Planning for The Resumption of Normal State Medicaid – Part 1 of a 3 Part Blog

HNWAppealing the Denial of Medicaid


  • The outbreak of the COVID-19 pandemic led the Secretary of the Health and Human Services (HHS) to declare a Public Health Emergency (PHE).
  • To respond to this PHE, the Center for Medicaid & CHIP Services (CMS) authorized the states to adopt many flexibilities in their Medicaid programs, including modifications to eligibility requirements, benefits packages, access to services, etc.
  • The CMS released a letter on December 22, 2020, to guide states on the return to normalcy as the pandemic comes to an end and these flexibilities expire.

A.  1135 Waivers

Among the flexibilities granted by the HHS Secretary are Section 1135 Waivers.  These waivers allow the Secretary of HHS to waive certain requirements for eligibility necessary to ensure that sufficient health care services are available to meet the needs of individuals enrolled in the respective programs.” (pg. 36). These waivers will terminate automatically at the end of the PHE. At this time, states “must provide beneficiaries with advance notice of any changes resulting from the determination or assessment.” (pg. 12).

B.  Eligibility

Many of the flexibilities in eligibility requirements for Medicaid will expire at the end of the PHE. States will then have to re-determine eligibility “and terminate coverage, as appropriate, for individuals who remained enrolled due to the maintenance of eligibility or continuous enrollment requirements in FFCRA, who gained or maintained coverage during the PHE through a temporary change in eligibility requirements.” (pg. 8). To assess the eligibility of such beneficiaries after the PHE, they are considered to have experienced a “change in circumstances,” and the agency is required to re-determine their eligibility in accordance with 42 C.F.R. §435.916(d).

Beneficiaries must be given at least ten day’s advance notice of any changes that might affect their eligibility or might result in a reduction of the benefits they received during the PHE. For those who will no longer be eligible, the states are required to provide the individual with advance notice of termination, as well as notice of their right to a fair hearing. However, under 42 CFR § 431.220(b), states are not required to provide a fair hearing if the “sole issue is a Federal or State law requiring an automatic change adversely affecting some or all beneficiaries.” Therefore, the termination of the leniencies that expire at end of the PHE does not automatically entitle the beneficiary to a fair hearing. However, beneficiaries can always request a hearing if they believe the agency’s decision concerning their eligibility was wrongful. Additionally, for individuals that are determined ineligible for Medicaid on all bases, the states must assess potential eligibility for other insurance affordability programs and transfer the individual’s account in accordance with 42 C.F.R. § 435.916(f)(2).

If any individual is determined to be ineligible for Medicaid more than six months before the notice of termination must be sent, the state must repeat the eligibility determination and verification process at the time of termination. However, they can avoid having to re-determine eligibility at this time if when the beneficiary was originally determined ineligible, they sent a notice informing the beneficiary:

  1. Of the eligibility determination;
  2. Their enrollment will end after the month in which the PHE ends;
  3. They can and should report changes in circumstances while they remain enrolled and the state will re-determine their eligibility based on such changes. (pg. 15).

Additionally, if such beneficiaries were determined ineligible because they failed to respond to a request for information, the state must allow them to provide the necessary documentation “at least through the end of the month in which the PHE ends, regardless of when the request for information was sent.” (pg. 15). However, if the beneficiary fails to respond to such requests within six months of the termination date after the end of the PHE, the agency need not attempt to re-determine their eligibility, but may instead provide notice of termination and their right to a fair hearing.

If you are looking for additional details on this topic or if you require advice about your situation, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing or telephone consultations if you are unable to come to our office.

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Medicaid Attorney

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