§ 435.555 Optional exception for short-term hardship events.
(a) Scope. At State option, the agency may provide that an applicable individual, as defined at § 435.551, is deemed to have demonstrated community engagement, as defined at § 435.552, for a month in which, for all or part of such month, the individual experiences any one of the short-term hardship events described in paragraph (d) of this section.
(b) Definitions. For purposes of this section—
(1) Dependent means an individual who is:
(i) The minor (as defined under State law) child of an applicable individual who is living with the applicable individual;
(ii) The tax dependent of an applicable individual (whether or not the tax dependent is a minor child of the applicable individual or residing with the applicable individual); or
(iii) An individual for whom the applicable individual has been appointed a guardian by a court.
(2) Individual acting on behalf of the applicable individual means any individual from whom a State is required to accept an application under § 435.907(a).
(c) Procedures. If the agency elects the option described in paragraph (a) of this section, it must provide, including as part of the noncompliance procedures at § 435.558(c)(1):
(1) Notice, as described under § 435.561(b)(3)(ii), informing applicable individuals that the State offers a short-term hardship exception from the community engagement requirement, and, for the circumstances in paragraphs (d)(2) and (3) of this section, the anticipated end date of the exception;
(2) For the circumstances in paragraphs (d)(1) and (4) of this section, the State must also provide:
(i) Notice of the method by which an applicable individual or an individual acting on behalf of the applicable individual may request a short-term hardship exception;
(ii) Notice of the timeframe for requesting a short-term hardship exception;
(iii) A timely process for determining whether a request for a short-term hardship exception will be granted;
(iv) Notice to the applicable individual of the State's determination, which shall include the anticipated end date of the exception (if granted); and
(v) A process under which the applicable individual or an individual acting on behalf of the applicable individual can appeal an adverse determination.
(d) Short-term hardship event. A short-term hardship event exists when, for all or part of a month, and subject to a request in the circumstances described in paragraphs (d)(1) and (4) of this section by an applicable individual or an individual acting on behalf of the applicable individual, the criteria for any of the following circumstances are met:
(1) The applicable individual receives:
(i) Inpatient hospital services as defined at § 440.10 of this subchapter, nursing facility services as defined at § 440.155 of this subchapter, services in an intermediate care facility for individuals with intellectual disabilities as defined at § 440.150 of this subchapter, or inpatient psychiatric hospital services including the services defined at § 440.160 of this subchapter for individuals under the age of 21 without regard to whether such services are in an institution for mental diseases; or
(ii) Other services of similar acuity, including:
(A) Inpatient services furnished in a critical access hospital consistent with § 440.170(g) of this subchapter;
(B) Inpatient services furnished in an emergency hospital consistent with § 440.170(e) of this subchapter;
(C) Inpatient services furnished in an institution for mental diseases;
(D) Inpatient services furnished by other facilities that are not covered under Medicaid but are otherwise recognized by the State; and,
(E) Noninstitutional services that an applicable individual receives that, but for the receipt of such services, would likely result in the applicable individual receiving services specified in paragraphs (d)(1)(i) and (d)(1)(ii)(A) through (D) of this section, regardless of whether they are received in an institutional setting.
(iii) States must use the definition of “inpatient” at § 440.2 of this subchapter for any inpatient services described in paragraphs (d)(1)(i) and (ii) of this section.
(2) The applicable individual resides in a county or equivalent unit of local government in which there exists an emergency or disaster declared by the President pursuant to the National Emergencies Act (50 U.S.C. 1601 et seq.) or the Robert T. Stafford Disaster and Emergency Assistance Act (42 U.S.C. 5121 et seq.).
(i) A short-term hardship exception based on an emergency declared pursuant to the National Emergencies Act (50 U.S.C. 1601 et seq.) exists when the emergency affects the ability of applicable individuals to demonstrate community engagement in a particular county or other equivalent unit of local government, or multiple counties, or statewide.
(ii) A State must timely notify CMS of its plan to effectuate a short-term hardship exception based on an emergency declared pursuant to the National Emergencies Act.
(iii) CMS will review States' use and implementation of a short-term hardship exception based on an emergency declared pursuant to the National Emergencies Act to ensure compliance with paragraph (d)(2)(i) of this section.
(iv) The duration of an exception for an emergency or disaster declared by the President pursuant to the Robert T. Stafford Disaster and Emergency Assistance Act (42 U.S.C. 5121 et seq.) will be the first month in which the incident period begins and through at least the end of the month in which the incident period ends, and may extend beyond such month if approved by CMS upon request of the State, based on information the State provides in support of an extended period. The State must base its request for a longer duration on information showing that barriers to demonstrating the community engagement requirement under § 435.552 in the relevant area persist.
(3) Through a request from the State to CMS made in an electronic or hard-copy format, the State demonstrates and CMS determines, based on data from the U.S. Bureau of Labor Statistics or another reliable source such as a State labor department, that the applicable individual resides in a county or equivalent unit of local government in which the unemployment rate is at or above the lesser of—
(i) 8 percent; or
(ii) 1.5 times the national unemployment rate.
(4) The applicable individual, or the dependent of such individual, must travel outside of their community of residence for an extended period of time (which could be for part or all of a month or longer) to receive medical services necessary to treat a serious or complex medical condition, as defined at § 435.554(c)(5)(i)(E), that are not available within their community of residence.
(i) If the applicable individual does not travel with the dependent, then, during the month or months in which the dependent must travel, the applicable individual must demonstrate having taken leave from employment or having absented themselves from other community engagement activities for reasons related to the dependent's condition or travel, such as, but not limited to:
(A) Taking the dependent to local medical appointments related to or in preparation for the medical appointment that requires the travel;
(B) Conducting logistical activities relating to the travel;
(C) Maintaining primary responsibility for communicating with the dependent's medical providers.
(ii) [Reserved]
(e) Request from applicable individual not required. A State must not require an applicable individual, or an individual acting on behalf of the applicable individual, to make a request for the circumstances described in paragraphs (d)(2) and (3) of this section.
(f) Excluded individuals. A State must not apply paragraph (a) of this section to a specified excluded individual defined at § 435.554.