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While surveying, I came across many different facility directors or emergency managers that were confused about the CMS 1135 waiver or felt it was specifically for clinical staff. For many facility directors, the CMS 1135 waiver process was something they heard about but felt they would never use. Normally, it was just referred to as a policy or spoken about during an emergency management meeting to ensure the organization was meeting standards.
In general, a large portion of the CMS waiver process identifies specific programs instituted by the Social Security Act that can be adjusted and exempted from sanctions. Granted, this waiver does not give you carte blanche to do whatever you feel on testing and maintenance in healthcare. You must show, in good faith, you are striving to provide the best possible care to patients to get your reimbursement. In fact, it states that you are exempted, but you cannot act in a manner that results in neglect, fraud, or abuse.
A source of confusion for facility managers is that the waiver does not apply to them, due to the focus on clinical aspects. Since the state of emergency isn’t allowing organizations to complete their testing, the waiver helps facility managers adjust their required maintenance schedule within a newly determined timeframe.
Within the 1135 waiver, there is one area that specifically identifies modifications to the Conditions of Participation (COP) and within both the physical environment and life safety. Since the waiver states COPs, this allows the facility to approach situations differently during times of emergency, except for areas that CMS indicates cannot be adjusted (as they did with the recent blanket waiver issued).
The 1135 waiver is also adaptable to all healthcare organizations. This includes acute care, long term care, surgery centers, behavioral health centers, and critical access hospitals.
During this time, you must show good faith. This is for CMS, as well for your accrediting agency’s purposes. Deciding not do testing because it’s inconvenient is not acceptable. You must ensure you or your staff are assigned to the task are able to articulate the adjustment in testing or why you were not able to complete testing at all during that period. Make sure you have documentation if there are any questions in the future.
To initiate an 1135 waiver process, either contact your regional CMS office to start the process or work with your state public health department and have them request the waiver on the state’s behalf. Once received, the waiver is reviewed and is either accepted or rejected. In the recent case of the pandemic, CMS streamlined the process by sending out a blanket waiver prior to states submitting them.
For further reading on the CMS waiver process, refer to the link below. This will provide you all the information you need including CMS 101 basics.
https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertEmergPrep/1135-Waivers
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