Policy Round-Up: Organ Transplantation RFI, Vaccine Counseling, SSI & Spousal Impoverishment Standards, and More

December 15, 2021

Public Comment on Organ Transplantation

On December 3, the Centers for Medicare and Medicaid Services (CMS) published a Request For Information (RFI) soliciting feedback to inform potential changes to transplant requirements. The RFI identified transplant programs, organ procurement organizations, and end-stage renal disease facilities to potentially receive these changes. It outlined the changes they must meet in order to participate in Medicare and Medicaid programs.

The RFI asks for input on several issues important to the aging and disability communities, including:

How to ensure people in underserved communities receive appropriate information and education on organ transplantation and organ donation.
How current requirements can be changed to ensure transplant programs provide equal access to transplants for people with disabilities.
How current requirements can be changed to address discrimination, such as decisions made based on faulty assumptions about quality of life and the ability to perform post-operative care.

Comments can be submitted online until 5:00 PM on February 1, 2022.

CMS Vaccine Counseling Guidance

On December 2, CMS announced that states are now required to cover COVID-19 vaccine counseling visits where healthcare providers talk to families about the importance of vaccinating children, when those visits are provided as part of the Medicaid Early and Periodic Screening, Diagnostic and Treatment (EPSDT) benefit.

These visits will now be considered part of COVID-19 vaccine administration. This change means that state expenditures for those visits will be 100% federally matched. The timeline for this change is the last day of the first quarter that begins one year after the end of the COVID-19 public health emergency (PHE).

States will also be required to cover vaccine counseling visits for other pediatric vaccines under the EPSDT benefit, matched at the state’s regular federal medical assistance percentage (FMAP).

CMCS Informational Bulletin on 2022 SSI and Spousal Impoverishment Standards

On November 23, the Center for Medicaid and CHIP Services (CMCS) released an informational bulletin detailing the 2022 Supplemental Security Income (SSI) increase, and the increase in Spousal Impoverishment Standards. Both increases are based on inflation and will go into effect on January 1, 2022.

The SSI increase is important to help determine Medicaid eligibility. In many states people who are not receiving SSI, but who meet the financial eligibility requirements of the program are categorically, or automatically, eligible for Medicaid. Eligibility for other categories of Medicaid, including certain eligibility standards relating to coverage of long-term services and supports, is tied to an amount up to 300% of the SSI benefit.

Someone who receives Medicaid to pay for nursing home care is generally required to pay all but a small portion of their income towards the cost of their care. Before the spousal impoverishment provisions were enacted in 1988, the spouse who was still living in the community would be left with little or no resources, because the couple’s entire resources and income were considered in determining how much the individual had to pay towards their care. The Spousal Impoverishment Standards allow the community spouse to keep a certain amount of the couple’s combined income and resources to avoid impoverishment.

The Spousal Impoverishment Standards have been extended to beneficiaries of home and community-based services through September 2023. This information is available at https://www.medicaid.gov/federal-policy-guidance/downloads/cib050421.pdf.

CMS Financial Flexibilities Guidance

On December 7, CMS released guidance allowing states to adopt higher effective income and resource eligibility standards for people who need home and community-based services (HCBS). This guidance will help states “rebalance” their Medicaid long-term services and supports (LTSS). This new option provides states with a tool to expand access to community-based care.

The option can be provided to all people who need HCBS, or tailored to those who receive HCBS under a certain waiver, who receive a particular HCBS, or who meet certain other criteria, like age. The guidance also extends to spousal impoverishment standards.

Someone who receives Medicaid to pay for nursing home care is generally required to pay all but a small portion of their income towards the cost of their care. However, the Spousal Impoverishment Standards (See section above) allow the community spouse to keep a certain amount of the couple’s combined income and resources to avoid impoverishment. Under this guidance, states can allow such couples to retain more or all of their resources. States interested in this new flexibility should submit a state plan amendment to CMS.

FAQ on Updated Vaccine Mandates

ACL has previously highlighted an interim final rule (with comment period) requiring COVID-19 vaccination of staff who work in all Medicare and Medicaid-certified facilities. The rule was released by CMS on November 4. This rule includes hospitals, nursing homes, Intermediate Care Facilities for People with Intellectual Disabilities (ICF-IIDs), Psychiatric Residential Treatment Facilities (PRTFs), home health agencies, and Programs for All-Inclusive Care for the Elderly (PACE) programs. It does not include Medicaid-funded home and community-based settings.

Implementation and enforcement of that rule has been temporarily suspended due to litigation, and CMS has updated its frequently asked questions on the rule as a result. Although implementation and enforcement of the rule is suspended, the comment period on the rule is ongoing. Comments can be submitted online or by mail until 5:00 PM on January 4, 2022.

Health Equity Workgroup

The Core Quality Measures Collaborative (CQMC) is seeking nominations for its new Health Equity Workgroup. The workgroup will be tasked with developing a report that identifies and prioritizes health equity and disparities. It will provide details on sensitive measures relevant to CQMC’s core sets to assess healthcare quality, and will present implementation strategies, recommendations, and priority areas related to health equity measurement.

CQMC is seeking experts in quality measurement and how it intersects with factors that impact quality of care and health disparities, including age and disability. Up to 25 people representing a diverse variety of stakeholder perspectives will be selected for the workgroup, including:

Patients/consumers
Purchasers/employers
Public and private payers
Medical associations
Hospital/health systems
Quality collaboratives
Measure developers
Solutions providers
Other health care quality experts

Nominations for the workgroup can be submitted until 6:00 PM ET on Thursday, January 6, 2022. Full instructions for submitting nominations and more information on the workgroup are available in the call for nominations.*

<*Editor's note: Call for Nominations no longer open, original link removed.>

SSA Emergency Message

The Social Security Administration (SSA) published an emergency message on December 9, reopening cases where applications for Supplemental Security Income (SSI) may have been denied because of pandemic-related financial assistance. That assistance was initially counted as income for the purposes of deciding eligibility for SSI, but was later determined to be excludable disaster assistance.

People identified by SSA in this category will receive notices that they may now qualify for SSI, including retroactive payments. There is no deadline to respond to these outreach notices.

Other people who were denied SSI, but did not receive an outreach notice, may also now be eligible for SSI. People who believe that determination was reached because they received pandemic-related assistance can contact SSA to request that their case be reevaluated. Those requests may be made within one year for any reason, or within two years for good cause.

Guidance to Boost Accessibility and Equity in COVID-19 Vaccine Programs

On December 22, the Office for Civil Rights (OCR) at the Department for Health and Human Services (HHS) issued guidance to improve access to COVID-19 vaccine programs, and ensure nondiscrimination on the basis of race, color, and national origin.

The guidance outlines the civil rights obligations of federally assisted health care providers and systems, including include state and local agencies, hospitals, and health care providers. Under Title VI of the Civil Rights Act of 1964 and Section 1557 of the Affordable Care Act, they are required to ensure fair and equitable access to COVID-19 vaccines, including booster shots. The guidance also provides best practices for vaccine providers. These best practices can be implemented to advance and improve equitable vaccine administration, including ways to eliminate barriers to information, improve outreach, and overcome transportation barriers.

DOL Final Rule

On November 24, the Department of Labor (DOL) published a final rule raising the minimum wage for certain federal contractors, including people with disabilities, beginning on January 30, 2022.

The rule implements an executive order signed by President Biden in April. It raises the minimum wage for certain federal contractors from its current rate of $10.95 per hour to $15 per hour. That rate will increase annually based on inflation.

The rule also maintains provisions in the 2014 final rule, which effectively ended the practice of using special certificates issued under section 14(c) of the Fair Labor Standards Act to pay people with disabilities less than the minimum wage for the majority of federal contracts. This means that, in most cases, federal contractors with disabilities receive the same minimum wage as other federal contractors.