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Section 1135 Waiver Flexibilities - Utah Coronavirus Disease 2019 (Fourth Request)

Department of Health & Human Services
Centers for Medicare & Medicaid Services
7500 Security Boulevard, Mail Stop S2-26-12
Baltimore, Maryland 21244-1850

October 29, 2021

Emma Chacon, Interim Medicaid Director
Utah Department of Health
P.O. Box 141000
Salt Lake City, Utah   84114-1000

Re:  ARP Act Section 9817 Section 1135 Flexibilities Requested in October 28, 2021 Communication (Fourth 1135 COVID-19 Request)

Dear Ms. Chacon:

The Centers for Medicare & Medicaid Services (CMS) granted an initial approval to the State of Utah for multiple section 1135 flexibilities on April 10, 2020.  Your follow-up communication to CMS on October 28, 2021, requests section 1135 flexibilities for state plan amendment (SPA), UT-21-0010.  This SPA was submitted to provide increased funding to providers to strengthen the home and community-based services (HCBS) system in response to the COVID-19 pandemic, as outlined in section 9817 of the American Rescue Plan Act of 2021 (ARP).  Attached, please find a response to your requests for waivers or modifications, pursuant to section 1135 of the Social Security Act (the Act), to address the challenges posed by COVID-19.

On March 13, 2020, the President of the United States issued a proclamation that the COVID-19 outbreak in the United States constitutes a national emergency by the authorities vested in him by the Constitution and the laws of the United States, including sections 201 and 301 of the National Emergencies Act (50 U.S.C. 1601 et seq.), and consistent with section 1135 of the Act.  On March 13, 2020, pursuant to section 1135(b) of the Act, the Secretary of the United States Department of Health and Human Services invoked his authority to waive or modify certain requirements of titles XVIII, XIX, and XXI of the Act as a result of the consequences of the COVID-19 pandemic, to the extent necessary, as determined by CMS, to ensure that sufficient health care items and services are available to meet the needs of individuals enrolled in the respective programs and to ensure that health care providers that furnish such items and services in good faith, but are unable to comply with one or more of such requirements as a result of the COVID-19 pandemic, may be reimbursed for such items and services and exempted from sanctions for such noncompliance, absent any determination of fraud or abuse. This authority took effect as of 6PM Eastern Standard Time on March 15, 2020, with a retroactive effective date of March 1, 2020.  The emergency period will terminate, and section 1135 waivers will no longer be available, upon termination of the public health emergency, including any extensions.

This letter is in response to all requests submitted to CMS.  If the state determines that it has additional needs, please contact your state lead and CMS will provide the necessary technical assistance for any additional submissions.

Please contact Jackie Glaze, Deputy Director, Medicaid and CHIP Operations Group, at (404) 387-0121 or by email at Jackie.Glaze@cms.hhs.gov if you have any questions or need additional information.  We appreciate the efforts of you and your staff in responding to the needs of the residents of the State of Utah and the health care community.


Anne Marie Costello

Deputy Director 


CMS Response: October 29, 2021

ARP Act Section 9817 HCBS Enhanced Financial Medical Assistance Percentage (FMAP) State Plan Amendment (SPA) Flexibilities:  Submission Deadline, Public Notice, and Tribal Consultation

Pursuant to section 1135 (b)(5) of the Act, allows modification of the requirement to submit the SPA by the last day of a quarter, in order to obtain a SPA effective date during that quarter (applicable only for quarters in which the emergency or disaster declaration is in effect) - 42 C.F.R. § 430.20.

Pursuant to section 1135 (b)(5) of the Act, allows a modification of public notice requirements that would otherwise be applicable to SPA submissions. These requirements may include those specified in 42 C.F.R. § 440.386 (Alternative Benefit Plans), 42 C.F.R. § 447.57(c) (premiums and cost sharing), and 42 C.F.R. § 447.205 (public notice of changes in statewide methods and standards for setting payment rates).

Pursuant to section 1135 (b)(5) of the Act, allows modification of the required Tribal consultation timelines specified in the Medicaid state plan per section 1902(a)(73) of the Act.

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