On March 16, 2020, CMS approved an 1135 Waiver request submitted by the State of Florida. The State had requested the flexibility to waive prior authorization requirements, streamline its Medicaid enrollment process, and allow care to be provided in alternative settings to the extent an existing health care facility needs to be evacuated. The key provisions of the waiver are summarized below:

1. Payments to Out-of-State Providers: Under current CMS coverage guidelines, the Florida Medicaid Program had the authority to reimburse out-of-state providers that were not enrolled in the Florida Medicaid Program provided certain criteria were met. However, this authority was limited to situations involving: (a) a single instance of care furnished over a 180-day period or (b) multiple instances of care furnished to a single Florida Medicaid beneficiary over a 180-day period. Under the waiver, CMS is removing the 180-day restriction for the duration of the emergency.

2. Expedited Enrollments: With respect to providers that are not currently enrolled in the Medicare Program or with another State Medicaid Agency, CMS is waiving the following screening requirements: (a) the payment of the application fee, (b) the fingerprint-based criminal background checks, (c) the required site visits, and (d) the in-state/territorial licensing requirements. Under the waiver, the state would still be required to check enrolling providers against the OIG exclusion list, and confirm that the out-of-state provider is properly licensed in their home state.

3. Cessation of Revalidation Efforts: CMS granted Florida the authority to temporarily cease the revalidation of enrolled in-state Medicaid providers and suppliers who are directly impacted by the emergency.

4. Waiver of Prior Authorization Requirements: CMS has granted Florida the right to waive any prior authorization requirements that are currently part of the State Medicaid Plan. This waiver applies to services provided on or after March 1, 2020, and will continue through the termination of the emergency declaration.

5. Waiver Allowing Evacuating Facilities to Provide Services in Alternative Settings: CMS will allow facilities, including nursing facilities, intermediate care facilities for individuals with intellectual and developmental disabilities, psychiatric residential treatment facilities, and hospitals to be reimbursed for services rendered during an emergency evacuation to an otherwise unlicensed facility. This waiver will extend for the duration of the declared emergency; however, CMS will require the unlicensed facility to seek licensure with the state after 30 days.

On March 13, 2020, President Donald J. Trump announced a national state of emergency in response to the COVID-19 pandemic. Previously, HHS Secretary Alex Azar had declared a public health emergency under Section 319 of the Public Health Service Act in response to COVID-19.

This has prompted many AAA members to ask what impact, if any, these declarations have on the coverage of ambulance services under federal health care programs?

The short answer is that these declarations give CMS the authority under Section 1135 of the Social Security Act to waive certain Medicare, Medicaid, and SCHIP Program requirements. This waiver authority includes, but is not necessarily limited to:

• Waiving certain conditions of participation and/or certification requirements;
• Waiving certain pre-approval requirements;
• Waiving the requirements that a provider or supplier be licensed in the state in which they are providing services;
• Waiving EMTALA requirements related to medical screening examinations and transfers; and
• Waiving certain limitations on payments for services provided to Medicare Advantage enrollees by out-of-network providers.

One situation where an 1135 waiver may be of use to an ambulance provider or supplier would be where the ambulance provider or supplier is sending vehicles and crews to a state that is outside its normal service area. The ambulance provider or supplier is unlikely to be licensed by the state in which it is responding. As a result, under normal circumstances, it would be ineligible for payment under federal health care program rules. The 1135 waiver would permit it to submit claims for the services it furnishes in the other state.

Of more immediate significance to the current national emergency, an 1135 waiver may permit hospitals and other institutional health care providers to establish an off-site treatment center for initial screenings of patients. For example, hospitals may establish triage sites in parking lots and other open spaces for the initial intake of patients suspected of being infected with the COVID-19 virus. In theory, this waiver could also extend to drive-thru testing sites to the extent they are operated by the hospital or another health care provider. When a hospital has obtained an 1135 waiver to operate an off-site treatment center, the off-site area becomes a part of the hospital for Medicare payment purposes. Therefore, ambulance transports to an approved off-site treatment area should be submitted to Medicare using the “H” modifier for the destination.