WA 1135 Waiver Request

Provider Name/Type: All Washington State Medicaid, Medicare, Providers and Health

Systems

Contact person and information: MaryAnne Lindeblad, Medicaid Director

Email to CMS Regional Office: Jackie.glaze@cms.hhs.gov

This is a request for blanket waivers under Section 1135, including but not limited to those

specified by CMS in its announcement of blanket waivers dated March 13, 2020, for the

Medicaid program more broadly and all affected patients and providers in Washington State, in

response to the COVID-19 pandemic. The state may submit additional requests based on

individual provider changes and unique circumstances. The expected duration of the waiver is

until the national public health emergency terminates.

Table of Contents:

1 Brief summary of why the waiver is needed ........................................................................................ 2

2 Consideration of the type of relief and reference to regulatory requirement ..................................... 5

3 Medicaid and Medicare Hospital Conditions of Participation (CoPs) and similar requirements –the

state requests blanket waivers ..................................................................................................................... 5

4 Skilled Nursing Facility/Nursing Facility (SNF/NF) Conditions of Participation (COP) - The SNF/NFs

are requesting blanket waivers ..................................................................................................................... 7

5 Intermediate Care Facilities for Individuals with Intellectual Disabilities (ICF/IID)– The ICF/IIDs are

requesting blanket waivers ........................................................................................................................... 8

6 HIPAA regulations waiver requests ....................................................................................................... 9

7 Telehealth 42 C.F.R. §410.78(b) .......................................................................................................... 10

8 Medicaid/CHIP waiver requests .......................................................................................................... 11

9 1115 Waiver and Accountable Communities of Health ...................................................................... 15

Conclusion ................................................................................................................................................... 17

1 Brief summary of why the waiver is needed:

1.1 Background. On January 31. 2020, as a result of confirmed cases of 2019 Novel

Coronavirus, Secretary of Health and Human Services, Alex M. Azar II determined a

nationwide public health emergency exists.

1.2 On February 29, 2020, Washington State Governor Jay Inslee declared a state-wide State

of Emergency due to the outbreak in Washington State of COVID-19, the illness caused by

the SARS-CoV2 virus. Governor Inslee directed state agencies and departments to do

everything reasonably possible to assist affected political subdivisions in an effort to

respond to and recover from the outbreak. On March 13, 2020, the President declared a

national emergency under the Stafford Act, which allows, among other things the

opportunity for CMS to waive requirements under Medicare, Medicaid, and CHIP, and

CMS announced the availability of multiple blanket waivers, as well as the process for

requesting additional flexibilities.

1.3 Washington State is at the epicenter of COVID-19 outbreak in the U.S., and in conjunction

with New York now has the highest number of confirmed cases. As of March 14, 2020,

the Department of Health reports that there have been 642 confirmed cases of COVID-19

in Washington State and 40 deaths from the disease. Community transmission of COVID-

19 is occurring. Surveillance data suggest that the number of COVID-19 cases in

Washington State will continue to significantly increase for an undetermined period of

time.

1.4 At this time many providers in the state have opened or are working to open alternative

care sites, and the Department of Health is urging hospitals to increase beds beyond their

licensed bed capacity or to house patients in units that do not meet licensing standards.

1.5 A number of other providers are in voluntarily and mandatory quarantine. Long term care

providers have been most hard hit, with the vast majority of the deaths in the U.S.

occurring from residents in Washington nursing homes.

1.6 Subsequent to my initial declaration of a State of Emergency on February 29, 2020, I have

issued seven (7) additional emergency orders mandating, among things: the closure of all

K-12 public and private schools statewide; the prohibition of in-person classroom

instruction at all public and private universities, colleges, technical schools, and

apprenticeship programs; the prohibition of certain activities at nursing homes and

assisted living facilities, as well as additional precautions that must be taken to protect

these vulnerable populations; and the gathering of certain large groups of persons

statewide. The state anticipates the need to take additional emergency action on a broad

range of issues within 24 to 48 hours. This request is supported by Governor Inslee, the

Washington State Health Care Authority, Department of Social and Health Services,

Department of Health and providers throughout the states.

Secretary Azar subsequently issued a declaration under the Public Readiness and Emergency Preparedness Act

for medical countermeasures against COVID-19, effective February 4, 2020.

1.7 Taking immediate steps to stem the spread of the pandemic in Washington is so urgent

that the state has worked collectively with state agencies, counties and public health

departments, providers and hospitals on this consolidated waiver request as a means to

expedite approval. We have also worked with many other providers and the Medicaid

managed care plans. Although we understand that the Secretary takes into account the

number and volume of provider requests for waivers that a CMS Regional Office receives

when determining the need for and geographic scope of an 1135 Waiver, the state

intends to coordinate and consolidate our requests to the extent possible.

1.8 The health care delivery system is currently experiencing severe stress as a result of the

COVID-19 outbreak in Washington, including in the areas of staffing, supplies, space and

equipment:

1.9 Staffing: Health care providers report that:

1.9.1 Increased Volume: The COVID-19 outbreak, and the predictable fears of residents that

they may have COVID-19, have caused a major increase in the volume of Emergency

Room and clinic visits, significantly longer ER wait times, the creation of new clinics and

screening sites to handle potential COVID-19 patients, an increase in intensive care and

inpatient hospitalizations, and difficulty in discharging hospital inpatients to lower-

acuity sites of care, all resulting in a demand for additional clinical care providers and

support staff; current staff are already working overtime and additional shifts to the

maximum extent possible consistent with safe patient care;

1.9.2 Staff Quarantine: Due to the sudden onset of COVID-19 cases, and based on the

recommendations of the U.S. Centers for Disease Control and Prevention, a significant

number of clinical care providers and support staff are currently quarantined until it can

be determined whether they will develop the disease, resulting in additional staff

shortages to deal with the increased volume of patients;

1.9.3 Available On-Call Staff: Health care providers have attempted to obtain additional

clinical care staff from their on-call pool of employees and from staffing agencies

providing temporary workers; these sources have been insufficient to meet the demand

based on patient volumes;

1.9.4 Staff Lack of Availability: Many clinical care providers have school-age children or older

family members who require supportive care; school closures due to COVID-19, the

closure of senior centers and the relocation of adults from nursing homes and other

residential facilities to reduce their risk of developing the disease, have caused these

clinical care providers to stay home to care for their families, resulting in additional staff

shortages to deal with the increased volume of patients.

1.9.5 Behavioral health providers: Many behavioral health providers, including Tribal health

members, rely on face-to-face visits for counseling and substance use disorder

treatment; however, with increased quarantine needed, patients and providers are

increasingly finding it difficult to provide these services. The state continues to work on

telephonic and telehealth options, but additional flexibility may be necessary as the

situation changes.

1.10 Supplies – Health care providers report that:

1.10.1 Health care providers are currently experiencing a critical shortage of supplies, including

personal protective equipment (PPE) such as masks, eye protection, N-95 respirators,

powered air purifying respirators (PAPRs), gloves, and gowns. Regional and national

stockpiles of PPE appear to be insufficient to meet the expected demand. Washington’s

Department of Health has indicated that even with assistance from the Strategic

National Stockpile, shortages continue to be a statewide (and national) problem. Many

items of PPE are primarily manufactured in China, and production there is not expected

to meet demand given the worldwide spread of COVID-19 and the drastically reduced

production from Chinese factories;

1.10.2 In addition, due in part to PPE shortages and impacts on the ability to compound drugs,

certain medications are already or may become in short supply; these include

medications used to treat COVID-19 patients, as well as medications used by individuals

with co-morbid conditions that put them at increased risk for developing COVID-19, as a

result of which it is anticipated that additional cases of COVID-19 will occur due to these

medication shortages;

1.10.3 Blood supplies throughout Washington State are critically low;

1.10.4 Testing kits and testing medium remain in short supply even as testing capacity at state

and private labs has increased.

1.11 Facilities: Washington State ranks as one of the lowest states in the nation for number of

hospital inpatient beds per capita. Washington state hospitals, including Critical Access

Hospitals routinely experience challenges with limited bed capacity even during a typical

influenzas season. The high volume of patients and the need to separate potentially

infectious COVID-19 patients from other patients in Emergency Room and clinic waiting

and treatment areas has exceeded the physical space limitations of some health care

providers. Currently, urban hospital beds are at or near full capacity due to COVID-19

response, increasing the need to transfer patients to other facilities, including Critical

Access Hospitals. Some nursing homes are requiring a negative COVID-19 test prior to

accepting patients for transfer or due to COVID-19 outbreaks are unable to accept

patients, increasing overall state demand for inpatient hospital beds.

1.12 Equipment: The increased volume of COVID-19 patients has caused a shortage of

equipment needed to treat them, which is expected to worsen as the number of COVID-

19 patients increases. In particular, ventilators are in short supply; health care providers

report that they anticipate exhausting all existing sources of supply, and no additional

ventilators are available at this time. It is not known when or if additional ventilators will

become available.

2 Consideration of the type of relief and reference to regulatory requirement:

2.1 Blanket Waivers. (1) Washington is implementing all of the blanket waivers announced

by CMS on March 13 in Medicaid and CHIP, to the extent applicable; (2) WA licensed

providers authority will operate under all CMS blanket waivers announced by CMS on

March 13; (3) Washington state is seeking additional blanket waivers articulated below,

under which “all CMS licensed providers will operate upon CMS approval.”

2.2 Additional Blanket Waiver Flexibility Requested. In addition to the above waivers,

Washington State is requesting blanket waivers as described herein.

2.3 Emergency Medical Treatment and Active Labor Act. Suspend enforcement of section

1867 of the Social Security Act (the Emergency Medical Treatment and Active Labor Act,

or EMTALA). This will allow hospitals to screen or triage patients at a location offsite from

the hospital’s campus and transfer patients according to protocols that account for

COVID-19 status, not just according to existing transfer requirements.

2.4 Institutions of Mental Disease (IMD). Waive all IMD requirements in order to maintain

continuity of care for individuals in all care sites while awaiting other care sites that might

not otherwise be available due to the emergency.

3 Medicaid and Medicare Hospital Conditions of Participation (CoPs) and

similar requirements –the state requests blanket waivers to the following:

3.1 Discharge Planning. 42 C.F.R. §482.43(a)(8), 485.642(a)(8) Hospitals can discharge

patients who no longer need acute care based solely upon which post-acute providers

that can accept them without sharing the data requested by the regulators. Allowing for

discharges in an efficient manner will free beds for acutely ill patients.

3.2 Facilities and Make-shift clinic and Physical Environment (42 C.F.R. §482.41; A-0700 et

seq):

3.2.1 Non-hospital buildings/space can be used for patient care, provided sufficient safety and

comfort is provided for patients and staff. This is another measure that will free up

inpatient care beds for the most acute patients while providing beds for those still in

need of care. It will also promote appropriate cohorting of COVID-19 patients.

3.2.2 These shall include make-shift locations for clinical and mandatory and voluntary

quarantine sites awaiting test results. We must reinforce the existing shelter system by

informing, resupplying and deintensifying existing shelters – these facilities may offer

clinical services that should be paid for under CMS.

3.2.3 Create a new isolation and quarantine system to provide safe places for people who

cannot quarantine at home.

3.2.4 Create emergency congregate assessment center/recovery facilities to slow the spread.

3.2.5 Approve the use of technology and physical barriers that limit exposure and potential

spread of the virus, such as use of video and audio resources for limiting direct contact

between physicians and other providers in the same clinical facility.

3.2.6 Permit treatment to occur in patient vehicles, assuming patient safety and

comfort. Many facilities are standing up drive through specimen collection sites, we’d

like to request basic evaluation and treatment be allowed in patient vehicles in order to

prevent potential spread of the virus to the facility.

3.3 Patient Rights. 42 C.F.R. §482.13. Waive enforcement of patient rights related to

personal privacy, confidentiality (see HIPAA request below), orders for seclusion, and

patient visitation rights. This is necessary because hospitals may be required to

undertake public emergency responses that make compliance with those CoP

requirements impossible.

3.4 Sterile Compounding. 42 C.F.R. §482.25(b)(1) and USP 797 Face masks can be removed

and retained in the compounding area to be re-donned and reused during the same work

shift only. This will conserve scarce face mask supplies which will help with the

impending shortage of medications.

3.5 Verbal Orders §482.24, A-0407, A-0454, A-0457 Verbal orders may be used more than

‘infrequently’ (read-back verification is done) and authentication may occur later than 48

hours. This will allow for more efficient treatment of patients in a surge situation.

3.6 Reporting Requirements. 42 C.F.R. §482.13(g) (1)(i)-(ii), A-0214 ICU patients whose death

is caused by their disease process but who required soft wrist restraints to prevent pulling

tubes/IVs may be reported later than close of business next business day, provided any

death where restraint may have contributed is continued to be reported within standard

time limits. This is necessary because hospital reporting may be delayed due to increased

care demands. Eliminating penalties keeps the focus on urgent patient care.

3.7 Medical Staff. 42 C.F.R. §482.22(a); A-0341 So that physicians whose privileges will expire

and new physicians can practice before full medical staff/governing body review and

approval. This will keep clinicians on the front line and allow hospitals and health

systems to prioritize patient care needs during the emergency.

3.8 Medical Records Timing. 42 C.F.R. §482.24; A-0469 Medical records can be fully

completed later than 30 days following discharge. This flexibility will allow clinicians to

focus on the care needs at hand and deal with paperwork later.

3.9 Physician referral. Waive sanctions under section 1877(g) of the Social Security Act

(relating to limitations on physician referral). This will allow hospitals to compensate

physicians for unexpected or burdensome work demands (e.g., hazard pay), encourage

multi-state systems to recruit additional practitioners from out-of-state, and eliminate a

barrier to efficient placement of patients in care settings.

3.10 Home Health 42 C.F.R. § 484.55(a). Home health agencies can perform certifications,

initial assessments and determine patients’ homebound status remotely or by record

review. This will allow patients to be cared for in the best environment while supporting

infection control and reducing impact on acute care and long-term care facilities. This will

allow for maximizing coverage by already scarce physician and advanced practice

clinicians and allow those clinicians to focus on caring for patients with the greatest

acuity.

3.11 Delivery of Services in Alternate Clinic Locations. Waiver/flexibility to allow Federally

Qualified Health Centers (FQHC) and Rural Health Clinics (RHC) providers to bill for their

Prospective Payment System (PPS) rate, or other permissible reimbursement, when

providing services from alternative physical settings, such as a mobile clinic or temporary

location. This will allow flexibility in site of clinics to promote appropriate infection

control.

3.12 Flexibility for Teaching Hospitals. Allow flexibility in how the teaching physician is present

with the patient and resident. Medicare generally requires that the physician be

physically present in the room/area to bill as the teaching physician. With hospitals

running low on supplies they are limiting the number of providers with direct patient

contact. If hospitals allow real-time audio video or access through a window for the

teaching physician, or otherwise distance the interaction should be covered.

3.13 Flexibility in Patient Self Determination Act Requirements. 42 USC 1396a(a)(54), and 42

USC 1395cc(a)(1)(57), (w), 42 CFR 489.102, Hospitals are required to provide information

about policies to patients “upon admission.” This is usually accomplished by the bedside

nurse. Allowing flexibility in meeting these requirements will allow staff to more

efficiently deliver care to a larger number of patients. This would not apply to the

requirement hospitals inquire about the presence of an advance directive.

4 Skilled Nursing Facility/Nursing Facility (SNF/NF) Conditions of Participation

(COP) - The SNF/NFs are requesting blanket waivers to the following CoPs:

4.1 Provider participation, billing requirements and conditions for payment –

Waiver/flexibility to allow receiving facilities or alternate settings to receive SNF/NF or

ICF/IID payment if a client is moved to a specialty facility to receive care and recover from

COVID-19 during the COVID-19 crisis.

4.2 Opening a COVID 19 Facility:

4.2.1 Physical Environment. - Non-SNF/NF buildings/space can be certified for use as a

temporary SNF/NF, provided sufficient safety and comfort is provided for residents and

staff – allows state to open a temporary COVID 19 nursing facility to assist COVID 19

positive SNF/NF residents to receive SNF/NF care and services during treatment for virus

while protecting other vulnerable adults. This is another measure that will free up

inpatient care beds at hospitals for the most acute patients while providing beds for

those still in need of care. It will also promote appropriate cohorting of COVID-19

residents.

4.2.2 Expedite certification process and expedite approval process from the Medicare

Administrative Contractor (MAC)

4.2.3 Expedite Life Safety Code Process

4.3 Waiver of certain conditions of participation and certification requirements for opening a

nursing facility if the state determines there is a need to quickly stand up a temporary

COVID-19 facility.

4.4 Resident Groups - 42 CFR 483.10(f)(5) Residents have the right to organize and participate

in resident groups – Given the Governor Proclamation 20-06 (attached) that encourages

social distancing and requests facilities limit group activities within the resident

population, Washington State SNF/NFs will not be able to meet the Resident Council

requirements during this crisis.

4.5 Training and Certification of Nurse Aids - 42 CFR 483.35(d) indicates that a person is not

to work in a nursing facility as a nurse aid unless they have completed a training and

competency program. An individual may work as a registered nurse aid for up to 4

months if they are currently in a training program and complete the training program and

the test within that 4 month period. We are requesting an exemption to the 4 month

rule and to the full training requirements. Due to an already existing workforce shortage

and multiple staff illnesses related to COVID-19 and influenza, along with testing sites and

training sites temporarily closing to encourage social distancing and limit gathering of

people in response to recommendations in Washington State Governor Proclamation 20-

07, facilities are unable to fill critical Nurse aid positions with staff who have completed

training and testing.

5 Intermediate Care Facilities for Individuals with Intellectual Disabilities

(ICF/IID)– The ICF/IIDs are requesting blanket waivers to the following CoPs:

5.1 Provider participation, billing requirements and conditions for payment –

Waiver/flexibility to allow receiving facilities or alternate settings to receive ICF/IID

payment if a client is moved to a specialty facility to receive care and recover from COVID-

19 during the COVID-19 crisis.

5.2 Personal protective equipment - If personal protective equipment is unavailable due to

supply chain disruption, allow reasonable alternative protective measures. For example,

regulations require staff to wear a paper gown when disposing of certain hazardous

drugs. If paper gowns become unavailable, allow staff to wear washable gowns when

disposing of hazardous medications.

5.3 Authorize facilities to adjust staffing patterns if doing so is necessary for staff to meet

residents’ basic health and safety needs

5.4 Authorize facilities to suspend community outings.

5.5 Authorize facilities to implement social distancing precautions to prevent individuals who

are not directly involved in client care from entering the property.

5.6 Authorize facilities to suspend assessment and documentation requirements that are not

necessary to maintain the residents’ basic health and safety.

5.7 Suspend mandatory training requirements

5.8 Suspend all requirements related to the specially constituted committees.

5.9 Authorize the facility to implement social distancing precautions with respect to on and

off-campus movement,

5.10 Suspend specialized services to prevent facility vendors from becoming disease vectors.

5.11 Authorize facilities to reschedule routine or elective medical and dental appointments

5.12 Suspend requirement facilities The facility must not house clients of grossly different

ages, developmental levels, and social needs in close physical or social proximity unless

the housing is planned to promote the growth and development of all those housed

together. This will allow for the temporary housing of COVID 19+ clients together to limit

the exposure to non-infected clients.

5.13 Authorize facilities to suspend adult training programs and active treatment to meet

health and safety needs.

5.14 Suspend assessment or habilitation plan requirements including need for signatures.

5.15 Implement social distancing precautions with respect to on and off-campus movement.

5.16 Suspend Specialized services

5.17 Reschedule routine or elective medical, dental, or behavioral health appointments.

5.18 Conduct resident medical, dental, or behavioral health appointments via telehealth when

available.

6 HIPAA Regulations waiver requests:

6.1 HIPAA Privacy. Pursuant to Section 1135(b)(7) of the Social Security Act, waive sanctions

and penalties arising from noncompliance with certain HIPAA privacy regulations,

including : 1) obtaining a patient’s agreement to speak with family or friends or honoring

a patient’s request to opt out of the facility directory; 2) distributing a notice of privacy

practices; or 3) the patient’s right to request confidential communications.

6.2 HIPAA Security Requirements. 45 C.F.R. 164.312(e)(1) – Transmission Security; Waive the

security requirements for video communication in a telehealth visit. While CMS has lifted

many of the patient site requirements to allow telehealth in the home as well as non-

rural areas, many facilities are not prepared with secure platforms that they own and

control which are also accessible to the patient. The request is to allow providers to use

readily available platforms like Facetime, WhatsApp, Skype, etc. to facilitate the

telehealth visit with the patient at home.

6.3 Code sets. Request to waive HIPAA EDI code set requirements 45 CFR Part 162.1002. This

would allow Washington the flexibility to define and implement code sets not currently

available in a standard federal code set, or provide additional specificity to a code set

definition that allows Washington to track and set rates for services specific to COVID-19.

7 Telehealth 42 C.F.R. §410.78(b):

7.1 Consistent with the authority granted the Secretary under the Coronavirus Preparedness

and Response Supplemental Appropriations Act, eliminate Medicare restrictions on

licensing for telehealth and geographic restrictions on originating sites. Allow billing using

CPT codes 99444 and 98969 for both new and established patients. Ask the HHS OIG to

confirm that telemedicine screenings without co-pays and deductibles do not violate the

CMP law or anti-kickback statute.

7.2 Eliminate the requirement that in order to bill for a telehealth service a provider must

have billed that Medicaid or Medicare enrollee for a service within the previous three

years.

7.3 Allow E&M codes to be billed via telehealth or telephonic services even for first time

patients.

7.4 These steps will allow providers to screen and treat significantly more patients, reduce

risk to front line health care providers, and assist in resolving the shortage of providers.

7.5 Allow for reimbursement for telephone visits at the same rate as telehealth video visits.

For many cases the video aspect does not add value to the patient interaction – it’s the

information relayed to the patient that matters. See CPT codes 99441, 99442, 99443;

HCPCS G2012, G0071. The state believes we have authority to do this for telehealth and

telephonic services under the Medicaid program, but this provision must be clarified for

Medicare. In addition, consistent with our request above for the codes to be opened for

new patients in addition to the established patients, which these codes currently only

apply.

7.6 Allow capacity funding for providers, which may include grants or other funding Medicaid

financing or other dollars available to be used for purchase of equipment as necessary for

providers and patients (e.g. laptops, additional cell-phones or additional cell-phone plan

minutes for clients so they are free to use the phone for services).

7.7 Provide indemnify/hold harmless for emergency telehealth services.

8 Medicaid/CHIP waiver requests:

8.1 The state will also apply for the following emergency-related flexibilities authorized under

federal regulation that do not require an amendment to the State Plan or Verification

Plan. We note that some of these requests can be addressed otherwise. We will follow up

with a concurrence letter to CMS.

8.2 The State of Washington operates eight waivers under 1915(c) authority. The state

requests continued flexibility under the appendix k amendments submitted to CMCS

March 12, 2020. The state also requests that as the situation changes and additional

flexibilities are recognized as necessary for the health and safety of Washingtonians that

CMCS review and approve flexibilities for the 1915(c) waivers.

8.3 Allow self-attestation for all eligibility criteria (excluding citizenship and immigration

status) on a case-by-case basis for Medicaid and CHIP eligible individuals subject to a

disaster when documentation is not available as outlined at 42 CFR 435.952(c)(3); 42 CFR

457.380.

8.4 Allow presumptive eligibility for the Aged, Blind and Disability population for long term

care services based on an abbreviated level of care assessment and financial eligibility

screening to ensure more immediate discharge from hospitals of people who are ready

but must await application for long term care benefits so we can free hospital beds more

timely. Also, we request the state to be established as a PE entity to enroll applicants

based on preliminary application information.

8.5 Allow presumptive Medicaid eligibility for the Aged, Blind, and Disabled population.

8.6 Consider Medicaid and CHIP enrollees who are quarantined from the state as

“temporarily absent” when assessing residency in order to maintain enrollment (for home

state where disaster occurred or public health emergency exists) as permissible under 42

CFR 435.403(j)(3); 42 CFR 457.320(e); 42 FR 431.52; 42 CFR 457.320.

8.7 Extend redetermination timelines for current Medicaid enrollees in the state to maintain

continuity of coverage as permissible under 42 CFR 435.912(e).

8.8 Waive Pre-Admission Screening and Annual Resident Review (PASSAR Level I and Level II

Assessment. Level I screens are not required for residents who are being transferred

between nursing facilities and staff cannot enter nursing homes due to quarantine. If the

nursing facility 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. If there is not enough information to complete a Level

I, the nursing facility will document this in the case files. Level II evaluations and

determinations are also not required preadmission when residents are being transferred

between NFs. Residents who are transferred will receive a post admission review which

will be completed as resources become available. (42 CFR 438.106(b)(4).

8.9 Waive requirements related to the post eligibility treatment of income which will enable

affected beneficiaries to retain funds otherwise required to be collected and applied

toward the cost of care. (42 CFR 435.217)

8.10 Waive requirement that Washington State must submit and receive CMS approval of a

Title XIX or Title XX state plan amendment in order to temporarily waive any patient cost

sharing associated with COVID-9 screening, testing, and treatment.

8.11 Waiver to permit distant site (provider) services to be rendered in a rural health clinic

(RHC). Currently Medicare prohibits distant site telehealth to be rendered by a provider

in a RHC. This limitation is not by regulation, but rather, sub regulatory guidance. RHCs

have very limited resources and providers. For the RHC’s protection and sustainability

the state requests to have the telehealth prohibition lifted to allow RHC providers to

render telehealth treatment in the RHC. This limitation is not contained in the RHC

regulations at 42 CFR 491; rather it is contained in sub-regulatory guidance that first

appeared in 2013. The Medicare Policy Manual, chapter 13, section

200. https://www.cms.gov/Regulations-and-

Guidance/Guidance/Manuals/Downloads/bp102c13.pdf.

8.12 Actuarial soundness. Due to the extraordinary nature of this emergency, we request a

waiver of the requirement for actuarially sound Medicaid managed care rates, under 42

C.F.R. Part 438, for calendar years 2020 and 2021. This waiver would apply to all Medicaid

managed care programs and contracts. An important element of this request is allowing,

particularly smaller and more vulnerable providers like behavioral health providers, ability

to be paid if they have not been able to perform services due to quarantine. The state

understands that this may require an 1115 waiver, in which in light of the emergency, the

state requests that it would not have to meet transparency requirements.

8.13 We request allowing state to draw federal financing match for payments, such as

hardship or supplemental payments, to stabilize and retain providers of Behavioral Health

and/or Long Term Care settings (including home care workers) who suffer extreme

disruptions to their standard business model and/or revenue streams as a result of the

public health emergency.

8.14 Tribal Health Systems: The state is interested in exploring any Tribal health related

waivers that may be needed. American Indian and Alaskan Native members have unique

problems. There are critical behavioral health services in which Tribal members

experience a disproportionate worse outcomes. We must expedite funding.

8.15 Statewideness – Section 1902(a)(1) and 1902(a)(17) To enable the State to vary services

and service delivery methods in geographic regions as appropriate for affected

beneficiaries.

8.16 Fair Hearings and Notices – Section 1902(a)(3). To enable the State to extend fair hearing

timeframes as needed.

8.17 Proper and Efficient Administration of the State Plan - Section 1902(a)(4)(A). To enable

the State to use streamlined eligibility procedures for individuals who would be affected

beneficiaries.

8.18 Reasonable Promptness - Section 1902(a)(8). To enable the State to limit enrollment or to

reasonably triage access to needed long-term services and supports for affected

beneficiaries.

8.19 Comparability – Section 1902(a)(10)(B). To enable the State to deliver different services

and service delivery methods to affected beneficiaries than are otherwise available to

non-affected beneficiaries.

8.20 Reasonable Standards for Eligibility – Section 1902(a)(17). To enable the State to modify

eligibility criteria as necessary to make individuals affected beneficiaries in need of long-

term services and supports.

8.21 Freedom of Choice - Section 1902(a)(23)(A). To enable the State to restrict freedom of

choice of provider.

8.22 Provider Agreements and Direct Payment to Providers - Section 1902(a)(32). To permit

the provision of care to affected beneficiaries by individuals or entities who have not

executed a Provider Agreement with the State but have such an agreement with another

State.

8.23 Annual Redeterminations of Eligibility – Sections 1902(a)(4) and 1902(a)(19). To permit

delay of otherwise required redeterminations for the State’s XIX program.

8.24 Amount, Duration, and Scope – Section 1902(a)(10)(B). To the extent necessary to enable

the state to offer different benefits to affected beneficiaries.

8.25 Cost and budget neutrality requirements and limitations on numbers of individuals served

in order to enable the state to deliver long-term services and supports as needed to

affected beneficiaries [1915(c)(2)(D)]. States will not be required to meet budget

neutrality tests under the waiver during the period of the emergency.

8.26 Requirements prohibiting the provision of home and community-based services to

affected beneficiaries who are being served in an inpatient setting in order to enable

direct care workers or other home and community-based providers to accompany

individuals to any setting necessary [42 CFR 441(b)(1)(ii)].

8.27 Requirements related to the post eligibility treatment of income which will enable

affected beneficiaries to retain funds otherwise required to be collected (42 CFR 435.217)

8.28 Requirements related to conflict of interest and person-centered plan development in

order to enable sufficient provider capacity to serve affected beneficiaries as applicable

to the authorities selected for this demonstration

8.29 Requirements related to home and community-based settings in order to ensure the

health, safety and welfare of affected beneficiaries [441.301(c)(4)].

8.30 Requirements for public notice as applicable to the authorities selected for this

demonstration.

8.31 Expenditure authority is requested under section 1115(a)(2) of the Act to allow the

following expenditures, which are not otherwise included as expenditures under section

1903, to be regarded as expenditures under the State’s title XIX plan.

8.32 Medicaid Administrative Claiming program: We are currently working with CMS on

options, but we request authority to expand the match to other public health services not

currently covered.

8.33 Waive signature requirements on level of care assessments, plans of care and other

required supporting documentation.

8.34 Medicaid requests the same waivers for Medicare services as applicable generally and

specifically for the telehealth provisions requested above.

8.35 We request enhanced eligibility levels for those uninsured under the crisis period who

may be above the 135% to 200% FPL and lift the 5-year bar period.

8.36 Broadly waive any other face-to-face requirement.

8.37 Waive timelines and grant leeway for all reports, required surveys, notifications and

licensing visits. The state believes most of this may be covered in the blanket waiver

outlined above, for clarity, the state requests a blanket waiver authority for the following:

8.37.1 Adjusting performance deadlines and timetables for required reporting and oversight

activities;

8.37.2 Modifying deadlines for CMS Outcome and Assessment Information Set (OASIS) and

Minimum Data Set (MDS) assessments and transmission;

8.37.3 Allow Medicare Administrative Contractors to extend the auto-cancellation date of

Requests for Anticipated Payment (RAPs) during emergencies;

8.37.4 Temporarily delaying, modifying or suspending CMS-certified facilities’ onsite survey, re-

certification and revisit surveys conducted by the State survey agency, and some

enforcement actions, and/or allowing additional time for facilities to submit plans of

correction, and waiving state performance standards and requirements for the current

federal fiscal year;

8.37.5 Temporarily suspending 2-week aide supervision requirement by a registered nurse for

home health agencies; and,

8.37.6 Temporarily suspending the supervision of hospice aides by a registered nurse every 14

days requirement for hospice agencies.

8.38 Waive 42 CFR 170(4) requirements for Non-Emergency Medical Transportation (NEMT),

which currently prohibits contracted transportation brokers from directly providing trips

to Medicaid clients.

8.39 Temporarily waive Medicaid requirements related to hiring to ensure a sufficient number

of providers are available to serve Medicaid enrollees.

8.40 Temporarily cease the revalidation of and waive provider renewal requirements during

this state of emergency.

8.41 Temporarily waive requirements that out-of-state providers be licensed in Washington

when they are licensed by another state Medicaid agency or by Medicare.

8.42 Allow facilities to provide services in alternative settings, such as a temporary shelter or

through mobile-units. This may include potential relief from Drug Enforcement

Administration (DEA) requirements around medications.

8.43 Temporarily expand eligibility to in-home services for an individual who does not meet

functional eligibility, when a congregate site such as an adult day health center closes.

8.44 Home Health providers and others may need enhanced payment.

9 1115 Waiver and Accountable Communities of Health:

9.1 We ask for immediate approval of our 1115 budget neutrality corrective action plan to

ensure critical Accountable Communities of Health (ACH) and Delivery System Reform

Incentive Payments (DSRIP) are stabilized during this time.

9.2 The provider community is quickly turning to the ACHs seeking help. We ask for the

establishment of a regional COVID-19 response initiative to allow for Medicaid match to

support emerging issues and necessary community efforts to mitigate provider burden,

community distress, and misalignment across community response efforts. ACHs may

serve as a regional response hub. As the hub, ACHs would not replace Local Health

Jurisdictions. An ACH, rather, would coordinate across clinical and community partners,

including community engagement, education, provider relief, and alignment of response

strategies around emerging best practices across communities and Local Health

Jurisdictions. This may include:

9.2.1.1 Planning to assist providers to adjust to business effects and ensure development and

implementation of sustainable business options and practices that ensure immediate

and longer-term viability and ensure access throughout the emergency. This may also

include revenue support for providers that must temporarily close for deep cleaning or

staffing shortages.

9.2.1.2 Assist providers to implement new activities by developing community-visit policies

and guidance that align with the Washington State Department of Health. We ask that

CMS allow HCA to determine the types of providers who are authorized for services;

thus waiving traditional requirements like need for formal licensing or certification

(e.g. Washington does not license Doulas or community health workers).

9.2.1.3 Assist providers in staying up-to-date on reimbursement exceptions and practices and

other resources so that they may concentrate on providing services. Provide guidance

regarding HIPAA/consent and telehealth/telephone encounters such as telehealth

exceptions for providers providing medication for opioid use disorders who may also

need assisting requesting additional days supplies. Support and develop protocols,

policies, staffing, training, or staffing adjustments for residential treatment facilities to

ensure safe treatment program and drop-in individuals admitted due to additional

screening. Disseminate information from multiple payers and state agencies for

providers to be able to quickly discern what is required of them and move forward to

ensure they are meeting the minimum required to be reimbursed while ensuring their

staff, and clients are treated quickly and safely.

9.2.2 Timely Filing Requirements for Billing. 42 CFR 424.44 Waiver of timely filing

requirements that will allow providers getting correct coding and other structural pieces

built into their systems and even payer ability to adjudicate.

9.2.3 Community-based care coordination:

9.2.3.1 Focus community-based care coordination directly on COVID-19 activities by working

with traditional and non-traditional providers such as community health workers to

plan and perform community coordination and workforce improvements as needed.

9.2.3.2 Perform services that ensure continuity of care for high-risk individuals.

9.2.3.3 Permit community-based care coordination to expand its role to additional community

activities such as meals on wheels; non-emergency transportation or support the

transportation of providers or individuals to ensure the delivery of services; assistance

to homeless individuals or greater diversion activities to help individuals retain their

homes; delivery of food or clothing, or any other need identified by an Accountable

Community of Health that assists individuals and the community with remaining

healthy and safe while avoiding the need for more intensive medical and behavioral

services.

9.2.4 Community convening and educating: continued community outreach and education to

providers, organizations and individuals to provide accurate, up-to-date information and

guidance on COVID-19. Continue to support community preparedness and promote safe

practices that reinforce policies and guidance from the CDC and Washington State

Department of Health. Package and provide training to all providers in the community

on as additional guidance is released.

9.2.5 Permit requests for funds ahead of scheduled release of federal funding to address

COVID-19 needs.

9.2.6 Allow payment of flexible services for ACHs and FCS providers to be able to assist an

individual who’s housing may be at risk. Also use the flexible funds to pay for phones for

individuals to access BH services if telehealth is the primary method of service delivery.

(MA 1115 waiver allows for payment of flexible services) https://www.mass.gov/info-

details/massachusetts-delivery-system-reform-incentive-payment-program#flexible-

services- (this could be added to section 6.12)

9.2.7 The FCS provider network under Initiative 3 of the 1115 waiver is in its infancy since

implementation January 2018. The network is very vulnerable due to the Covid-19

crisis. Services are largely dependent upon face-to-face services with individuals,

landlords and employers in the community. Significant investments in training of staff

to implement the evidence-based practices and as such we are proposing increases in

telephone service capacity as well as provider capacity payments for FCS providers to be

able to be sustained through the covid-19 crisis. Many of these providers are small non-

profit organizations that rely on the face-to-face delivery of services in order to sustain

their workforce. With DOH guidelines many of these small non-profits are at

risk. Propose significant investments of flexible service funding for participants enrolled

in FCS services. (see MA guidance).

Conclusion

The trajectory of the COVID-19 outbreak in Washington State is critical. We are concerned that

the healthcare system may quickly became overwhelmed. Washington State providers and

hospitals are struggling with ongoing shortages of staffing, supplies, and facilities, as more and

more COVID-19 cases in the State are confirmed. A blanket waiver of the foregoing federal

requirements is necessary to allow Washington’s hospitals to properly focus their efforts on

curtailing the spread of the pandemic.