On March 13, 2020, President Trump issued a proclamation that the novel coronavirus (“COVID-19”) outbreak in the United States constituted a national emergency. Following this proclamation, pursuant to section 1135(b) of the Social Security Act, the Secretary of the Department of Health and Human Services (“HHS”), Alex Azar, invoked his authority to waive or modify certain requirements of titles of the Act as a result of the consequences of the COVID-19 pandemic, to the extent necessary, as determined by the Centers for Medicare & Medicaid Services (“CMS”), to ensure that sufficient health care items and services are available to meet the needs of individuals enrolled in the Medicare, Medicaid, and Children’s Health Insurance Programs (“CHIP”). This authority took effect on March 15, 2020, with a retroactive effective date of March 1, 2020 and will terminate at the conclusion of the public health emergency period. Pursuant to this authority, HHS announced a number of nationwide blanket waivers, including a waiver related to telehealth, in order for providers to respond to the COVID-19 public health emergency.
Separate from and in addition to the blanket waivers, the Secretary’s authority under Section 1135 also allows CMS to grant Section 1135 waivers to states that request CMS to temporarily waive compliance with certain statutes and regulations for its Medicaid programs during the time of the public health emergency. So far, many states have requested these additional flexibilities in order to focus their resources on combatting the outbreak and providing the best possible care to Medicaid enrollees in their states. CMS has been rapidly approving these Section 1135 waiver requests, but it is important to recognize that not all state requests are created equal with respect to utilizing telehealth / telemedicine services during the public health emergency. Based on a review of the publicly available state request letters, it is clear that some states have prioritized use of telehealth in order to respond to COVID-19, while other states have not, or have not yet requested similar flexibilities related to provision of telehealth services. Examples of states that have prioritized greater use of telehealth include:
Although states may use a number of authorities to increase access to care during COVID-19, the above states have taken action to utilize technology to aid their Medicaid populations’ access to necessary care during the COVID-19 outbreak. There is little doubt that additional states will follow suit and request Section 1135 waivers, but providers must carefully track what specific state waivers are requesting with respect to greater use of telehealth, to understand what may or may not be permissible during the time period of this national public health emergency. You can track CMS approvals of state Section 1135 waiver requests here.
Epstein Becker Green has added an executive summary to its Telemental Health Laws survey that reviews key changes made at the federal and state level in light of the COVID-19 national public health emergency, which will have an impact on federal and state laws, regulations, and guidance for mental and behavioral health practitioners and stakeholders across all 50 states and the District of Columbia. To learn more, visit our website.
 Waiver or Modification of Requirements Under Section 1135 of the Social Security Act (Mar. 13, 2020), available at https://www.phe.gov/emergency/news/healthactions/section1135/Pages/covid19-13March20.aspx.
 See EBG’s client alert titled “New and Pre-Existing Federal Waivers and Flexibilities Available to Health Care Providers During a National Emergency,” available at https://www.ebglaw.com/helaine-i-fingold/news/new-and-pre-existing-federal-waivers-and-flexibilities-available-to-health-care-providers-during-a-national-emergency/ for additional information on the nationwide blanket waivers.