Department of Health & Human Services
Centers for Medicare & Medicaid Services
601 East 12th Street, Room 355
Kansas City, Missouri 64106-2898
Medicaid and CHIP Operations Group
October 13, 2023
Judy Mohr Peterson, Ph.D.
Med-QUEST Administrator Department of Human Services
601 Kamokila Boulevard #518
Kapolei, Hawaii 96707
Re: Section 1135 Flexibilities Requested on September 18, 2023
Dear Dr. Judy Mohr Peterson:
On August 8, 2023, the President of the United States issued a proclamation that 2023 Hawaii Wildfires constitutes an emergency by the authorities vested in the President 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 Social Security Act (the Act). On August 11, 2023, pursuant to section 1135(b) of the Act, the Secretary of the United States Department of Health and Human Services (HHS) declared a public health emergency (PHE) with a retroactive effective date of August 8, 2023, invoking the authority to waive or modify certain requirements of titles XVIII, XIX, and XXI of the Act. During a PHE, the Centers for Medicare and Medicaid Services (CMS) may approve the use of section 1135 authority to help ensure that sufficient health care items and services are available to meet the needs of individuals enrolled in CMS 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, 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 August 08, 2023. The emergency period will terminate, and section 1135 waivers will no longer be available, upon termination of the PHE, including any extensions.
Your submission to CMS on September 18, 2023 detailed federal Medicaid requirements that pose issues or challenges for the health care delivery system in Hawaii. Below, please find a response to each of your requests for waivers or modifications, pursuant to section 1135 of the Act, to address the challenges posed by 2023 Hawaii Wildfires. To the extent the requirements the state requested to waive or modify apply to the Children's Health Insurance Program (CHIP), the state may apply the approved flexibilities to CHIP.
We appreciate the efforts of you and your staff in responding to the needs of the residents and health care community in Hawaii. Please contact your state lead if you have any questions or need additional information.
Sincerely,
Courtney Miller
Director
cc: Ashley Lacy, Courtney Miller,
Anne Marie Costello, Alex Rooke, Daniel Tsai
STATE OF HAWAII
APPROVAL OF FEDERAL SECTION 1135 WAIVER REQUESTS
CMS Response: October 13, 2023
To the extent applicable, the following waivers and modifications also apply to CHIP.
Long Term Services and Supports (LTSS)
PASRR
Pursuant to section 1135(b)(5) of the Act, CMS approves a modification of Section 1919(e)(7) and 42 C.F.R. § 483.112 to allow Level I and Level II assessments to be waived by the state for 30 days from admission. After 30 days, Level I assessments should be conducted with reasonable promptness and Level II assessments should be coordinated with the resident review.
Additionally, please note that per 42 C.F.R. § 483.106(b)(4), new preadmission Level I and Level II screens are not required for residents who are being transferred between nursing facilities (NF). If the NF is not certain whether a Level I had been conducted at the resident's evacuating facility, a Level I can be conducted by the admitting facility during the first few days of admission as part of intake and transfers. Positive Level I screens necessitate a Resident Review.
HCBS Settings Requirements
Pursuant to section 1135(b)(1)(B) of the Act, CMS approves a waiver or modification of the Home and Community Based Services (HCBS) Settings Requirements for HCBS services delivered through the 1915(c), 1915(i) authorities and the Hawai'i QUEST Integration (Project Number 11-W00001/9) section 1115 Demonstration authorizing these services. In order to ensure the continuation of needed HCBS during a disaster and/or emergency, states may deliver HCBS in settings that have not been assessed for compliance with the HCBS settings criteria, and may accommodate circumstances in which an individual requires relocation to an alternative setting, or must modify how the settings requirements can be implemented during the emergency.
Person Centered Plan Beneficiary and Provider Signatures
Pursuant to section 1135(b)(1)(B) of the Act, CMS is granting the authority to waive or modify the requirement to obtain beneficiary and provider signatures of HCBS Person-Centered Service Plan under 42 C.F.R. § 441.301(c)(2)(ix) for 1915(c) waiver programs, 42 C.F.R. § 441.725(b)(9) for 1915(i) state plan HCBS benefit, and 1115 demonstrations, allowing states to permit documented verbal consent as an alternate to the regulatory requirement for a signature on the person-centered service plans from beneficiaries and all providers responsible for its implementation.
1915(c) Level of Care and Person-Centered Service Plan Timelines
Initial Evaluation of Need
Pursuant to section 1135(b)(1)(B) of the Act, CMS is granting the authority to delay 1915(c) HCBS Waiver Level of Care (LOC) Evaluation of Need until after the individual begins receiving services to facilitate access to initial services. Initial evaluations of eligibility must be completed within 90 days of the PHE conclusion. - 42 C.F.R. § 441.302(c)(1)
Reevaluation
Pursuant to section 1135(b)(1)(B) of the Act, CMS is granting the authority to extend the 1915(c) HCBS Waiver Level of Care (LOC) reevaluation to allow services to continue until the reassessment can occur. All reevaluations delayed by the PHE must be completed within 12 months of the original due date. - 42 C.F.R. § 441.302(c)(2)
Review and Revision of Person-Centered Service Plan
Pursuant to section 1135(b)(1)(B) of the Act, CMS is granting the authority to delay the review and revision of the person-centered service plan beyond 12 months. This waiver does not eliminate the requirement that the person- centered service plan be updated when the individual requests a revision and/or when the circumstances or needs of the individual change significantly. CMS also encourages states to complete these reviews and revisions of the person-centered service plan via telehealth as resources permit during the PHE. All reviews/revisions delayed by the PHE must be completed within 12 months of the original due date. - 42 C.F.R. § 441.301(c)(3)
1915(i) Evaluations, Assessments and Person-Centered Service Plans
Initial Evaluation of 1915(i) Eligibility
Pursuant to section 1135(b)(1)(B) of the Act, CMS is granting the authority to delay the initial evaluation of 1915(i) eligibility until after the individual begins receiving services in order to facilitate access to initial services. CMS encourages states to complete these initial evaluations via telehealth as resources permit during the PHE. All initial evaluations delayed by the PHE must be completed within 90 days of the PHE conclusion. - 42 C.F.R. § 441.715(d)
Reevaluation of 1915(i) Eligibility
Pursuant to section 1135(b)(1)(B) of the Act, CMS is granting the authority to delay the 1915(i) State Plan HCBS benefit annual required re-evaluation of 1915(i) eligibility in order to allow services to continue until the re-evaluation can occur. All reevaluations delayed by the PHE must be completed within 12 months of the original due date. - 42
C.F.R. § 441.715(e)
Initial Independent Assessment of Need
Pursuant to section 1135(b)(1)(B) of the Act, CMS is granting the authority to delay the initial 1915(i) State Plan HCBS benefit independent assessment of need until after the individual begins receiving services in order to facilitate access to initial services. CMS encourages states to complete these initial assessments via telehealth as resources permit during the PHE. All initial assessments delayed by the PHE must be completed within 90 days of the of the PHE conclusion. - 42 C.F.R. § 441.720(a)
Reassessments of Need
Pursuant to section 1135(b)(1)(B) of the Act, CMS is granting the authority to delay the 1915(i) State Plan HCBS benefit annual required independent reassessment of need to allow services to continue until the reassessment can occur. All reevaluations delayed by the PHE must be completed within 12 months of the original due date. - 42 C.F.R. § 441.720(b)
Fee for Service and Eligibility Fair Hearings
Extend fair hearing request timelines
Pursuant to section 1135(b)(5) of the Act, CMS is granting the authority to modify requirements in 42 C.F.R. § 431.221(d) to allow applicants and beneficiaries to have more than 90 days to request a fair hearing for eligibility or fee-for-service appeals by permitting extensions of the timeline to file a fair hearing request (e.g. additional time more than 90 days). This waiver supplements the timeframe in 42 C.F.R. § 431.221(d), which requires states to choose a reasonable timeframe for individuals to request a fair hearing not to exceed 90 days for eligibility or fee-for-service appeals.
Managed Care Appeals, Fair Hearings, and Continuation of Benefits
Modify timelines to resolve appeals
The requirements of 42 C.F.R. § 438.408(f)(1) establish that an enrollee may request a state fair hearing only after receiving a notice that the Managed Care Organization, Prepaid Inpatient Health Plan or Prepaid Ambulatory Health Plan is upholding the adverse benefit determination but also permits, at 42 C.F.R. § 438.408(c)(3) and (f)(l)(i) that an enrollee's appeal may be deemed denied and the appeal process of the managed care plan exhausted (such that the state fair hearing may be requested) if the managed care plan fails to meet the timing and notice requirements of 42 C.F.R. § 438.408. Pursuant to section 1135(b)(5) of the Act, CMS is granting authority to modify requirements in 42 C.F.R. § 438.408(f)(1) which authorizes the state to modify the timeline for managed care plans to resolve appeals to no less than one day. If the state uses this authority, it would mean that all appeals filed through the end of the PHE are deemed to satisfy the exhaustion requirement in 42 C.F.R. § 438.408(f)(1) after one day (or more, if that is the timeline elected by the state) and allow enrollees to file an appeal to the state fair hearing level.
Modify state fair hearings timelines
Pursuant to section 1135(b)(5) of the Act, CMS is granting the authority to modify timeframes in 42 C.F.R. § 438.408(f)(2) for managed care enrollees to exercise their appeal rights. If the 120-day deadline to request an appeal occurred during the PHE, managed care enrollees will have more than 120 days from the date of the managed care plan's notice of resolution of an appeal to request a state fair hearing (e.g. additional 120 days).
Modify continuation of benefits timelines
Pursuant to section 1135(b)(5) of the Act, CMS is granting the authority to modify timeframes at 42 C.F.R. § 438.420(a)(i) through the end of the PHE. The modified timeframes will allow the managed care plan to continue benefits if requested within the current 10-day timeframe or reinstate benefits when the individual requests continuation of benefits between 11 and 30 days after receiving notice if the managed care plan has not yet made a decision on the appeal or the state fair hearing is pending. This flexibility may be used provided that the managed care plan may not seek reimbursement or payment for the additional days of services furnished during this period (aside from otherwise applicable cost sharing, if any) from the enrollee.
Modify authorization decision timelines
Pursuant to section 1135(b)(5) of the Act, CMS is granting the authority to modify timeframes in 42 C.F.R. § 438.210(d)(1)(ii) and (2)(ii) for two possible extensions 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 PHE, 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 additional 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.
Modify adverse benefit appeals filing timelines
Pursuant to section 1135(b)(5) of the Act, CMS is granting the authority to modify timeframes in 42 C.F.R. § 438.402(c)(2)(ii) to extend the time period 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 additional 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 continued access to services extension period and does not impact the enrollee’s right to fair hearing should they exhaust the plan’s appeal process.
Modify standard appeals timelines
Pursuant to section 1135(b)(5) of the Act, CMS is granting the authority to modify timeframes in 42 C.F.R. § 438.408(c)(1)(ii) for standard appeals from 14 days to 30 days. This modification allows 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 must 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 additional period (aside from 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.
Provider Enrollment
With respect to providers not already enrolled with another State Medicaid Agency (SMA) or Medicare, pursuant to section 1135(b)(1) and (b)(2) of the Act, CMS waives the following screening requirements: criminal background checks, licensing requirements, and site visits, so the state may provisionally, temporarily enroll the providers for the duration of the PHE.
CMS is granting this waiver authority to allow the state to temporarily enroll providers who are not currently enrolled with another SMA or Medicare so long as the state meets the following minimum requirements:
- Must collect minimum data requirements in order to file and process claims, including, but not limited to NPI.
- Must collect Social Security Number, Employer Identification Number, and Taxpayer Identification Number (SSN/EIN/TIN), as applicable, in order to perform the following screening requirements:
- OIG exclusion list
- State licensure – provider must be licensed, and legally authorized to practice or deliver the services for which they file claims, in at least one state/territory
- The state must also:
- Issue no new temporary provisional enrollments after the date that the PHE is lifted,
- Cease payment to providers who are temporarily enrolled within six months from the termination of the PHE, including any extensions, unless a provider has submitted an application that meets all requirements for Medicaid participation and that application was subsequently reviewed and approved by the state before the end of the six-month period after the termination of the PHE, including any extensions, and
- Allow a retroactive effective date for provisional temporary enrollments that is no earlier than August 8, 2023.
Pause revalidation deadlines
Pursuant to section 1135(b)(1)(B) of the Act, CMS is approving the state’s request to temporarily pause revalidation for providers located in the state or are otherwise directly impacted by the emergency.
If the state pauses revalidation for providers with revalidation due dates that fall during the PHE, the state would recalculate the provider’s revalidation due date by adding six months plus the length of the PHE to the provider’s original revalidation due date. For instance, if the provider’s revalidation due date was April 1, 2021 and the PHE lasted 12 months, the provider’s new revalidation due date would be October 1, 2022 (April 1, 2021 + six months + 12 months).
Allow out-of-state provider reimbursement
Your State Medicaid Agency (SMA) currently has the authority to rely upon provider enrollment screenings performed by other SMAs and by Medicare. This guidance can be found in section 1.5.3.B. of the Medicaid Provider Enrollment
Compendium (MPEC) (PDF, 879.38 KB)
As a result, your SMA is authorized to provisionally, temporarily enroll providers who are enrolled with another SMA or Medicare for the duration of the PHE.
As described in section 1.5.1.B.2.c of the MPEC, your SMA may reimburse otherwise payable claims from out-of-state providers not enrolled with your SMA if the following criteria are met:
- The item or service is furnished by an institutional provider, individual practitioner, or pharmacy at an out-of- state/territory practice location– i.e., located outside the geographical boundaries of the reimbursing state/territory’s Medicaid plan,
- The National Provider Identifier (NPI) of the furnishing provider is represented on the claim,
- The furnishing provider is enrolled and in an “approved” status in Medicare or in another state/territory’s Medicaid plan,
- The claim represents services furnished, and
- The claim represents either:
- A single instance of care furnished over a 180-day period, or
- Multiple instances of care furnished to a single participant, over a 180-day period.
For claims for services provided to Medicaid participants enrolled with your SMA, CMS waives the fifth criterion listed above under section 1135(b)(1) of the Act. Therefore, for the duration of the PHE, your SMA may reimburse out-of- state providers for multiple instances of care to multiple participants, so long as the other criteria listed above are met.
Home Health State Plan Services Timeframe (Face-to-Face Encounters)
Pursuant to section 1135(b)(5) of the Act, CMS approves a waiver allowing the state to modify the deadline so home health state plan face-to-face encounters do not need to be completed before the start of services and may occur at the earliest time, not to exceed 12 months from the start of service. - 42 C.F.R §§ 440.70(f)(1), 440.70(f)(2)
Use of Legally Responsible Individuals to Render Personal Care Services
Pursuant to section 1135(b)(1)(B) of the Act, CMS approves a waiver to temporarily allow payment for 1905(a) personal care services rendered by legally responsible individuals (which could be inclusive of legally responsible family caregivers) provided that the state makes a reasonable assessment that the caregiver is capable of rendering such services. This waiver will ensure that medically necessary services are furnished in the event the traditional provider workforce is diminished or there is inadequate capacity due to the public health emergency. - 42 C.F.R. §§ 440.167(a)(2), 440.167(b)