CMS 1135 Waivers
Under section 1135 of the Act, the Secretary has the authority to temporarily waive or modify certain Medicare, Medicaid, and CHIP requirements to ensure that sufficient health care items and services are available to meet the needs of enrollees in an area affected by a federally-declared PHE. The Secretary may invoke section 1135 waiver authority when a declaration of emergency or disaster under the National Emergencies Act or Stafford Act and a Public Health Emergency Declaration under Section 319 of the Public Health Service Act have been made. Section 1135 authority enables providers to furnish needed items and services in good faith during times of a PHE or disaster and to be reimbursed and exempted from sanctions (absent any determination of fraud or abuse). Section 1135 waivers typically end no later than the termination of the emergency period or 60 days from the date that the waiver or modification is first published. During the COVID-19 PHE, in addition to issuing section 1135 waivers on a case-by-case basis, HHS and CMS issued a number of nationwide Medicare “blanket” section 1135 waivers that apply broadly to any entity that meets the enumerated criteria. If there was not a blanket waiver in place, providers were able to request individual Medicare waivers using the CMS 1135 waiver portal.
In May 2022, CMS updated the portal to both facilitate the submission of Medicaid 1135 waiver requests and help expedite the CMS approval process. State Medicaid Agencies may now use the portal to request one or more pre-populated section 1135 Medicaid waivers and/or describe additional Medicaid flexibilities they are seeking for a particular PHE. Additional information and materials on how to submit a Medicaid 1135 waiver request can be found on CMS Emergency Preparedness site. A quick reference guide and youtube video on how to submit 1135 waivers can be found on the CMS Emergency Preparedness site. The list of potential Medicaid 1135 waivers that SMAs could request from CMS can be found in Appendix A of the quick reference guide.