DEPARTMENT OF HEALTH AND SOCIAL SERVICES

Division of Medicaid and Medical Assistance

Statutory Authority: 31 Delaware Code, Section 512 (31 Del.C. §512)

PROPOSED

PUBLIC NOTICE

Medicaid and CHIP coverage of COVID-19 Treatment, Vaccines, & Testing

In compliance with the State's Administrative Procedures Act (APA - Title 29, Chapter 101 of the Delaware Code) and under the authority of 31 Del. C. §512, Delaware Health and Social Services ("Department") / Division of Medicaid and Medical Assistance (DHSS/DMMA) is proposing to amend Title XIX Medicaid State Plan and Title XXI CHIP State Plan regarding the coverage of COVID-19 treatment, vaccines, & testing. Specifically, to assure coverage of COVID-19 treatment, vaccines, vaccine administration, vaccine counseling, and testing consistent with the Centers for Disease Control and Prevention (CDC) definitions of screening, testing, and diagnosis for COVID-19 and its recommendations for who should receive diagnostic and screening tests for COVID-19 with no cost sharing for Medicaid and CHIP plans.

Any person who wishes to make written suggestions, compilations of data, testimony, briefs or other written materials concerning the proposed new regulations must submit same to, Planning and Policy Unit, Division of Medicaid and Medical Assistance, 1901 North DuPont Highway, P.O. Box 906, New Castle, Delaware 19720-0906, by email to DHSS_DMMA_Publiccomment@Delaware.gov, or by fax to 302-255-4413 by 4:30 p.m. on January 31, 2023. Please identify in the subject line: CHIP ARP & COVID-19 Treatment, Vaccines & Testing.

The action concerning the determination of whether to adopt the proposed regulation will be based upon the results of Department and Division staff analysis and the consideration of the comments and written materials filed by other interested persons.

SUMMARY OF PROPOSAL

The purpose of this notice is to advise the public that Delaware Health and Social Services (DHSS)/Division of Medicaid and Medical Assistance (DMMA) is proposing to amend Title XIX Medicaid State Plan and Title XXI CHIP State Plan regarding the coverage of COVID-19 treatment, vaccines, & testing. Specifically, to assure coverage of COVID-19 treatment, vaccines, vaccine administration, vaccine counseling, and testing consistent with the Centers for Disease Control and Prevention (CDC) definitions of screening, testing, and diagnosis for COVID-19 and its recommendations for who should receive diagnostic and screening tests for COVID-19 with no cost sharing for Medicaid and CHIP plans.

Statutory Authority

• American Rescue Plan Act of 2021

• Section 1135(b)(1)(C) and section 1135(b)(5) of the Social Security Act

Background

On March 13, 2020, the President of the United States issued a proclamation that the COVID-19 outbreak in the United States constitutes a national emergency by the authorities vested in him by the Constitution and the laws of the United States, including sections 201 and 301 of the National Emergencies Act (50 U.S.C. 1601 et seq.), and consistent with section 1135 of the Social Security Act (Act). On March 13, 2020, pursuant to section 1135(b) of the Act, the Secretary of the United States Department of Health and Human Services invoked his authority to waive or modify certain requirements of titles XVIII, XIX, and XXI of the Act as a result of the consequences COVID-19 pandemic, to the extent necessary, as determined by the Centers for Medicare & Medicaid Services (CMS), to ensure that sufficient health care items and services are available to meet the needs of individuals enrolled in the respective programs and to ensure that health care providers that furnish such items and services in good faith, but are unable to comply with one or more of such requirements as a result of the COVID-19 pandemic, may be reimbursed for such items and services and exempted from sanctions for such noncompliance, absent any determination of fraud or abuse.

CMS has issued subsequent guidance that required states to assure coverage of COVID-19 testing, vaccines, vaccine administration, and vaccine counseling without cost sharing. CMS also issued guidance that required states to assure coverage of COVID-19 treatment, including specialized equipment and therapies (including preventive therapies). Delaware has been compliant with this requirement for the duration of the PHE and is publishing these pages to attest to this assurance.

Summary of Proposal

Purpose

The purpose of this proposed regulation is to amend Delaware's Medicaid State Plan by modifying language on Attachment 7.7-A Pages 1-3, Attachment 7.7-B Pages 1-3, and Attachment 7.7-C Pages 1-3. Also, the Delaware Health Children's Program State Plan will be amended by modifying language in Sections 1.4 and 6.2.27.

Summary of Proposed Changes

Effective March 11, 2021, Delaware's State Plan will be amended by modifying language on Attachment 7.7-A Pages 1-3 regarding COVID-19 vaccines, vaccine administration, and vaccine counseling; Attachment 7.7-B Pages 1-3 regarding COVID-19 testing; and Attachment 7.7-C Pages 1-3 regarding COVID-19 treatment. The Delaware Health Children's Program State Plan will be amended by modifying language in Sections 1.4 and 6.2.27 regarding COVID-19 testing, vaccines, and treatment for CHIP plans.

Effective on and after April 1, 2021, Delaware's State Plan will be amended by modifying language in Section 7.7-A Page 3, regarding rates for any medically necessary stand-alone COVID-19 vaccine counseling.

Public Notice

In accordance with the federal public notice requirements established in Section 1902(a)(13)(A) of the Social Security Act and 42 CFR 440.386 and the state public notice requirements of Title 29, Chapter 101 of the Delaware Code, DHSS/DMMA gives public notice and provides an open comment period for 30 days to allow all stakeholders an opportunity to provide input on the proposed regulation. Comments must be received by 4:30 p.m. on January 31, 2023.

Centers for Medicare and Medicaid Services Review and Approval

The provisions of this state plan amendment (SPA) are subject to approval by the Centers for Medicare and Medicaid Services (CMS). The draft SPA page(s) may undergo further revisions before and after submittal to CMS based upon public comment and/or CMS feedback. The final version may be subject to significant change.

Provider Manuals and Communications Update

Also, there may be additional provider manuals that may require updates as a result of these changes. The applicable Delaware Medical Assistance Program (DMAP) Provider Policy Specific Manuals and/or Delaware Medical Assistance Portal will be updated. Manual updates, revised pages or additions to the provider manual are issued, as required, for new policy, policy clarification, and/or revisions to the DMAP program. Provider billing guidelines or instructions to incorporate any new requirement may also be issued. A newsletter system is utilized to distribute new or revised manual material and provide other pertinent information regarding DMAP updates. DMAP updates are available on the Delaware Medical Assistance Portal website: https://medicaid.dhss.delaware.gov/provider

Fiscal Impact