Rule2022-20973
Medicaid Program; Temporary Increase in Federal Medical Assistance Percentage (FMAP) in Response to the COVID-19 Public Health Emergency (PHE); Reopening of Public Comment Period
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 27, 2022
Issuing agencies
Health and Human Services DepartmentCenters for Medicare & Medicaid Services
Abstract
On November 6, 2020, CMS published an interim final rule with request for comments (IFR) entitled "Additional Policy and Regulatory Revisions in Response to the COVID-19 Public Health Emergency." The IFR set forth certain requirements in CMS regulations that States must follow in order to claim a temporary increase in Federal matching funds for their Medicaid programs under the Families First Coronavirus Response Act (FFCRA). In light of the possibility of changed circumstances since publication of the IFR and other policy considerations, CMS is considering modifying those requirements. CMS is soliciting additional information from the public on any issues that may be pertinent to these potential modifications by reopening the public comment period for an additional 30 days.
Full Text
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<title>Federal Register, Volume 87 Issue 186 (Tuesday, September 27, 2022)</title>
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[Federal Register Volume 87, Number 186 (Tuesday, September 27, 2022)]
[Rules and Regulations]
[Pages 58456-58458]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-20973]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Medicare & Medicaid Services
42 CFR Part 433
[CMS-9912-N]
RIN 0938-AU35
Medicaid Program; Temporary Increase in Federal Medical
Assistance Percentage (FMAP) in Response to the COVID-19 Public Health
Emergency (PHE); Reopening of Public Comment Period
AGENCY: Centers for Medicare & Medicaid Services (CMS), Department of
Health and Human Services (HHS).
ACTION: Interim final rule; reopening of public comment period.
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SUMMARY: On November 6, 2020, CMS published an interim final rule with
request for comments (IFR) entitled ``Additional Policy and Regulatory
Revisions in Response to the COVID-19 Public Health Emergency.'' The
IFR set forth certain requirements in CMS regulations that States must
follow in order to claim a temporary increase in Federal matching funds
for their Medicaid programs under the Families First Coronavirus
Response Act (FFCRA). In light of the possibility of changed
circumstances since publication of the IFR and other policy
considerations, CMS is considering modifying those requirements. CMS is
soliciting additional information from the public on any issues that
may be pertinent to these potential modifications by reopening the
public comment period for an additional 30 days.
DATES: The comment period for the amendments to 42 CFR 433.400 in the
interim final rule published at 85 FR 71142 on November 6, 2020, is
reopened. To be assured consideration, comments must be received at one
of the addresses provided below, by October 27, 2022. (See the
SUPPLEMENTARY INFORMATION section of this document for a list of the
provisions open for comment.)
ADDRESSES: In commenting, refer to file code CMS-9912-N.
Comments, including mass comment submissions, must be submitted in
one of the following three ways (please choose only one of the ways
listed):
1. Electronically. You may submit electronic comments on this
regulation to <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the ``Submit a
comment'' instructions.
2. By regular mail. You may mail written comments to the following
address ONLY: Centers for Medicare & Medicaid Services, Department of
Health and Human Services, Attention: CMS-9912-N, P.O. Box 8016,
Baltimore, MD 21244-8016.
Please allow sufficient time for mailed comments to be received
before the close of the comment period.
3. By express or overnight mail. You may send written comments to
the following address ONLY: Centers for Medicare & Medicaid Services,
Department of Health and Human Services, Attention: CMS-9912-N, Mail
Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850.
For information on viewing public comments, see the beginning of
the SUPPLEMENTARY INFORMATION section.
FOR FURTHER INFORMATION CONTACT: Stephanie Bell, (410) 786-0617.
SUPPLEMENTARY INFORMATION:
Provisions open for comment: We will consider comments that are
submitted as indicated above in the DATES and ADDRESSES sections on 42
CFR 433.400.
Inspection of Public Comments: All comments received before the
close of
[[Page 58457]]
the comment period are available for viewing by the public, including
any personally identifiable or confidential business information that
is included in a comment. We post all comments received before the
close of the comment period on the following website as soon as
possible after they have been received: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Follow the search instructions on that website to view public comments.
CMS will not post on <a href="http://Regulations.gov">Regulations.gov</a> public comments that make threats
to individuals or institutions or suggest that the individual will take
actions to harm the individual. CMS continues to encourage individuals
not to submit duplicative comments. We will post acceptable comments
from multiple unique commenters even if the content is identical or
nearly identical to other comments.
I. Background
The Families First Coronavirus Response Act (FFCRA) was enacted on
March 18, 2020 (Pub. L. 116-127). Included among its provisions is
section 6008, which provides a temporary 6.2 percentage point increase
to each qualifying State and territory's Federal Medical Assistance
Percentage (FMAP) (``temporary FMAP increase'') under section 1905(b)
of the Social Security Act (the Act). States must meet certain
conditions in order to receive the temporary FMAP increase.
Specifically, as relevant to this notice, under section 6008(b)(3) of
the FFCRA, States must provide that an individual who is enrolled for
benefits under the Medicaid State plan (or waiver of that plan) as of
March 18, 2020, or enrolls for benefits under such plan (or waiver)
during the period beginning March 18, 2020, and ending the last day of
the month in which the COVID-19 public health emergency (PHE) period
ends, shall be treated as eligible for such benefits through the end of
the month in which such emergency period ends unless the individual
requests a voluntary termination of eligibility or the individual
ceases to be a resident of the State.
Initially, CMS issued guidance informing States how to comply with
section 6008(b)(3) of the FFCRA through Frequently Asked Questions
(FAQs) documents posted on <a href="http://Medicaid.gov">Medicaid.gov</a> on April 13, 2020; May 5, 2020;
and June 30, 2020.\1\ As described more fully in those FAQs, under CMS'
initial interpretation of section 6008(b)(3) of the FFCRA, to receive
the temporary FMAP increase, a State was required to keep beneficiaries
enrolled in Medicaid, if they were enrolled on or after March 18, 2020,
with the same amount, duration, and scope of benefits, through the end
of the month in which the COVID-19 PHE ends. Additionally, States could
not subject these beneficiaries to any increase in cost sharing or
beneficiary liability for institutional services or other long-term
services and supports during this time period.
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\1\ The April 13, 2020 and June 30, 2020 FAQs were incorporated
into one comprehensive FAQs document on May 5, 2020, and last
updated on January 6, 2021. Available at <a href="https://www.medicaid.gov/state-resource-center/Downloads/covid-19-faqs.pdf">https://www.medicaid.gov/state-resource-center/Downloads/covid-19-faqs.pdf</a>.
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On November 6, 2020, CMS issued an interim final rule with a
request for comments entitled, ``Additional Policy and Regulatory
Revisions in Response to the COVID-19 Public Health Emergency,'' that,
among other things, added to 42 CFR part 433 a new subpart G, Temporary
FMAP Increase During the Public Health Emergency for COVID-19, which
included a newly established Sec. 433.400 (85 FR 71142, 71144, 71160
through 71167, 71197 and 71198). In Sec. 433.400, CMS set forth a
different approach to implementing section 6008(b)(3) of the FFCRA (85
FR 71144). In the preamble, CMS explained that section 6008(b)(3) of
the FFCRA is ambiguous and that States had expressed concern that CMS'
interpretation of section 6008(b)(3) of the FFCRA in the FAQs made it
challenging for them to manage their Medicaid programs effectively (85
FR 71161). Specifically, the States noted that CMS' initial
interpretation severely limited State flexibility to control program
costs in the face of growing budgetary constraints and developing
fiscal challenges during the COVID-19 PHE. States argued that this
frustrated one purpose of section 6008 of the FFCRA--to provide
additional support to State Medicaid programs in their response to the
COVID-19 pandemic. Under the IFR's approach to implementing section
6008(b)(3) of the FFCRA, States were still required, as a condition for
receiving their temporary FMAP increases, to maintain beneficiary
enrollment in Medicaid, but they were also permitted to make certain
changes to the amount, duration, and scope of benefits and to
beneficiary cost-sharing, subject to certain beneficiary protections
set forth in the IFR (85 FR 71144, 71162 through 71167). The approach
taken in the IFR represented an attempt by CMS, based on the
information before the agency at the time the IFR was issued, to
balance the interests of States, health care providers, and
beneficiaries.
II. Changed Circumstances
Since issuing the IFR, CMS has become aware that the IFR's
implementation of section 6008(b)(3) of the FFCRA has negatively
affected some Medicaid beneficiaries. During the IFR's comment period,
CMS received a number of comments opposing the approach taken in the
IFR and requesting that CMS instead choose to adopt its original
interpretation of section 6008(b)(3) of the FFCRA. Some commenters
expressed specific concern about the potential loss of Medicaid
benefits that could be experienced by beneficiaries transitioned from
an eligibility group providing full coverage to a Medicare Savings
Program eligibility group, which provides coverage for Medicare
premiums and cost sharing alone. Most recently, Medicaid beneficiaries
who claim they were harmed when their States changed their Medicaid
coverage following the issuance of Sec. 433.400 have sued CMS, seeking
to invalidate the IFR. As CMS explained in the IFR, CMS' original
interpretation provided the strongest protections for beneficiaries and
their access to medically necessary services during the COVID-19
pandemic. CMS is also cognizant that the COVID-19 PHE remains ongoing.
Additionally, CMS understands that the fiscal situations of many
States may have changed since the IFR was issued in November 2020. See,
for example, American Rescue Plan Act of 2021 section 9901, 42 U.S.C.
802 (appropriating hundreds of billions of dollars to ``mak[e] payments
to States, territories, and Tribal governments to mitigate the fiscal
effects stemming from the [COVID-19 PHE]''). This funding may have
mitigated the concerns that States had raised with CMS and that CMS had
considered in issuing the IFR. Accordingly, some of the reasons
underlying the approach taken in the IFR may no longer apply.
Given these potentially changed circumstances, CMS is now
considering a different approach in its final rule. Specifically, CMS
is considering returning to its original interpretation of section
6008(b)(3) of the FFCRA described in the FAQs from April 13, 2020, May
5, 2020, and June 30, 2020. Under this proposed interpretation, to be
eligible for the temporary FMAP increase, a State would be required to
keep its beneficiaries enrolled in Medicaid, if they were enrolled as
of, on, or after March 18, 2020, and would not be permitted to reduce
the amount, duration, or scope of their benefits or modify their cost
sharing after the effective date of the final rule. We
[[Page 58458]]
believe this interpretation and the approach taken in the IFR are both
reasonable approaches to implementing section 6008(b)(3) of the FFCRA.
However, CMS plans to review the IFR to determine if consideration of
the comments we received and changed circumstances warrant adopting the
original interpretation of section 6008(b)(3) of the FFCRA in its final
rulemaking.
Consequently, CMS is considering whether (1) Sec. 433.400 should
be rescinded, and (2) CMS should replace that provision with a final
rule that implements its original interpretation of section 6008(b)(3)
of the FFCRA. Additionally, if CMS chooses to take these steps, it may
require States to offer Medicaid beneficiaries whose coverage was
changed in a manner consistent with Sec. 433.400 an opportunity to re-
enroll in, or to have their enrollment changed back to, their prior
coverage. Any re-enrollment in or change back to prior coverage would
become effective beginning on the final rule's effective date. CMS is
re-opening the comment period on the IFR entitled, ``Additional Policy
and Regulatory Revisions in Response to the COVID-19 Public Health
Emergency,'' to give the public an opportunity to comment on any issues
that may be pertinent to these considerations.
III. Collection of Information Requirements
This document does not impose information collection requirements,
that is, reporting, recordkeeping, or third-party disclosure
requirements. Consequently, there is no need for review by the Office
of Management and Budget under the authority of the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501 et seq.).
IV. Response to Comments
Because of the large number of public comments we normally receive
on Federal Register documents, we are not able to acknowledge or
respond to them individually. We will consider all comments we receive
by the date and time specified in the DATES section of this preamble,
and, when we proceed with a subsequent document, we will respond to the
comments in the preamble to that document.
Chiquita Brooks-LaSure, Administrator of the Centers for Medicare &
Medicaid Services, approved this document on September 22, 2022.
Dated: September 23, 2022.
Xavier Becerra,
Secretary, Department of Health and Human Services.
[FR Doc. 2022-20973 Filed 9-23-22; 4:15 pm]
BILLING CODE 4120-01-P
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</html>Indexed from Federal Register on September 27, 2022.
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