Medicaid Program; Temporary Increase in Federal Medical Assistance Percentage (FMAP) in Response to the COVID-19 Public Health Emergency (PHE); Reopen…
Summary
A Centers for Medicare & Medicaid Services (CMS) notice reopening public comment on the amendments to 42 CFR 433.400 in an interim final rule published at 85 FR 71142 on November 6, 2020. It was published in the Federal Register on September 27, 2022 (Vol. 87, No. 186; file code CMS–9912–N), with comments due by October 27, 2022. The Families First Coronavirus Response Act (FFCRA), enacted on March 18, 2020 (Pub. L. 116–127), gave States a temporary increase in the Federal Medical Assistance Percentage (FMAP) if they kept beneficiaries enrolled in Medicaid. CMS says it has become aware that the IFR's implementation of section 6008(b)(3) of the FFCRA has negatively affected some Medicaid beneficiaries and that people harmed by State coverage changes have sued CMS seeking to invalidate the IFR.
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“Medicaid Program; Temporary Increase in Federal Medical Assistance Percentage (FMAP) in Response to the COVID-19 Public Health Emergency (PHE); Reopen….”
Original at www.govinfo.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/medicaid-program-temporary-increase-in-federal-medical-assistance-perc-c66cbbf6cd/
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58456 Federal Register / Vol. 87, No. 186 / Tuesday, September 27, 2022 / Rules and Regulations
EPA-APPROVED MICHIGAN REGULATIONS—Continued
State
Michigan Title effective EPA approval date Comments
citation date
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mits to install. REGISTER CITATION].
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* * * * * forth certain requirements in CMS 1. Electronically. You may submit
[FR Doc. 2022–20621 Filed 9–26–22; 8:45 am] regulations that States must follow in electronic comments on this regulation
BILLING CODE 6560–50–P
order to claim a temporary increase in to https://www.regulations.gov. Follow
Federal matching funds for their the ‘‘Submit a comment’’ instructions.
Medicaid programs under the Families 2. By regular mail. You may mail
DEPARTMENT OF HEALTH AND First Coronavirus Response Act written comments to the following
HUMAN SERVICES (FFCRA). In light of the possibility of address ONLY: Centers for Medicare &
changed circumstances since Medicaid Services, Department of
Centers for Medicare & Medicaid publication of the IFR and other policy Health and Human Services, Attention:
Services considerations, CMS is considering CMS–9912–N, P.O. Box 8016,
modifying those requirements. CMS is Baltimore, MD 21244–8016.
42 CFR Part 433 soliciting additional information from Please allow sufficient time for mailed
the public on any issues that may be comments to be received before the
[CMS–9912–N] pertinent to these potential close of the comment period.
RIN 0938–AU35 modifications by reopening the public 3. By express or overnight mail. You
comment period for an additional 30 may send written comments to the
Medicaid Program; Temporary days. following address ONLY: Centers for
Increase in Federal Medical Assistance Medicare & Medicaid Services,
DATES: The comment period for the
Percentage (FMAP) in Response to the Department of Health and Human
amendments to 42 CFR 433.400 in the
COVID–19 Public Health Emergency Services, Attention: CMS–9912–N, Mail
interim final rule published at 85 FR
(PHE); Reopening of Public Comment Stop C4–26–05, 7500 Security
71142 on November 6, 2020, is
Period Boulevard, Baltimore, MD 21244–1850.
reopened. To be assured consideration,
comments must be received at one of For information on viewing public
AGENCY: Centers for Medicare &
the addresses provided below, by comments, see the beginning of the
Medicaid Services (CMS), Department
October 27, 2022. (See the SUPPLEMENTARY INFORMATION section.
of Health and Human Services (HHS).
SUPPLEMENTARY INFORMATION section of FOR FURTHER INFORMATION CONTACT:
ACTION: Interim final rule; reopening of
this document for a list of the provisions Stephanie Bell, (410) 786–0617.
public comment period.
open for comment.) SUPPLEMENTARY INFORMATION:
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SUMMARY: On November 6, 2020, CMS ADDRESSES: In commenting, refer to file Provisions open for comment: We will
published an interim final rule with code CMS–9912–N. consider comments that are submitted
request for comments (IFR) entitled Comments, including mass comment as indicated above in the DATES and
‘‘Additional Policy and Regulatory submissions, must be submitted in one ADDRESSES sections on 42 CFR 433.400.
Revisions in Response to the COVID–19 of the following three ways (please Inspection of Public Comments: All
Public Health Emergency.’’ The IFR set choose only one of the ways listed): comments received before the close of
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Federal Register / Vol. 87, No. 186 / Tuesday, September 27, 2022 / Rules and Regulations 58457
the comment period are available for those FAQs, under CMS’ initial II. Changed Circumstances
viewing by the public, including any interpretation of section 6008(b)(3) of Since issuing the IFR, CMS has
personally identifiable or confidential the FFCRA, to receive the temporary become aware that the IFR’s
business information that is included in FMAP increase, a State was required to implementation of section 6008(b)(3) of
a comment. We post all comments keep beneficiaries enrolled in Medicaid, the FFCRA has negatively affected some
received before the close of the if they were enrolled on or after March Medicaid beneficiaries. During the IFR’s
comment period on the following 18, 2020, with the same amount, comment period, CMS received a
website as soon as possible after they duration, and scope of benefits, through number of comments opposing the
have been received: https:// the end of the month in which the approach taken in the IFR and
www.regulations.gov. Follow the search COVID–19 PHE ends. Additionally, requesting that CMS instead choose to
instructions on that website to view States could not subject these adopt its original interpretation of
public comments. CMS will not post on beneficiaries to any increase in cost section 6008(b)(3) of the FFCRA. Some
Regulations.gov public comments that sharing or beneficiary liability for commenters expressed specific concern
make threats to individuals or institutional services or other long-term about the potential loss of Medicaid
institutions or suggest that the services and supports during this time benefits that could be experienced by
individual will take actions to harm the period. beneficiaries transitioned from an
individual. CMS continues to encourage
On November 6, 2020, CMS issued an eligibility group providing full coverage
individuals not to submit duplicative
interim final rule with a request for to a Medicare Savings Program
comments. We will post acceptable
comments entitled, ‘‘Additional Policy eligibility group, which provides
comments from multiple unique
and Regulatory Revisions in Response to coverage for Medicare premiums and
commenters even if the content is
the COVID–19 Public Health cost sharing alone. Most recently,
identical or nearly identical to other
Emergency,’’ that, among other things, Medicaid beneficiaries who claim they
comments.
added to 42 CFR part 433 a new subpart were harmed when their States changed
I. Background their Medicaid coverage following the
G, Temporary FMAP Increase During
The Families First Coronavirus issuance of § 433.400 have sued CMS,
the Public Health Emergency for
Response Act (FFCRA) was enacted on seeking to invalidate the IFR. As CMS
COVID–19, which included a newly
March 18, 2020 (Pub. L. 116–127). explained in the IFR, CMS’ original
established § 433.400 (85 FR 71142,
Included among its provisions is section interpretation provided the strongest
71144, 71160 through 71167, 71197 and
6008, which provides a temporary 6.2 protections for beneficiaries and their
71198). In § 433.400, CMS set forth a
percentage point increase to each access to medically necessary services
different approach to implementing
qualifying State and territory’s Federal during the COVID–19 pandemic. CMS is
section 6008(b)(3) of the FFCRA (85 FR
Medical Assistance Percentage (FMAP) also cognizant that the COVID–19 PHE
71144). In the preamble, CMS explained
(‘‘temporary FMAP increase’’) under remains ongoing.
that section 6008(b)(3) of the FFCRA is Additionally, CMS understands that
section 1905(b) of the Social Security ambiguous and that States had
Act (the Act). States must meet certain the fiscal situations of many States may
expressed concern that CMS’ have changed since the IFR was issued
conditions in order to receive the interpretation of section 6008(b)(3) of
temporary FMAP increase. Specifically, in November 2020. See, for example,
the FFCRA in the FAQs made it American Rescue Plan Act of 2021
as relevant to this notice, under section
challenging for them to manage their section 9901, 42 U.S.C. 802
6008(b)(3) of the FFCRA, States must
Medicaid programs effectively (85 FR (appropriating hundreds of billions of
provide that an individual who is
71161). Specifically, the States noted dollars to ‘‘mak[e] payments to States,
enrolled for benefits under the Medicaid
that CMS’ initial interpretation severely territories, and Tribal governments to
State plan (or waiver of that plan) as of
limited State flexibility to control mitigate the fiscal effects stemming from
March 18, 2020, or enrolls for benefits
under such plan (or waiver) during the program costs in the face of growing the [COVID–19 PHE]’’). This funding
period beginning March 18, 2020, and budgetary constraints and developing may have mitigated the concerns that
ending the last day of the month in fiscal challenges during the COVID–19 States had raised with CMS and that
which the COVID–19 public health PHE. States argued that this frustrated CMS had considered in issuing the IFR.
emergency (PHE) period ends, shall be one purpose of section 6008 of the Accordingly, some of the reasons
treated as eligible for such benefits FFCRA—to provide additional support underlying the approach taken in the
through the end of the month in which to State Medicaid programs in their IFR may no longer apply.
such emergency period ends unless the response to the COVID–19 pandemic. Given these potentially changed
individual requests a voluntary Under the IFR’s approach to circumstances, CMS is now considering
termination of eligibility or the implementing section 6008(b)(3) of the a different approach in its final rule.
individual ceases to be a resident of the FFCRA, States were still required, as a Specifically, CMS is considering
State. condition for receiving their temporary returning to its original interpretation of
Initially, CMS issued guidance FMAP increases, to maintain beneficiary section 6008(b)(3) of the FFCRA
informing States how to comply with enrollment in Medicaid, but they were described in the FAQs from April 13,
section 6008(b)(3) of the FFCRA through also permitted to make certain changes 2020, May 5, 2020, and June 30, 2020.
Frequently Asked Questions (FAQs) to the amount, duration, and scope of Under this proposed interpretation, to
documents posted on Medicaid.gov on benefits and to beneficiary cost-sharing, be eligible for the temporary FMAP
April 13, 2020; May 5, 2020; and June subject to certain beneficiary protections increase, a State would be required to
30, 2020.1 As described more fully in set forth in the IFR (85 FR 71144, 71162 keep its beneficiaries enrolled in
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through 71167). The approach taken in Medicaid, if they were enrolled as of,
1 The April 13, 2020 and June 30, 2020 FAQs the IFR represented an attempt by CMS, on, or after March 18, 2020, and would
were incorporated into one comprehensive FAQs based on the information before the not be permitted to reduce the amount,
document on May 5, 2020, and last updated on
January 6, 2021. Available at https://
agency at the time the IFR was issued, duration, or scope of their benefits or
www.medicaid.gov/state-resource-center/ to balance the interests of States, health modify their cost sharing after the
Downloads/covid-19-faqs.pdf. care providers, and beneficiaries. effective date of the final rule. We
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58458 Federal Register / Vol. 87, No. 186 / Tuesday, September 27, 2022 / Rules and Regulations
believe this interpretation and the Any re-enrollment in or change back to IV. Response to Comments
approach taken in the IFR are both prior coverage would become effective Because of the large number of public
reasonable approaches to implementing beginning on the final rule’s effective comments we normally receive on
section 6008(b)(3) of the FFCRA. date. CMS is re-opening the comment Federal Register documents, we are not
However, CMS plans to review the IFR period on the IFR entitled, ‘‘Additional able to acknowledge or respond to them
to determine if consideration of the Policy and Regulatory Revisions in individually. We will consider all
comments we received and changed Response to the COVID–19 Public comments we receive by the date and
circumstances warrant adopting the Health Emergency,’’ to give the public time specified in the DATES section of
original interpretation of section an opportunity to comment on any this preamble, and, when we proceed
6008(b)(3) of the FFCRA in its final issues that may be pertinent to these with a subsequent document, we will
rulemaking. considerations. respond to the comments in the
Consequently, CMS is considering preamble to that document.
whether (1) § 433.400 should be III. Collection of Information Chiquita Brooks-LaSure,
rescinded, and (2) CMS should replace Requirements Administrator of the Centers for
that provision with a final rule that Medicare & Medicaid Services,
implements its original interpretation of This document does not impose
information collection requirements, approved this document on September
section 6008(b)(3) of the FFCRA. 22, 2022.
Additionally, if CMS chooses to take that is, reporting, recordkeeping, or
these steps, it may require States to offer third-party disclosure requirements. Dated: September 23, 2022.
Medicaid beneficiaries whose coverage Consequently, there is no need for Xavier Becerra,
was changed in a manner consistent review by the Office of Management and Secretary, Department of Health and Human
with § 433.400 an opportunity to re- Budget under the authority of the Services.
enroll in, or to have their enrollment Paperwork Reduction Act of 1995 (44 [FR Doc. 2022–20973 Filed 9–23–22; 4:15 pm]
changed back to, their prior coverage. U.S.C. 3501 et seq.). BILLING CODE 4120–01–P
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