Dr. Mehmet Oz
Administrator
Centers for Medicare and Medicaid Services
U.S. Department of Health and Human Services
200 Independence Avenue SW
Washington DC 20201

RE: CMS-2454-IFC: Medicaid Program: Community Engagement Requirement for Certain Individuals
(Docket CMS-2026-2047)

Dear Administrator Oz:

The HIV+Hepatitis Policy Institute is a leading national HIV and hepatitis policy advocacy organization promoting quality and affordable healthcare for people living with or at risk of HIV, hepatitis, and other serious and chronic health conditions.  We thank you for the opportunity to comment on the interim final rule implementing the community engagement requirement in Medicaid under section 1902(xx) of the Social Security Act.

Our comments focus on the rule’s narrowing of the medical frailty exclusion on people living with HIV. The rule requires states not just to determine if an enrollee has a serious or chronic medical condition, but also whether that condition “significantly impairs” their ability to work.  This “significant impairment” standard is inconsistent with the statute, unworkable, and would harm people with HIV and stress the safety nets they rely on.  We urge CMS to withdraw the rule and reissue it so as to make it compliant with the law. 

Congress specifically included an exemption for people with serious or chronic conditions from the community engagement requirements.  The “significant impairment” standard flouts congressional intent and must be eliminated. 

People with HIV are living with a lifelong serious and complex medical condition and have special medical needs: they cannot stay healthy without continuous access to their lifesaving HIV treatment.  Any gap in treatment risks serious health consequences, including failure of viral suppression and the risk of onward transmission.  Longer treatment gaps are potentially disabling, allowing progression to AIDS, after which life expectancy is limited.   In 2023, 46% of adults with diagnosed HIV were covered by Medicaid, so policies with the potential to limit continuous access to antiretroviral therapy in Medicaid may reverse decades of progress in fighting HIV.

Congress unambiguously exempted people with serious or complex conditions from the community engagement requirements.  CMS has chosen to impose a novel additional requirement not found in the statute that the condition must also “significantly impair” the person’s ability to meet the 80-hour community engagement standard.  This harms the very people Congress sought to protect. 

The rule’s definition of medical frailty is unworkable. 

Congress’s exclusion of the medically frail from the community engagement requirements should have enabled CMS to allow states to deploy existing medical frailty definitions already used in state Alternative Benefit Plans.  Instead, CMS created a novel standard with no operational foundation.  The “significant impairment” standard is subjective and impossible to administer consistently: there are no existing clinical markers or standards for significant impairment, and no diagnosis or encounter codes correspond to it.  It is also inconsistent with the preliminary guidance CMS provided to states, imposing substantial new and unexpected burdens late in the implementation process.

As of this writing, CMS has provided no additional guidance on how states might implement the new “significant impairment” standard.  With states mandated to communicate with affected enrollees no later than August 31, 2026, and implement the community engagement requirements no later than January 1, 2027, CMS should abrogate the “significant impairment” standard so that states do not waste more time trying to prepare to administer an unworkable standard that is inconsistent with statute. 

We urge CMS to confirm that everyone with a serious or chronic condition, including all people with HIV–symptomatic or asymptomatic–is exempt from the community engagement requirements.  The exemption process should maximize use of claims and encounter data, but also allow for self- and provider attestation.

Congress directed states to maximize ex parte verification of eligibility in relation to the community engagement requirements.  Automatic exemption through use of data already available to the Medicaid program minimizes the burden on the enrollee.  It also reduces the administrative burden on the state and on healthcare providers.  Additionally, since HIV is a lifetime condition that will not change over time, this assessment should only be carried out once, not repeated at every determination. 

New Medicaid enrollees, however, lack existing claims and diagnostic code data. Therefore, people with HIV should be able to self-attest or use a provider attestation of HIV status.  But this must be optional. We also emphasize the importance of community and provider outreach to ensure that patients and their care teams all understand how the exemption process works. 

By limiting states to relying only on prior-year claims and encounter data, and by requiring medical frailty assessments to be carried out repeatedly even for lifelong, incurable conditions, CMS is increasing the chance that people with HIV will lose coverage due to gaps in claims data.

The rule’s definition of medical frailty as written will not only harm people with HIV but will strain the Ryan White HIV/AIDS Program and other safety net programs they rely on, as well as their clinical providers. 

If people with HIV lose coverage under these new requirements, they will not stop needing care and treatment.  Instead, costs will shift to the payers of last resort, the AIDS Drug Assistance Programs and Ryan White clinics and community health centers: programs that are already financially struggling and cannot absorb new enrollees at current funding levels.  ADAPs would experience skyrocketing demand for antiretroviral therapy for people who previously relied on Medicaid, threatening waiting lists and other cost-containment measures that will reduce treatment access and reverse decades of progress in fighting the HIV epidemic.  Clinical providers and care teams will bear significant new administrative burdens helping patients document exemptions and managing coverage churn, diverting staff time away from patient care. 

We urge CMS to withdraw the interim final rule, or to delay its effective date until a revised rule can be drafted, and to give states a realistic time frame to comply with requirements that are consistent with congressional intent.  

We encourage CMS to engage people living with HIV and their clinicians to better understand the impact of this interim final rule.  We are ready to assist in any way.  Should you have questions or comments, please feel free to contact me at cschmid@hivhep.org or Kevin Herwig at kherwig@hivhep.org. Thank you very much.

Sincerely,

Carl E. Schmid II
Executive Director