On August 31, 2008, Secretary of Health and Human Services, Michael O. Leavitt, declared a public health emergency pursuant to Section 319 of the Public Health Service Act, to address any public health emergency issues resulting from Hurricane Gustav, three years to the day after doing the same for Hurricane Katrina. The declaration helps to facilitate response assistance and provide grants, funding and orders to allow public health officials and providers to better respond in the face of natural and other disasters.

Section 1135 of the Social Security Act enables the Secretary of HHS to temporarily waive or modify the application of requirements of the Medicare, Medicaid or Children's Health Insurance Program (CHIP) to address an emergency to meet the needs of individuals enrolled in those governmental programs. Under this authority, Secretary Leavitt issued, on August 31, 2008, a waiver of those specific requirements applicable to providers under the Medicare, Medicaid, and CHIP programs. The waiver ensures that healthcare providers can furnish items and services to covered persons in good faith and be assured that they will be reimbursed under the applicable governmental program, even if they are not able to comply with all the applicable laws as a result of the effects of Hurricane Gustav.

The waiver applies to the following:

  • Certain conditions of participation and certification requirements applicable to providers;
  • The requirement that physicians and other health professionals hold licenses in the state in which they provide services;
  • Sanctions under EMTALA for the redirection of an individual to another location to receive a medical screening and examination pursuant to a state emergency preparedness plan or transfer that arises out of hurricane-related emergency circumstances;
  • Sanctions related to physician referral;
  • Limitations on payments to out-of-network providers under the Medicare Advantage program. This waiver, along with questions and answers related to Medicare fee-for-service payments in the wake of a Hurricane Emergency, is available on the CMS website.

The waivers became effective at 5:00 p.m. on September 2, 2008, but were made retroactive to August 27, 2008, for the states of Louisiana and Texas; August 28, 2008, for Mississippi and August 29, 2008, for Alabama.