These waivers, known as 1135 waivers (due to being granted by Section 1135 of the Social Security Act), are allowed when 2 conditions are met:
- First, there must be a declaration of a Public Health Emergency (PHE) by the Secretary of the Department of Health and Human Services (HHS) under Section 319 of the Public Health Service (PHS) Act. The Secretary first declared a Public Health Emergency on January 27, 2020 and renewed it on April 21, 2020 effective April 26, 2020. (I found the following PHE Declaration Q&As helpful in understanding their relationship to the Presidential National Emergency declaration.)
- Second, the President of the United States must declare a National Emergency. The President declared a National Emergency concerning the COVID-19 outbreak on March 13, 2020 under both the Stafford Act and the National Emergencies Act.
Recent Developments
Although the declaration of a national emergency lasts for 1 year after proclamation, the PHE lasts only 90 days, unless the Secretary declares that it is no longer necessary prior to its expiration. Since both components are necessary for an 1135 waiver, the current waivers are set to expire on July 25, 2020 unless the Secretary authorizes another renewal.
There have been some reports in the media that the President is considering ending the national state of emergency, though this has not been publicly verified. However, the administration has been silent on whether the Public Health Emergency will be extended in July. [Update: It appears based on a recent tweet from Michael Caputo, HHS Assistant Secretary for Public Affairs, that HHS will renew the PHE later this month.]
The American Hospital Association (AHA)’s President recently wrote to the Secretary urging an extension of the PHE.
The American Hospital Association (AHA)’s President recently wrote to the Secretary urging an extension of the PHE. This communication occurred before the recent news concerning surges in several states became common knowledge. In a recent letter to the Secretary, AHA President, Richard Pollack, set forth 4 key metrics that should be met before allowing the state of emergency to expire:
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- The supply chain can meet the demand for personal protective equipment (PPE), lab testing supplies, and COVID-19 medications.
- The number of lab tests administered nationwide exceeds 500,000 per day, and the number of COVID-19-positive tests is equal to or fewer than 5,000 per day for at least two weeks.
- The number of patients in ICU beds nationwide is fewer than 5,000 per day for two weeks, and no more than 10% of those patients are in any one city or region.
- The number of deaths per day from COVID-19 nationally is fewer than 500 for two weeks.
Can the Waivers Be Extended?
One question frequently asked is whether the waivers can be extended in the absence of a PHE declaration. Unfortunately, the answer appears to be no, as both the National Emergency and Public Health Emergency must be in force for the Secretary to have the authority to grant 1135 waivers.
Another common question is whether these waivers could be made permanent (particularly the SNF and telemedicine waivers). It appears that there is hope that some of the telemedicine allowances may become permanent based on a recent article published in FierceHealthcare. According to the article, CMS is planning on including a proposal for expanded reimbursement for telehealth services in the annual Physician Fee Schedule and Quality Payment Program ruling. (The proposed rule is usually available for review and commentary late July.)
As it relates to the SNF waivers, last week CMS revised MLN Matters SE20011, Medicare Fee-for-Service (FFS) Response to the Public Health Emergency on the Coronavirus (COVID-19), with clarifications to the SNF Benefit Waiver. More information on this here.
So, for the moment, providers must live with some uncertainty until the new PHE declaration is issued. However, the recent surges of COVID-19, the tweet from the HHS Assistant Secretary, and the latest news from CMS make it more likely that the Public Health Emergency will be extended.
For now, we recommend hospitals start considering the possibility that these waivers may not be extended indefinitely and evaluate the operational changes that will be necessary to continue operating and providing both inpatient and outpatient care to their patients.
If you have additional questions about the 1135 waivers, contact us at or send me an email.
