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How Federal and State Waivers May Impact Care in Texas

Waivers administered during the emergency are changing the way care is delivered, according to experts from Bell Nunnally.

The worldwide COVID-19 pandemic has had a crushing impact on healthcare system and provider operations. As a result, establishing and enforcing compliance with state and federal healthcare laws and regulations has become more difficult. Federal and state governments have been forced to make changes so that Americans can receive the care they need in the midst of the crisis.

A national emergency was declared in response to COVID-19 on March 13. When the President declares a disaster or emergency, the secretary of Dept. of Homeland Security can declare a public health emergency. The Secretary can then temporarily modify or waive certain Medicare, Medicaid, CHIP or HIPAA requirements. This allows healthcare providers the flexibility needed to ensure individuals with Medicare or Medicaid have access to healthcare. The secretary must provide certification and notice to the U.S. Congress before taking these steps.

On April 21, the administration implemented the exercise of regulatory flexibility amid the COVID-19 pandemic by issuing the COVID-19 Emergency Declaration Blanket Waivers for Health Care Providers (Blanket Waivers), which can be found here. The declaration was retroactively applied to take effect March 1 until the end of the emergency. Through the Blanket Waivers, CMS was empowered to expand the health care efforts against COVID-19.

The Blanket Waivers loosen restrictions in an attempt to improve response efforts amidst the pandemic. The Waivers have provided flexibility for Medicare telehealth services and allowed certain hospitals to screen patients off-site to prevent the spread of COVID-19. They have allowed physicians whose privileges will expire at a certain hospital to remain practicing at that facility and have provided flexibility to hospices by waiving certain requirements placed on their operations.

The above list does not even touch the tip of the iceberg when it comes to the efforts being made to assist the healthcare system and its patients in navigating the pandemic. The document is also being updated periodically as the ever-changing crisis evolves. The Blanket Waivers are only in effect through the end of the emergency, so providers and patients must keep in mind that compliance will be expected once the emergency declaration is terminated.

In Texas, Gov. Greg Abbott also declared a state of disaster on March 13. In response, HHSC submitted a waiver to CMS, requesting flexibility in administering Medicaid on a state level. The waiver was granted, allowing various regulatory flexibilities. For example, during the state of disaster, Texas can provisionally and temporarily enroll an out-of-state provider not enrolled in Medicare or another state’s Medicaid program; out-of-state providers can be reimbursed in some instances; and prior authorization approvals can be extended. Governor Abbott also waived certain regulations in an effort to expand the health care workforce during the pandemic.

HHSC provides updated information on the flexibilities that providers can request, and how providers can best assist those impacted by COVID-19, on their website. HHSC also recommends that providers do their best to achieve compliance with all state and federal regulations that remain in effect. However, if compliance is difficult or impossible, HHSC urges providers to maintain written records that illustrate compliance attempts, reasons for non-compliance, and other relevant factors.

Changes made to regulatory healthcare compliance during the COVID-19 pandemic are warranted and welcomed. However, there are challenges. The healthcare arena is rapidly evolving during the crisis, and that means that the waivers, flexibilities, enforcement actions and guidelines are constantly changing as well. Although patient care should be the No. 1 priority, providers, facilities and the like should do their best to stay up to date on the governing laws and regulations to remain compliant.

Jeffrey J. Ansley is a partner and Arianna G. Goodman and Katherine M. Devlin are associates at the Dallas-based law firm Bell Nunnally.