CMS section 6008(b)(3) Mark Zielinski, Michael Robinson & BRGeneral Benjamin Levron: "Maintain Medicaid Beneficiaries through end of Public Health Emergency" [Section 42 C.F.R. 433.400 - Final Rule Update]
Overview of New Section 42 C.F.R. 433.400
Are there any individuals whose coverage may be terminated prior to the end of the PHE?
In states claiming the temporary FMAP increase, a beneficiary’s Medicaid enrollment may be terminated prior to the first day of the month after the PHE for COVID-19 ends if:
1. The beneficiary requests a voluntary termination of eligibility;
2. The beneficiary dies;
3. The beneficiary ceases to be a resident of the state; or
4. The beneficiary was not validly enrolled, as described above.
Initial CMS guidance on section 6008(b)(3) of the
Families First Coronavirus Response Act (FFCRA) required states, as a condition for receiving the temporary
federal medical assistance percentage (FMAP)
increase, to
maintain the enrollment and coverage of all Medicaid beneficiaries through the end of the month in which the PHE for COVID-19 ends.
On March 18, 2020 President Trump signed the Families First Coronavirus Response Act (FFCRA; P.L. 116-127) into law in response to the Public Health Emergency (PHE) for coronavirus disease 2019 (COVID-19).
Section 6008 of the FFCRA authorizes states to claim a temporary 6.2 percentage point increase in the federal medical assistance percentage (FMAP) if they satisfy certain conditions laid out in section 6008(b).
CMS original interpretation of the conditions specified in section 6008(b)(3) was issued in guidance, in the form of frequently asked questions, in April, May and June 2020.
This interpretation prevented states from implementing certain changes to effectively manage their programs.
On 10/28, CMS published CMS-9912-IFC which establishes a new section 433.400 in Part 433 of Title 42 of the Code of Federal Regulations that reinterprets the condition in section 6008(b)(3) of the FFCRA
under which states claiming the temporary FMAP increase must maintain beneficiary enrollment through the end of the month in which the PHE for COVID-19 ends, and includes additional safeguards to protect beneficiaries.
Under this initial guidance, states were prohibited from making any changes to the benefits available to a beneficiary or to a beneficiary’s required cost sharing or, in the case of institutionalized beneficiaries, to their financial responsibility for the cost of care under the post-eligibility treatment of income rules.
Under the new regulations at 42 C.F.R. section 433.400, in order to claim the temporary FMAP increase, states must maintain the Medicaid enrollment of “validly enrolled beneficiaries”.
Such enrollment must be maintained, with certain exceptions, through the end of the month in which the PHE for COVID-19 ends.
States may terminate individuals not validly enrolled, after providing advance notice and fair hearing rights per 42 C.F.R. Part 431 Subpart E, and still claim the temporary FMAP increase.
Section 433.400 permits states to make changes to beneficiary coverage, cost sharing and post-eligibility treatment of income without violating the condition in section 6008(b)(3) of the FFCRA.
Details about the Requirements in 42 C.F.R § 433.400
Which beneficiaries would NOT be considered validly enrolled beneficiaries under § 433.400?
Beneficiaries generally are considered to be validly enrolled.
However, a beneficiary is not validly enrolled if the state Medicaid agency determines that:
• The determination of eligibility was incorrect at the time it was made due to agency error.
• Eligibility was erroneously granted due to beneficiary fraud for which the beneficiary has been convicted or beneficiary abuse as determined by the agency in accordance with existing regulations at 42 C.F.R. § 455.16.