President Trump Declares Federal Emergency

On March 13th, President Trump addressed the nation and officially declared a federal emergency in response to the COVID 19 pandemic. This declaration will trigger the availability of a variety of resources to assist states in their efforts to contain and address the spread of COVID-19.

Of particular importance to State Medicaid programs, and therefore State I/DD agencies operating Medicaid programs, is the increased flexibility afforded to the Secretary of Health and Human Services (HHS) under such declarations.

Section 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 of HHS 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 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;
  • PASRR-related activities

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.

1115 Demonstration Waivers

In the event of a disaster or an emergency, a state may request a new Section 1115 demonstration waiver, or amend or extend an existing Section 1115 demonstration to provide coverage to additional populations or expedite enrollment. Budget neutrality for section 1115 demonstrations related to federally-designated public emergencies is presumed to be met; thereby states are not required to submit a budget neutrality analysis in such requests. CMS may waive, in whole or in part, the federal and state public notice and comment procedures to expedite a decision on the state’s Section 1115 request.  States have used 1115 demonstrations to meet emergency needs for individuals served in HCBS. In addition to being able to modify eligibility and benefits, the 1115s may provide the opportunity to waive a vast number of otherwise applicable statutory or regulatory provisions that may be necessary to ably respond to meet individuals’ needs.

We will carefully monitor federal guidance related to this declaration and will share emerging information as it becomes available. Please see the below and attached additional resources. NASDDDS’ staff stand ready to assist with technical aspects of these authorities, so please reach out as needed.