Between wildfires in the West and hurricanes in the South, it seems hardly a day has gone by over the last few weeks when reports of natural disasters are not occupying the headlines. We suppose the “good news” is there haven’t been any reports of a plague of locusts hitting the Midwest.
Natural disasters have been a part of our lives for generations and will continue to be so in the future. Minimizing the loss of life or damage to property, including your medical practice, can often be the difference between planning and indifference.
The federal government has been encouraging providers to plan, develop and test emergency plans for their hospitals and clinics and they have prepared materials to help providers do just that. For example, check out the emergency preparedness checklist produced by the Centers for Medicare and Medicaid Services (CMS). Keep in mind this checklist was produced for all providers so some of these items may not necessarily be applicable to your practice.
But even with the best laid plans, natural disasters can cause tremendous damage, ranging from the closure of your medical practice due to floods, loss of electrical power for extended periods of time, or the closure of roads and bridges making your practice inaccessible.
What can you do after the disaster has passed and you are in recovery mode? More importantly, must you still comply with the myriad of federal rules and regulations that govern where, when or whether you will get paid by Medicare for care provided to your patients after a disaster?
Section 1135 of the Social Security Act grants the Secretary of Health and Human Services (HHS) the emergency authority to waive certain requirements in the Medicare, Medicaid, CHIP, and HIPAA programs.
There are two requirements that must be met to trigger the HHS secretary’s emergency authority:
- The President has declared an emergency or disaster.
- The secretary of HHS has declared a Public Health Emergency under Section 319 of the Public Health Service Act.
In the cases of Hurricanes Harvey and Irma, those requirements have been met. In fact, the Advocacy Council has been advised that CMS has announced waivers for the providers of victims of Hurricanes Harvey and Irma. Read more about assistance for Irma victims in the CMS Medicare Learning Network Matters Special Edition Article.
The disaster declaration will be applicable to designated geographic areas – most commonly at a county level. For Harvey, more than 20 counties in Texas and more than 10 counties in Louisiana were designated as disaster areas for which waiver authority is applicable. The disaster declaration may also come with a time limit but this is not required.
With respect to the geographic area(s) and time periods provided for in those declarations, the HHS secretary may elect to authorize waivers or modifications of one or more of the following requirements:
- Conditions of participation or other certification requirements applicable to providers.
- Licensure requirements applicable to physicians and other health professionals.
- Sanctions for violations of certain emergency medical standards under the Emergency Medical Treatment and Labor Act.
- Sanctions relating to physician self-referral limitations (Stark).
- Performance deadlines and timetables (modifiable only; not waivable).
- Certain payment limitations under the Medicare Advantage program.
Medicare fee-for-service requirements, including most particularly (but not limited to) Medicare payment rules and amounts, are not, and cannot be, waived under Section 1135.
Although the secretary of HHS does not have the authority to waive Medicare payment rules (i.e. medical necessity, coverage requirements, etc.), a physician dislocated from his/her regular practice location can seek a temporary change of practice address.
Specific to Hurricane Harvey, CMS has announced the following for physicians currently enrolled in Medicare:
CMS is temporarily waiving the practice location reporting requirements for physicians in one of the designated disaster area counties in Texas or Louisiana who are temporarily relocating to a new practice location. CMS will not take administrative actions with respect to providers who fail to notify them of their temporary practice location. This process will remain in effect until the disaster designation is lifted.
CMS has also announced that the agency is temporarily suspending revalidation efforts for Medicare providers located in Texas, Louisiana and areas otherwise directly impacted by Hurricane Harvey.
In general, inquiries and approvals would be handled at the Medicare Administrative Contractor level. Should you find yourself dislocated due to a declared disaster, you are encouraged to contact your Medicare Administrative Contractor to ascertain what they want you to do to secure approval of a temporary change of address.
Finally, Congress appears to be on the cusp of approving an initial appropriation of $9 billion in relief for the victims of Hurricane Harvey but there has been no information on whether any of this assistance will be available to repair or rebuild medical facilities damaged or destroyed by the hurricane and the subsequent flooding.