March 18, 2020

On March 15, 2020, Alex Azar, Secretary of the Department of Health and Human Services (“HHS”) issued Waiver or Modification of Requirements Under Section 1135 of the Social Security Act, available here. This proclamation waives or modifies conditions of Federal Health Care Laws, including Medicare, in response to the COVID-19 pandemic. The waiver took effect of March 15, 2020, but its applicability is retroactive to March 1, 2020. These 1135 waivers typically end by the termination of the emergency period, or 60 days from the date the initial waiver publication.

Included in this guidance is the modification of deadlines for those who have or may have appeals for fee for service, Medicare Advantage Plans, and Part D.  The guidance allows waivers for the following:

  • An extension to file any appeal; waiver of timeliness requirements for requests for additional information to adjudicate the appeal;
  • Processing appeals despite incomplete appointment of representation forms but communicating only to the beneficiary;
  • Processing requests for appeals that do not meet the required elements using information that is available; and
  • Utilizing all flexibilities available in the appeal process as if “good cause” requirements are satisfied. 

See here. Guidance from past emergency situations indicates that Medicare will consider when determining whether good cause exist for a late filing: the circumstances kept the party from making the request on time, a party made a diligent effort but could not find or obtain necessary relevant information within the appropriate time period, or other unusual or unavoidable circumstances exist. 42 CFR § 478.22 (providing examples of good cause for untimely filing of appeals).  For example, in 2019 CMS published a question and answer manual for 1135 emergency waivers in response to hurricane Dorian and indicated those seeking additional time to appeal should reference good cause for late filing due being affected by the hurricane. See here.

The guidance indicates that reducing this administrative burden will help providers focus on patient care during this critical time.  Providers need not file a specific 1135 waiver request, as the requirements for timely filing are already waived based on CMS’ waiver, but if time and resources are available, providers should notify the reviewing body (e.g., the MAC, QIC, OMHA or DAB) that they will not be meeting the appeal deadlines.

When providers eventually file, they should reference CMS’ waiver and show good cause for their late filing. CMS will accept late appeals when the provider shows they were affected by the emergency and shows good cause for their late filing.  Based on the severity of the COVID-19 pandemic, providers should have good cause for not timely filing or filing with the information they have available. 

Even with this waiver in place, providers must contact the appropriate reviewing body after the emergency period has expired, and file their appeals accordingly. Providers should include in their filing a reference to CMS’ 1135 waiver, an explanation of good cause for missing timeliness requirements and a copy of any previous notifications to the reviewing body of the delay (if available). For additional information please contact Ross Burris or Lacy Lee.