In 2020, the COVID-19 pandemic plunged the United States into a public health crisis. This situation was not entirely unprecedented. Local crises had previously been triggered by events such as hurricanes (e.g., Katrina in 2005, Irma in 2017), wildfires (e.g., California in 2017 and 2018), lead contamination (Flint, Michigan in 2016), and terrorist attacks (New York City after 9/11). During these events, the Secretary of the Department of Health and Human Services (HHS) used waiver authority to allow affected states to ignore otherwise mandatory Medicaid requirements so that they could use Medicaid as part of the emergency response. These crises, and particularly the COVID-19 pandemic, have made it clear that the current statutes do not give HHS sufficient emergency waiver authority. This paper:
- Outlines legal authorities that allow HHS and states to adjust their Medicaid programs during an emergency;
- Identifies deficiencies in these authorities; and
- Makes recommendations that, if implemented, will better prepare Medicaid programs for the next crisis.
The two authorities that HHS and states have turned to the most during emergencies are Section 1115 and Section 1135 of the Social Security Act.