In light of the Trump Administration declaring a state of emergency in order to respond to COVID-19, State Medicaid agencies may be interested in utilizing the 1135 waiver mechanism to act quickly and decisively in providing care to their residents. 1135 Waivers are used when the President declares a disaster or state of emergency under the following conditions;
- The Stafford Act (Disaster Relief and Emergency Assistance Act) [1]
- The National Emergencies Act [2]
- Upon the Health and Human Services (HHS) Secretary declaring a public health emergency under Section 319 of the Public Health Service Act.
These waivers are used to temporarily modify components of Medicare, Medicaid, and Children’s Health Insurance Program (CHIP) in order to best serve delivery health care products and services to enrollees in these programs during times and locations of the emergency or disaster in question, such as COVID-19. This includes reimbursing providers that furnish medical assistance to enrollees in good faith and exemption from sanctions that might otherwise be in place during a non-emergency situation.
Requesting an 1135 Waiver
States that need to expand coverage or create additional flexibilities for provider enrollment during an emergency situation such as this may want to explore utilizing an 1135 waiver to do so. States that wish to pursue an 1135 waiver should contact their CMS regional office to begin discussing the use of this waiver. Instructions for the request process, and regional CMS office contacts for can be found here.
The Center for Medicare & Medicaid Services has also released a list of over 30 “Blanket Waivers” which are standing waivers to federal regulations that states do not need to apply to use with individual applications. A full list of the blanket waiver authorities for healthcare providers and facilities can be found here.
Duration of 1135 Waivers
The use of these waivers is time-limited and must typically end in conjunction with the termination of the emergency or disaster declaration period. The Secretary of HHS must extend the 1135 waiver every 60 days (starting from the initial publishing of the waiver’s use) up to the conclusion of the emergency period.
Leveraging 1135 Waivers for Regulatory Flexibility
Historically, this authority has not been utilized, the 1115 authority has been used in past disaster situation like Hurricane Katrina which extended temporary coverage to approximately 118,000 people across 32 fast-tracked applications. [3] Now however, 49 states have requested the Administration at this time to utilize the 1135 waiver authority. Some examples of Medicare, Medicaid, and CHIP modifications that can be made using the 1135 waiver authority include [4]:
- Conditions of participation or other certification requirements for Medicare, Medicaid, and CHIP providers.
- Medicare, Medicaid, and CHIP program participation and similar requirements.
- Preapproval requirements for providers and sites such as clinics, hospitals, etc.
- Requirements that physicians and other health care professionals be licensed in the State in which they are providing services, so long as they have equivalent licensing in another State (this waiver is for purposes of Medicare, Medicaid, and CHIP reimbursement only – state law governs whether a non-Federal provider is authorized to provide services in the state without state licensure).
- Emergency Medical Treatment and Labor Act (EMTALA) sanctions for redirection of an individual to receive a medical screening examination in an alternative location pursuant to a state emergency preparedness plan (or in the case of a public health emergency involving pandemic infectious disease, a state pandemic preparedness plan) or transfer of an individual who has not been stabilized if the transfer is necessitated by the circumstances of the declared emergency. A waiver of EMTALA requirements is effective only if actions under the waiver do not discriminate on the basis of a patient’s source of payment or ability to pay.
- Stark self-referral sanctions i.e. ability to self-refer patients.
- Medicare, Medicaid, and CHIP performance deadlines and timetables may be adjusted (but not waived).
- Limitations on payment for health care items and services furnished to Medicare Advantage enrollees by non-network providers.[5]
For example, in Florida, the state was granted an 1135 waiver to waive prior authorization requirements to remove barriers to needed services, streamline provider enrollment processes to ensure access to care for beneficiaries, allow care to be provided in alternative settings in the event a facility is evacuated to an unlicensed facility, suspend certain nursing home screening requirements to provide necessary administrative relief, and extend deadlines for appeals and state fair hearing requests. [5]
California has requested three 1135 waiver that asked for a variety of flexibilities such as provider enrollment requirements, service authorization, benefit flexibilities, state fair hearing requests and appeal deadlines for managed care enrollees, telehealth/virtual visits, payment rates, eligibility flexibilities, and administrative activities flexibility.
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If you would like to learn more or work with Transform Health please contact Heather Bates at heather@transformhc.com
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[1] Federal Emergency Management Agency, The Stafford Disaster Relief and Emergency Assistance Act
[2] The Stafford Act and National Emergencies Act are invoked during a declaration of a State of Emergency to allow the President, Federal government, and states respond to an emergency.
[3] Center for Medicare & Medicaid Services, Program History, 2020
[4]Center for Medicare & Medicaid Services, 1135 Waivers, Example Modifications, 2020
[5] Center for Medicare & Medicaid Services, 1135 Waivers, 2020