Hurricane Harvey. On August 26, 2017, the Secretary of Health and Human Services (HHS) issued a waiver of certain compliance requirements, retroactive to August 25, 2017, for providers in areas of Texas affected by Hurricane Harvey. A similar waiver was issued August 28, 2017, for providers in Louisiana, retroactive to August 27, 2017. Along with these waivers, the Secretary of HHS issued disaster declarations for the states of Texas and Louisiana pursuant to section 319 of the Public Health Service Act, and the President issued disaster declarations for the states of Texas and Louisiana pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act.

Hurricane Irma. On September 6, 2017, the Secretary of Health and Human Services (HHS) issued a waiver of certain compliance requirements, effective September 8, 2017, for providers in areas of Puerto Rico and U.S. Virgin Islands affected by Hurricane Harvey. A similar waiver was issued September 7, 2017, for providers in Florida, effective September 9, 2017. A waiver was issued September 8, 2017, for providers in Georgia, effective September 10, 2017. A waiver was issued September 8, 2017, for providers in South Carolina, effective September 10, 2017. Along with these waivers, the Secretary of HHS issued disaster declarations for Puerto Rico and the U.S. Virgin Islands, Florida, Georgia and South Carolina pursuant to section 319 of the Public Health Service Act, and the President issued disaster declarations for Puerto Rico, U.S. Virgin Islands, Florida, and South Carolina and a number of counties in Georgia pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act.

The purpose of these waivers are to ensure that: (i) sufficient health care items and services are available to meet the needs of Medicare, Medicaid and CHIP beneficiaries; and (ii) health care providers that provide such services in good faith can be reimbursed for them and not subjected to sanctions for noncompliance, absent of any fraud or abuse. Importantly, the waivers do not allow: (i) reimbursement for services otherwise not covered; or (ii) individuals to be eligible for Medicare, Medicaid or other health plan coverage who otherwise would not be eligible.

Examples of waiver scenarios include:

  • A request by hospital to establish an alternate screening location that normally would not comply with EMTALA;
  • obtaining a classification as a special purpose dialysis facility so that capable provider not certified to provide ESRD outpatients services may be reimbursed for such services;
  • providing home health services at a location other than the patient’s residence, such as a family member’s home, a shelter, a community facility, a church, or a hotel;
  • waiving the 3 day prior hospitalization requirement for certain SNF patients; and
  • exceeding licensed and certified SNF bed capacity.

Depending on the nature of the waiver sought, notice may be required to be given to, or approval may be required from, the CMS regional office. CMS provides information about a number of waiver situations and procedures here. In addition, CMS provides guidance in numerous situations for which no waiver is needed (such as a hospital providing emergency dialysis when it does not have a hospital-based renal dialysis center) here.

The regional office for Texas and Louisiana is the Region 6 office in Dallas – contact information is: (i) general continuity of care during disasters, RODALDSC@cms.hhs.gov, 214-767-6301; and (ii) for ESRD networks, RODALORA@cms.hhs.gov, 214-767-6427. The regional office for Florida, South Carolina and Georgia is the Region 4 office in Atlanta – contact information is: (i) general continuity of care during disasters, ROATLHSQ@cms.hhs.gov, 404-562-7454; and (ii) for ESRD networks, RODALORA@cms.hhs.gov, 214-767-6427.

Importantly, waivers do not last forever so any activities performed under a waiver should involve plans for eventual full compliance with applicable requirements. Generally, waivers end no later than the termination of the emergency period, or 60 days from the date the waiver or modification is first published unless the Secretary of HHS extends the waiver by notice for additional periods of up to 60 days, up to the end of the emergency period.

Lastly, with respect to financial issues arising from a disaster, CMS does not provide funding or loans related to disasters (other than payment for medical care provided). However, publicly owned and private non-profit facilities may be eligible for grants from FEMA for some costs (such as for tents or buildings and additional equipment), but FEMA does not reimburse cost of emergency medical treatment of any kind. Entities may seek disaster assistance loans from the Small Business Administration (for more information contact SBA’s Disaster Customer Service Center by calling (800) 659-2955 or emailing disastercustomerservice@sba.gov). It may also be possible to utilize waivers discussed above to finance operations or repairs through mechanisms that would normally implicate anti-referral law (such as a loan from a provider that may receive referrals from the debtor), although any such arrangement would be subject to waiver limitations, including time limitations, and should be carefully reviewed to assess risk under other applicable laws, such as federal anti-kickback laws and state law.