Are PHE Waivers and Flexibilities the Same Thing?

As the country waits for the next development in the COVID-19 public health emergency (PHE), suppliers are not alone in wondering, “What exactly is the difference between a waiver and a flexibility?” We explored the question for our (K)notes subscribers back in August, and I thought I would share it here today.

CMS creates administrative relief during any PHE through 1135 blanket waivers and program flexibilities. According to page 3 of the Medicare Fee for Service Emergency and Disaster Related Policies and Procedures document:

• An 1135 waiver or modification changes or suspends a statutory requirement or implementing regulation using Section 1135 or Section 1812(f) of the Social Security Act.
• A flexibility changes agency policy or procedures using CMS’s current authority. The agency can generally adjust these policies without reprogramming CMS’s systems.

If the change overrides a statute or law, it’s a waiver; if it overrides CMS policy, it’s a flexibility. They are pretty much the same thing from the supplier’s perspective.

How Long do Waivers and Flexibilities Last?

CMS has the authority to extend waivers and flexibilities to the end of the applicable PHE. If, however, the Secretary determines the PHE no longer impedes beneficiary access or supplier compliance, CMS can terminate waivers and flexibilities before the PHE ends.

Recent expirations signal CMS believes fewer process modifications are necessary to maintain patient access and compliance. As waivers and flexibilities expire, suppliers must adapt their own policies and procedures to comply with changing CMS and contractor instructions.

SOURCE LINKS
https://www.cms.gov/About-CMS/Agency-Information/Emergency/Downloads/MedicareFFS-EmergencyQsAs1135Waiver.pdf
https://www.phe.gov/Preparedness/legal/Pages/1135-waivers.aspx