How Do You Prove It? Verifying Compliance and Exclusions
Previous newsletters have covered the community engagement requirements, how to meet them, and who doesn't have to meet them. This newsletter will cover how a person proves that they are either meeting the requirement or have an exclusion or exception.
Frequency
In general, the law requires the state to determine if a person meets the requirements, or has an exclusion or exception, at application and at renewal. Each state must conduct renewals at least every six months (at least every 12 months for those considered medically frail), and states have the option to verify compliance with the requirements more frequently.
First, states must determine if the requirements apply to that person, if they are an "applicable individual" or a "specified excluded individual." To determine status as a specified excluded individual, the state looks at factors occurring in the month of application or renewal.
In general, states are required to identify who is and isn't subject to the requirement, including who qualifies for an exception, verify compliance or exclusion status at application and renewal, conduct outreach to affected individuals, and take defined steps when someone is found noncompliant or their compliance can't be verified.
If a state determines that someone is not excluded, so the requirements apply to them, the state looks at their compliance or exception in the month immediately before application. For renewals, states may look at one, two, or three months between the last renewal and this one. However, states may not dictate in which months individuals must show compliance.
For example, Allen is seeking to renew his coverage. The state looks back at the past six months of activity between his previous renewal and this one (the actual time period may be shorter due to the need to begin the renewal process before the six months are up). If the state has opted to require two months of compliance at renewal, Allen only has to show that he met the community engagement requirement (or had some kind of exception) in two of the six months. The state cannot decide to only look at the two months prior to the renewal, Allen can show compliance in any of the months.
For specified excluded individuals, states may not re-verify that status more frequently than every six months unless the state has information indicating that the individual's status has changed. In some cases, states may not re-verify status for longer intervals or ever.
Frequency of Renewal for Specified Excluded Individuals
Specified excluded individuals with longer periods before re-verification:
American Indians – once a state has verified this status, states do not need to re-verify, as it is a status that does not change
Former Foster Youth – for youth age 19-26 who "aged out" of the system, states do not need to re-verify that status until the individual turns 26
Veterans with a total disability rating – for veterans with a permanent disability determination from the VA, states must not re-verify that status; for veterans with a temporary disability determination, states must reverify at least every 12 months and may reverify every six months.
Medical frailty - for a person determined to be medically frail, the state must reverify this status at least every 12 months and may reverify every six months.
Careful readers will notice that for some categories it says that states "do not need to" reverify, but for others it says that states "must not." This language is pulled directly from the preamble. It is unclear if CMS intended there to be a difference and if states have the option to reverify more frequently in some categories.
Paperwork
CMS provides different levels of detail on what paperwork is expected to verify a status. For many categories, CMS discusses the expectations that states rely on their own state data, but does not provide much detail beyond on what states and individuals should do if the state doesn’t have this information. The preamble most often says that if the state is unable to obtain data, it must obtain documentation.
For veterans with a total disability rating will need to provide the state with their documentation from the Veterans Administration.
For caregivers, CMS says that states “must design reasonable procedures” and “seek information from the individual.” Some of this information, such as parent and child relationships should be straightforward to verify. Other information, such as the number of hours of care provided, it’s not clear how CMS expects states to verify this information.
The statute provides states with the option to allow individuals to self-attest, to sign a document on penalty of perjury, that they meet an exclusion or exception. However, in the rule CMS has chosen to limit the application of this option. States may only accept self-attestation during calendar year 2027. Starting in 2028, states must obtain documentation. For individuals who are medically frail in 2028 and beyond, states may accept self-attestation once per enrollment period, most likely upon initial enrollment. After that, documentation will be required.
The biggest challenge arises when states must verify someone’s status as medically frail. CMS had been working with states to develop lists of codes and conditions that would meet the definition of medically frail. And states should be able to use this data, especially for existing enrollees, to identify potentially medically frail enrollees. However, that only helps meet the first prong, whether the individual has a diagnosis or condition that meets at least one of the five categories of medical frailty. It does not tell the state whether that condition or diagnosis significantly impairs an individual from complying with the work requirement. CMS makes clear that states must verify both the condition or diagnosis and that it impairs their ability to comply with the requirement.
CMS lists a number of health care providers that can provide documentation of medical frailty, including physicians, nurse practitioners, clinical social workers, and other practitioners credentialed by the state. However, such clinicians are not usually occupational specialists, and may or may not feel comfortable verifying the second prong of the definition regarding impairment complying with the work requirement.
CMS does not discuss the different types of documentation required for the different types of medical frailty, such as a substance use disorder, disabling mental disorder, disability (defined as significant impairment with one or more activity of daily living), or serious or complex medical condition.
CMS does not provide any other information on how a state can or should verify impairment with ability to comply with the community engagement requirement. This will be one of the most challenging parts of the rule for states to implement and has the potential to cause the most significant coverage losses among people most in need of coverage.