Hurricane Dorian. CMS has posted information to its website that include flexibilities, blanket waivers, waivers with 1135 authority and waivers without 1135 authority.

Under Section 1135 waiver authority, we are able to grant your requests. The language below outlines the 1135 waiver provisions and additional program flexibilities CMS is granting:

1. Waive the Critical Access Hospital (CAH) limit of beds and length of stay to 96 hours. North Carolina is requesting a blanket waiver for this authority and will notify the CMS Regional office to ensure prompt payment.
   
   CMS Response: This Blanket Waiver is located on CMS.gov.
2. Temporarily suspend application of Emergency Medical Treatment and Labor Act (EMTALA) sanctions. North Carolina is requesting a blanket waiver to be issued for sanctions under Section 1867 of EMTALA for: the direction or relocation of an individual to another location to receive a medical screen pursuant to an appropriate State emergency preparedness plan; or the transfer of an individual who has not been stabilized if the transfer is necessitated by the circumstance of Hurricane Dorian.
   
   CMS Response: Thee EMTALA waiver is limited to the 72-hour period following activation of the hospital’s disaster protocol, CMS should be notified about when hospitals activate their disaster protocols. Further, evacuations and mass relocations of patients are not covered under EMTALA. We encourage hospitals to manage the movement of patients in a manner that best meets the needs of the patients, hospital, and community. If a hospital believes it needs relief under this waiver, even retroactively, it is encouraged to contact the CMS Atlanta Regional Office. Please reference the Medicare fee for service emergency-related policies and procedures frequently asked questions.
3. Waive the three-day prior hospitalization requirement for coverage of skilled nursing facility coverage. North Carolina is requesting a blanket waiver allowing skilled nursing facility coverage of hospital transfers absent a qualifying three-day admission and for people who were evacuated, transferred or otherwise dislocated due to Hurricane Dorian.
   
   CMS Response: This Blanket Waiver is located on CMS.gov. The waiver is titled Skilled Nursing Facilities. 1812(f): This waiver of the requirement for a 3-day prior hospitalization for coverage of a skilled nursing facility stay provides temporary emergency coverage of Skilled Nursing Facility (SNF) services without a qualifying hospital stay, for those people who are evacuated, transferred, or otherwise dislocated as a result of the effect of a disaster or emergency. In addition, for certain beneficiaries who recently exhausted their SNF benefits, it authorizes renewed SNF coverage without first having to start a new benefit period. 42 CFR 483.20: This waiver provides relief to Skilled Nursing Facilities on the timeframe requirements for Minimum Data Set assessments and transmission.
4. Allow enrollees to have more than 120 days (in the case of a managed care appeal) or 90 days (in the case of an eligibility for fee-for-service appeal) to request a fair hearing.
   
   CMS Response: 42 CFR 438.408(f)(2) establishes the requirement that a beneficiary in a managed care plan must request a state fair hearing within 120 calendar days from the date of the notice of resolution from the plan. CMS acknowledges the state’s request to temporarily provide managed care enrollees with additional time to request a state fair hearing on or after September 4, 2019 through the termination of the emergency declaration for at least 90 days and up to 180 days (up to the last day of the emergency period under Section 1135(e) of the Social Security Act) for beneficiaries with a permanent residence in the geographic area of the public health emergency declared by the Secretary. CMS recommends that the state clearly describe in writing to managed care plans the additional time granted to enrollees to request state fair hearings and the plans expectations for honoring the resolution of the appeal.
   
   42 CFR 431.221(d) establishes the requirement that an applicant or beneficiary must request a state fair hearing within 90 days from the date that the notice of action is mailed. CMS acknowledges the state’s request to temporarily provide applicants and beneficiaries with additional time to request a state fair hearing on or after September 4, 2019 through the termination of the emergency declaration for at least 90 days and up to 180 days (up to the last day of the emergency period under Section 1135(e) of the Social Security Act) for applicants and beneficiaries with a permanent residence in the geographic area of the public health emergency declared by the Secretary.
5. Waive service prior authorization requirements in fee-for-service. North Carolina is requesting a waiver from pre-approved prior authorization processes outlined in the State Plan to allow for an extension of prior authorizations that were effective on September 4, 2019 and through the termination of the emergency declaration period.
   
   CMS Response: Prior authorization and medical necessity processes in fee-for-service delivery systems are established, defined and administered at state/territory discretion and may vary depending on the benefit. The State of North Carolina may have indicated in their approved state plan specific requirements about prior authorization processes (42 CFR 440.230(c)) for benefits administered through the fee-for-service delivery system. We interpret prior authorization requirements to be a type of pre-approval requirement for which waiver and modification authority under Section 1135(b)(1)(C) is available.
   
   If prior authorization processes are outlined in detail in the North Carolina state plan for particular benefits, CMS is using the flexibilities afforded under Section 1135(b)(1)(C) that allow for waiver or modification of pre-approval requirements to permit services provided on or after September 4, 2019 through the termination of the emergency declaration for at least 90 days and up to 180 days (up to the last day of the emergency period under Section 1135(e) of the Social Security Act) for beneficiaries with a permanent residence in the geographic area of the public health emergency declared by the Secretary.
6. Waive certain screening requirements for those providers who are enrolled in a State Medicaid agency or Medicare and out of state providers/territory in which a Medicaid participant seeks care enrollment. Payment of the application fee, criminal background checks associated with FCBC, site visits and instate/territory may provisionally, temporarily, enroll the providers. For out of state/territory in which NC Medicaid participants seek care, enrollment is not necessary if the item or service is furnished by an institutional provider, individual practitioner or pharmacy at an out of state/territory practice location and the NPI is represented on the claim.
   
   CMS Response: CMS granted the North Carolina provider screen and enrollment flexibility in and separated written correspondence issued to the state on September 4, 2019.
7. Temporarily suspend application of sanctions and penalties arising from non-compliance with HIPAA related to:
   • Obtaining a patient’s agreement to speak with family members or friends;
   • Honoring a request to opt out of the facility director;
   • Distributing a notice;
   • The patient’s right to request privacy restrictions; and
   • The patient’s right to request confidential communications.
   CMS Response: With regards to the HIPAA waiver request, CMS will waive such sanctions and penalties described in the 1135 waiver in the emergency area for 72 hours beginning on implementation of a hospital disaster protocol. The waiver of HIPAA requirements is effective only if actions under the waiver do not discriminate on the basis of a patient’s source of payment or ability to pay. The waiver only applies if the hospital has to implement its hospital disaster protocol.
   
   The HIPAA sanctions and penalties that may be waived when an 1135 waiver is issued are specified in the 1135 waiver document. An 1135 waiver does not waive HIPAA in its entirety. Even without an 1135 waiver, there are various flexibilities and exceptions that may apply to permit covered entities to share protected health information during a PHE. Please reference the Public Health Emergency Declaration questions and answers page.

If you have any questions concerning this letter, feel free to contact Trina Roberts, Deputy Director, Division of Medicaid Field Operations, South at 404-562-7418 or email at shantrina.roberts@cms.hhs.gov.

Sincerely,

Karen Shields
Deputy Center Director