42 U.S.C. § 1320b-5 : US Code - Section 1320B-5: Authority to waive requirements during national emergencies

Search 42 U.S.C. § 1320b-5 : US Code - Section 1320B-5: Authority to waive requirements during national emergencies

(a) Purpose
The purpose of this section is to enable the Secretary to ensure
to the maximum extent feasible, in any emergency area and during an
emergency period (as defined in subsection (g)(1) of this section) -

(1) that sufficient health care items and services are
available to meet the needs of individuals in such area enrolled
in the programs under subchapters XVIII, XIX, and XXI of this
chapter; and
(2) that health care providers (as defined in subsection (g)(2)
of this section) that furnish such items and services in good
faith, but that are unable to comply with one or more
requirements described in subsection (b) of this section, may be
reimbursed for such items and services and exempted from
sanctions for such noncompliance, absent any determination of
fraud or abuse.
(b) Secretarial authority
To the extent necessary to accomplish the purpose specified in
subsection (a) of this section, the Secretary is authorized,
subject to the provisions of this section, to temporarily waive or
modify the application of, with respect to health care items and
services furnished by a health care provider (or classes of health
care providers) in any emergency area (or portion of such an area)
during any portion of an emergency period, the requirements of
subchapters XVIII, XIX, or XXI of this chapter, or any regulation
thereunder (and the requirements of this subchapter other than this
section, and regulations thereunder, insofar as they relate to such
subchapters), pertaining to -
(1)(A) conditions of participation or other certification
requirements for an individual health care provider or types of
providers,
(B) program participation and similar requirements for an
individual health care provider or types of providers, and
(C) pre-approval requirements;
(2) requirements that physicians and other health care
professionals be licensed in the State in which they provide such
services, if they have equivalent licensing in another State and
are not affirmatively excluded from practice in that State or in
any State a part of which is included in the emergency area;
(3) actions under section 1395dd of this title (relating to
examination and treatment for emergency medical conditions and
women in labor) for -
(A) a transfer of an individual who has not been stabilized
in violation of subsection (c) of such section if the transfer
is necessitated by the circumstances of the declared emergency
in the emergency area during the emergency period; or
(B) the direction or relocation of an individual to receive
medical screening in an alternate location pursuant to an
appropriate State emergency preparedness plan;
(4) sanctions under section 1395nn(g) of this title (relating
to limitations on physician referral);
(5) deadlines and timetables for performance of required
activities, except that such deadlines and timetables may only be
modified, not waived;
(6) limitations on payments under section 1395w-21(i) of this
title for health care items and services furnished to individuals
enrolled in a Medicare+Choice plan by health care professionals
or facilities not included under such plan; and
(7) sanctions and penalties that arise from noncompliance with
the following requirements (as promulgated under the authority of
section 264(c) of the Health Insurance Portability and
Accountability Act of 1996 (42 U.S.C. 1320d-2 note) - (!1)
(A) section 164.510 of title 45, Code of Federal Regulations,
relating to -
(i) requirements to obtain a patient's agreement to speak
with family members or friends; and
(ii) the requirement to honor a request to opt out of the
facility directory;
(B) section 164.520 of such title, relating to the
requirement to distribute a notice; or
(C) section 164.522 of such title, relating to -
(i) the patient's right to request privacy restrictions;
and
(ii) the patient's right to request confidential
communications.
Insofar as the Secretary exercises authority under paragraph (6)
with respect to individuals enrolled in a Medicare+Choice plan, to
the extent possible given the circumstances, the Secretary shall
reconcile payments made on behalf of such enrollees to ensure that
the enrollees do not pay more than would be required had they
received services from providers within the network of the plan and
may reconcile payments to the organization offering the plan to
ensure that such organization pays for services for which payment
is included in the capitation payment it receives under part C of
subchapter XVIII of this chapter. A waiver or modification provided
for under paragraph (3) or (7) shall only be in effect if such
actions are taken in a manner that does not discriminate among
individuals on the basis of their source of payment or of their
ability to pay, and shall be limited to a 72-hour period beginning
upon implementation of a hospital disaster protocol. A waiver or
modification under such paragraph (7) shall be withdrawn after such
period and the provider shall comply with the requirements under
such paragraph for any patient still under the care of the
provider.
(c) Authority for retroactive waiver
A waiver or modification of requirements pursuant to this section
may, at the Secretary's discretion, be made retroactive to the
beginning of the emergency period or any subsequent date in such
period specified by the Secretary.
(d) Certification to Congress
The Secretary shall provide a certification and advance written
notice to the Congress at least two days before exercising the
authority under this section with respect to an emergency area.
Such a certification and notice shall include -
(1) a description of -
(A) the specific provisions that will be waived or modified;
(B) the health care providers to whom the waiver or
modification will apply;
(C) the geographic area in which the waiver or modification
will apply; and
(D) the period of time for which the waiver or modification
will be in effect; and
(2) a certification that the waiver or modification is
necessary to carry out the purpose specified in subsection (a) of
this section.
(e) Duration of waiver
(1) In general
A waiver or modification of requirements pursuant to this
section terminates upon -
(A) the termination of the applicable declaration of
emergency or disaster described in subsection (g)(1)(A) of this
section;
(B) the termination of the applicable declaration of public
health emergency described in subsection (g)(1)(B) of this
section; or
(C) subject to paragraph (2), the termination of a period of
60 days from the date the waiver or modification is first
published (or, if applicable, the date of extension of the
waiver or modification under paragraph (2)).
(2) Extension of 60-day periods
The Secretary may, by notice, provide for an extension of a 60-
day period described in paragraph (1)(C) (or an additional
period provided under this paragraph) for additional period or
periods (not to exceed, except as subsequently provided under
this paragraph, 60 days each), but any such extension shall not
affect or prevent the termination of a waiver or modification
under subparagraph (A) or (B) of paragraph (1).
(f) Report to Congress
Within one year after the end of the emergency period in an
emergency area in which the Secretary exercised the authority
provided under this section, the Secretary shall report to the
Congress regarding the approaches used to accomplish the purposes
described in subsection (a) of this section, including an
evaluation of such approaches and recommendations for improved
approaches should the need for such emergency authority arise in
the future.
(g) Definitions
For purposes of this section:
(1) Emergency area; emergency period
An "emergency area" is a geographical area in which, and an
"emergency period" is the period during which, there exists -
(A) an emergency or disaster declared by the President
pursuant to the National Emergencies Act [50 U.S.C. 1601 et
seq.] or the Robert T. Stafford Disaster Relief and Emergency
Assistance Act [42 U.S.C. 5121 et seq.]; and
(B) a public health emergency declared by the Secretary
pursuant to section 247d of this title.
(2) Health care provider
The term "health care provider" means any entity that furnishes
health care items or services, and includes a hospital or other
provider of services, a physician or other health care
practitioner or professional, a health care facility, or a
supplier of health care items or services.