1. Requirement To Conduct Ex Parte Verification

Section 1902(xx)(5) of the Act, implemented at § 435.557(b), requires States to conduct ex parte verification of compliance and deemed compliance with the community engagement requirement, and qualification as a specified excluded individual. In the context of community engagement, ex parte verification is not specific to the renewal process but instead refers to the requirement that States first attempt to verify compliance with, or exception or exclusion from, the community engagement requirement using reliable information available to the State, without requiring additional information from an applicant or beneficiary. Specifically, the statute requires that “[f]or purposes of verifying that an applicable individual has met the requirement to demonstrate community engagement under [section 1902(xx)(1)], or determining such individual to be deemed to have demonstrated community engagement under [section 1902(xx)(3)], or that an individual is a specified excluded individual under [section ( printed page 33393) 1902(xx)(9)(A)(ii)], the State shall . . . establish processes and use reliable information available to the State . . . without requiring, where possible, the applicable individual to submit additional information.” The language in the statute neither limits the information the State must attempt to obtain (beyond that it be reliable and available to the State) nor the points in the process when the State must seek these data (for example, the ex parte verification requirements are not limited to renewals). Thus, we interpret section 1902(xx)(5) to require that States attempt to verify on an ex parte basis that an individual is a specified excluded individual or meets the community engagement requirement (either via compliance or deemed compliance via an exception) every time the State verifies compliance.

We also remind States that, as further discussed in section II.H.1. of this IFC, before assessing compliance, the State must first attempt to confirm that the individual is an applicable individual as defined at § 435.551. This means that the State must first attempt, where possible, to determine whether the applicant or beneficiary is a specified excluded individual defined at § 435.554, because specified excluded individuals are not applicable individuals and are therefore not subject to the community engagement requirement. As such, to the extent possible, the State must first attempt to verify an individual's specified excluded individual status based on reliable information available to the State and, if the State cannot verify that the individual is a specified excluded individual, proceed to check reliable information available to the State to verify the individual has demonstrated community engagement or was deemed to have demonstrated community engagement based on a mandatory or optional exception (if applicable). However, we recognize that, depending on the State's procedures for checking reliable information available to the State, the State may practically collect all reliable information available to the State at once. In addition, the State may be able to more quickly obtain reliable information about certain criteria (such as income) than other criteria (for example, regarding an individual's specified excluded individual status based on medical frailty). In general, we are not requiring States to change their existing procedures for verifying other factors of eligibility not related to community engagement in order to implement the community engagement verification requirements or to implement a specific hierarchy when checking reliable information available to the State to verify an individual's specified excluded individual status or compliance or deemed compliance with the community engagement requirement. However, we note that States must make every effort to ensure they do not seek information to verify compliance or deemed compliance with community engagement for a specified excluded individual.

We remind States that in implementing ex parte processes for obtaining and using reliable information available to the State for the purposes of verifying community engagement, States must comply with all applicable data sharing and privacy laws. States must also ensure they do not violate the civil rights protections under the ADA, section 504 of the Rehabilitation Act (section 504), section 1557 of the Affordable Care Act (section 1557), or any other applicable Federal or State civil rights laws.