42 U.S.C. § 1320b–5 — Authority to waive requirements during national emergencies

(a) Purpose. In an emergency area and emergency period as defined in subsection (g)(1), the Secretary^* must, as far as feasible, ensure—
(1) enough health-care items and services for people in the area enrolled in subchapters XVIII, XIX, and XXI; and
(2) reimbursement and freedom from sanctions for providers that furnish those items and services in good faith but cannot meet a requirement in subsection (b), unless fraud or abuse is found.

(b) Secretarial authority. To the extent needed for subsection (a), the Secretary may temporarily waive or modify, for providers or classes of providers in an emergency area during part of an emergency period, requirements of subchapters XVIII, XIX, or XXI and related regulations, and related requirements of this subchapter, concerning—
(1) provider participation or certification, program participation, similar requirements, and preapproval;
(2) State^* licensing of doctors and other professionals when they hold equivalent licenses in another State and are not affirmatively excluded from practice there or in any State partly within the emergency area;
(3) section 1395dd emergency examination and treatment^* requirements for—
(A) transferring an unstabilized person^* when the declared emergency requires it; or
(B) directing or moving a person for screening at an alternative location under an appropriate State emergency-preparedness plan, or, for a pandemic infectious-disease public-health emergency, under a State pandemic plan or that other plan;
(4) physician^*-referral sanctions under section 1395nn(g);
(5) deadlines and timetables for required activities, which may be modified but not waived;
(6) Medicare+Choice payment limits for out-of-network providers;
(7) HIPAA sanctions for specified requirements about family or friend communications, opting out of a facility directory, notices, privacy restrictions, and confidential communications under the cited regulations;
(8) for telehealth services, requirements of section 1395m(m); and
(9) ambulance requirements to include transport when community-wide EMS protocols during the specified public-health emergency prevented a 911 or equivalent call transport to a Medicare-permitted destination.
For paragraph (6), the Secretary must, as far as circumstances allow, reconcile payments so enrollees do not pay more than in-network amounts and may reconcile payments to the plan organization. A waiver under paragraph (3) or (7) may not discriminate based on payment source or ability to pay and generally lasts only 72 hours after a hospital disaster protocol begins. A paragraph (7) waiver must then be withdrawn for a patient still in the provider’s care. For a pandemic, paragraph (3)’s duration follows subsection (e). Paragraph (9) ground ambulance payment is the applicable base fee-schedule rate without mileage, with the specified critical-access-hospital rule.

(c) Authority for retroactive waiver. The Secretary may make a waiver or modification retroactive to the emergency period’s beginning or another date in that period.

(d) Certification to Congress. At least 2 days before using this authority for an emergency area, the Secretary must give Congress certification and advance written notice stating—
(1) the provisions waived or modified, providers covered, geographic area, and effective period; and
(2) that the action is necessary for subsection (a)’s purpose.

(e) Duration of waiver
(1) A waiver or modification ends when the applicable presidential emergency or disaster declaration ends, when the applicable public-health emergency declaration ends, or, subject to paragraph (2), 60 days after it is first published (or after an extension).
(2) The Secretary may extend each 60-day period by notice for additional periods generally no longer than 60 days. An extension does not prevent ending the waiver when either declaration ends.

(f) Report to Congress. Within 1 year after the emergency period ends in an area where the authority was used, the Secretary must report to Congress on the approaches used, evaluate them, and recommend improvements for future emergencies.

(g) Definitions
(1) Emergency area; emergency period.
(A) Subject to (B), an emergency area is a geographic area where, and an emergency period is a time when, both a presidential emergency or disaster under the National Emergencies Act or Stafford Act and a Secretary-declared public-health emergency under section 247d exist.
(B) For subsection (b)(8) and (9), the area and period instead mean those covered by the Secretary’s January 31, 2020 COVID-19 public-health emergency declaration and its renewals under section 247d.
(2) Health-care provider means any entity furnishing health-care items or services, including a hospital or other provider of services, doctor or other practitioner, health-care facility, or supplier.