BY JENNY QUIGLEY-STICKNEY, RN, MSN, MHA, MA, CCM, ACM-RN, CPHM, CMAC
CMS 1135 pandemic waivers give healthcare providers throughout the COVID pandemic the ability to relax legal standards for Conditions of Participation and transitions of care. Allowing the healthcare industry flexibility with current CMS Conditions of Participation rules for managing transitions of care has increased fluidity and speed of transition for patient care. These blanket waivers for healthcare providers created a unique experiment for the healthcare industry to minimize the backload of patients at any level of the continuum. CMS 1135 includes, but is not limited to, some of the following waivers from https://www.cms.gov.
Examples of these 1135 waivers or modifications from the CMS quality and oversight group include:
- Conditions of Participation or other certification requirements
- Program participation and similar requirements
- Preapproval requirements
- Requirements that physicians and other healthcare professionals be licensed in the state in which they are providing services, so long as they have equivalent licensing in another state (this waiver is for purposes of Medicare, Medicaid and CHIP reimbursement only; state law governs whether a non-federal provider is authorized to provide services in the state without state licensure)
- Emergency Medical Treatment and Labor Act (EMTALA)
- Stark self-referral sanctions
- Performance deadlines and timetables may be adjusted (but not waived)
- Limitations on payment for healthcare items and services furnished to Medicare Advantage enrollees by non-network provider CMS 2022
The current waivers under section 1135 of the Security Act will end no later than the termination of the emergency period, or 60 days from the date the waiver or modification is first published and unless the Secretary of HHS extends the waivers by special notice, an additional 60-day period. The current waivers have been extended until January 2023.
The practice of professional case managers was directly impacted by the 1135 waivers by changing the rules that case managers follow in their daily provision of care. Professional case managers are viewed within the healthcare setting as the orchestrators of transitions of care. The new definition of professional case management developed by CMSA during the pandemic that can now be used for clients and the public comprehension of case management reflect changes in transitions of care incurred during the pandemic:
“Case Managers are healthcare professionals who serve as patient advocates to support, guide, and coordinate care for patients, families, and caregivers as they navigate their health and wellness journey.“ CMSA SOP, 2022
All professional case managers were impacted by the 1135 regulations for care transitions, which will be in effect for as long as the federal and state government have declared the COVID pandemic to be an emergency. The emergency may extend further into the year 2023 with current healthcare predictions for the winter of 2023 escalating respiratory disease COVID, RSV and flu or any combination of these three-disease processes. According to the CDC, the current cases are already demonstrating a rise of 458,986 new cases in the month of December in the U.S. Given these trends, the 1135 waivers are likely to extend past the 2023 winter months. The new standards of CMSA practice as stated by Melanie Prince, CMSA President 2020-2022, are written so that they can be effective for the provision of patient-centered care in extraordinary times such as a global pandemic or natural disaster.
The question that arises as we once again move toward the end of the latest 1135 waivers extension is, will the waivers continue or not? Those of us working daily in healthcare know that the COVID pandemic has not ended as we prepare to move into 2023. It is challenging not to wonder if the federal government will end the waivers or extend them again, knowing that the once-thought short-term solution that became an experiment of removing restrictions for transitions of care has now become, after almost three years, a standard of care for care transitions. The question, therefore, becomes not do we just extend, but do we incorporate any of these new modifications into current practice?
The only current fact in 2022 we can rely on is that these waivers were extended as of January 14, 2022, by Xavier Becerra, U.S. Secretary of Health and Human Services, and are good until HHS declares an end to the COVID-19 pandemic or the emergency under which, as professional case managers, we are obligated by our standard of practice under the Standard: Legal requirement to act:
“As a professional case manager, no matter what is determined by the federal government, we will pivot our practice to the definition of our legal standard, which clearly states, a professional case manager shall adhere to all applicable federal, state and local laws and regulations, which have full force and effect of law, governing all aspects of case management practice including but not limited to, client privacy and confidentiality rights. It is the responsibility of the professional case manager to work within the scope of their license or underlying profession.” CMSA SOP, 2022.
What waivers do we think will stay when the 1135 waivers finally come to a close? Telehealth services, for one, because it provides increased access to quality care, increased ease of providers, and connects patient and families to services in a sheltered environment. The increased access to this technology through tablets, cell phones, and laptops during the pandemic served a need to connect and be monitored by the healthcare community. Access to care that was already challenging to provide pre-pandemic to PCP, specialists, case managers, rehab therapies and behavioral health services was now opened for patients across the continuum of care. During the pandemic, this access initially became almost impossible, forcing patients, families and healthcare providers to learn new ways of communicating through telehealth to have access to care. Changes in how telehealth services were provided allowed CMS to develop supervision, standards of practice and payment for services rendered. What long seemed impossible for telehealth finally has an avenue for care provision, treatment and payment.
Finally, what waivers do we feel will not stay for transitions of care? The waivers related to the three-days stay for skilled services for rehab, quality protocols and UM requirements. Although these waivers were beneficial for speeding up the throughput for care transitions to not create bottlenecks within the system, transitioning back is felt by some within the healthcare industry to slow the process down and will allow the healthcare community more time to process transitions safely with improved quality. As part of the healthcare industry that orchestrates care transitions, however, one would hope that after a time of emergency preparedness lasting almost three years that these modifications may be followed by a time of reflection by which the federal and state governments can take the time to thoroughly analyze and examine what worked and what did not work from the pandemic and review the pros and cons to implement positive change from lessons learned during this uniquely forced experimentation within our healthcare system.
“1135 Waivers.” Aspr.hhs.gov, aspr.hhs.gov/legal/1135-waivers/pages/1135-waivers.aspx.
“COVID-19 Emergency Declaration Blanket Waivers for Health Care Providers.” www.cms.gov, 30 Mar. 2020. https://www.cms.gov/files/document/covid19-emergency-declaration-health-care-providers-fact-sheet.pdf
“1135 Waiver Request Communication Method-Best Practice.” www.cms.gov, https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertEmergPrep/Downloads/What-Information-to-Provide-for-an-1135-Waiver-Request.pdf
CMSA Standards of Practice for Case Management Revised 2022. Case Management Society of America, 2022, p. 7.
CMSA Standards of Practice for Case Management Revised 2022. Case Management Society of America, 2022, p. 23.
“1135 Waivers | the Joint Commission.” www.jointcommission.org, www.jointcommission.org/resources/news-and-multimedia/webinars/coronavirus-webinar-replays/1135-waivers/#.Y5eJEnbMI2w.
Coleman, Elizabeth Dahl, and Peter Mellette. “AHLA – the Future of CMS 1135 Pandemic Waivers—Will They Survive COVID-19?” Www.americanhealthlaw.org, 24 July 2020, www.americanhealthlaw.org/content-library/health-law-weekly/article/9759e52b-c964-46e2-bb71-b2c592a8f77b/the-future-of-cms-1135-pandemic-waivers-will-they.
Jenny Quigley-Stickney, RN, MSN, MHA, MA, CCM, ACM-RN CPHM, CMAC, is a professional case manager with Cape Cod Healthcare. Jenny has been active with CMSA/CMSNE for over 20 years, serving as the president of CMSNE an chair for both CMSA and CMSNE Public Policy Committees. She is currently serving on the Board of Directors for CMSA National. She is active in the New England states promoting the advancement of the Nurse Licensure Compact, and telehealth legislation for healthcare provision. She has a passion for legislative works and believes that legislation helps advance the field of professional case management.
She has been employed at all levels of the transitions of care, working with traumatic brain injury, stroke and spinal cord for over 25 years. During that time, she provided professional case management for inpatient rehab, hospital-based home care, and outpatient rehab care. She recently has shifted her work back to her first love, acute care, focusing on vascular and trauma care.