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1135 Waivers

When the President declares a disaster or emergency under the Stafford Act or National Emergencies Act and the HHS Secretary declares a public health emergency under Section 319 of the Public Health Service Act, the Secretary is authorized to take certain actions in addition to her regular authorities. For example, under section 1135 of the Social Security Act, she may temporarily waive or modify certain Medicare, Medicaid, and Children’s Health Insurance Program (CHIP) requirements to ensure that sufficient health care items and services are available to meet the needs of individuals enrolled in Social Security Act programs in the emergency area and time periods and that providers who provide such services in good faith can be reimbursed and exempted from sanctions (absent any determination of fraud or abuse). Examples of these 1135 waivers or modifications include:

  • Conditions of participation or other certification requirements
  • Program participation and similar requirements
  • Preapproval requirements
  • 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)
  • Stark self-referral sanctions
  • 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

These waivers under section 1135 of the Social Security Act typically end no later than the termination of the emergency period, or 60 days from the date the waiver or modification is first published unless the Secretary of HHS extends the waiver by notice for additional periods of up to 60 days, up to the end of the emergency period.

Additionally, the Emergency Preparedness Requirements for Medicare and Medicaid Participating Providers and Suppliers regulation applicable to all 17 provider types, also requires inpatient providers to have policies and procedures that address the facility’s role under an ‘‘1135 waiver’’. See the final rule for more information or contact your Regional Offices.

Note: The Emergency Preparedness Rule requires that some providers have policies and procedures, which address the "role of the facility under a waiver declared by the Secretary, in accordance with section 1135 of the Act, in the provision of care and treatment at an alternate care site identified by emergency management officials." This may include policies and procedures on what a facility would do if they had to provide care at an approved alternate site as well as processes on how would they let the community know they are operating at a different care site and any reporting they may need to do if they were under an approved 1135 Waiver.

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