Home Health & Hospice Week

Do you know the difference between a waiver and a flexibility?

After years of being under the COVID-19 public health emergency, you might think providers would know all about PHEs — but think again.

Many providers think PHEs are all the same, carrying the same flexibilities and waivers for Medicare providers. That’s somewhat true, but also somewhat false.

All PHEs offer providers certain flexibilities and waivers, but they usually carry time limits and restrictions. The COVID PHE, renewals, and long-term regulatory changes were the exception rather than the rule on how PHEs work and help providers.

Currently, there are four active PHEs in various stages that are unrelated to the pandemic:

National: A PHE renewal for the opioid crisis that went into effect on July 7, 2023.

Hawaii: A PHE determination for the wildfires on Maui that was signed on Aug. 11, 2023.

Florida: A PHE determination for Hurricane Idalia that was signed on Aug. 30, 2023.

Georgia: A PHE determination for Hurricane Idalia that was signed on Sept. 12, 2023.

And with hurricane season only about two-third over, not to mention the rise of other types of disasters, more PHEs are almost certainly in the cards.

Reminder: Once the U.S. President establishes an emergency under the Stafford Act, the Department of Health and Human determines a PHE under Section 319 of the Public Health Service Act (PHSA). A Section 319 PHE is good for a duration of 90 days, but it may be shortened by HHS if the feds declare an emergency no longer exists.

HHS can also extend a PHE. For example, the PHE for the opioid crisis has been renewed 23 times since it was originally declared in October 2017 and remains active, while the COVID PHE was renewed 12 times and ended on May 11, 2023.

Unless the PHE is determined a “national” emergency like the opioid crisis or COVID-19, the PHE will only cover the state and/or local areas referenced in HHS’ declaration.

Waivers and flexibilities: Previously, CMS, using the 1135 authority, has instituted waivers on a “‘blanket’ basis, when a determination has been made that all similarly situated providers in the emergency area needed such a waiver or modification,” the agency explains in a fact sheet on 1135 waivers. An Emergency Medical Treatment and Labor Act (EMTALA) waiver would be a good example. “While blanket authority for these modifications may be allowed, the provider should still ensure modifications do not conflict with State requirements,” CMS advises.

Medicare providers can also request an 1135 waiver for something they feel needs covered under the PHE.

Know this: A waiver and flexibility are not the same thing. “A ‘waiver’ refers to a waiver or modification of statutory requirement of the Social Security Act (Act) or its implementing regulations that may be waived or modified under the authority of 1135 of the Act,” reminds CMS. However, “‘a flexibility’ is an agency policy or procedure that can be adjusted under current authority — and generally speaking, can be adjusted without reprogramming CMS’ systems,” the agency explains.

Tip: If you’re confused about PHEs and coverage, check with the Medicare Administrative Contractor (MAC) in your jurisdiction for clarification on what’s included in an 1135 blanket waiver — and what you can request. v

Note: The latest list of active PHEs and information on 1135 waivers are at https://aspr.hhs.gov/legal/PHE/ Pages/default.aspx.