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Section 1135 Waiver Flexibilities - Vermont 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 28, 2020

Cory Gustafson
Commissioner
Department of Vermont Health Access
280 State Drive
Waterbury, Vermont 05671

Re: Section 1135 Flexibilities Requested in April 9 and April 15, 2020 Communication (Second and Third Requests)

Dear Commissioner Gustafson:

The Centers for Medicare & Medicaid Services (CMS) granted an initial approval to the State of Vermont for multiple section 1135 flexibilities March 30, 2020.  Your follow-up communications to CMS on April 9 and April 15, 2020 detailed a number of additional federal requirements that also pose issues or challenges for the health care delivery system in Vermont 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. 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 Vermont and the health care community.

Sincerely,

Calder Lynch
Deputy Administrator and Director

STATE OF VERMONT
APPROVAL OF FEDERAL SECTION 1135 WAIVER REQUESTS

CMS Response: May 28, 2020

State Plan Amendment (SPA) Flexibilities: Submission Deadline and Public Notice

Pursuant to section 1135(b)(5) of the Act, for the period of the public health emergency, CMS is modifying, the requirement at 42 C.F.R. 430.20 that the state submit SPAs related to the COVID-19 public health emergency by the final day of the quarter, to obtain a SPA effective date during the quarter, enabling SPAs submitted after the last day of the quarter to have an effective date in a previous quarter, but no earlier than the effective date of the public health emergency.

Pursuant to section 1135(b)(1)(C) of the Act, CMS is also waiving public notice requirements applicable to the state plan amendment (SPA) submission process.  Public notice for SPAs is required under 42 C.F.R. §447.205 for changes in statewide methods and standards for setting Medicaid payment rates, 42 C.F.R. §447.57 for changes to premiums and cost sharing, and 42 C.F.R. §440.386 for changes to Alternative Benefit Plans (ABPs).  Pursuant to section 1135(b)(1)(C) to waive of the Act, as applicable, CMS is approving the state’s request flexibility to waive these notice requirements otherwise applicable to SPA submissions. 

These waivers or modifications of the requirements related to SPA submission timelines and public notice apply only with respect to SPAs that meet the following criteria: (1) the SPA provides or increases beneficiary access to items and services related to COVID-19 (such as by waiving or eliminating cost sharing, increasing payment rates  or amending ABPs to add services or providers); (2) the SPA does not restrict or limit payment or services or otherwise burden beneficiaries and providers; and, (3) the SPA is temporary, with a specified sunset date that is not later than the last day of the declared COVID-19 public health emergency (or any extension thereof).  We nonetheless encourage states to make all relevant information about the SPA available to the public so they are aware of the changes.

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) providing 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.

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.

HCBS Settings Requirements for Specified Settings

Pursuant to section 1135(b)(1)(B) of the Act, CMS approves a waiver to temporarily allow services provided under the 1915(c) HCBS waiver program, the 1915(i) HCBS State plan benefit, and the Community First Choice State plan option at 1915(k) to be provided in settings that have not been determined to meet the home and community-based settings criteria.  This waiver applies to settings that have been added since the March 17, 2014, effective date of the HCBS final regulation (CMS 2249-F/2296-F), to which the HCBS settings criteria currently applies, to accommodate circumstances in which an individual requires relocation to an alternative setting to ensure the continuation of needed home and community-based services.

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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