Introduction

Section 1135 of the Social Security Act allows the Health and Human Services Secretary to waive or modify certain Medicare, Medicaid, and CHIP requirements during a national emergency. The purpose of this authority is to ensure that during an emergency sufficient health care services are available to Medicare, Medicaid, and CHIP `beneficiaries.  As of March 13, both a national emergency and a public health emergency have been declared in response to the COVID-19 pandemic, triggering section 1135 emergency waiver authority.  Flexibilities allowed under 1135 include provider participation requirements, preapproval requirements, and modification of performance deadlines and timetables.

On March 13, the Centers for Medicare and Medicaid Services (CMS) issued a set of blanket waivers for Medicare focused on requirements for individual facilities (e.g. hospitals, home health agencies, etc.). These blanket waivers do not require CMS approval for individual states and are not included in states’ 1135 approvals, and therefore, in our tracker.

On  March 22, CMS issued a Section 1135 Waiver Checklist for states. This Checklist includes 17 temporary Medicaid flexibilities that states can elect relating to prior authorization, long-term services and supports, fair hearings, provider enrollment, and reporting and oversight.

On the same day, also under section 1135 authority, CMS issued a template for State Plan Amendments (SPAs) to respond to the COVID-19 national emergency. CMS will streamline its regular SPA approval process for states that submit temporary program changes using this template.  In its instructions to states, CMS explains that “These waivers are limited to SPAs that provide or increase beneficiary access to items and services related to COVID-19 … and that would not restrict or limit payment, services, or eligibility, or otherwise burden beneficiaries and providers.”

Our Section 1135 waiver tracker and 1135 SPA tracker captures approvals for both respective flexibilities.  While the trackers aim to capture all approvals, there may be some absent due to the volume of approvals since March 2020. These trackers may be edited for accuracy or clarification. More information on COVID-19 emergency waivers and flexibilities states can request can be found here.

Approved 1135 Waiver Tracker

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Approved Disaster Relief State Plan Amendment Tracker

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