Section 1135 Waivers

by | May 18, 2020 | CMS & OIG

Explore More Posts from MDS Consultants

When the President and HHS Secretary declared a national health emergency in response to the COVID-19 pandemic, they triggered section 1135 of the Social Security Act.  Section 1135 allows the Secretary to temporarily waive or modify certain Medicare and Medicaid requirements to ensure sufficient health care for enrollees.

Skilled Nursing Facilities (SNFs) were issued multiple blanket waivers.

  • 3-Day Prior Hospitalization waiver– waives the 3-day inpatient hospital stay requirement
  • Spell of illness waiver– authorizes renewed SNF coverage without first having to start a new benefit period.

What Does This Mean for Skilled Nursing Facilities

These waivers are considered “blanket” waivers. “Blanket” does not mean that the facility can skill everyone. The term simply means that providers do not need to apply for an individual waiver.

The waivers only cover specific situations and residents. A letter HHS published in March clarifies:

“SNF care without a 3-day inpatient hospital stay will be covered for beneficiaries who experience dislocations or are otherwise affected by the emergency, such as those who are (I) evacuated from a nursing home in the emergency area, (2) discharged from a hospital (in the emergency or receiving locations) in order to provide care to more seriously ill patients, or (3) need SNF care as a result of the emergency, regardless of whether that individual was in a hospital or nursing home prior to the emergency.”

While it is true the resident does not necessarily have to have COVID-19, he/she does need to have been affected by the pandemic either directly or indirectly to qualify for the waiver.

Also stated in the same letter from HHS:

“We will recognize special circumstances for certain beneficiaries who, prior to the current emergency, had either begun or were ready to begin the process of ending their spell of illness after utilizing all of their available SNF benefit days. …the dislocations resulting from the emergency (including emergency-related measures that could result in discharge delays) may delay or prevent such beneficiaries from commencing or completing the process of ending their current benefit period and renewing their SNF benefits that would have occurred under normal circumstances.”

Waiving the 60-day wellness period applies only to those residents that already began or were about to start a wellness break when they were affected by the pandemic.

Our Take

When reading the releases from CMS, there are two critical factors that stand out when applying the waivers.

  1. The first, providers furnishing “good faith” services, may receive supplemental payments, expansion of benefits, and exemption from sanctions (absent any determination of fraud or abuse).
  2. Second, the Secretary of Health and Human Services finds that doing so will not increase total payments made under the Medicare program or change the essential acute-care nature of the SNF benefit.

When a facility is going to utilize the waivers, it must be done in good faith and not change the nature of the benefit. Facilities should use the waivers responsibly, document why and when the waiver is applied, and don’t forget the resident must still met the level of care guidelines.

Explore More Posts from MDS Consultants

Get ready for October 1

New 3-day Lookbacks | Assessment Periods

This post is part of the MDS 2023 Countdown series.  Disclaimer. Current as of March 24, 2023 What You Can Expect to See New 3-day lookback/assessment periods are coming to the MDS world. There are different sections of the MDS that the Nurse Assessment Coordinators...

New Pain Interview in Section J

This post is part of the MDS 2023 Countdown series.  Disclaimer. Current as of February 22, 2023 What You Can Expect to See The most noticeable changes to Section J are evident in the pain interview, specifically questions J0510, J0520 and J0530. The RAI Manual has...

Section B – Hearing, Speech and Vision Changes

This post is part of the MDS 2023 Countdown series.  Disclaimer. Current as of February 15, 2023 What You Can Expect to See Section B on the MDS is a component of the Standardized Patient Assessment Data Elements (SPADEs), which is utilized across post-acute care...

Race and Ethnicity – Changes in Section A

This post is part of the MDS 2023 Countdown series.  Disclaimer. Current as of February 7, 2023 What You Can Expect to See Section A, Identification Information for Race/Ethnicity has expanded. One of the major changes is the deletion of section A1000 Race/Ethnicity....

The New Section N: Use and Indication of High-risk Drug Classes

This post is part of the MDS 2023 Countdown series.  Disclaimer. Current as of December 23, 2022 WHAT YOU CAN EXPECT TO SEE We will see changes in Section N of the MDS 3.0 effective on October 1, 2023.  Section N0410 (Medications Received) has been eliminated and is...

Read more on Toolbox Essentials

Focused Infection Control Surveys and Directed Plan of Correction

It's a dreary Monday morning, and the state surveyors walk into your facility to conduct a Focused Infection Control survey. You and your team have been trying your hardest to comply with infection control procedures throughout the pandemic. At the end of the survey,...

New Advanced Beneficiary Notice

Is your facility using the proper ABN form? The Centers for Medicare & Medicaid Services (CMS) recently updated the Advanced Beneficiary Notice of Noncoverage (ABN), Form CMS-R-131. The new ABN will be mandatory for use on 1/1/2021, but the new form can be...

Covid-19 and Skilled Status

In late June, CMS addressed two issues and posted MDS 3.0 Final Item Sets (V1.17.2).  The two edits were changes to facilitate the calculation of Patient-Driven Payment Model payment codes on OBRA assessments for states that wish to have this calculation performed. ...

Mind Your PHQs

Some skilled nursing facilities (SNFs) are concerned about accurate payment when a resident unexpectedly discharges and the Brief Interview for Mental Status (BIMS) has not yet been completed.However, they should be just as concerned about the PHQ-9. The PHQ-9...

MDS in the Emergency Preparedness Plan

The COVID-19 pandemic has highlighted the need for skilled nursing facilities to have an effective Emergency Preparedness Plan - one that includes sheltering-in-place. The Centers for Medicare and Medicaid Final Rule requires that participating providers have an...

MORE from MDS Experts

Transportation – New Item A1250

This post is part of the MDS 2023 Countdown series.  Disclaimer. Current as of April 1, 2023 What You Can Expect to See An additional item we will see in the upcoming MDS 3.0 v.1.18.11 in October 2023 is A1250 - Transportation. This is included in a new subset of...

New 3-day Lookbacks | Assessment Periods

This post is part of the MDS 2023 Countdown series.  Disclaimer. Current as of March 24, 2023 What You Can Expect to See New 3-day lookback/assessment periods are coming to the MDS world. There are different sections of the MDS that the Nurse Assessment Coordinators...

New Pain Interview in Section J

This post is part of the MDS 2023 Countdown series.  Disclaimer. Current as of February 22, 2023 What You Can Expect to See The most noticeable changes to Section J are evident in the pain interview, specifically questions J0510, J0520 and J0530. The RAI Manual has...

Section B – Hearing, Speech and Vision Changes

This post is part of the MDS 2023 Countdown series.  Disclaimer. Current as of February 15, 2023 What You Can Expect to See Section B on the MDS is a component of the Standardized Patient Assessment Data Elements (SPADEs), which is utilized across post-acute care...

Race and Ethnicity – Changes in Section A

This post is part of the MDS 2023 Countdown series.  Disclaimer. Current as of February 7, 2023 What You Can Expect to See Section A, Identification Information for Race/Ethnicity has expanded. One of the major changes is the deletion of section A1000 Race/Ethnicity....

Webinars & Training

Grow your knowledge with our MDS education

MDS Guides & Forms

Exclusive resources & tools we use every day

Ask an Expert Forum

Members can get 1:1 advice from our MDS experts

RAC-CT & CTA Training

Learn from the best & build your expertise

News for MDS Experts

Browse our blog & get news alerts on MDS changes

MDS Completion

Get your MDS' done ASAP with short-term, expert help

Remote Floater

Fill gaps on your team when & where you need

Case Mix Index

Improve your complex case mix calculations

MDS System Mgt

Best practices for MDS schedules & workflow

More Services

Get help on PDPM, ICD-10, quality, schizoph. audits ++