On March 13, 2020, President Trump declared the COVID-19 virus a national emergency. Section 1135 of the Social Security Act allows CMS to waive certain regulatory requirements during national emergencies. As of March 19, 2020, CMS has approved Section 1135 waivers for Florida and Washington, aiming to assist those states in combating the virus by granting flexibility and suspending penalties related to certain federal Medicaid requirements. CMS has fast-tracked these waiver approvals and expects other states to request similar 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. Under Section 1135, the Secretary may temporarily waive or modify Medicare, Medicaid, and Children’s Health Insurance Program (CHIP) requirements to ensure that sufficient healthcare items and services are available.

In the Medicaid context, Section 1135 waivers give states flexibility to administer their Medicaid programs in a manner that allows healthcare providers who, as a result of a national emergency, are otherwise unable to strictly comply with certain federal Medicaid requirements. Additionally, providers are exempted from sanctions and reimbursement penalties from noncompliance with those Medicaid requirements, absent fraud or bad faith action. Examples of flexibilities that states may seek through Section 1135 waiver requests include:

• Streamlining processes to ramp up provider enrollment;
• Allowing care to be provided in alternative settings in the event a facility is evacuated or is filled to capacity;
• Extending deadlines for appeals and state fair hearing requests;
• Waving prior authorization requirements in fee-for-service programs;
• Permitting providers located out of state/territory to provide care to another state’s Medicaid enrollees impacted by the emergency;
• Suspending certain provider enrollment and revalidation requirements to increase access to care;
• Waiving requirements that physicians and other healthcare professionals be licensed in the state in which they are providing services, so long as they have equivalent licensing in another state; and
• Suspending requirements for certain pre-admission and annual screenings for nursing home residents.

Florida became the first state to submit a Section 1135 waiver request in response to COVID-19, receiving approval from CMS on March 16, 2020. A few days later, Washington—one of the states most affected by the virus thus far—also received CMS approval for its Section 1135 waiver. With the COVID-19 virus now affecting all 50 states, CMS expects that more states will submit similar requests. Additional Section 1135 approval letters will be posted here as they are issued. Florida’s Section 1135 waiver approval letter is available here. Washington’s Section 1135 waiver approval letter is available here.

While CMS has issued “blanket” Section 1135 waivers for all providers, described here, state-specific Medicaid waivers like the ones sought by Florida and Washington may prove to be one of the critical steps states take in addressing the COVID-19 virus.