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 16, 2024
Robert Kerr, Director
South Carolina Department of Health and Human Services
P.O. Box 8206
Columbia, South Carolina, 29201
Re: Section 1135 Flexibilities Requested on October 4, 2024
Dear State Medicaid Director Robert Kerr:
On September 25, 2024, the President of the United States issued a proclamation that 2024 Hurricane Helene 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 September 30, 2024, 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), 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 September 30, 2024, with a retroactive effective date of September 25, 2024. 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 October 4, 2024 detailed federal Medicaid requirements that pose issues or challenges for the health care delivery system in South Carolina. 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 2024 Hurricane Helene. 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 South Carolina. Please contact your state lead if you have any questions or need additional information.
Sincerely,
Courtney Miller
Director
cc: Courtney Miller, Anne Marie Costello, Daniel Tsai
STATE OF SOUTH CAROLINA
APPROVAL OF FEDERAL SECTION 1135 WAIVER REQUESTS
CMS Response: October 16, 2024
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.
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, 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
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)
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.
Extend timelines for reinstatement of benefits
Pursuant to section 1135(b)(5) of the Act, CMS is granting the authority to modify requirements in 42 C.F.R. § 431.231(a) to allow states the option to reinstate services if a beneficiary requests a fair hearing more than 10 days after the date of action (e.g., the date of termination), but not to exceed the time permitted (under either the state plan or under an approved section 1135 waiver) for beneficiaries to request a fair hearing. This waiver supplements the timeframe in 42 C.F.R. § 431.231(a), which gives states the option to reinstate services and benefits for beneficiaries who request a fair hearing not more than 10 days after the date of action. The state should reinstate the beneficiary’s services and benefits as quickly as practicable.
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 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: 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:
a. OIG exclusion list
b. 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:
a. Issue no new temporary provisional enrollments after the date that the PHE is lifted,
b. 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
c. Allow a retroactive effective date for provisional temporary enrollments that is no earlier than September 25, 2024.
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)
Targeted Case Management Timeline - Monitoring and Follow-up Activities
Pursuant to section 1135(b)(5) of the Act, CMS approves a waiver to allow the state to modify the targeted case management timeline for monitoring and follow-up activities and the deadline for conducting an annual monitoring visit. Activities must be completed within 12 months of the due date. - 42 C.F.R. § 440.169(d)(4)
SOUTH CAROLINA
FEDERAL SECTION 1135 WAIVER REQUESTS UNDER REVIEW
CMS Response: October 16, 2024
Please see below for the items that remain under CMS review.
Supervision of Hospice Aides
Waive requirement for 14-day registered nurse (RN) onsite visit to patient home to assess quality of care and services provided by hospice aide.
Supervisory assessment of home health aide
Waive requirement for 14-day supervisory assessment by RN or other appropriate skilled professional to assess services being provided by home aide