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Section 1135 Waivers

Issuing Waivers/Modifications

The Secretary is authorized to take certain actions (in addition to his regular authorities) under section 1135 of the Social Security Act:

  • When the President declares a major disaster or an emergency under the Stafford Act or an emergency under the National Emergencies Act, and

  • The HHS Secretary declares a public health emergency .

Waivers or modifications may be issued to ensure that in an emergency area, during an emergency period, sufficient health care items and services are available to the maximum possible extent to meet the needs of individuals enrolled in Social Security Act (SSA) programs and that providers of such services in good faith who are unable to comply with certain statutory requirements are reimbursed and exempted from sanctions for noncompliance other than fraud or abuse.

Waivers or Modifications of Requirements

The Secretary may waive or modify certain Medicare, Medicaid, Children's Health Insurance Program (CHIP), HIPAA, and EMTALA requirements as necessary.

RequirementsDescription
Conditions of Participationcertain conditions of participation, certification requirements, program participation or similar requirements for individual health care providers or types of health care providers
Pre-approvalpre-approval requirements
Licensurerequirements that physicians and other health care professionals hold licenses in the State in which they provide services if they have a license from another State (and are not affirmatively barred from practice in that State or any State in the emergency area) for purposes of Medicare, Medicaid, and CHIP reimbursement only
Sanctions

  • sanctions under EMTALA for redirection or reallocation of an individual to another location to receive a medical screening pursuant to an appropriate state emergency preparedness plan or a state preparedness plan for transfer of an individual not stabilized due to the declared Federal public health emergency. A waiver is effective only if actions do not discriminate based on payment source or ability to pay.

  • sanctions under section 1877(g) (Stark) relating to limitations on physician referral under such conditions as CMS determines appropriate.

  • sanctions and penalties arising from noncompliance with HIPAA privacy regulations relating to patient agreement, facility directory opt-out, notice of privacy practices, or privacy restrictions/confidential communications. Effective only if actions do not discriminate based on payment source or ability to pay.

Deadlines/Timetablesdeadlines and timetables for performance of required activities to allow timing modifications
Payment limitationslimitations on payments to permit Medicare Advantage enrollees to use out-of-network providers during emergencies, with reconciliation so enrollees do not pay additional charges

Notice and Reporting

At least two days before formally exercising the waiver authority, the Secretary must provide certification and notice to Congress describing the provision waived or modified, the providers affected, geographic area, duration, and justification. A report must be submitted within one year after the emergency period ends.

Duration of Waivers and Modifications

Waivers or ModificationsDuration
Waivers or modifications

  • May be retroactive to the beginning of the emergency period (or later date)

  • Terminate upon termination of the emergency or 60 days after publication (subject to 60-day renewals)

EMTALA Waivers (non-pandemic) or HIPAA requirements

  • Effective only for 72 hours beginning on implementation of a hospital disaster protocol

  • For pandemic disease emergencies, effective until termination of the pandemic-related public health emergency

Note: A particular waiver or modification may terminate earlier if the Secretary determines it is no longer necessary.

View all existing and past waivers or modifications under section 1135 of the Social Security Act