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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

May 22, 2020

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

Re: Section 1135 Flexibilities Requested in March 28, 2020 (Second Request) and the 1115 Communication Request on April 20, 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 March 30, 2020.  Your follow-up communication to CMS on both March 28, 2020 and the 1115 request dated April 20, 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.

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: May 22, 2020

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

State Fair Hearing Requests and Appeal Timelines

Texas requested flexibility to temporarily extend the timeframes for individuals to request Medicaid fair hearings in fee for service and managed care delivery systems.  CMS approves a waiver under section 1135 that allows applicants and beneficiaries to have more than 90 days to request a fair hearing for eligibility or fee-for-service appeals though the end of the public health emergency. 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.

CMS cannot waive parts of the Medicaid managed care regulations at 42 C.F.R. Part 438, Subpart F related to appeals of adverse benefit determinations which occur before fair hearings for managed care enrollees or parts of 42 C.F.R. Part 431, Subpart E. However, CMS is able to modify the federal timeframes associated with appeals and fair hearings. Therefore, CMS approves the following through the end of the public health emergency:

  • Modification of the timeframe for managed care entities to resolve appeals under 42 C.F.R. §438.408(f)(1) before an enrollee may request a State fair hearing to no less than one day in accordance with the requirements specified below; this allows managed care enrollees to proceed almost immediately to a state fair hearing without having a managed care plan resolve the appeal first by permitting the state to modify the timeline for managed care plans to resolve appeals to one day so the impacted appeals satisfy the exhaustion requirements.

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 (MCO), Prepaid Inpatient Health Plan (PIHP) or Prepaid Ambulatory Health Plan (PAHP) 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.  Section 1135 of the Act allows CMS to authorize a modification to the timeframes for required activities under section 1135(b)(5) of the Act.  CMS authorizes the state to modify the time line 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 between March 1, 2020 and the end of the public health emergency 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.

  • Modification of the timeframe under 42 C.F.R. §438.408(f)(2) for enrollees to exercise their appeal rights to allow more than 120 days to request a fair hearing when the initial 120th day deadline for an enrollee occurred during the period of this section 1135 waiver.

In addition, CMS approves a modification of the timeframe, under 42 C.F.R. §438.408(f)(2), for managed care enrollees to exercise their appeal rights.  Specifically, any managed care enrollees for whom the 120-day deadline described in 42 C.F.R. §438.408(f)(2) would have occurred between March 1, 2020 through the end of the public health emergency, are allowed more than 120 days to request a state fair hearing.

1915(k) Community First Choice State Plan Option Level of Care Determination and Redetermination Timeline

Pursuant to section 1135(b)(5) of the Act, CMS approves a waiver allowing the state to modify the deadline for initial and annual level of care determinations required for the 1915(k) state plan benefit, as described in 42 C.F.R. §441.510(c).  With this waiver, the initial determination of level of care does not need to be completed before the start of services and the annual level of care determinations that exceeds the 12-month authorization period will remain in place and services will continue until the assessment can occur.  A reassessment may be postponed for up to one year.

1915(i) HCBS State Plan Option Required Timeframe for Initial Evaluations and Assessments, and Re-evaluations and Reassessments 

Pursuant to section 1135(b)(5) of the Act, CMS approves a waiver allowing the state to modify the deadline for conducting initial evaluations of eligibility at 42 C.F.R. §441.715(d) and initial assessments of need to establish a care plan at 42 C.F.R. §441.720(a).  With this waiver, these activities do not need to be completed before the start of care.

In addition, pursuant to section 1135(b)(5) of the Act, CMS is allowing the state to modify the deadline for annual redetermination of eligibility required for the 1915(i) state plan benefit, as described in 42 C.F.R. §441.715(e) and 1915(i)(1)(I) of the Act, and annual reassessment of need required for the 1915(i) state plan benefit, as described in 42 C.F.R. §441.720(b).  With these waivers, the annual eligibility determinations and reassessments of need that exceeds the 12-month authorization period will remain in place and services will continue until the re-evaluation and reassessment can occur.  These actions may be postponed for up to one year.

1915(c) HCBS Waiver Level of Care Determination and Redetermination Timeline

Pursuant to section 1135(b)(5) of the Act, CMS is allowing the state to modify the deadline for initial and annual level of care determinations required for the 1915(c) HCBS waiver, as described in 42 C.F.R. §441.302(c)(1) and (c)(2), respectively.  With this waiver, the initial determination of level of care does not need to be completed before the start of services and the annual level of care determinations that exceeds the 12-month authorization period will remain in place and services will continue until the assessment can occur.  A reassessment may be postponed for up to one year.

Requirement to Obtain Beneficiary and Provider Signatures of HCBS Person-Centered Service Plan

Pursuant to section 1135(b)(1)(C) of the Act, CMS is granting authority to permit the state to temporarily waive written consent required under home and community based service programs 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) HCBS state plan programs, and 42 C.F.R. §441.540(b)(9) for 1915(k) Community First Choice programs that require person-centered service plans receive written consent from beneficiaries and be signed by beneficiaries and all providers responsible for its implementation and permit documented verbal consent as an alternate.

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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