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Section 1135 Waiver Flexibilities - Texas Coronavirus Disease 2019 (Second & Third Request)

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

July 23, 2020

Stephanie Stephens
State Medicaid Director
Texas Health and Human Services Commission
Mail Code: H100
P.O. Box 13247
Austin, Texas 78711

Re: Section 1135 Flexibilities Requested in March 28, 2020 (Second Request) and the 1115 Communication Request on April 22, 2020 (Third Request)

Dear Ms. Stephens:

The Centers for Medicare & Medicaid Services (CMS) granted an initial approval to the State of Texas for multiple section 1135 flexibilities on both March 30, 2020 and subsequently on May 22, 2020.  Your follow-up communication to CMS on both March 28, 2020, and the 1115 request dated April 22, 2020 detailed a number of additional federal requirements that also pose issues or challenges for the health care delivery system in Texas and requested a waiver or modification of those additional requirements.  Attached, please find a response to your requests for waivers or modifications, pursuant to section 1135 of the Social Security Act (Act), to address the challenges posed by COVID-19.  This approval addresses those requests related to Medicaid, Medicare, and the Children’s Health Insurance Program (CHIP), as applicable. To the extent the requirements the state requested to waive or modify apply to CHIP, the state may apply the approved flexibilities to CHIP.  This applies to the waivers included below, as well as the 1135 waivers granted to the state on March 30, 2020 and May 22, 2020.

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.

To streamline the section 1135 waiver request and approval process, CMS has issued a number of blanket waivers for many Medicare provisions, which primarily affect requirements for individual facilities, such as hospitals, long term care facilities, home health agencies, and so on.  Waiver or modification of these provisions does not require individualized approval, and, therefore, these authorities are not addressed in this letter.  Please refer to the current blanket waiver issued by CMS.

CMS continues to work on the additional waiver or modification requests that are not currently reflected in the attached approval.  For those waiver or modification requests that require approval under authority other than section 1135, such as under applicable regulations, through an amendment to the state plan, or through a section 1115 demonstration, my staff will continue to work with your team to review and make determinations regarding approval as quickly as possible.

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 Texas and the health care community.

Sincerely,

Calder Lynch
Deputy Administrator and Director

STATE OF TEXAS
APPROVAL OF FEDERAL SECTION 1135 WAIVER REQUESTS

CMS Response: July 23, 2020

To the extent applicable, the following waivers and modifications also apply to CHIP.

Service Authorization and appeal timeline modifications

Texas has requested a waiver under section 1135 of the Act to modify the timelines for some specific requirements in 42 CFR Part 438.  Federal regulations at 42 C.F.R. Part 438, Subpart F establish appeals and grievance requirements for Medicaid managed care.  Section 1135 of the Act does not provide authority to waive these requirements; however, CMS does have authority to modify timeframes for required activities during an emergency period under section 1135(b)(5) of the Act. Therefore, CMS approves the following through the end of the public health emergency:

  • Modification of the timeframe under 42 C.F.R. §438.210(d)(1)(ii) & (2)(ii) for two possible extensions to up to 90 days each to allow the managed care plan more time to collect additional information needed to make an authorization decision that is favorable to the enrollee.  If an authorization decision is not made within the first 90-day extension timeframe due to the public health emergency, the managed care plan may modify the timeframe to provide an additional 90-day extension, provided that the managed care plan continue to authorize and pay for the service(s) until a decision is made and does not seek reimbursement or payment for the services furnished during this period (other than otherwise applicable cost sharing if any) from the enrollee in the event of an adverse decision. If the service authorization decision is adverse to the enrollee, the plan must provide timely and adequate notice of adverse benefit determination per the requirements of 42 C.F.R. § 438.404. For example, insufficient information within the 14-day time period could lead to a decision to deny the service authorization.  During the extension period of up to 180 days, the managed care plan will authorize and pay for the services based on the information available until the assessment can be completed. 
  • Modification of the timeframe under 42 C.F.R. §438.402(c)(2)(ii) to extend the timeframe to file an appeal from 60 to 120 days following the receipt of an adverse benefit determination to allow more time for the enrollee to file a request for an internal appeal with the managed care plan. The managed care plan will continue to authorize and pay for the service(s) until a decision is made and may not seek reimbursement or payment for the services furnished during this period (other than otherwise applicable cost sharing if any) from the enrollee in the event of an adverse decision. For example, the timeframe extension from 60 to 120 will allow the enrollee more time to effectively utilize the managed care plan’s appeal process. This ensures the enrollees continue access to services extension period and does not impact the enrollee’s right to fair hearing should they exhaust the plan’s appeal process.
  • Modification of the timeframe under 42 C.F.R. §438.408(c)(1)(ii) to extend timeframe for standard appeals from 14 days to 30 days to allow the managed care plan additional time to obtain necessary information, if the delay is in the enrollee’s interest such as to gather information necessary for a decision that is favorable to the enrollee. The managed care plan will continue to authorize and pay for the service(s) until a decision is made and may not seek reimbursement or payment for the services furnished during this period (other than otherwise applicable cost sharing if any) from the enrollee in the event of an adverse decision. For example, insufficient information within the 14-day time period could lead a decision to deny the service authorization.  During the extension period of up to 30 days, the managed care plan will authorize and pay for the services based on the information available until the assessment can be completed. 

Duration of Approved Waivers

Unless otherwise specified above, the section 1135 waivers described herein are effective March 1, 2020 and will terminate upon termination of the public health emergency, including any extensions. In no case will any of these waivers extend past the last day of the public health emergency (or any extension thereof).

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