3. Content and Timing of the Noncompliance Notice

In § 435.558(c), we specify the content States must include in the notice of noncompliance. Section 1902(xx)(6)(B) of the Act specifies that the notice of noncompliance must include information on how an applicable individual may make a satisfactory showing of compliance with the community engagement requirement or that such requirement does not apply and how the individual may reapply for Medicaid if eligibility is denied or the individual is disenrolled from coverage. In implementing these notice requirements, we are also specifying additional content that must be included in the noncompliance notice to ensure that the individual fully understands the noncompliance process and the consequences of failure to respond. We specify in § 435.558(c)(1)(i) through (vii) that the notice of noncompliance must include clear statements containing the following information:

How to make a satisfactory showing of compliance with the community engagement requirement, including:

Which month(s) will be assessed by the State in accordance with § 435.556(a);

How to show the individual demonstrated community engagement under § 435.552; and

How to show the individual should be deemed to have demonstrated community engagement as specified in § 435.553 or, if applicable, § 435.555;

How to make a satisfactory showing that the community engagement requirement does not apply to the individual on the basis that the individual does not meet the definition of an applicable individual in § 435.551, including because the individual meets the criteria for one or more of the categories of a specified excluded individual under § 435.554;

The deadline for providing the information under §§ 435.558(c)(1)(i) or (c)(1)(ii) to the State;

A description of how the information under §§ 435.558(c)(1)(i) or (c)(1)(ii) may be submitted to the State through any of the modalities described in § 435.907(a);

A description of the consequences of noncompliance with the community engagement requirement and failure to respond to the notice of noncompliance for Medicaid eligibility and eligibility for advance payments of the premium tax credit (APTC) and the premium tax credit (PTC) used to pay for coverage through a Health Insurance Exchange, as provided in section 1903(xx)(7)(B) of the Act;

How such individual may reapply for medical assistance under the State plan (or a waiver of such plan) if the individual's application is denied or the individual is disenrolled from coverage under the State plan or waiver, as applicable; and

For States that have elected to provide the short-term hardship exception under § 435.555, the information about short-term hardships described in § 435.555(c).

For consistency with other eligibility-related notices and forms, we specify that the notice of noncompliance must be provided consistent with § 435.905(b) in § 435.558(c)(2), and we further specify that, if provided in electronic format, the notice must comply with § 435.918(b) in § 435.558(c)(3).

In § 435.558(c)(4), we specify when an individual is considered to have received notice of noncompliance for the purpose of determining when the 30-calendar day period begins. We recognize that many individuals receive notices from the Medicaid agency via mail through the U.S. Postal Service, and States may not know when an individual receives a notice as mail delivery times vary or circumstances may prevent an individual from receiving their delivered mail. We consider the notice of noncompliance to be received 5 days after the date on the notice, unless the applicant or beneficiary shows that he or she did not receive the notice within the 5-day period. For example, an individual might not receive the notice in this timeframe if the individual is hospitalized, the individual's mail is on hold, or the individual was away from home. This is consistent with established timelines for receipt of a notice of action (in § 431.231(c)(2)) and of an adverse local evidentiary hearing decision (in § 431.232(b)).