California is burning as three major wildfires rage across both Northern and Southern California. The Woolsey and Hill Fires are devastating parts of Ventura and Los Angeles Counties, covering more than 138,000 acres and threatening more than 57,000 structures.

Meanwhile, in Butte County, the Camp Fire has become the state’s deadliest and most destructive fire, destroying more than 10,320 structures. More than 59 people have perished as a result of the fires and hundreds remain missing; the death toll is expected to rise.

These catastrophic wildfires have directly impacted and burdened health care providers across California, including evacuations of local hospitals, medical practices and other health care facilities. In response to the disaster, state and federal officials have set into motion several key emergency declarations that could offer much-needed relief by waiving or modifying existing regulations that may limit provider operations. Health care providers in Butte, Ventura and Los Angeles Counties should consider whether they can take advantage of federal and state waivers, and continue serving patients even when they cannot meet existing rules and standards.

California Emergency Declaration

Pursuant to the California Emergency Services Act, Acting Governor Gavin Newsom declared a State of Emergency in Butte County on November 8 as a result of the Camp Fire and a State of Emergency in Ventura and Los Angeles Counties on November 9 in response to the Woolsey and Hill Fires. With these disaster declarations in place, the Governor’s Office is now statutorily authorized to suspend statutes and waive California regulations, including licensure requirements, that may be hindering providers from serving patients.

Federal Emergency Declarations and Section 1135 Waivers

Through the disaster declarations, the federal government has now triggered important tools and flexibilities to allow providers to operate even if they cannot comply with certain federal rules and regulations. Under Section 1135 of the Social Security Act, the Secretary of Health and Human Services (HHS) is authorized to take certain actions to assist health care providers dealing with emergencies. The flexibilities under Section 1135 are only triggered when there is a presidential declaration of emergency and a declaration of Public Health Emergency (PHE) by the Secretary of HHS.

On November 9, President Trump declared an emergency under the National Emergencies Act and ordered federal assistance to the areas devastated by the wildfires. On November 13, Secretary Azar signed the PHE declaration retroactive to November 8, 2018. The PHE declaration implements several waivers or modifications on a “blanket” basis for all health care providers that are unable to comply with the following Medicare requirements, including:

  • conditions of participation, certification requirements, program participation or other similar requirements;
  • requirements that physicians and other health care professionals be licensed in California, so long as they have equivalent licensing in another State;
  • Emergency Medical Treatment and Labor Act (EMTALA) sanctions for redirection of an individual to receive a medical screening examination in an alternative location;
  • Stark Law self-referral sanctions;
  • limitations on payment to permit Medicare beneficiaries to use out-of-network providers;
  • certain HIPAA regulations;
  • replacement of prescription fills and authorization to supply Durable Medical Equipment, Prosthetics, Orthotics, and Supplies; and
  • claims submission timelines.

These Section 1135 waivers allow providers to obtain reimbursement from the government even if providers cannot comply with certain requirements that would, under normal circumstances, bar payment. Health care providers looking to take advantage of these waivers should submit requests to operate under Section 1135 authority to the CMS Western Consortium at [email protected], and notify their California Department of Public Health District Office. The requests should include a justification for the waiver and expected duration of the modification requested.

The federal waivers and modifications will become effective after 6:00 p.m. on November 15, 2018, but will have a retroactive effect to November 8, 2018.