Federal and State Waivers

Status of Waivers of Operational and Financial Requirements for Harvey-Affected Hospitals (Updated Sept. 5, 2017)

Federal Waivers and Flexibilities

On Saturday, Aug. 26, HHS Secretary Thomas Price granted an 1135 waiver to waive or modify certain requirements governing Medicare, Medicaid and CHIP. Under this broad waiver authority, CMS is authorized to waive certain statutory requirements in order to ensure that "sufficient health care items and services are available to meet the needs of individuals enrolled in the Medicare, Medicaid and CHIP programs and to ensure that health care providers that furnish such items and services in good faith, but are unable to comply with one or more of these requirements as a result of Hurricane Harvey, may be reimbursed for such items and services and exempted from sanctions for such noncompliance, absent any determination of fraud or abuse."

Although the broad authority is granted as a waiver, Texas hospitals still may need to request approval to waive specific conditions or requirements.

The following waivers and flexibilities already have been granted. Individual hospitals do not need not apply.

A. Authority applies to all Texas hospitals on a statewide basis:

1. Waiving the requirement for a 3-day hospital stay prior to coverage of a skilled nursing facility stay.

2. Extension of the application deadline to submit supporting documentation for FY 2019 reclassifications. Applications for FY 2019 reclassifications from hospitals must be received by the Medicare Geographic Classification Review Board by Oct 2, 2017.

3. Extension of the application deadline for Medicare-dependent small, rural hospitals to seek Sole Community Hospital Status to Oct. 2, 2017.

4. Extension of the deadline for data used in the FY 2019 wage index. Hospitals may request revisions to and provide documentation for their FY 2015 Worksheet S-3 wage data and CY 2016 occupational mix data. Novitas must receive the revision requests and supporting documentation by Oct. 2, 2017.

5. Extension of the application period for low-volume hospital status. Request for low-volume hospital status for FY 2018 must be received by Novitas no later than Oct. 2, 2017.

B. Authority applies only to hospitals in FEMA-designated disaster areas:

6. (UPDATED: CMS approved this waiver Sept. 1) Waiving the 25-bed limit and 96-hour stay limitation for critical access hospitals.

7. (UPDATED: CMS approved this waiver Sept. 1) Allowing hospitals to treat medical/surgical patients in non-PPS hospitals (e.g. long term care hospitals) and/or units (e.g. rehabilitation). The hospital should bill for the care and annotate the patient's medical record to indicate the patient is an acute care inpatient being housed in the excluded unit because of capacity issues related to Hurricane/Tropical Storm Harvey.

8. Exceptions to quality measure reporting. Hospitals located outside of the impacted counties may request an exception to the reporting requirements.

9. Postponing Joint Commission accreditation surveys. Joint Commission is also coordinating any post-disaster surveys with the state for those accredited organizations that have evacuated or incurred significant damage. Although surveys were suspended initially, further suspension of survey agency requirements for plans of correction and other survey enforcement timelines will be evaluated on a case-by-case basis.

10. Allowing dialysis to be performed in settings other than dialysis clinics. When a patient with end-stage renal disease cannot obtain regularly scheduled dialysis treatment at a certified ESRD facility and has a medical need to receive an unscheduled or emergency dialysis session in an outpatient hospital setting, the service is payable under the outpatient prospective payment system. The hospital should bill under the appropriate revenue code for HCPCS G0257: Unscheduled or emergency dialysis treatment for an ESRD patient in a hospital outpatient department that is not certified as an ESRD facility. Hospitals need not notify CMS of the intention to bill for this service. No state laws should impede provision of dialysis in alternative locations, although the charge nurse supervising dialysis still must have ESRD specialization.

On behalf of our members, THA has requested the following waivers and state flexibilities. These requests are pending, and THA will update members when they are approved or denied.

1. (UPDATED: On Sept. 1, CMS directed THA to submit the privileging request to the state.) To permit hospitals to bring in out-of-state health care providers and grant them emergency privileges. The governor previously approved the use of out-of-state health care providers. THA will verify that the necessary privileging regulations are waived at the state level.

Hospitals may seek waivers of other provisions on an individual basis under Section 1135, including:

1. Waiving certain provisions of EMTALA due to evacuation or hospital closure. These waivers are granted for a 72-hour period and require specific justification.

2. Waiving certain provisions of the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule: (1) the requirements to obtain a patient's agreement to speak with family members or friends involved in the patient's care; (2) the requirement to honor a request to opt out of the facility directory; (3) the requirement to distribute a notice of privacy practices; (4) the patient's right to request privacy restrictions; and (5) the patient's right to request confidential communications. The waiver applies only to hospitals in the emergency area for up to 72 hours from the time a hospital implements its disaster protocol.

Hospitals submitting individual waivers under Section 1135 must submit them to: RODALDSC@cms.hhs.gov. Requests may be retroactive. Please reach out to THA if you intend to pursue an individual waiver as there may be other hospitals doing the same, and we can facilitate a blanket waiver.

Health systems may make requests on behalf of individual hospitals. Requests must include:

  • Name of affected hospital.
  • Physical address.
  • Certification number.
  • Contact name.
  • Specific condition or requirement to be waived.

Hospitals also may seek permission from Novitas (Texas' Medicare Administrative Contractor) without submitting a waiver request for:

1. Accelerated payments (Medicare Part A) or advance payments (Medicare Part B). These payments are available to providers as a means of ensuring continued cash flow. The form from Novitas is available here.

2. Extension of deadlines to submit cost reports. Novitas has the flexibility to allow providers additional time if a provider's operations are significantly adversely affected due to extraordinary circumstances over which the provider has no control, such as flood or fire. Submit requests to Ray Bossong at Raymond.Bossong@novitas-solutions.com.

State Waivers and Flexibilities


  • Gov. Abbott approved TDSHS' request to suspend all hospital licensing rules related to bed capacity. Under this suspension, through Sept. 25, 2017, hospitals statewide can admit patients who have been evacuated from the affected counties and/or accept new patients in greater numbers than allowed by their licenses.
  • Gov. Abbott temporarily suspended all necessary statutes and rules to allow health care providers employed by a hospital and licensed and in good standing in another state to practice in Texas to help with Harvey-related disaster response. Hospitals should submit the following information to the applicable licensing entity: name of each provider; provider type; state of license; and license identification number.
  • The state will not enforce penalties for late submission of data to the Texas Health Care Information Collection. TDSHS will send a letter with specifics to hospitals in the coming days.
  • (Newly approved since Sept. 1) Waiver of provisions requiring medical care to be provided in a specific location. If a site is damaged or flooded, this waiver will allow a medical director to relocate medical supplies and diagnostic tools to a safe site for the provision of emergency care (retroactively).
  • (Newly approved since Sept. 1) Waiver of all hospital transfer regulations and requirements, except for the requirements to have Memoranda of Transfer and that transfers be doctor-to-doctor.
  • (Newly approved since Sept. 1) Waiver to suspend reporting of measures related to quality, preventable adverse events and hospital-acquired infections for Medicaid populations.
  • (Newly approved since Sept. 1) Delay enforcement until January 2018 of policy that THHSC would deny Medicaid claims for items and services ordered, referred or prescribed for any Medicaid, Children with Special Health Care Needs Services Program or Healthy Texas Women client when the provider who ordered, referred or prescribed the items or services is not enrolled in Texas Medicaid. This policy originally was intended to be effective Oct. 1.


THHSC submitted a waiver request under Section 1115 to waive Medicaid and CHIP requirements related to annual eligibility determinations and cost sharing.

According to feedback we have received from CMS, the request is pending, and the agency may be considering a joint response with Louisiana's request.


Carrie Kroll, vice president, advocacy quality/public Health, 512/465-1043

THA Hospital Employee Assistance Fund