[Federal Register Volume 78, Number 51 (Friday, March 15, 2013)]
[Notices]
[Pages 16506-16507]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-05978]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Medicare & Medicaid Services
Notice of Hearing: Reconsideration of Disapproval of Florida
State Plan Amendments (SPA) 12-015
AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS.
ACTION: Notice of hearing.
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SUMMARY: This notice announces an administrative hearing to be held on
April 30, 2013, at the CMS Atlanta Regional Office, Atlanta Federal
Center, 3rd Floor, 61 Forsyth Street SW., Suite 3B52, Atlanta, Georgia
30303-8909, to reconsider CMS' decision to disapprove Florida SPA 12-
015.
DATES: Closing Date: Requests to participate in the hearing as a party
must be received by the presiding officer by (15 days after
publication).
FOR FURTHER INFORMATION CONTACT: Benjamin Cohen, Presiding Officer,
CMS, 2520 Lord Baltimore Drive, Suite L, Baltimore, Maryland 21244,
Telephone: (410) 786-3169.
SUPPLEMENTARY INFORMATION: This notice announces an administrative
hearing to reconsider CMS' decision to disapprove Florida SPA 12-015
which was submitted on September 14, 2012, and disapproved on December
13, 2012. The SPA reflects a Florida state law that would limit
outpatient hospital emergency room visits to six per fiscal year for
non-pregnant adults, 21 years of age and older, effective August 1,
2012.
CMS disapproved this SPA after consulting with the Secretary as
required at 42 CFR 430.15(c)(2), because it appeared to impose a
limitation on outpatient hospital services that was based on the
individual's diagnosis, illness, or condition and because the state
failed to demonstrate that the limitation is consistent with the
provision of a sufficient amount, duration, and scope to reasonably
achieve the purpose of the benefit. As a result, CMS concluded that the
proposed coverage under the SPA would not be sufficient to meet
statutory requirements set forth in section 1902(a)(10)(A) of the
Social Security Act (the Act), which incorporates by reference the
provisions of 1905(a)(2)(A) of the Act, and 42 CFR 440.20(a)(3)(ii),
and the requirements of section 1902(a)(10)(B) of the Act. We explain
in more detail below.
Under section 1902(a)(10)(A) of the Act, a state plan must provide
for making medical assistance available to eligible individuals,
including for most eligible individuals the medical assistance
specified in section 1905(a)(2) of the Act. This provision includes in
the definition of medical assistance ``outpatient hospital services.''
Section 1902(a)(17) of the Act requires the state plan to include
reasonable standards for determining the extent of medical assistance,
and under section 1902(a)(19) of the Act, the state plan must assure
that eligibility for care and services are provided in the best
interest of the recipients. As the implementing regulations at 42 CFR
440.230(b) require, a state plan must ``specify the amount, duration,
and scope of each service that it provides,'' and ``each service must
be sufficient in amount, duration, and scope to reasonably achieve its
purpose.'' While states may place ``appropriate limits on a service
based such criteria as medical necessity or utilization control
procedures'' under CFR 440.230(d), 42 CFR 440.230(c) specifies that a
state may not arbitrarily deny or reduce the amount, duration, or scope
of required services, including physicians' services, solely because of
the diagnosis, type of illness, or condition.
The proposed limitation on certain outpatient hospital services
appeared to be based on the diagnosis, illness, or condition because it
is limited to outpatient services furnished at a hospital emergency
room, which are designed to address acute and immediate conditions.
Thus, the limitation appeared to violate the requirements of 42 CFR
440.230(c). Even if that were not the case, the state has not
demonstrated that the limitation is consistent with provision of a
sufficient amount, duration, and scope to reasonably achieve the
purpose of the benefit, which in this case would be providing
reasonable coverage that meets the needs of most beneficiaries who need
the outpatient hospital services, consistent with 42 CFR 440.230(b).
In disapproving SPA 12-015, CMS staff suggested to the state some
alternate methods to address inappropriate utilization of hospital
emergency rooms, including the development of payment rates for
hospital emergency rooms that are lower if the individual does not
require care for an acute and immediate condition, or the use of the
alternative cost sharing authority available to states under section
1916(d) of the Act, permitting higher beneficiary cost sharing for
elective non-emergency use of the emergency room. CMS offered to work
with the state on these options and technical assistance.
At issue in this appeal are the following issues, which are more
detailed than set out in the disapproval letter:
Whether the exceptions to the proposed general service
limitations on outpatient hospital services violate comparability
requirements under section 1902(a)(10)(B) of the Act and implementing
regulations at 42 CFR 440.230(c) because they provide that some
individuals described in section 1902(a)(10)(A) of the Act, who have
particular diagnoses or conditions, will receive benefits that
individuals with other diagnoses and conditions will not receive.
Whether the imposition of a limit specifically on
emergency outpatient hospital visits would violate those comparability
requirements because the limitation would be imposed only on outpatient
hospital visits that are warranted to address acute and immediate
conditions, which means that the limitation is based on the diagnosis
or condition.
Whether the exception to the limitation on emergency room
visits for ``aliens'' would violate section 1902(a)(10)(B) of the Act
because it would provide that aliens would receive a greater amount,
duration and scope of emergency outpatient hospital benefits than other
individuals described in section 1902(a)(10)(A) of the Act.
Whether the state has demonstrated that the resulting
outpatient hospital benefits are of a sufficient amount, duration and
scope to reasonably achieve the purpose of the benefit, consistent with
the requirements of sections 1902(a)(10)(A) and 1905(a)(2) of
[[Page 16507]]
the Act, and implementing regulations at 42 CFR 440.230(b), which CMS
has interpreted to mean that the state provides reasonable coverage of
the benefit that meets the needs of most beneficiaries who need the
outpatient hospital services. While the state provided information on
emergency room services, it did not provide information on outpatient
hospital services.
Section 1116 of the Act and Federal regulations at 42 CFR part 430,
establish Department procedures that provide an administrative hearing
for reconsideration of a disapproval of a state plan or plan amendment.
CMS is required to publish a copy of the notice to a State Medicaid
agency that informs the agency of the time and place of the hearing,
and the issues to be considered. If we subsequently notify the agency
of additional issues that will be considered at the hearing, we will
also publish that notice.
Any individual or group that wants to participate in the hearing as
a party must petition the presiding officer within 15 days after
publication of this notice, in accordance with the requirements
contained at 42 CFR 430.76(b)(2). Any interested person or organization
that wants to participate as amicus curiae must petition the presiding
officer before the hearing begins in accordance with the requirements
contained at 42 CFR 430.76(c). If the hearing is later rescheduled, the
presiding officer will notify all participants.
The notice to Florida announcing an administrative hearing to
reconsider the disapproval of its SPA reads as follows:
Stuart F. Williams, Esq., General Counsel, Agency for Health Care
Administration, Office of the General Counsel, 2727 Mahan Drive,
Building 3, MS 3, Tallahassee, FL 323008
Dear Mr. Williams:
I am responding to your request for reconsideration of the decision
to disapprove the Florida State Plan Amendment (SPA) 12-015 which was
submitted on September 14, 2012, and disapproved on December 13, 2012.
The SPAs reflects a Florida state law that would limit outpatient
hospital emergency room visits to six per fiscal year for non-pregnant
adults, 21 years of age and older, effective August 1, 2012.
I disapproved Florida SPA 12-015 because it appeared to impose a
limitation on outpatient hospital services that was based on the
individual's diagnosis, illness, or condition and because the state
failed to demonstrate that the limitation is consistent with the
provision of a sufficient amount, duration and scope to reasonably
achieve the purpose of the benefit. At issue in this appeal are the
following issues, which are more detailed than set out in the
disapproval letter:
Whether the exceptions to the proposed general service
limitations on outpatient hospital services violate comparability
requirements under section 1902(a)(10)(B) of the Act and implementing
regulations at 42 CFR 440.230(c) because they provide that some
individuals described in section 1902(a)(10)(A) of the Act, who have
particular diagnoses or conditions, will receive benefits that
individuals with other diagnoses and conditions will not receive.
Whether the imposition of a limit specifically on
emergency outpatient hospital visits would violate those comparability
requirements because the limitation would be imposed only on outpatient
hospital visits that are warranted to address acute and immediate
conditions, which means that the limitation is based on the diagnosis
or condition.
Whether the exception to the limitation on emergency room
visits for ``aliens'' would violate section 1902(a)(10)(B) of the Act
because it would provide that aliens would receive a greater amount,
duration and scope of emergency outpatient hospital benefits than other
individuals described in section 1902(a)(10)(A) of the Act.
Whether the state has demonstrated that the resulting
outpatient hospital benefits are of a sufficient amount, duration and
scope to reasonably achieve the purpose of the benefit, consistent with
the requirements of sections 1902(a)(10)(A) and 1905(a)(2) of the Act,
and implementing regulations at 42 CFR 440.230(b), which CMS has
interpreted to mean that the state provides reasonable coverage of the
benefit that meets the needs of most beneficiaries who need the
outpatient hospital services. While the state provided information on
emergency room services, it did not provide information on outpatient
hospital services.
I am scheduling a hearing on your request for reconsideration to be
held on April 30, 2013, at the CMS Atlanta Regional Office, Atlanta
Federal Center, 3rd\h\ Floor, 61 Forsyth Street, SW., Suite 3B52,
Atlanta, Georgia 30303-8909, to reconsider CMS' decision to disapprove
Florida SPA 12-015.
If this date is not acceptable, I would be glad to set another date
that is mutually agreeable to the parties. The hearing will be governed
by the procedures prescribed by Federal regulations at 42 CFR Part 430.
I am designating Mr. Benjamin Cohen as the presiding officer. If
these arrangements present any problems, please contact the Mr. Cohen
at (410) 786-3169. In order to facilitate any communication that may be
necessary between the parties prior to the hearing, please notify the
presiding officer to indicate acceptability of the scheduled hearing
date and provide names of the individuals who will represent the state
at the hearing.
Sincerely,
Marilyn Tavenner
Acting Administrator
Section 1116 of the Social Security Act (42 U.S.C. section 1316; 42 CFR
section 430.18)
(Catalog of Federal Domestic Assistance program No. 13.714, Medicaid
Assistance Program.)
Dated: March 8, 2013.
Marilyn Tavenner,
Acting Administrator, Centers for Medicare & Medicaid Services.
[FR Doc. 2013-05978 Filed 3-14-13; 8:45 am]
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