On Monday, April 13, 2020, CMS released an updated FAQ on the enhanced Federal Medical Assistance Program (FMAP) and the Families First Coronavirus Response Act (FFCRA) implementation, as well as new guidance on CMS’ Coronavirus Aid, Relief, and Economic Security (CARES) Act implementation.

In these new resources, CMS explains the following changes, among others, to Medicaid and the Children’s Health Insurance Program (CHIP) that were implemented in response to the COVID-19 outbreak:

  • “Emergency Period” under the FFCRA: CMS explains that the Department of Health and Human Services (HHS) Secretary Alex Azar’s public health emergency declaration for the COVID-19 outbreak on January 27 triggered the emergency period, which will continue for 90 days following this announcement unless further extended by Secretary Azar. CMS indicates it will alert states once the emergency period related to COVID-19 has ended.
  • Optional Medicaid Eligibility Group: In the CARES FAQ CMS reminds states of the new optional Medicaid eligibility group available through Section 6004(a)(3) of the FFCRA. Individuals are eligible for this group, which CMS refers to as the COVID-19 testing group, if they “receive a limited benefit package of services related to testing and diagnosis of COVID-19 that are rendered during this emergency period.” Furthermore, to be considered eligible, an individual must not be:
  1. Eligible for coverage under another mandatory Medicaid eligibility group;
  2. Enrolled in Medicaid coverage, except for certain individuals who are already enrolled in a limited-benefit Medicaid eligibility group;
  3. Enrolled in another federal government funded healthcare program; and
  4. Enrolled in a group health plan or have health insurance coverage offered by a health insurance issuer, including “a qualified health plan through an Exchange, employer-sponsored health insurance, retiree health plans and COBRA continuation coverage.”

States may also permit individuals to self-attest to their eligibility under the COVID-19 testing group without the state having to first assess the individual’s eligibility for this or other mandatory groups under the Medicaid program. In addition, if an individual applies for the COVID-19 testing group, and is eligible under another Medicaid group, then the state should transfer this individual to the other group. Covered services under this new COVID-19 testing group include: in vitro diagnostic testing, which includes the administration of that testing, and COVID-19 testing-related services completed during a visit with a provider during this emergency period. States can elect to include this new eligibility group by filling out the necessary portions of the Medicaid Disaster Relief State Plan Amendment Template.

  • Testing and Diagnostic Services: CMS reiterates that the FFRCA requires state Medicaid and CHIP programs to cover in vitro diagnostic products. In vitro diagnostic products include “those reagents, instruments, and systems intended for use in diagnosis of disease or other conditions, including a determination of the state of health, in order to cure, mitigate, treat, or prevent disease or its sequelae.” CMS notes that cost-sharing is not permitted under Medicaid and CHIP during this public health crisis for any in vitro diagnostic product and any other COVID-19 test “for which payment may be made under the State plan.” CMS also explains that serological tests for COVID-19 meet the definition of an in vitro diagnostic product and that state Medicaid programs that elect to include the optional COVID-19 testing group must include coverage for these tests. Serological tests are the tests that are currently being used “to detect antibodies against the SARS-CoV-2 virus and are intended for use in the diagnosis of the disease or condition of having current or past COVID-19 infection.”
  • Increased Federal Medical Assistance Percentage: Under Section 6008 of the FFCRA, CMS implemented a 6.2 percent increase in the FMAP, which applied retroactively to January 1. The CARES Act amended the FFCRA to give states a 30-day grace period for any state that increased their premiums before March 18 to return their premiums to the level that was “in effect as of January 1 without jeopardizing the state’s eligibility for the temporary 6.2 percentage point FMAP increase.” CMS further explains that states may not seek recovery against an individual after the emergency period when that individual fails to pay his premiums and his eligibility is not terminated because of Section 6008. States are similarly prohibited from terminating coverage on the basis of an individual not paying her premium if the state receives the FMAP increase. In terms of maintenance of effort requirement under the FFCRA, states cannot “impose eligibility standards, methodologies, or procedures that are more restrictive than those that were in place on January 1.” However, CMS explains that states can make the following less restrictive changes during this emergency period: “lowering premiums, easing burden associated with verification requirements, and streamlining the application process.”

CMS has been responding to questions it receives through the dedicated COVID-19 mailbox: MedicaidCOVID19@cms.hhs.gov.

Norton Rose Fulbright attorneys will continue to provide relevant federal and state updates on the Health Law Pulse during this public health crisis.