7. Applicable Individual or Dependent Must Travel Outside of Their Community for an Extended Period of Time To Receive Medical Services Necessary for a Serious or Complex Medical Condition

Section 1902(xx)(3)(B)(ii)(III) of the Act provides that, in States that adopt the short-term hardship exception, applicable individuals are excepted from demonstrating community engagement when, for all or part of a month, they or their dependent must travel outside of their community for an extended period of time to receive medical services necessary to treat a serious or complex medical condition (as described in section 1902(xx)(9)(A)(ii)(V)(ee) of the Act) that are not available within their community of residence. We implement this component of the short-term hardship event definition at § 435.555(d)(4). We provide the following explanation for its elements.

Section 1902(xx) of the Act does not define “dependent.” Section 1902(xx)(9)(ii)(III) of the Act refers to a “dependent child” within the definition of a “specified excluded individual,” and we define “dependent child” for that purpose at § 435.554(a). Because the “dependent” reference in section 1902(xx)(3)(B)(ii)(III) of the Act is not similarly limited to a “child,” we do not believe our analysis above (section II.E.3.e. of this IFC), relating to specified excluded individuals who are parents, guardians, caretaker relatives, or family caregivers to dependent children, is warranted here.

We are defining a “dependent” at § 435.555(b)(1), for the purposes of the short-term hardship circumstance described in section 1902(xx)(3)(B)(ii)(III) of the Act, as: a minor (as defined under State law) child of the applicable individual who is living with the applicable individual; a tax dependent of the applicable individual (whether or not the tax dependent is a minor child of the individual or residing with the applicable individual); or an individual for whom the applicable individual has been appointed a guardian by a court. We believe that the dependent relationship in each of these cases can be reasonably considered categorical and represents common uses of the term “dependent.” [ 98 ]

We note that the statute does not require that the applicable individual travel with the dependent for purposes of the exception.

We have considered, however, that the circumstance described in section 1902(xx)(3)(B)(ii)(III) of the Act is that of an applicable individual being deemed to have demonstrated community engagement when a dependent of that individual must travel outside of their community for necessary medical care, and we believe it is reasonable to conclude that the statute contemplates that the need for the dependent to travel for necessary medical care will significantly impact the applicable individual. If the applicable individual is not actually traveling with their dependent, we believe that the applicable individual could be impacted by the dependent's need to travel for medical care by needing to take leave from employment or to be absent from other scheduled community engagement activities for reasons related to the dependent's condition or travel, being responsible for managing the logistics of the medical appointment or the travel, needing to take the dependent to local medical appointments related to the condition that requires the travel, or needing to be available to communicate with medical providers.

Even though we are not interpreting section 1902(xx)(3)(B)(ii)(III) of the Act to impose a travel requirement on the applicable individual when it is the dependent of such individual who must travel for the relevant medical care, we recognize that this circumstance offers the applicable individual a short-term hardship exception to the community engagement requirement. To reflect the absence of a co-travel requirement in section 1902(xx)(3)(B)(ii)(III) of the Act while giving meaning to the statutory reference to a hardship that an applicable individual will sustain in the absence of actually traveling with their dependent, we believe it is reasonable for an applicable individual who is not traveling with the dependent to verify that they have experienced a short-term hardship in order to qualify for the exception.

Accordingly, at § 435.555(d)(4)(i), we require an applicable individual who does not travel with their dependent for the necessary medical treatment to verify their efforts on behalf of the dependent that are directly related to the dependent's travel or medical condition that gives rise to the need for the travel. Specifically, the applicable individual must demonstrate having to take leave from employment or having to absent themselves from other community engagement activities for reasons related to the dependent's condition or travel. Examples of reasons related to the dependent's condition or travel could be taking the dependent to local medical appointments related to or in preparation for the medical appointment that requires the travel; conducting logistical activities relating to the travel; and maintaining primary responsibility for communicating with the dependent's medical providers.

Under section 1902(xx)(3)(B)(ii) of the Act, the short-term hardship exception only applies during a month in which, for part or all of such month, the applicable individual, or the applicable individual's dependent, must travel outside of their community. This means that, whether the applicable individual travels with the dependent or not, the exception only applies in the month in which the dependent travels. Thus, if an applicable individual must take leave from work or leave or be absent from other community engagement activities in the month preceding the dependent's travel, a short-term hardship exception will not apply because the dependent is not traveling. Additionally, the leave from employment or leave or absence from other community engagement activities must occur in the month in which the dependent travels in order for the applicable individual who is not traveling with the dependent to receive the exception.

The definition at § 435.554(c)(5)(i)(E) of a “serious or complex medical condition” would also apply to the short-term hardship event for travel outside of the community to receive medical services necessary to treat a serious or complex medical condition.

We have considered whether and how other terms and phrases in section 1902(xx)(3)(B)(ii)(III) of the Act should be defined where section 1902(xx) of the Act does not define them. We consider the phrase “community” to be subject to several different interpretations. While numerous uses of “community” exist in title XIX of the Act, the term is generally not defined by itself within it (“home and community -based services” are described in section 1915(c) and (i) of the Act, for example, and section 1924 of the Act essentially defines a “ community spouse” as an individual who is not in a medical institution or nursing facility).

What is considered a “community” will typically vary from one State to another, such as between predominantly rural States and others with numerous ( printed page 33388) urban areas, or even within a State. Therefore, we are not defining this term for purposes of this rule and are instead providing States with the discretion to determine what would count as a “community” for purposes of the short-term hardship exception. A State could reasonably define “community” to align with political subdivisions; that is, that when an applicable individual (or the dependent of such individual) must leave their political subdivision, they will have left their “community.” Alternatively, a State could reasonably define community based on proximity to the individual's residence; for example, that an individual leaves their community when needing to travel more than 25 miles or a certain number of hours (or has to stay overnight). Other definitions of “community” may be reasonable, although we remind States that the exception is for a short-term hardship. As we have instructed States in the context of the undue hardship exceptions to the application of the asset-transfer and trust rules (as described in section II.G.2. of this IFC), the mere causation of inconvenience is insufficient to establish a hardship. [ 99 ] States should therefore develop standards for a “community” that make leaving it pose some measurable complication for applicable individuals and their dependents while at the same time not creating a standard that is too onerous. (For example, a State should not define a “community” to be an entire State such that only when applicable individuals or their dependents have to leave the State does the short-term hardship apply.)

“Period of time” is also used in title XIX of the Act as a general, undefined phrase (for example, in section 1902(a)(44), (v), and (ee)(3)(A)(iii) of the Act)) and these other uses do not contain a modifier such as “extended,” as is used in section 1902(xx)(3)(B)(ii)(III) of the Act. We are not defining “extended period of time” in this rule and are thus providing States discretion to create a definition and standard for “extended period of time,” consistent with the nature of the short-term hardship exception. Section 1902(xx)(3)(B)(ii) of the Act directs that the short-term hardship circumstances described therein exist when, for “part or all of [a] month,” all of the criteria for one of the circumstances is met. “Part” of a month is therefore sufficient for purposes of any of the short-term hardship circumstances, which means that “extended period of time” could be less than a full month, and States are not permitted to require that it be at least a full month or longer.

Finally, under section 1902(xx)(3)(B)(ii)(III) of the Act, the medical services requiring the travel described in that section must be ones that “are not available within” the applicable individual's or dependent's “community of residence.” We do not interpret “community of residence” to have a distinct meaning from “community” within section 1902(xx)(3)(B)(ii)(III) of the Act. For purposes of evaluating the unavailability of the services within such community, we again believe that States should have the discretion to develop the standards to evaluate this, subject again to the “hardship” concept that is central to this exception.

States may find helpful their processes for determining if a Medicaid eligible individual needs related travel expenses [ 100 ] (in particular meals, lodging, and attendants) for non-emergency medical transportation (NEMT) or out-of-State services as described at § 431.52, when designing a process to determine if an individual must travel outside of their community under the short-term hardship exception at section 1902(xx)(3)(B)(ii)(III) of the Act. State processes for NEMT-related travel expenses and out-of-State services are often different, so States could look to one or both processes in implementing this short-term hardship exception. While States must pay for NEMT-related travel expenses when it is necessary for a beneficiary to secure covered services, States have flexibility to determine the processes to determine if a beneficiary requires NEMT to secure covered services and if related travel expenses are necessary for that NEMT trip. Under § 431.52 States must cover out-of-State services when medical services are needed because of a medical emergency; medical services are needed and the beneficiary's health would be endangered if they were required to travel to their State of residence; the State determines, on the basis of medical advice, that the needed medical services, or necessary supplementary resources, are more readily available in the other State; or it is general practice for beneficiaries in a particular locality to use medical resources in another State. However, States have the flexibility to establish the process to determine if an out-of-State service meets one of the required criteria under § 431.52. It is our understanding that the State processes for determining the necessity of NEMT-related travel expenses and out-of-State services typically factor in an individual's medical condition, their need for medical services, the availability of a medical service in the individual's geographic area (for example, number of providers in their particular geographic area who accept Medicaid and can furnish the relevant medical services, time and distance to providers who are able to furnish services if closer providers are unavailable, provider acceptance of new patients, that the medical services are more readily available in a different geographic area, etc.), and the impact a lack of the medical services would have on the individual. Thus, either of these State-established processes might be used by a State as a starting point for identifying when an applicable individual can receive this exception.