NYS 1135 Waiver application: A look at some requests

March 24, 2020

Here’s a look at some of the sections of the state’s recently filed 1135 waiver submission, by topic area.  Remember:  These are requests.

HEALTH HOMES

York requests that CMS waive all face-to-face requirements for Health Home Serving Adults, Health Homes Serving Children, and Care Coordination Organization/Health Homes and that CMS waive the requirements for written member consents and member signatures on plans of care and life plans; verbal consents would be documented in the member record. New York also requests that the annual assessment and the requirement to annually update the life plans/plan of cares be waived until further notification by the DOH.

TELEHEALTH

New York appreciates the recently issued by blanket waiver under Section 1135 that expands when Medicare can pay for office, hospital, and other visits furnished via telehealth. We are also pleased to learn of the flexibility afforded by the Office of the Inspector General of the U.S. Department of Health and Human Services (“OIG”) for health care provides to reduce or entirely waive cost-sharing for telehealth visits paid by Medicaid without risking a violation of the Anti-Kickback Statute or Civil Monetary Penalties Law. Building on this blanket waiver, New York seeks additional flexibilities regarding the use of telehealth in innovative and clinically meaningful ways to ensure that individuals are able to visit with their clinicians without putting themselves and others at risk of contracting or transmitting COVID-19. These additional flexibilities include:

  • Allowing the use of telephonic, synchronous and asynchronous telehealth modalities for both new and established patients; and
  • Suspending the federal requirements that in order to bill for a telehealth service a provider or a provider in their practice must have furnished a service to that individual within the previous three years so that telehealth codes can be billed even for first-time patients, many of whom will be using telehealth for the first time as the nationwide public health emergency.

Benefit and Authorization Requirements

The COVID-19 public health emergency has created unprecedented operational by the State and the Local Districts of Social Services that perform critical functions regarding determinations of Medicaid eligibility. To mitigate these difficulties, New York requests that CMS permit New York to implement certain additional changes to its eligibility determination processes:

  • Consistent with 1135 Waivers granted to other states, including Washington and Florida, waive prior authorization and medical necessity processes in its fee-for-service program, to the extent New York applies these processes in our State Plan;
  • Require fee-for-service providers to extend pre-existing authorizations through which a beneficiary has previously received prior authorization through the termination of the emergency declaration;
  • Extend Medicaid eligibility beyond the end of the redetermination period for 12 months in order to maintain monthly caseloads at current levels;
  • Not require certain conditions of eligibility that would require individuals to take action and provide documentation, including:

o applying for other benefits, including but not limited to Medicare and Social Security benefits;

o referrals for Veterans Benefits

o providing documentation of available Third Party Health Insurance; and referrals for cash medical support enforcement;

  • Allow New York to apply a blanket documentation of our use of all exceptions for the duration of the nationwide public health emergency, in lieu of documentation in specific case records. This additional easement is essential because of diminished eligibility workforce following implementation of measures to combat the COVID-19 public health crisis; and
  • Expand Hospital Presumptive Eligibility to include the over 65/aged & disabled population.

Managed Care

As CMS is aware, a majority of Medicaid beneficiaries access their services and supports through Medicaid managed care plans, including Managed Long-Term Care plans for individuals who are eligible for long-term support services and Health and Recovery Plans for individuals who are eligible for behavioral health services. Given the extent to which managed care is integrated into the fiber of the State’s Medicaid program, New York is seeking several waivers from CMS under 42 C.F.R. Part 438 that recognize the input role these plans are playing in the response to the COVID-19 public health emergency. These waiver requests include:

• Revising current managed care contracts to add a reconciliation to reimburse managed care organizations for expenses related to COVID-19 and the emergency declaration;

  • Permitting flexibility with requirements to complete credentialing of providers required under 42 C.F.R. § 438.214, which would align with waivers to the Medicaid fee-for- service enrollment requirement;
  • Allowing members who have been out of the country for more than six weeks as a result of COVID-19 travel restrictions to maintain enrollment;
  • Suspending the requirement for actuarially sound Medicaid managed care rates applicable to calendar years 2020 and 2021, such that the State may work with plans and their actuaries to best determine how COVID-19 and its associated requirements regarding cost-sharing, telehealth, and other access requirements will impact plan financial performance;
  • Waiving CMS’s prior approval process under 42 C.F.R. § 438.6(c) for state-mandated MCO payments, to the extent that New York requires managed care plans to reimburse providers based on historic average revenue through a system other than claims and encounters; and
  • Temporarily suspending the requirements under 42 C.F.R. § 438.66 of full on-site biannual operational, targeted, focused managed care surveys and readiness reviews and allowing partial completion of essential survey and readiness activities remotely.
    COVERING CERTAIN COMMUNITY BASED AND SOCIAL CARE SERVICES
    New York seeks additional flexibility in covering certain community based and social care services that help contain the spread of COVID-19. These additional flexibilities include extending Medicaid coverage to housing-related services, including temporary housing, housing application assistance, and transfer/moving expenses, in order to safely discharge homeless individuals or those without a safe and an appropriate discharge location. Additionally, New York seeks a waiver to extend Medicaid coverage to nutritional services, including healthy meals for families who may not have access to meals during the interrupted period of social distancing.
  • Allowing state to draw federal financing match for payments, such as hardship or supplemental payments, to stabilize and retain providers of Behavioral Health, Long Term Care settings (including home care workers), Health Homes, and Early Intervention providers who suffer extreme disruptions to their standard business model and/or revenue streams as a result of the public health emergency;
  • OPWDDPermitting providers for individuals with intellectual and developmental disabilities, as authorized under New York’s Home and Community Based Service (“HCBS”) Waiver 0238.06.00, to implement retainer day payments for Day Habilitation and Prevocational Services, and potentially other HCBS services, such that these would be eligible for up to 30 consecutive days of retainer day payments.3

FQHCs

Allowing 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, which will allow flexibility in site of clinics to promote appropriate infection control.

MEDICARE

  • Waiving timely filing requirements for billing that will allow providers getting correct coding and other structural pieces built into their systems and even payer ability to adjudicate (42 U.S.C. § 1396a(a)(54), and 42 U.S.C. §§ 1395cc(a)(1)(57), & (w), 42 CFR § 424.44).
  • Removing the 13-day payment “floor” before clean Medicare claims can be processed for payment, as this removal will help expedite cash flow for providers in this critical time;