[Federal Register Volume 80, Number 233 (Friday, December 4, 2015)]
[Rules and Regulations]
[Pages 75817-75843]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-30591]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HEALTH AND HUMAN SERVICES

45 CFR Part 95

Centers for Medicare & Medicaid Services

42 CFR Part 433

[CMS-2392-F]
RIN 0938-AS53


Medicaid Program; Mechanized Claims Processing and Information 
Retrieval Systems (90/10)

AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule will extend enhanced funding for Medicaid 
eligibility systems as part of a state's mechanized claims processing 
system, and will update conditions and standards for such systems, 
including adding to and updating current Medicaid Management 
Information Systems (MMIS) conditions and standards. These changes will 
allow states to improve customer service and support the dynamic nature 
of Medicaid eligibility, enrollment, and delivery systems.

DATES: Effective Date: These regulations are effective on January 1, 
2016.

FOR FURTHER INFORMATION CONTACT: 
    Victoria Guarisco (410) 786-0265, for issues related to 
administrative questions.
    Carrie Feher (410) 786-8905, for issues related to the regulatory 
impact analysis.
    Christine Gerhardt (410) 786-0693 or Martin Rice (410) 786-2417, 
for general questions.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Executive Summary
    A. Purpose
    B. Summary of the Major Provisions
    C. Summary of Costs and Benefits
II. Background
    A. Legislative History and Statutory Authority
    B. Program Affected
III. Provisions of the Proposed Rule and Responses to Comments
    A. Amendments to 42 CFR Part 433
    B. Technical Changes to 42 CFR Part 433, Subpart C-Mechanized 
Claims and Processing Information Retrieval Systems
    C. Changes to 45 CFR Part 95--General Administration--Grant 
Programs, Subpart F
IV. Provisions of the Final Regulations
V. Collection of Information Requirements

[[Page 75818]]

VI. Regulatory Impact Analysis

Acronyms

APD Advance Planning Document
API Application program interface
ASO Administrative Services Organization
BPM Business Process Model
CALT Collaborative Application Lifecycle Tool
COTS Commercial Off-the-Shelf
CSF Critical success factor
CY Calendar year
DDI Design, development and installation
E&E Eligibility and enrollment
ELC Enterprise Life Cycle
FDSH Federal Data Services Hub
FFM Federally-Facilitated Marketplace
FFP Federal financial participation
IAPD Implementation Advance Planning Documents
IV&V Independent Verification & Validation
M&O Maintenance and operations
MAGI Modified adjusted gross income
MITA Medicaid Information Technology Architecture
MMIS Medicaid Management Information Systems
MOU Memorandum of Understanding
ONC [HHS'] Office of the National Coordinator for Health IT
PAPD Planning Advance Planning Documents
PHI Protected health information
PoC Proof of Concept
SaaS Software-as-a-Service
SMM State Medicaid Manual
SNAP Supplemental Nutrition Assistance Program
SOA Service-oriented architecture
XLC Expedited Lifecycle

I. Executive Summary

A. Purpose

    This final rule will revise the regulatory definition of Medicaid 
mechanized claims processing and information retrieval systems to 
include Medicaid eligibility and enrollment (E&E) systems, which would 
make available for E&E systems the enhanced federal financial 
participation (FFP) specified in section 1903(a)(3) of the Social 
Security Act (the Act) on an ongoing basis. Enhanced FFP will be 
available, under certain circumstances, for costs of such systems at a 
90 percent federal match rate for design, development and installation 
(DDI) activities, and at a 75 percent federal match rate for 
maintenance and operations (M&O) activities. In addition to lifting the 
time limit that currently applies to the inclusion of E&E systems in 
the definition of mechanized claims processing and information 
retrieval systems, we proposed changes to the standards and conditions 
applicable to such systems to access enhanced funding. We also 
solicited comment on new approaches to systems development, the 
inclusion of Commercial Off-the-Shelf (COTS) software at a 90 percent 
matched cost, acquisition approvals and MMIS certification. 
Specifically, we are publishing new definitions for ``Commercial Off-
the-Shelf (COTS),'' ``open source,'' ``proprietary,'' ``service,'' 
``shared services,'' ``Software-as-a-Service (SaaS),'' and ``module.''

B. Summary of the Major Provisions

    On April 16, 2015, (80 FR 20455), we proposed changes to Sec. Sec.  
433.110, 433.111, 433.112, 433.116, 433.119, and 433.120. These changes 
provide for the 90 percent enhanced FFP for DDI activities for E&E 
systems to continue on an ongoing basis. These proposed changes would 
also allow the states to complete fully modernized E&E systems and will 
support the dynamics of national Medicaid enrollment and delivery 
system needs. These changes would further set forth additional criteria 
for the submission, review, and approval of Advance Planning Documents 
(APDs).
    In addition, we proposed changes to provisions within 45 CFR part 
95, subpart F, Sec.  95.611. These changes align all Medicaid IT 
requirements with existing policy for Medicaid Management Information 
Systems (MMIS) pertaining to prior approvals when states release 
acquisition solicitation documents or execute contracts above certain 
threshold amounts. Lastly, we proposed to amend Sec.  95.611(a)(2) by 
removing the reference to 45 CFR 1355.52, which references enhanced 
funding for Title IV-E programs. Enhanced funding for Title IV-E 
programs expired in 1997.

C. Summary of Costs and Benefits

------------------------------------------------------------------------
   Provision description          Total costs          Total benefits
------------------------------------------------------------------------
42 CFR part 433............  The federal net costs  We project lower
                              from FY 2016 through   costs over the 10-
                              2025 of implementing   year budget window
                              the final regulation   due to the
                              on eligibility         increased savings
                              systems is             to operating one
                              approximately $3       E&E system and
                              billion. This          eliminating legacy
                              includes               systems. The costs
                              approximately $5.1     shift from mostly
                              billion in increased   90 percent FFP for
                              federal costs for      design,
                              system design,         development, or
                              development, or        installation to 75
                              installation, offset   percent FFP for
                              by lower anticipated   maintenance and
                              maintenance and        operations over
                              operations costs.      time (federal share
                              These costs            only).
                              represent only the
                              federal share. These
                              figures were derived
                              from states' actual
                              system development
                              and maintenance
                              costs as the
                              foundation for
                              projected costs.
42 CFR part 433............  The state net costs    We project savings
                              from FY 2016 through   for states over the
                              2025 of implementing   10-year budget
                              the final regulation   window due to
                              on eligibility         moving away from
                              systems is             operating two or
                              approximately -$1.1    more systems, and
                              billion. This          replacing legacy
                              includes               systems.
                              approximately $572
                              million in state
                              costs for system
                              design, development,
                              or installation,
                              offset by lower
                              anticipated
                              maintenance and
                              operations costs.
                              These costs
                              represent only the
                              state share.
45 CFR part 95, subpart F:   This is an             This administrative
 Sec.   95.611.               administrative         change is expected
                              change with no         to result in
                              associated costs.      nominal savings
                                                     from increased
                                                     efficiency.
------------------------------------------------------------------------
* See section VI. of this final rule for the underlying assumptions in
  support of these totals and further explanation.

II. Background

A. Legislative History and Statutory Authority

    Section 1903(a)(3)(A)(i) of the Act provides for FFP at the rate of 
90 percent for state expenditures for the DDI of mechanized claims 
processing and information retrieval systems as the Secretary of the 
Department of Health and Human Services (the Secretary) determines are 
likely to provide more efficient, economical and effective 
administration of the state plan. In addition, section 1903(a)(3)(B) of 
the Act provides for FFP at the rate of 75 percent for state 
expenditures for M&O of such systems.
    In a final rule published October 13, 1989 (54 FR 41966), we 
revised the definition of a mechanized claims processing and 
information retrieval system at Sec.  433.111(b) to provide that 
eligibility determination systems

[[Page 75819]]

(referred to in this rule as E&E systems) would not be considered part 
of mechanized claims processing and information retrieval systems or 
enhancements to those systems. As a result, we also indicated at Sec.  
433.112(c) that the enhanced FFP for mechanized claims processing and 
information retrieval systems in accordance with section 1903(a)(3) of 
the Act would not be available for eligibility determination systems.
    We published a final rule entitled, ``Federal Funding for Medicaid 
Eligibility Determination and Enrollment Activities'' on April 19, 2011 
(76 FR 21949-21975) that temporarily reversed the 1989 rule. We 
explained that this reversal was in response to changes made by the 
Affordable Care Act that required sweeping changes in Medicaid E&E 
systems and removed certain linkages between Medicaid eligibility 
determinations and eligibility determinations made by other federal-
state programs, as well as changes in Medicaid eligibility and business 
processes that have occurred since our 1989 final rule to integrate 
eligibility and claims processing systems. The reversal was temporary 
to address the immediate need for eligibility system redesign to 
coordinate with the overall claims processing and reporting systems. 
Specifically, in the April 19, 2011 final rule (76 FR 21950), we 
included eligibility determination systems in the definition of 
mechanized claims processing and information retrieval systems in Sec.  
433.111(b)(3). We also provided that the enhanced FFP would be 
available at the 90 percent rate for DDI or enhancement of E&E systems 
and at the 75 percent rate for M&Os of such systems, to the extent that 
the E&E systems were developed on or after April 19, 2011, operational 
by December 31, 2015, and met all standards for such systems. Under 
that rule, the 90 percent enhanced matching rate for system development 
is available through calendar year (CY) 2015 for state expenditures on 
E&E systems that meet specific standards and conditions, and the 75 
percent match for M&Os is available for systems that meet specific 
standards and conditions before the end of CY 2015, as long as those 
systems are in operation.
    In the April 19, 2011 final rule (76 FR 21950), under the authority 
of sections 1903(a)(3)(A)(i) and 1903(a)(3)(B) of the Act, we codified 
the conditions at Sec.  433.112(b) that must be met by the states for 
Medicaid technology investments including traditional claims processing 
systems, as well as eligibility systems, to be eligible for the 
enhanced funding match. We also issued subregulatory guidance, 
``Medicaid IT Supplement Version 1.0; Enhanced Funding Requirements: 
Seven Conditions and Standards,'' in April 2011 that outlined in 
greater detail the seven new standards and conditions for enhanced 
funding.
    As explained in more detail below, we proposed to make permanent 
the inclusion of E&E systems in the definition of mechanized claims 
processing and information retrieval systems, and to consequently 
extend the availability of enhanced FFP. We proposed to define a state 
Medicaid E&E system as the system of software and hardware used to 
process applications, renewals, and updates from Medicaid applicants 
and beneficiaries. In part, this change reflects a better understanding 
of the complexity of the required E&E system redesign based on our 
experience with states since finalizing the April 29, 2011 regulation, 
and an appreciation of the need for E&E systems to operate as an 
integral part of the mechanized claims processing and information 
retrieval systems using a standard Medicaid Information Technology 
Architecture (MITA).
    We previously expected that fundamental changes to state systems 
would be completed well before December 31, 2015. It is now clear that 
additional improvements would benefit states and the federal 
government. It is also clear that such systems are integral to the 
operation of the state's overall mechanized claims processing and 
information retrieval systems and must be designed and operated as a 
coordinated part of such systems. Without recognition as an integral 
part of such systems, and without ongoing enhanced federal funding, 
state Medicaid E&E systems are likely to become out of date and would 
not be able to coordinate with, and further the purposes of, the 
overall mechanized claims processing and information retrieval systems.

B. Program Affected

    Since 2011, we have worked with the states on the DDI of modernized 
Medicaid and CHIP E&E systems, supported by the enhanced FFP, to 
achieve the technical functionality necessary for the implementation of 
the new eligibility and renewal policies on January 1, 2014. In 
December 2012, we identified critical success factors (CSFs) in order 
for the states to demonstrate operational readiness, including: Ability 
to accept a single, streamlined application; ability to convert 
existing state income standards to modified adjusted gross income 
(MAGI); ability to convey state-specific eligibility rules to the 
Federally-Facilitated Marketplace (FFM), as applicable; ability to 
process applications based on MAGI rules; ability to accept and send 
application files (accounts) to and from the Marketplace; ability to 
respond to inquiries from the Marketplace on current Medicaid or CHIP 
coverage; and, ability to verify eligibility based upon electronic data 
sources (the Federal Data Services Hub (FDSH) or an approved 
alternative).
    The states are in varying stages of completion of their E&E system 
functionality, with work still ahead to maximize automation, streamline 
processes, and to migrate non-MAGI Medicaid programs into the new 
system. In addition, the majority of the states are engaged in system 
integration with human services programs, further increasing 
efficiencies and improving the consumer experience for those seeking 
benefits or services from programs in addition to Medicaid.
    The response to our proposed rule indicated a need for the 
development of supporting policy. The responses also expressed the 
desire from stakeholders and partners to have further input into the 
policy development and implementation process. Following the effective 
date of this final rule, we intend to issue subregulatory guidance in 
the form of a series of State Medicaid Director Letters, each to 
address discrete subject areas affected by this rule, such as the new 
conditions for enhanced funding, COTS products, new APD requirements, 
new MMIS certification rules and reuse. In developing that guidance, we 
will consider the comments that have been submitted in response to our 
proposed rule, and will engage our partners and stakeholders to ensure 
that the guidance fully addresses the issues raised and that any 
procedures that are included in such guidance can be appropriately 
implemented by all actors. This engagement may take place within 
already established forums, such as Technical Advisory Groups, 
workgroups, or conferences, but may also include focused discussions 
with our partners and stakeholders. We wish to acknowledge that our 
federal and state partners, industry representatives, beneficiary 
advocates, and other stakeholders have valuable experience and unique 
perspectives that can improve the effectiveness of this rule and the 
overall quality of our guidance. For this reason we will seek out 
support from these sources as we move forward in the development of 
subregulatory guidance.

[[Page 75820]]

    The response to our proposed rule also indicated a need for an 
update to the State Medicaid Manual (SMM). The responses suggested 
collaboration to address how this final rule will be implemented. 
Although the SMM is not within scope of this final rule, we recognize 
the need to update it, especially for funding of E&E systems and IT 
requirements subregulatory guidance referenced above will take 
precedence over any obsolete content in the SMM, until this update is 
complete. We are investigating the best approach to re-issuing the SMM 
in a more accessible, searchable and easily updated format. In the 
interim, we will continue to point to subregulatory guidance as the 
official source for needed updates, and such guidance takes precedence 
over conflicting material in the existing SMM. We believe that Sec.  
433.112(b)(5) as written is adequate, and can be expanded upon in 
subregulatory guidance; therefore, we will not be revising it in this 
rule.
    We will take these recommendations under consideration as we 
formulate our plan for updating the SMM.
    This rule finalizes provisions set forth in the ``Mechanized Claims 
Processing and Information Retrieval Systems (90/10)'' proposed rule, 
published on April 16, 2015 (80 FR 20455 through 20464).

III. Provisions of the Proposed Rule and Responses to Comments

    We received 54 timely responses from the public on the April 16, 
2015, Medicaid Program; Mechanized Claims Processing and Information 
Retrieval Systems (90/10) proposed rule, (80 FR 20455 through 20464). 
The following sections, arranged by subject area, include a summary of 
the proposed revisions and the public comments received, and our 
responses.

A. Amendments to 42 CFR Part 433

    We proposed to amend Sec.  433.110 by removing paragraphs 
(a)(2)(ii) and (iii) and paragraph (b). Previously, regulations at 
Sec.  433.119 indicated that we would review at least once every 3 
years each system operation initially approved under Sec.  433.114 and, 
based on the results of the review, reapprove it for FFP at 75 percent 
of expenditures if certain standards and conditions were met. The final 
rule published April 19, 2011 (75 FR 21905) eliminated the requirement 
for the scheduled triennial review. Through a drafting error in the 
final rule published on April 19, 2011 (75 FR 21950), the reference to 
the scheduled triennial performance reviews at Sec.  433.110(a)(2)(ii) 
and (iii) was not deleted as intended, and we proposed to delete the 
references here. The Secretary retains authority to perform periodic 
reviews of systems receiving enhanced FFP to ensure that these systems 
continue to meet the requirements of section 1903(a)(3) of the Act and 
that they continue to provide efficient, economical, and effective 
administration of the state plan.
    We proposed technical corrections to amend Sec.  433.110 by 
removing paragraph (b) and by updating the reference to 45 CFR part 74. 
The proposed changes were necessary because the statutory waiver 
authority that supported paragraph (b) was deleted by section 4753 of 
the Balanced Budget Act of 1997 (Pub. L. 105-33) and because 45 CFR 
part 74 was supplanted; first by 45 CFR part 92 in September of 2003, 
and then by 45 CFR part 75 in December 2014. References made to 45 CFR 
part 74 should have been updated at those times but were not. The 
Department published Uniform Administrative Requirements, Cost 
Principles and Audit Requirements for HHS Awards at 45 CFR part 75 as 
an interim final rule at 79 FR 75871, 75889 (December 19, 2014), which 
supersedes HHS regulations at 45 CFR parts 74 and 92.
    We proposed to amend Sec.  433.111 to revise the definition of 
``mechanized claims processing and information retrieval system'', and 
provide new definitions for ``Commercial Off-the-Shelf (COTS) 
software'', ``open source'', ``proprietary'', ``shared services'', and 
``MMIS Module''. We proposed to amend Sec.  433.112(c) to provide for 
the 90 percent enhanced FFP for DDI activities to continue on an on-
going basis. Making enhanced E&E system funding available on an on-
going basis, as is the case with the 90 percent match for the MMIS 
systems, would allow the states to complete fully modernized systems 
and avoid the situation where their ability to serve consumers well is 
limited by outdated systems. Enhanced funding will also support the 
dynamic and on-going nature of national Medicaid eligibility, 
enrollment, delivery system, and program integrity needs. Continued 
enhanced funding will support the retirement of remaining legacy 
systems, eliminating ongoing expenses for maintaining these outdated 
systems. It will also achieve additional staffing and technology 
efficiencies over time by allowing for a more phased and iterative 
approach to systems development and improvement.
    Our 2011 final rule limited the availability of 75 percent enhanced 
funding for M&Os to those E&E systems that have complied with the 
standards and conditions in that rule by December 31, 2015. Given our 
proposed modifications to 42 CFR part 433, subpart C, on-going 
successful performance, based upon CMS regulatory and subregulatory 
guidance, is a requisite for on-going receipt of the 75 percent FFP for 
operations and maintenance, including for any eligibility workers 
(http://www.medicaid.gov/State-Resource-Center/FAQ-Medicaid-and-CHIP-Affordable-Care-Act-Implementation/Downloads/FAQs-by-Topic-75-25-Eligibility-Systems.pdf). We intend to work with the states to do 
regular automated validation of accurate processing and system 
operations and performance.
    We are authorized under the Act to approve enhanced federal funding 
for the DDI and operation and maintenance of such mechanized claims 
processing and information retrieval systems that are likely to provide 
more efficient, economical, and effective administration of the 
Medicaid program and to be compatible with the claims processing and 
information retrieval systems utilized in the administration of the 
Medicare program.
    We implemented this authority in part under regulations at 42 CFR 
part 433, subpart C. This regulation provides the primary technical and 
funding requirements and parameters for developing and operating the 
state MMIS and the state Medicaid E&E systems.
    We proposed to amend Sec.  433.116, which details how MMIS are 
initially approved and certified to be eligible for the 75 percent FFP 
for operations. Specifically, we proposed that, given the modular 
design approach required by our 2011 regulation, certification should 
also be available for MMIS modules, rather than only when the entire 
MMIS system is completed and operational. Under existing regulations as 
amended in 2011, at Sec.  433.112(b), we have already required that 
MMIS development be modular; the proposed change would make clear that 
approval, certification and funding could also be approached in a 
modular fashion. The states may accordingly take a phased approach, 
with the procurement of a module or modules occurring at different 
times. We also encourage a modular approach to E&E systems, although 
certification is not applicable to E&E systems since they are evaluated 
on the basis of meeting specified CSFs.
    We strongly support the reusability of existing or shared 
components so in the case that technology products exist that can be 
used for MMIS or E&E, we want to encourage that by allowing FFP for the 
developmental costs of integrating existing or shared components as 
part of the MMIS or E&E systems. We clarify

[[Page 75821]]

that, while E&E system performance investments must be approved to be 
eligible for the 75 percent enhanced funding for M&Os, the MMIS system 
certification requirements are not applicable to E&E systems at this 
time.
    We will provide a series of artifacts, supporting tools, 
documentation, and diagrams to the states as part of our technical 
assistance, monitoring, and governance of MMIS systems design and 
development. It is also our intent to work with the states as 
identified and addressed prior to the certification stage.
    We received the following comments in response to our proposal to 
amend 42 CFR part 433:
    Comment: Many commenters expressed strong support for the proposed 
rule at Sec.  433.111(b)(2) to permanently broaden the definition of 
mechanized claims processing and information retrieval systems to 
include Medicaid E&E systems, and to permanently extend 90 percent FFP 
for DDI of E&E systems, and with the requirement that E&E systems meet 
the conditions specified in Sec.  433.112(b).
    Response: We appreciate the supportive comments.
    Comment: Several commenters agreed with the proposal to remove the 
December 31, 2015 compliance date for E&E systems to qualify for 75 
percent FFP for M&Os. Another commenter expressed that the extension of 
enhanced funding would enable states to modernize their renewal 
processes to minimize the burden on consumers and prevent gaps in 
coverage from occurring.
    Response: We agree with commenters who believe permanent extension 
of this enhanced funding can play a vital role in helping consumers 
enroll and stay enrolled while balancing states' fiduciary commitments.
    Comment: Many commenters agreed with the requirement that E&E 
systems meet the conditions specified in Sec.  433.112(b). Commenters 
support the goal for states to have high-performing systems that meet 
CSFs with limited workarounds or mitigations. Commenters also support 
aligning regulations with modern standards and best practices for 
information technology systems and projects.
    Response: We agree that these provisions will enhance the overall 
quality of the enterprise and facilitate improved customer service.
    Comment: Several commenters supported aligning regulation with 
modern standards and best practices for information technology systems 
and projects.
    Response: We will continue to work with the industry and other 
stakeholders to ensure the Medicaid enterprise continues its forward 
momentum.
    Comment: One commenter expressed support related to MAGI and non-
MAGI system functionality, as referenced in Sec.  433.112(b)(10) which 
provides for the use of a modular, flexible approach to systems 
development, including the use of open interfaces and exposed 
application programming interfaces; the separation of business rules 
from core programming, available in both human and machine readable 
formats.
    Response: We concur with this comment related to MAGI and non-MAGI 
system functionality.
    Comment: One commenter suggested that we consider revising the 
definition of a claims system in light of the ongoing shift of State 
Medicaid programs toward managed care and the related need to 
``manage'' the Medicaid program in a comprehensive manner.
    Response: We are clarifying our intent that the term, ``claims for 
medical assistance'', which we used in the definition of a mechanized 
claims processing and information retrieval system includes capitation 
payments to Managed Care Plans. However, to state this explicitly, we 
modified the definition of the MMIS component in this final rule to 
include applicability to managed care.
    Comment: A commenter asked about the inclusion of E&E systems in 
the definition of mechanized claims processing and information 
retrieval system. The commenter asked if it is CMS's intent that states 
should maintain one system that includes MMIS and E&E components, 
whether it is CMS's intent that states should have one APD to cover the 
MMIS and E&E systems, and whether this precludes states from continuing 
to maintain separate MMIS and E&E systems and APDs.
    Response: The inclusion of E&E systems in the definition of 
mechanized claims processing and information retrieval systems does not 
mean that states must operate a single system or submit a single or 
combined APD; rather this language supports an enterprise perspective 
where individual processes, modules, sub-systems, and systems are 
interoperable and support a unified enterprise, working together 
seamlessly and transparently. This language also provides for 
consistent treatment of MMIS and E&E systems, especially for reuse, 
funding and standards and conditions. States may continue to operate 
separate E&E and MMIS but these must be fully interoperable and reflect 
an enterprise approach.
    Comment: One commenter requested clarification on the inclusion of 
E&E systems into the definition of Mechanized Claims Processing and 
Information Retrieval System, particularly with the expanded list of 
standards and conditions.
    Response: We intend to address how the revised list of standards 
and conditions applies to E&E systems in subregulatory guidance.
    Comment: A few commenters requested clarification of the term, 
``subsystem,'' and one commenter requested clarification of the 
``required subsystem'' in a Mechanized claims processing and 
information retrieval system and asked whether there is an existing 
list of required subsystems. Commenters also asked whether the 
definition applies to both MMIS and E&E.
    Response: In this final rule we are substituting the word 
``module'' for ``subsystem'' at Sec.  433.111(b) to be consistent with 
our modular approach to systems. We agree that required modules need to 
be defined and will discuss this further in subregulatory guidance. 
This definition does apply to both MMIS and E&E.
    Comment: A commenter recommended wording to define MMIS in Sec.  
433.111 as ``the operations, management, monitoring and administration 
of the Medicaid program.'' The commenter has also suggested additional 
alternate wording for this section as well.
    Response: We have revised the definition of MMIS in this final 
rule, and believe the definition now reflects the spirit of the 
commenter's recommendations.
    Comment: A few commenters believe that the current definition of 
COTS will likely create issues regarding proprietary software, 
ownership, and customization of solutions that include COTS solutions. 
One alternative definition for COTS is offered, to add language after 
``little or no modification'' to read ``other than configuration to run 
in a specific hardware environment or to be used in combination with 
other software.''
    Response: We considered the addition of this language to our 
definition in this final rule, but we believe that this qualification 
will be better addressed in subregulatory guidance.
    Comment: A commenter suggested revising the language at proposed 
Sec.  433.111(b)(2)(ii) and offered the following alternative language: 
``The MMIS may include other automated transactions, encounter data, 
premium and option payments, provider and

[[Page 75822]]

consumer enrollments, drug rebates, and others.''
    Response: We recognize that all of the functions mentioned by the 
commenter are MMIS functions, however, the description at Sec.  
433.111(b)(2)(ii) is not meant to be all inclusive, but rather to 
provide a foundational definition. Language has been added to the 
definition to include other necessary functions.
    Comment: Many commenters generally stated support for our proposed 
definition of COTS software; but asked for clarification addressing why 
the COTS software definition does not include software that has been 
developed for public assistance programs. Several commenters suggested 
that some public assistance systems may serve E&E purposes for Medicaid 
and CHIP programs and should therefore not be excluded from the 
definition of COTS software, and suggested that the exclusion of public 
assistance programs from the definition of COTS seems to be in direct 
conflict with our intent to support integration.
    Response: We concur with the recommendation that COTS software 
created for public assistance systems should not be excluded from this 
definition. Therefore, we have removed this exclusion from the 
definition in the final rule.
    Comment: A commenter recommended a definition of open source 
similar to the definition in the proposed rule, but omits the 
references to free and open distribution and technology neutrality.
    Response: The commenter's proposed definition omits what we believe 
are important elements for the effectiveness of open source software, 
so we are retaining the language of the proposed rule in the final 
rule.
    Comment: Many commenters questioned the applicability of Sec.  
95.617 to COTS products matched at 90 percent. Several commenters asked 
for clarification regarding the issue of proprietary software with 
respect to COTS. The same commenters referred to the Ownership Rights 
provision in Sec.  95.617(b) but point out that vendors invest time, 
money and intellectual capital in developing system capabilities, and 
they are only made whole through the ability to sell these 
capabilities. These commenters pointed out that vendors are not likely 
to seek to invest and innovate in the Medicaid systems market if they 
cannot recoup costs. One commenter recommends that we review the policy 
regarding royalty-free licensing of COTS products. The commenters 
recommend that if 90 percent FFP is used for enhancements to a module, 
then CMS and the state own the modifications, which can then be shared 
and that when 90 percent FFP is used to purchase an ``open source'' 
module, by definition, the state and CMS can share the module with 
other states and contractors. Another commenter recommended that this 
final rule exempt COTS software from the Software and Ownership Rights 
provisions in Sec.  95.617(b). The commenters expressed concern that 
the current language presents an immense financial risk to vendors and 
as such poses a barrier to the proliferation of COTS software.
    Response: We acknowledge that the interpretation of 42 U.S.C. 
1396b(a)(3)(A), which provides 90 percent FFP for the DDI of such 
mechanized claims processing and information retrieval systems, to 
include use of COTS as part of the design where that solution would be 
the more economical and efficient approach, necessitates a refinement 
and clarification of the policy relating to the applicability of Sec.  
95.617(b) to COTS software. We clarify that the 90 percent match is not 
available for the purchase of COTS, but is available for the initial 
licensing fee and costs to analyze, configure, install, and integrate 
the COTS into the design of the state's MMIS system. When the enhanced 
match is used for COTS enhancements, configuration or customization, 
those elements become subject to existing regulation at Sec.  95.617 
regarding ownership and royalty-free licensing. The COTS itself is not 
designed, developed or installed with the 90 percent match; but the 
initial licensing fee is a necessary part of the development of a 
system that uses the COTS. Subsequent licensing fees would not be 
necessary for the DDI process and would be considered to be operational 
expenditures that would be matched at the 75 percent rate applicable to 
operation of an MMIS.
    We do not agree that this rule creates a disincentive to vendors to 
develop COTS products. Rather, we believe that paired with the existing 
regulations about software developed with federal funding, our final 
policies incentivize vendors to join the Medicaid IT market because 
more states will be willing to utilize COTS. Offering the 90 percent 
match for a substantial portion of states' costs related to the 
integration of COTS software solutions into the design of state systems 
will encourage more states to seek COTS software products and services, 
as will the requirements for modular architecture. These final policies 
will drive the emergence and adoption of more COTS solutions, thereby 
increasing broader vendor participation while protecting state and 
federal funding from unnecessary duplicative development.
    The regulation at Sec.  95.617(a) requires that the state have 
ownership rights in software or modifications designed, developed or 
installed with FFP. For this requirement the emphasis should be on the, 
software or modifications designed, developed or installed with FFP. 
The COTS product itself is not designed, developed or installed with 
FFP, but is used in a system that meets those conditions. The initial 
licensing fee is necessary to allow the state to design a system that 
uses the COTS product, and there are also development and installation 
costs for the modifications that enhance, customize and configure it to 
the state and enable it to be installed in that state's system. The 
COTS product itself is designed and developed by the vendor, so the 
state is not entitled to ownership rights to the core program, only to 
those elements designed for, and paid for, specifically by that state 
so that the COTS product can be used in the state's system. In other 
words, we read the requirement for a royalty-free, non-exclusive and 
irrevocable license to software referenced in Sec.  95.617(b) to apply 
in this instance only to the software related to the customization, 
modifications and configuration of a COTS product for state use, not 
the core product.
    For these reasons, the final rule at Sec.  433.112(c)(2) provides 
for the application of the 90 percent match to the cost to procure COTS 
software, that is, initial licensing fees, and costs to analyze, 
configure, install and integrate that software into a system. The 90 
percent is not for the outright purchase of the COTS product itself. If 
such products were purchased outright with Federal funds then the 
provisions at Sec.  95.617(a) and (b) would be applicable. We note that 
these same principles will be used to evaluate the eligibility of SaaS 
for enhanced match, that is, only costs related to analysis, 
configuration, installation and integration will be eligible for the 90 
percent match.
    The regulation at Sec.  95.617(c) provides that FFP is not 
available for proprietary applications developed specifically for the 
public assistance programs covered under this subpart. For the Title 
XIX, Medicaid, and Title XXI, CHIP, programs under the newly developed 
enterprise systems that support the Affordable Care Act, CMS is 
supporting only systems that function seamlessly with the health 
insurance marketplace, whether the federally facilitated marketplace or 
state-based marketplaces. As such, functionality for

[[Page 75823]]

these systems cannot be considered specifically for the public 
assistance programs covered under this subpart, in this case, Titles 
XIX and XXI, but are necessarily broader than those programs. Indeed, 
seamless integration with the marketplaces, health information 
exchanges, public health agencies, human services programs, and 
community organizations providing outreach and enrollment assistance 
are requirements for the enhanced funding under Sec.  433.112(b)(16) of 
this final rule. It should be noted that not all systems must interface 
with all of these entities, but where such integration is required for 
the efficient operation of the enterprise, such integration must be 
seamless and transparent to beneficiaries. The condition of Sec.  
95.617(c) regarding proprietary applications developed specifically for 
titles XIX and XXI do not apply to the COTS products for which certain 
costs are eligible for the 90 percent match, because these products are 
not specifically for title XIX and XXI, but must include the broader 
health insurance enterprise.
    Comment: A commenter recommends that we develop a framework in 
conjunction with software vendors related to ownership to avoid a 
number of potential issues. The commenter made recommendations in the 
area of issues related to proprietary software and shared modules.
    Response: We will take into consideration the commenter's concern 
regarding establishing software framework that other states may 
leverage. We will address issues related to proprietary software and 
shared modules in subregulatory guidance.
    Comment: Many commenters made recommendations on the proposed 
definition of shared services. One commenter suggested that the 
definition be expanded to include sharing between and among states. 
Another commenter requested clarification on the use of the word 
``provision'' in the definition of a shared service. One commenter 
proposed the following as a definition of ``Software-as-a-Service'': 
``Proprietary Software that is hosted by a service provider and used 
and accessed by the subscription holder licensee over a network such as 
the Internet. SaaS is provided to the subscription holder as a periodic 
or pay-as-you-go subscription with on-demand access to the Proprietary 
Software according to the terms of a SaaS subscription agreement.''
    Response: We clarified the definition of shared services in this 
final rule by removing the word ``provision'' and by referencing the 
availability of the service whether within or outside of a state. We 
also included SaaS in the definition. We have considered the 
commenter's definition of SaaS, however, we are not adopting it because 
we believe it defines proprietary software rather than SaaS. We believe 
the definition in this final rule accurately describes the key 
characteristics of SaaS.
    Comment: One commenter recommended the removal of the final 
sentence of the definition for Shared Services, which is: ``The funding 
and resourcing of the service is shared and the providing department 
effectively becomes an internal service provider.''
    Response: We believe the final sentence for the definition of 
Shared Services is critical to the understanding of this phrase in the 
context of Medicaid and other human service programs. We modified 
language in this definition in this final rule to provide greater 
overall clarity.
    Comment: One commenter recommended that we clarify the approach to 
and definition of a module. The commenter further recommended that a 
core set of modules be identified and defined through a collaborative 
workgroup of representative states, vendors, and CMS. Several 
commenters requested clarification of the definition of an ``MMIS 
module'' and guidance regarding timing for multiple modular 
implementations and the life expectancy of a module. Some commenters 
offered alternative definitions. Some commenters requested definitions 
for the following: Module, modular, modularity, and the Modularity 
Standard.
    Response: The language in the final rule at Sec.  433.111(h) has 
been modified to define a module as a packaged, functional business 
process or set of processes implemented through software, data, and 
interoperable interfaces that are enabled through design principles in 
which functions of a complex system are partitioned into discrete, 
scalable, reusable components. Each module of a system has well-
defined, open interfaces for communicating with other modules, 
encapsulates unique system functionality and has a single purpose, is 
relatively independent of the other system modules. Two principles that 
measure module independence are coupling, which means loose 
interconnections between modules of a system and cohesion, which means 
strong dependence within and among a module's internal element (for 
example, data, functions, internal modules). Examples of modules 
include eligibility enrollment, fee for service claims administration, 
managed care encounters & administration, etc. Other modules may be 
recognized based on new statutory regulatory requirements or federal 
state business needs. A listing of modules will be included in 
subregulatory guidance rather than in this final rule to allow for 
flexibility and future updates and revisions responsive to change 
requirements and IT development.
    Comment: One commenter suggested consolidating the MMIS and E&E APD 
review, as well as other work products (that is, Enterprise Life Cycle 
(ELC) gate reviews, status reports, etc.).
    Response: We will take this request under advisement but at this 
time consolidation of the MMIS and E&E APD review, as well as other 
work products (that is, ELC gate reviews, status reports, etc.) may not 
be a practical approach, we believe such tandem treatment will not be 
possible until the enterprise approach is fully matured.
    Comment: We received a request for clarification on the meaning of 
``approved enhancements'' found at Sec.  433.111(b)(1)(iii).
    Response: This term refers to our approval of states APDs for 
Medicaid systems DDI projects.
    Comment: One commenter requested clarification as to any 
differences with respect to certification between MMIS and E&E.
    Response: We require formal certification of MMIS for enhanced 
funding for operations and maintenance. Certification is not required 
for E&E systems, however E&E systems are subject to the Medicaid IT 
conditions and standards unless otherwise noted as MMIS-only and must 
meet CSFs and other performance standards to qualify for the 75 percent 
enhanced match for M&Os.
    Comment: One commenter asked about whether modules implemented by 
the vendor community can be ``harmonized'' with the certification 
definition of a module.
    Response: We believe that the MMIS Modular certification process 
will create an incentive for the states to take a modular approach both 
in IT architecture and in procurement strategy. States and vendors are 
encouraged to follow the modularity principles in their development of 
new MMIS modules. We are continuing to seek comments and collaboration 
from the vendor community. We believe that a harmonization of vendor 
activities, state needs, and federal requirements is possible and will 
pursue a means to achieve this goal.

[[Page 75824]]

    Comment: A commenter requested clarification (for systems built 
with the 90 percent FFP) that we, ``consider strategies to minimize the 
costs and difficulty of operating the software on alternate hardware or 
operating systems,'' and asked whether this refers to MMIS, E&E, 
claims, or all of these. The commenter also asked whether this would 
refer to an open source system that could easily be moved to another 
platform or if it referred to a disaster recovery system.
    Response: At Sec.  433.112(b) we specify that the following 
conditions apply to both E&E and claims systems. The only exception to 
this is at Sec.  433.112(b)(17), in which the regulation specifies 
applicability limited to E&E systems. The condition at Sec.  
433.112(b)(21) refers to operating on other hardware or operating 
systems. Disaster recovery is a separate requirement addressed at Sec.  
95.610(b)(11).
    Comment: One commenter asked for clarification regarding the match 
for the modification of non-COTS software to ensure coordination of 
operations.
    Response: DDI of non-COTS products, including modifications to 
ensure coordination of operations, continue to be matched at 90 percent 
FFP.
    Comment: One commenter recommended that we clarify the difference 
between customization and configuration of COTS products. Several 
commenters inquired about the parameters regarding ``little or no 
modification'' and ``over-customization'' of COTS and how that will be 
measured.
    Response: We appreciate this recommendation and we will clarify the 
difference between customization and configuration of COTS products in 
subregulatory guidance. We acknowledge the relevance of general IT 
industry definitions for distinguishing between software configuration 
and installation versus software customization. The degree of 
modification that is acceptable for enhanced match is dependent on a 
number of factors, including the size and scope of the project and the 
cost of the modifications relative to overall project costs. The 
acceptable degree of modification will be evaluated on a case by case 
basis.
    Comment: One commenter recommended that we provide additional 
clarity as to when in the Advanced Planning Document process states 
should specify all costs associated with DDI and modifications to COTS 
software.
    Response: Subregulatory guidance will include greater detail on the 
APD requirements and approval process.
    Comment: One commenter recommended that CMS provide subregulatory 
guidance for states to develop comprehensive risk assessment and 
management plans that can be reviewed at the start of procurement 
planning, that is, the onset of the ELC; and updated as necessary 
during subsequent project phases.
    Response: We will provide subregulatory guidance on these topics.
    Comment: One commenter recommends alignment of the contract 
approach in the MMIS DDI process with both the prime vendor and 
Independent Verification & Validation (IV&V) vendor sharing the risk 
for the success of the project.
    Response: Contracts are executed between the state Medicaid agency 
and the vendor. We agree that contracts should clearly identify 
accountability for risk. However, we are not in the position to 
intervene in the states' contractual arrangements, but encourage states 
to address this risk in accordance with state procurement rules and 
project management.
    Comment: A commenter requested clarification regarding whether the 
state can modify the base software for COTS products in addition to 
customizations required for integration.
    Response: We believe it is outside of the scope of this regulation 
to address detailed questions that we would expect to be addressed in 
the APD review process.
    Comment: One commenter recommended to continue using CSFs for 
discussing both project status and system readiness and using the CSF 
approach when approving proposed modifications and customizations to 
COTS and SaaS solutions.
    Response: We intend to continue to use the CSF approach as a means 
to monitor state implementation performance. We will consider uses of 
the CSF approach for approving proposed modifications and 
customizations to COTS and SaaS solutions.
    Comment: One commenter asked what the definition of ``minimum 
necessary costs'' is and who determines whether or not a state's 
proposal meets this definition.
    Response: ``Minimum necessary costs,'' means only those 
expenditures required to analyze the suitability of the COTS software, 
and to configure, install and integrate the COTS software. It may also 
include expenditures for modification of non-COTS software to ensure 
coordination of operations. During the APD, procurement, and contract 
reviews, we will determine if the proposed costs are limited to the 
purposes specified previously. As is our current practice, these 
reviews will include dialogue with the state to ensure our decision is 
accurate and equitable.
    Comment: A commenter asked for clarification on a case where CMS 
determines after the reapproval review that the system no longer meets 
the conditions for reapproval. CMS will reduce FFP for certain 
expenditures for system operations. Clarification is requested on what 
is meant by certain expenditures. Is there a predefined list, or is 
this determined on a case by case basis?
    Response: We intend to assess on a case-by-case basis the extent to 
which that state's system is non-compliant and will propose to reduce 
FFP for specific system functionality operation costs, which might be 
one or more module(s).
    Comment: One commenter asked if mitigation plans have to be 
submitted with the APD. Another commenter requested a template for 
mitigation strategies.
    Response: We will issue subregulatory guidance that includes more 
details on developing and submitting a mitigation strategy. However, we 
note that identification of potential projects risks, key milestones 
and potential mitigations is an industry standard for major IT builds.
    Comment: One commenter raised a question concerning the phrase, 
``strategies for reducing the operational consequences of failure'' and 
questioned who would determine what constitutes a failure. The 
commenter noted that the state is expected to address the operational 
consequences of failure, and the meaning of failure is for the state to 
determine. Another commenter suggested that CMS, HHS' Administration 
for Children and Families (ACF), and the U.S. Department of 
Agriculture's Food and Nutrition Services Program develop joint 
performance measures for integrated eligibility systems, in conjunction 
with states and other external stakeholders.
    Response: We recognize this concern. We have identified CSFs and 
performance standards related to various systems functionality and will 
continue to work with states to identify additional metrics of success 
for E&E systems, including non-MAGI functionality, and for MMIS 
systems. We are taking the suggestion of joint performance measures for 
integrated eligibility systems into consideration and will address that 
effort independently of the final regulation.
    Comment: One commenter requested clarification on the parameters 
of,

[[Page 75825]]

``limited mitigations and workarounds,'' and suggested that factors 
such as time limitations, frequency, quantity, and/or severity be 
considered.
    Response: We agree that these factors should be considered when 
evaluating what constitutes ``limited'' mitigations and workarounds, 
and would consider other factors such as impact on the beneficiary, 
impact on access to care, and impact on providers. Every systems build 
varies for scope and impact, therefore we cannot specify within this 
rule specific parameters for what constitutes ``limited'', but will 
evaluate on a case by case basis.
    Comment: One commenter proposed that mitigation plans apply to both 
MMIS and E&E.
    Response: The requirement in this final rule is to have mitigation 
plans for both MMIS and E&E, as specified at Sec.  433.112(b)(18). We 
provide clarification on the process and procedure of contingency 
planning within the CMS Expedited Lifecycle (XLC) Model, as described 
in the CMS Expedited Lifecycle Process: Detailed Description 3.3 
available at https://www.cms.gov/Research-Statistics-Data-and-Systems/CMS-Information-Technology/XLC/Downloads/XLC-DDD.pdf. We will issue 
additional subregulatory guidance regarding the expanded discussion of 
mitigation planning to reduce risk, and will allow necessary 
flexibility depending on the nature and scope of the project.
    Comment: Several commenters recommended adding an additional 
condition at Sec.  433.112(b) for states to collect and submit key E&E 
performance indicator data on a regular basis to ensure that purchases 
of COTS software represent good value and will not subject the state to 
inappropriate future costs or loss of flexibility.
    Response: Performance indicators already exist [see ``Federal 
Funding for Medicaid Eligibility Determination and Enrollment 
Activities'' (75 FR 21950) and ``Eligibility Changes under the 
Affordable Care Act of 2010'' (77 FR 17144)] for E&E Systems] and we 
will consider the development of MMIS performance measures in 
conjunction with the MMIS certification criteria for future 
subregulatory guidance.
    Comment: One commenter expressed concern that all of the 
stipulations included in Sec.  433.112(b) may not apply to each module 
for which a state may submit an APD and that CMS should consider 
changing the proposed wording of Sec.  433.112(b) to, ``CMS will 
approve the E&E or claims system or service modules described in an APD 
if the applicable conditions as determined by CMS are met. The 
conditions that a system or service module, whether a claims or E&E 
system, must meet as applicable are:''
    Response: We believe that the wording of Sec.  433.112(b) does not 
require revision, so we are retaining the language of the proposed rule 
in this final rule. We believe that terminology such as ``applicable'' 
does not add clarity because it still fails to specify exactly what 
standards and conditions would apply in what circumstances. We believe 
that subsequent guidance and a case by case evaluation during the APD 
approval process will be supported by the language in this rule, but 
allow the flexibility to apply standards and conditions appropriate to 
each particular project.
    Comment: A few commenters expressed concern over the new condition 
at Sec.  433.112(b)(22), ``Other conditions as required by the 
Secretary,'' that reserves the right of CMS to add conditions without 
going through the rule making process, and suggested that this may 
exceed statutory authority. It was noted that this provision is 
incorporated into Sec.  433.119, which pertains to conditions for re-
approval to receive the 75 percent match, and there was concern that if 
the proposed language was adopted, a state's enhanced funding could be 
jeopardized by a new condition on which the state has had no 
opportunity to comment and may not have sufficient notice. One 
commenter asked CMS to clarify whether the addition of new criteria and 
modifications to the existing standards and conditions under this 
revision will impact current state approvals. The commenter also asked 
CMS to clarify whether a state whose standards and conditions are 
currently approved will be required to obtain a new or revised approval 
of system compliance. One commenter suggested Sec.  433.119(a)(1) be 
amended to require that CMS adopt any additional conditions in 
compliance with 5 U.S.C. 533's public notice and comment process. The 
commenters asked us to delete the provision or, alternately, add some 
parameters to clarify the intent of the condition.
    Response: We appreciate the comment and we are clarifying the 
language of Sec.  433.112(b)(22) to provide that the additional 
conditions that may be issued by the Secretary will not be new 
requirements, but will be limited to guidance on conditions for 
compliance with existing statutory and regulatory requirements, as 
necessary to update and ensure proper implementation of those existing 
requirements. Should new requirements be necessary, we would follow 
required rulemaking procedures to modify the regulations. The language 
of Sec.  433.112(b)(22) is intended to recognize that implementation of 
the statutory and regulatory requirements may require interpretive 
guidance that sets forth conditions for compliance with those 
requirements. Moreover, we clarify that we do not intend to add 
conditions without first consulting with states and other stakeholders. 
Such standards would not be applicable retrospectively. We believe the 
flexibility to update guidance on conditions for compliance with 
statutory and regulatory requirements is necessary to meet the demands 
of evolving business processes, so we are retaining this modified 
language in this final rule.
    Comment: Several commenters expressed concerns that the inclusion 
of E&E is confusing and that the Seven Standards and Conditions are 
MMIS-specific. Clarification is requested on how the new or expanded 
Standards and Conditions apply to E&E systems and asks whether the 7 
Standards and Conditions apply to only MMIS or to E&E also.
    Response: The standards and conditions in this rule apply to any 
systems projects within the Medicaid enterprise, E&E or MMIS, except 
the requirement at Sec.  433.112(b)(17), which is specific only to E&E 
systems.
    Comment: One commenter requested the clarification on whether the 
addition of new criteria and modifications to the existing standards 
and conditions under this revision will impact current state approvals.
    Response: We do not intend to retroactively apply the revised 
standards and conditions to APDs already approved as of the effective 
date of this rule. However, they will be applicable to APDs pending as 
of this effective date, or approved on or after this effective date.
    Comment: One commenter suggested we include non-MAGI Medicaid at 
Sec.  433.112.
    Response: This provision is applicable to all Medicaid programs, 
which include both MAGI and non-MAGI.
    Comment: A commenter asked, with respect to MAGI-based system 
functionality, what is the definition of ``acceptable'' performance and 
who makes this determination. One commenter suggested CMS add a 
condition that E&E systems must deliver acceptable MAGI functionality, 
and identify the factors to be considered. Another commenter suggested 
that ``acceptable'' criteria be defined as part of the Payment Error 
Rate Measurement (PERM) audit work currently underway.

[[Page 75826]]

    Response: Whether or not MAGI-based functionality is acceptable is 
determined in the gate review process and is evaluated with the 
language that follows in the same clause, ``demonstrated by performance 
testing and results based on CSFs, with limited mitigations and 
workarounds.'' We agree with the commenter's suggestion to adopt a 
flexible approach to addressing deficiencies in this E&E, similar to 
that proposed for MMIS system modules, and will issue subregulatory 
guidance with additional detail on this topic.
    Comment: Several commenters have requested clarification of the 
proposed language in Sec.  433.112(b)(18) and Sec.  433.112(c)(2) 
regarding the definition of ``major milestones and functionality''.
    Response: This refers to the major milestones in the State's APD 
submission.
    Comment: One commenter asked CMS to clarify whether CMS's proposed 
wording at Sec.  433.112(b)(21) that states, ``consider'' strategies to 
minimize costs, could be more explicitly stated with this rule.
    Response: We believe that the wording in the proposed rule for 
states to consider certain strategies to minimize costs is sufficient, 
and therefore will not be making changes to this final rule. Further 
discussion will be included in subregulatory guidance.
    Comment: A commenter asked that in the phrase, ``the state must 
consider strategies to minimize costs'', the word ``consider'' be 
changed to ``present''. Another commenter requested clarification on 
how states measure operating cost on any hardware system in order to 
minimize cost and effort. This commenter questioned how a state can 
measure this operating cost on any hardware system other than its 
intended use as specified in that states' APD.
    Response: We believe it is understood that all decisions included 
in the APD, including strategies to minimize costs must be documented 
and/or fully discussed to attain approval, therefore we do not believe 
it is necessary to change the word ``consider'' to ``present''. We 
refer the commenters to the MITA Roadmap as an effective means to 
realize infrastructure cost savings. Further, a state can outline their 
progress toward meeting the MITA roadmap in their APD submission.
    Comment: One commenter expressed concurrence that a state must 
submit plans that contain strategies for reducing the operational 
consequences of failure to meet applicable requirements for all major 
milestones and functionality with the APD submission.
    Response: We appreciate the feedback. We consider risk management 
as an on-going activity during the planning, implementation and 
operations phases of the system lifecycle.
    Comment: One commenter offered specific language to amend Sec.  
433.112(b)(6), which states that, ``The Department has a royalty free, 
non-exclusive, and irrevocable license to reproduce, publish, or 
otherwise use and authorize others to use, for Federal Government 
purposes, software, modifications to software, and documentation that 
is designed or developed with 90 percent FFP.''
    Response: We did not propose any amendments to Sec.  433.112(b)(6) 
and therefore we are accepting as final the provision set forth as 
stated in the April 16, 2015 proposed rule. However, we look forward to 
the possibility of further discussion of this subject matter during 
some of the established forums as outlined in the Program Affected 
section of this final rule.
    Comment: We received several comments requesting clarification on 
providing the names and responsibilities of key state and vendor 
personnel in both the Planning and Implementation Advance Planning 
Documents (PAPD & IAPD). We received a recommendation to add additional 
language to this requirement to read, ``identifying key state personnel 
for their primary responsibilities and their decision-making authority, 
and that CMS and the vendor are notified in writing when changes are 
made.'' One commenter recommended limiting the reporting of key 
personnel per the IAPD template, to limit the burden on to the state. 
Additionally, we received a recommendation to issue subregulatory 
guidance on resource management plan and matrix reporting and what 
kinds of roles constitute key personnel.
    Response: We agree that clarification is needed and changed the 
language to identify key state personnel by name. This applies to all 
APDs. We agree that key vendor personnel should be identified as cited 
in regulation related to CMS approval requirements. Additionally we 
will consider issuing subregulatory guidance on how to identify key 
state personnel based on their primary responsibilities and their 
decision-making authority, and if any personnel changes should be 
communicated in writing to CMS and the state.
    Comment: One commenter suggested including vendor staff as 
identified key personnel, and encouraged states to limit the number of 
key staff that vendors are required to identify. Additionally, the 
commenter suggested CMS might also want to consider including 
guidelines regarding the need to have vendor key staff onsite for the 
entirety of the project.
    Response: We will include further discussion in subregulatory 
guidance, including when key vendor staff must be named. Given the 
changing world of software development and wireless communications, we 
encourage states to revisit their policies requiring all key vendor 
staff be onsite. However, to require such a change is outside of the 
scope of this regulation.
    Comment: Two commenters asked if key state personnel 
r[eacute]sum[eacute]s are required as part of the APD submission.
    Response: R[eacute]sum[eacute]s are not a requirement.
    Comment: One commenter expressed concern that identifying and 
providing key state staff/personnel as a new APD requirement may 
negatively influence or create a scenario where CMS may exert its 
influence over internal state staffing decisions, or that it might 
fundamentally alter and undermine existing relationships between the 
state and CMS.
    Response: We disagree with the commenter's assessment. We value our 
state and federal partnership, and believe that having states dedicate 
key state personnel to IT systems project is a best practice. 
Additionally, we want to emphasize the need to identify key personnel 
to identify those who may be over committed to multiple projects and 
therefore place projects at increased risk.
    Comment: A commenter asked for clarification on whether the word 
``system'', in Sec.  433.112(b)(16), refers to the E&E system, the MMIS 
system, or both systems.
    Response: In this context we are referring to both an E&E system 
and a MMIS according to the approved E&E and/or MMIS APD.
    Comment: One commenter recommended measuring progress of a state's 
project as noted in subregulatory guidance released November 2012, 
entitled, ``Medicaid and CHIP FAQs: Enhanced Funding for Eligibility 
and Enrollment Systems (90/10),'' rather than identifying key 
personnel.
    Response: We agree with the state's recommendation to measure the 
progress of state projects as noted in subregulatory guidance released 
November 2012, entitled, ``Medicaid and CHIP FAQs: Enhanced Funding for 
Eligibility and Enrollment Systems (90/10)''. However, we want to 
emphasize the need to identify key state personnel based on our 
observation that states may over commit staff to multiple projects

[[Page 75827]]

and therefore increase project risk and delays.
    Comment: One commenter inquired about CMS's intent and application 
of Sec.  433.112(b)(10), which allows the use of modular, flexible 
approaches to systems development, including the use of open interfaces 
and exposed application programming interfaces, on E&E systems.
    Response: This final rule at Sec.  433.112(b)(10), applies to all 
mechanized claims processing and information retrieval systems, 
including both E&E systems and MMIS.
    Comment: A commenter recommended that CMS conduct a certification 
of vendor products that meet the Seven Conditions and Standards.
    Response: We concur with the comment to certify vendor's MMIS 
products that meet the Seven Standards and Conditions. We intend to 
address this subject in subregulatory guidance.
    Comment: One commenter stated that HIPAA transactions and code sets 
should be acceptable for certification purposes and FFP.
    Response: We concur that HIPAA compliance is required for MMIS, but 
note that there are additional standards that states must incorporate 
to be fully compliant and interoperable as specified in this final rule 
at Sec.  433.112(b).
    Comment: Two commenters asked about whether they could leverage 
documentation provided to CMS during the GATE Review (XLC) process to 
support the Modular MMIS certification process.
    Response: We encourage reuse in many different forms including 
leveraging documentation provided to us during the XLC process.
    Comment: A commenter asks if the E&E APD must include assurances 
that the states' MMIS meets the MITA assessment criteria.
    Response: An E&E APD need not include assurances regarding the 
states' MMIS MITA self-assessment. We remind states to use the CMS IT 
Guidance 2.0, which outlines the use of MITA for E&E systems.
    Comment: One commenter requested CMS provide clarification on 
shared system components to encourage reuse between integrated 
eligibility systems and MMIS.
    Response: We appreciate the commenter's recommendation and will 
take it into consideration for future subregulatory communications and 
guidance.
    Comment: A commenter requested clarification that the requirements 
for detailed documentation and for analysis of cost minimization and 
use of alternate hardware or operating systems are not required for 
legacy systems implemented prior to the effective date of the proposed 
rule.
    Response: These requirements will not be required for a legacy 
system but we will apply to these requirements if any component from 
the legacy system were to be transferred or shared.
    Comment: One commenter expressed concern that this documentation 
would be of limited value and that this requirement would be hard to 
meet due to differing methods and technical environments. This 
commenter also expressed that it does not support the proposed change 
to require such documentation.
    Response: We acknowledge these concerns but believe that this 
documentation would contribute to sharing and reuse. We believe that 
this requirement may serve to provide more consistent methods and 
technical environments. We are therefore retaining this requirement in 
the final rule.
    Comment: A commenter expressed some concerns regarding use of 
shared components. The commenter expressed that requiring the use of 
existing components may preclude some vendors from offering solutions 
in response to an RFP and that it may not be feasible to share 
components where the various modules are hosted in multiple separate 
data centers procured through separate contracts. The commenter 
explained that requiring the use of existing or shared components would 
reduce the solution options available to the states and requested that 
FFP not be restricted for the development costs of implementing new 
components as part of the MMIS or E&E systems.
    Response: We acknowledge these points, and will provide 
clarification that sharing and reuse are intended as accelerators, not 
impediments, to be leveraged wherever they can produce an efficiency or 
gain. The final policies in this regulation do not prevent us from 
considering state proposals that justify the need for custom developed 
software for the enhanced match, or that only shared reused software 
will be eligible.
    Comment: One commenter stated that the language of proposed Sec.  
433.112(c)(2) should include the cost of procuring the software (or 
licenses to use the software). The commenter also recommended that the 
regulation be clarified to clearly state that the infrastructure 
changes necessary to support the COTS system (for example, servers and 
storage) should also qualify for 90 percent FFP.
    Response: The 90 percent match rate remains for the planning, DDI 
of systems and the 75 percent match remains for COTS licensing costs. 
No change to the regulation is needed to permit the enhanced match for 
procurement, as it already is matched at 90 percent FFP. Infrastructure 
and hardware costs will need to be included in the APD submission and 
will be evaluated for the applicability of the 90 percent match during 
the APD review.
    Comment: A few commenters recommended updating Sec.  433.116(j) by 
removing the December 31, 2015 end date.
    Response: We concur with the recommendation to update Sec.  
433.116(j) by removing the December 31, 2015 end date, and included 
this change in this final rule.
    Comment: One commenter disagreed with our justification to extend 
enhanced FFP to allow the states to complete fully modernized systems. 
The same commenter believes that extension of the FFP will result in 
two systems--one for Medicaid and one for human services--resulting in 
duplicative administrative costs and more than twice the burden for 
program participants eligible for Medicaid and any one of the many 
human service programs; for example, SNAP, child welfare, LIHEAP, etc.
    Response: We recognize the importance of integrated eligibility 
systems and we are actively working with our federal partners to 
facilitate this effort, including federal financial support. We believe 
that we will be able to address states' concerns to encourage continued 
integration.
    Comment: One commenter asked if the 75 percent FFP will also 
include support staff, appeals staff, etc. who are not eligibility 
workers, but are part of the Medicaid process.
    Response: We issued clarification on this topic in the ``Medicaid 
and CHIP FAQs: Enhanced Funding for Medicaid Eligibility Systems'' 
originally released April 2013 and currently posted on Medicaid.gov. In 
applying the 75 percent match to E&E systems we sought to identify 
roles and functions analogous to those matched at 75 percent for MMIS 
systems.
    Comment: Relative to the federal performance review one commenter 
expressed appreciation of the flexible approaches available for the 
federal performance review but urged CMS to consider alternative 
language that conveys the intent expressed in the preamble of the 
proposed rule for HHS to perform regular automated validation of 
accurate processing and systems operations and performance.

[[Page 75828]]

    Response: We acknowledge this recommendation and agree as to the 
importance of regular automated validation of accurate processing and 
systems operations and performance.
    Comment: Two commenters asked CMS to clarify how often CMS planned 
to conduct periodic reviews of systems.
    Response: With the April 19, 2011 final rule on regulations at 
Sec.  433.110, we intentionally removed the requirement for a once 
every 3-year review of such systems, but did not remove references at 
Sec.  433.110(a)(2)(ii) and (iii). The failure to remove Sec.  
433.110(a)(2)(ii) and (iii) was a drafting error. With this final rule, 
we are only correcting that error in the 2011 final rule. At this time, 
we have not specified requirements for periodic reviews but retain the 
authority to conduct them as part of our oversight role.
    Comment: One commenter agreed with the removal of language that 
requires CMS to review systems once every 3 years in order for states 
to continue to be eligible for the enhanced 75 percent federal match 
for ongoing maintenance of their systems. However, the commenter 
suggested a provision carrying over language from the preamble stating 
that ``the Secretary retains authority to perform periodic reviews of 
systems receiving enhanced FFP to ensure that these systems continue to 
meet the requirements of section 1903(a)(3) of the Act and that they 
continue to provide efficient, economical, and effective administration 
of the plan.''
    Response: We appreciate the commenter's support for review to 
ensure on-going quality of systems performance, but we do not believe 
it is necessary to include the wording from the preamble in the 
regulatory text. We believe the statute provides sufficient support for 
this activity.
    Comment: One commenter requested clarification regarding whether or 
not CMS will continue conducting annual IT reviews with states.
    Response: We appreciate the request to clarify the role of annual 
reviews and have provided this clarification in the document entitled 
``Guidance for Exchange and Medicaid Information Technology Systems 2.0 
(May 2011),'' which can be accessed at https://www.cms.gov/CCIIO/Resources/Files/Downloads/exchange_medicaid_it_guidance_05312011.pdf.
    In addition, we proposed to amend Sec.  95.611(a)(2) by removing 
the reference to 45 CFR 1355.52. This paragraph provides prior approval 
requirements when states plan to acquire ADP equipment or services with 
FFP at an enhanced matching rate for the Title IV-D, IV-E, and XIX 
programs, regardless of acquisition costs. We proposed to delete the 
reference to the Title IV-E regulation, 45 CFR 1355.52 because enhanced 
funding for information systems supporting the Title IV-E program 
expired in 1997.
    We received no comments in response to our technical amendment to 
Sec.  95.611 and will finalize as proposed.
    We invited comment on our intention to move to a modular 
certification process for MMIS, based upon the MITA business processes 
(http://www.medicaid.gov/Medicaid-CHIP-Program-Information/By-Topics/Data-and-Systems/Medicaid-Information-Technology-Architecture-MITA.html) to seek an optimal balance in the use of open source and 
proprietary COTS software solutions, to further promote reuse, to 
expand the availability of open source solutions, and to encourage the 
use of shared services. Modular MMIS certification would allow the 
states to access the 75 percent FFP for M&Os of the certified module(s) 
prior to having completed their total MMIS system replacement.
    We also sought comment on the advantages and disadvantages of 
certifying MMIS modules, versus whole systems. We believe that 
certifying MMIS modules will remove the barrier to entry for many small 
IT solution vendors, increase the availability of certified modules in 
the market for the states to choose from, and create an incentive for 
the states to take a modular approach both in IT architecture and in 
procurement strategy. We solicited comments on the opportunities that a 
modular MMIS certification process may create as well as the challenges 
that might arise, including defining a finite list of MMIS modules to 
ensure the appropriate combinations of certification criteria are 
established. In response to the comments received we will issue 
subregulatory guidance which will specify various MMIS modules and how 
a modular certification process will be implemented.
    We also sought comments on a model where vendors propose modules 
for CMS certification prior to the state installation, unrelated to the 
question of the state's enhanced match rate for M&Os. Many commenters 
agreed that Modular MMIS certification process will result in better 
procurements, faster time to benefit, and a rapid adoption of industry 
standards in Medicaid.
    We received the following comments on these topics:
    Comment: A commenter recommended that we be more inclusive about 
sourcing options and eliminate the relation of ``modular'' to sourcing 
or procurement and that CMS adopt the term ``multi-sourcing'' or 
``portfolio sourcing'' so that sourcing should not be viewed as a one-
size-fits-all scenario.
    Response: This recommendation will be taken into consideration for 
future communications regarding MMIS acquisition and modularity.
    Comment: A commenter expressed concern that modular solutions may 
function as standalone silos intended to be interfaced with other MMIS 
solutions and utilize a separate copy of the MMIS data. The same 
commenter also mentioned that the replication of MMIS data into 
multiple operational data stores potentially located in multiple data 
centers increases data storage costs, integration development and 
maintenance costs, potential failure points in the system, and security 
risks. The recommendation was made that CMS analyze the MMIS solutions 
available in the market for effective support of the modular approach 
and consider this when evaluating the states' IT architecture and 
procurement strategies.
    Response: We agree that this is a valid concern and one that should 
be taken into consideration in making design and procurement decisions.
    Comment: Several commenters tied enhanced funding to improving 
state data quality and reporting and the associated adequate investment 
in staffing and human capital needed to accomplish this goal. One 
commenter expressed concern about the impact of a modular approach on 
human resource management, which will require increased planning 
activities. The commenter expressed that states and CMS will need to 
organize and staff accordingly; and that there is further dependence on 
system integrator capabilities. Additionally, the commenter stated 
there would be increased dependence on integration between state 
programs, technical management and contractors.
    Response: We appreciate the commenter's concern and concur that 
states and CMS must thoughtfully estimate project costs and human 
resource needs upfront to address the complexities of managing modular 
functionalities. We believe that the investment of enhanced FFP should 
result in a higher level of performance which should be evidenced in 
reported metrics. We believe that investments in software and hardware 
alone cannot achieve high quality results without an adequate staffing 
compliment. We encourage states to carefully evaluate their human 
resources that support systems builds and operations to ensure that 
there is adequate oversight of

[[Page 75829]]

projects and on-going supervision of operations.
    Comment: One commenter expressed concern that a third party systems 
integrator having no direct contractual relationship with the modular 
solution providers would be ineffective and noted that the state would 
have the key role in managing the contracts. The commenter requested 
that we recognize the importance of the Fiscal Agent/Systems Integrator 
having the primary contract for the MMIS solution and that they should 
be managing the various modular solution providers as subcontractors. 
Another commenter suggested that a new APD requirement should be to 
require states to include its strategy, if using a modular development, 
and resources (staff verses contractual) in the APD. Federal 
regulations at 45 CFR part 95, subpart F, ``Automatic Data Processing 
Equipment and Services,'' specifically mandate that states provide a 
plan of action in order to request federal funding approval for a 
project. In addition, the commenter also suggested clarifying the 
distinct roles and responsibilities of an Independent Verification & 
Validation (IV&V) vendor and Systems Integrator.
    Response: We find this recommendation to be consistent with the 
role we see for the system integrator relative to other vendors 
employed in the cooperative modular process; however we do not believe 
that this should be incorporated into regulation. The APDs used to 
request FFP should describe states' plans for managing its systems DDI. 
Title 45 CFR part 95, subpart F also sets forth the roles and 
responsibilities of the IV&V, if required. We plan to provide 
subregulatory guidance on this issue and we will include a discussion 
of these roles in subregulatory guidance.
    Comment: A commenter requested clarification on whether the modular 
approach applies to both MMIS and E&E systems, or to just MMIS. 
Additionally, the comment asked if the modular approach applied only to 
MMIS, why there was not an equivalent definition for E&E Module, and 
provided some suggested modules.
    Response: While the modular approach to system architecture applies 
to both MMIS and E&E, we do not require certification of E&E systems. 
We have not specified any required MMIS modules in this final rule. We 
will consider identifying required MMIS modules in subregulatory 
guidance.
    Comment: One commenter asked about how CMS will incentivize modular 
development when a state transitions from a monolithic MMIS to a 
modular approach within current state contracts.
    Response: Modular development helps with seeking an optimal balance 
in the use of open source and proprietary COTS software solutions, 
further promotes reuse, expands the availability of open source 
solutions, and encourages the use of shared services. Modular MMIS 
certification will allow the states to access the 75 percent FFP for 
M&Os of the certified module(s) prior to having completed their total 
MMIS system replacement. We will work with states individually that 
wish to transition to modular development to assess the most efficient 
path forward.
    Comment: One commenter pointed out the challenges associated with 
integrating modules if done so on a piecemeal basis. This commenter 
mentioned that the procurement and implementation of a modular based 
approach requires a detailed design of the end-to-end data integration 
requirements at a data element level before those processes can be 
initiated. This commenter suggested that as more states achieve 
readiness to transition to a modular system, a more specific definition 
of an MMIS module should evolve. The commenter provided a list of 
modules that can be defined by CMS within the regulation. The commenter 
further stated the positive aspects of modular certification including 
reduced implementation risks and a reduction in costs.
    Response: We have modified the definition of module at Sec.  
433.111(h) in this final rule. A list of modules and additional 
discussion will be included in subregulatory guidance.
    Comment: Many commenters asked questions about the Modular MMIS 
certification process pertaining to pre-certification requirements, re-
certification of modules, triggers for recertification, process 
alignment with MITA, length of the process, and availability of 
checklists.
    Response: We will be issuing subregulatory guidance on how MMIS 
modules will be certified and how a modular certification process will 
be implemented. Additionally, it is also our intent to work with the 
states as systems are designed and developed on a continuous basis so 
that issues and solutions are identified and addressed prior to the 
certification stage.
    Comment: A commenter agreed that modular certification will lower 
the barriers to entry for smaller IT solution vendors and increase the 
availability of modules in the marketplace. That commenter recommends 
that vendors be able to propose modules for pre-certification by CMS. 
They point out that many state RFPs require that vendors demonstrate 
that they have ``certified'' their systems in other states, so the pre-
certification process will be important in enabling new vendor 
participation in this market. They recommend that CMS work with 
industry and states to structure permissible penalties in state 
contracts when pre-certified modules are used, and especially when 
those solutions are customized at state direction.
    Response: The provisions proposed here mark a significant departure 
from current CMS policy. We agree that modular certification will lower 
the barriers to entry for smaller IT solution vendors and increase the 
availability of modules in the marketplace. We appreciate the 
commenter's support of the proposal to strengthen accountability for 
successful system functionality, however states and vendors are 
responsible for negotiating their contracts and both parties should 
carefully ensure that accountability and penalties for failed 
implementations are clear.
    Comment: A few commenters recommended staged, incremental approach 
to pre-certification starting with a common software product as well as 
a common service used in MMIS and E&E. One commenter suggested that the 
documentation for these pre-certified modules would need to be made 
available for review by states in their consideration of the 
appropriate project approaches for implementation.
    Response: We believe recommendation for a staged, incremental 
approach to pre-certification process is a valuable concept and we will 
consider it carefully as we develop our implementation.
    Comment: One commenter asked whether CMS intended to pre-certify 
certain vendor solutions; and, if so will CMS collaborate with industry 
before adopting a process or issuing subregulatory guidance.
    Response: We will issue subregulatory guidance on how MMIS modules 
will be defined and how a modular certification process would be 
implemented.
    Comment: A commenter requested clarification on when and how CMS 
will begin to pre-certify E&E solutions for pilot for states review.
    Response: Note that E&E does not require certification.
    Regarding our proposal to pre-certify MMIS modules and then 
complete the certification once installed and implemented, we received 
many comments expressing concerns for timelines so that innovation not 
be

[[Page 75830]]

stifled and that reuse not be hampered. Several commenters expressed 
support for initial certification and enhanced funding of modules prior 
to full integration but reminded us that we will need to validate that 
the functionality works as designed and documented. It was recommended 
that use cases be defined to demonstrate that each MMIS module's 
functionality is operating as intended, using performance metrics such 
as key performance indicators.
    Comment: Several commenters expressed concerns about the 
encouragement of software reuse in a manner that could expose security 
vulnerabilities, or possibly affect areas such as program integrity or 
enforcement, and negatively impact State Medicaid Programs.
    Response: We recognize these concerns but do not believe they are 
exclusive to open source software. We will provide guidance on avoiding 
such risks while promoting sharing and reuse in future subregulatory 
guidance.
    Comment: A commenter stated that the best approach for producing a 
sufficient level of detail is through community engagement and the 
development of working Proof of Concept (PoC) demonstrations. The 
commenter stressed the importance of ongoing community involvement in 
order for modularity, reuse, and interoperability in complex systems 
become a reality.
    Response: We concur with the supportive comments to have ongoing 
community engagement, and it supports the goal of states developing 
working PoC demonstrations for modularity, reuse, and interoperability 
in complex systems.
    Comment: One commenter suggested focusing on how states share 
similarities in performing business functions related to Managed Care 
as a basis for CMS, states and vendors to share and reuse IT solutions.
    Response: We appreciate the insight provided by the commenter and 
will consider the suggestion. We concur that there is value in states 
exchanging information and experience around business functions they 
have in common.
    Comment: A commenter made recommendations regarding the states' 
ability to share and reuse IT solutions while at the same time ensuring 
that there are appropriate incentives in the marketplace to provide the 
best quality and value in IT solutions and services to enhance 
operation of Medicaid programs nationwide.
    Response: We appreciate the commenter's support of reuse of 
existing and shared components. We intend to address this in greater 
detail in subregulatory guidance. We will consider the commenters 
recommendations as we develop this guidance.
    Comment: Several commenters recommended that the most effective way 
to encourage reuse is to certify modules prior to installation and to 
encourage states to utilize these modules and that it is important to 
clarify the vendors' business case for pre-installation certification.
    Response: We concur and we intend to proceed with policy 
development around MMIS module precertification. There will be further 
discussion of the precertification requirements and process in 
subregulatory guidance.
    Comment: One commenter recommends using a holistic view of the MMIS 
that requires a coordinated effort among CMS and the states to 
establish standards promoting reuse of open source code.
    Response: We concur and will coordinate with states to establish 
standards and promote reuse.
    Comment: One commenter recommends that an effective and efficient 
balance can be achieved when approving enhanced FFP for the acquisition 
of open source proprietary COTS software and information technology 
solutions, and they suggest a number of ways in which this could be 
done.
    Response: We will consider these points in the formulation of 
subregulatory guidance and appreciate the input.
    Comment: Several commenters had questions or sought clarity on 
setting dollar thresholds for incremental modernization and for COTS 
installation. A few commenters recommended that CMS consider providing 
clarity around what constitutes a noncompetitive install.
    Response: We do not believe dollar thresholds are a workable 
solution because the size and scope of COTS applications will vary 
widely. We will provide guidance on what is a noncompetitive install in 
future subregulatory guidance.
    Comment: A few commenters recommended that CMS consider selecting 
known vendors with proven Medicaid IT modules/components for a pilot 
with either CMS or a state and that this funding be made available 
through the MITA Roadmap and APD approval process. One commenter 
requested that CMS clarify its vision for the use of open source 
software and that open source code be piloted in order to demonstrate 
utility. The same commenter recommended that CMS facilitate introducing 
states to vendors.
    Response: The funding available to us for MMIS development at 
sections 1903(a)(3)(A)(i) and 1903(a)(3)(B) of the Act only authorizes 
us to use matching funds for state system implementation and does not 
include pilot projects. It is one of our goals to stimulate competition 
and to help facilitate the entry of new vendors into the Medicaid IT 
market; therefore we would not engage in any project that would give 
one vendor an advantage.
    Comment: One commenter explained that transfer solutions lose 
connection with the originating software because of the need for 
specific customization and adaptation to state environments. Some 
commenters recommend that CMS work with states and vendors to develop 
subregulatory guidance on this matter, including helping to standardize 
business requirements and workflows. They provide examples of the kind 
of guidance they are requesting. The commenter recommends CMS work 
directly with COTS vendors to ensure appropriate coverage of new or 
changing federal requirements.
    Response: We acknowledge these points and will address them in 
subregulatory guidance. As stated previously, we plan to engage all 
stakeholders, for example, states, vendors and advocacy organizations, 
in developing this guidance.
    Comment: One commenter suggested that CMS should allow states 
access to enhanced 90 percent FFP for customization of COTS and open 
source software based on a CMS-approved cost-allocation. We should 
encourage the use of contract language that stores initial and ongoing 
documentation and source code in a form and format that is easily 
accessible by states so that they can share.
    Response: We concur. Further guidance is necessary in the area of 
customization to COTS and open source software and accessibility of 
documentation. We will expand upon this in subregulatory guidance.
    Comment: One commenter recommended 90 percent FFP for implementing 
on-going COTS releases and M&Os activities.
    Response: We appreciate the commenter's recommendation for 90 
percent FFP for implementing on-going COTS releases, such as training, 
regression testing, configuration, and process modifications. 
Subregulatory guidance will clarify what activities will be matched at 
90/10 and which will be subject to 75/25.
    Comment: A commenter recommended that activities related to

[[Page 75831]]

implementing COTS software as a module be included in the enhanced 
funding, since a significant portion of the cost to implement a COTS 
software as a module is related to configuration.
    Response: We concur with the commenter's supportive comments on the 
use of configurable solutions with minimal customization and intend to 
address this in subregulatory guidance. To clarify, COTS software 
configuration costs are funded at 90 percent under this final 
regulation.
    Comment: One commenter requested that we provide a framework 
against which to plan and subsequently validate COTS and open source 
code. Additionally the commenter expressed that as there is an increase 
in the variety of software being implemented there may be an increased 
complexity to the certification process.
    Response: We agree with the comment and welcome a dialogue with 
state and vendors as an effective means to accomplish this goal.
    Comment: One commenter expressed the concern that lack of an 
established governance and/or support model for any open source 
solutions not developed and/or maintained by a specific software 
manufacturer introduces significant risk of obsolescence from 
technology changes such as operating system upgrades and reduces the 
opportunity for shared development and upgrades in the long term. The 
commenter also mentions that the use of these open source solutions 
could present significant risk to the state because their use may not 
justify the cost savings over the use of equivalent COTS solutions. The 
same commenter requests that we recognize the long-term advantage of 
the COTS solutions.
    Response: We agree that open source software or solutions are not 
impervious to the same challenges as other kinds of software, and we 
agree that there is a balance that must be achieved between cost and 
utility. While we do not agree that a COTS solution is necessarily less 
prone to these risks, we do highly support use of COTS solutions and, 
through this final rule provide equal financial support for proprietary 
COTS and open source COTS. We agree that we must provide guidance and 
on-going governance and support for both models and will explore this 
further as we develop subregulatory guidance.
    Comment: One commenter recommended that business requirements be 
standardized nationally, and it supports CMS's efforts to facilitate 
collaboration among states with similar business requirements so that 
they may share and reuse IT solutions.
    Response: We concur with the supportive comments on reuse of IT 
solutions.
    Comment: One commenter recommended that, rather than compelling the 
states to maintain and make available the software documentation at 
Sec.  433.112(b)(20), it makes more economic sense for CMS to be the 
custodian of this information. The commenter explained that states do 
not have the time, staff, or technical resources to undertake this 
critically important function. They assert that only CMS can enforce 
the regulations at Sec.  95.617(b), not the states, and it can only do 
this effectively by creating a central repository under its immediate 
control.
    Response: We agree that creating a repository for making software 
documentation available to other states is a project beyond the scope 
of state activities, however the requirement at Sec.  433.112(b)(20) 
does not require creation and maintenance of the repository, but simply 
the maintenance of the documentation for the state's own software 
applications. We are considering the commenter's recommendation for a 
central repository and are exploring the concept. We will provide 
further subregulatory guidance on the states' maintenance of 
documentation and will engage stakeholders as we consider development 
of a centralized repository.
    Comment: One commenter recommended CMS establish a control 
mechanism as the clearing house.
    Response: We will take into consideration the recommendation to 
utilize a clearinghouse to aid in managing shareable components.
    With regard to all Medicaid IT, we also sought comments on how to 
achieve an effective and efficient balance when approving enhanced FFP 
for the acquisition of open source and proprietary COTS software and 
information technology solutions provided in the Medicaid information 
technology marketplace. Section 1903(a)(3)(A) of the Act, which 
provides 90 percent FFP for the ``design, development, or installation 
of such mechanized claims processing and information retrieval 
systems'' could be interpreted to include use of COTS where that 
solution would be the more economical and efficient approach. We 
proposed this approach, acknowledging that it will necessitate a 
refinement of policy for proprietary COTS software for Sec.  95.617(b) 
to protect intellectual property. We sought comment on the inclusion of 
some costs related to COTS software in DDI to further encourage the 
states to opt for the COTS and SaaS option, currently matched at 75 
percent, rather than ground-up development approaches, which are 
duplicative and have a potentially much larger total cost over the span 
of the project. We intend to address this further in future 
subregulatory guidance. In considering approvals for ground-up system 
builds we may require states to evaluate whether cost-effective and 
practical open source and/or proprietary COTS solutions exist and 
whether those solutions are feasible.
    We received the following comments on this approach.
    Comment: Some commenters asked if we intend to provide enhanced FFP 
for customization to COTS solutions where it is necessary to meet the 
business needs of a Medicaid Program.
    Response: We will pay enhanced FFP for limited modifications 
required for compliance with federal and state regulations and 
integration and configuration and will require that the result be made 
available for reuse. Costs not eligible for enhanced funding would be 
eligible for 50/50 administrative funding if they are allowable 
Medicaid costs.
    Comment: One commenter asked us to clarify the difference between 
proprietary software and COTS software and to address the issue of 
ownership when customization is paid for with federal funds; and 
another requested clarity on when the federal government owns a license 
to a system for perpetual use after implementation.
    Response: Software that was developed without federal funding is 
generally considered proprietary. This usually applies to COTS 
software. However, as articulated in existing Sec.  95.617(b) the 
federal government retains ownership and a perpetual license for 
software developed with federal funding, which may include software 
code written to customize proprietary COTS software solutions. We are 
seeking to discourage the extra costs of unnecessary customization of 
COTS software solutions, therefore this final rule explicitly provides 
in Sec.  433.112(c)(2) that development costs at the enhanced match 
rate may only include the minimum necessary to install the COTS 
software and ensure that other state systems coordinate with the COTS 
software solution. We intend to develop further guidance, in 
consultation with the industry and other stakeholders, regarding the 
proportion of customization that would result in a product no longer 
being considered COTS, and thus being subject to the provisions of 
Sec.  95.617, as is other software developed with federal funds.

[[Page 75832]]

    Comment: A commenter supported the proposed exemption to the 
restriction of FFP funding when it is more efficient and economical to 
purchase COTS software. It suggests use of an analysis template to 
compare modules, state collaborations, CMS guidance, and CMS pre-
approved modules for E&E. The commenter also recommends that 
subregulatory guidance be issued to include the requirement of a budget 
for risk assessment. The commenter also suggests several 
recommendations for these strategies.
    Response: These suggestions will be considered during the 
formulation of sub regulatory guidance.
    Comment: Many commenters recognized that the alignment of Medicaid 
E&E systems with MMIS requirements and MITA is unclear. One commenter 
also thought the inclusion of E&E systems in the definition of MMIS 
presents some confusion.
    Response: This rule includes E&E systems in the definition of 
mechanized claims processing and information retrieval systems, not as 
part of an MMIS. We recognize the commenters' concerns regarding 
alignment of E&E systems, MMIS and MITA. Existing federal guidance is 
provided in ``Enhanced Funding Requirements: Seven Conditions and 
Standards: Medicaid IT Supplement,'' (MITA-11-01-v1.0) dated April 
2011, which is available at http://www.medicaid.gov/medicaid-chip-program-information/by-topics/data-and-systems/downloads/efr-seven-conditions-and-standards.pdf.
    We will provide additional clarification regarding the standards 
and conditions applicable to E&E in the subregulatory guidance.
    Comment: One commenter expressed concern that MITA remains a loose 
architectural framework that, in its current state, does not provide 
sufficient definitions, constraints, or measures to support consistent 
modular development. Specifically, standardized baseline procedures and 
Organizational Change Management maturity are not in place; the lack of 
common SOA and data governance practice maturity and a lack of 
technical expertise prevent ``plug-in'' modules from being established 
and matured by states. We also received many detailed recommendations 
on how a collaborative workgroup could update MITA to provide 
sufficient structure for a modular approach and it was recommended that 
subregulatory guidance be jointly developed between CMS, the states, 
and the vendors for best-practice process baselines that align with the 
MITA Business Areas.
    Response: We recognize the concern regarding potential challenges 
using MITA, and will address this in subregulatory guidance. We welcome 
the collaboration.
    Comment: Several commenters also recommended that the MITA be 
updated, completed, and standardized to provide sufficient structure 
for a modular approach and that this be accomplished through a 
collaborative workgroup of states and vendors.
    Response: We agree and will issue further communications regarding 
this on-going effort.
    Comment: Several commenters requested a modular certification 
process that closely aligns with the MITA Business Process Model (BPM) 
and that subregulatory guidance should be developed, with state and 
industry collaboration, to develop common framework and terminology for 
defining a module of an MMIS. One commenter recommended that CMS use 
``MITA Business Process Model'' instead of ``module'' when referring to 
portions of an entire MMIS.
    Response: While we appreciate the intent of the suggested changes, 
we do not believe that this would improve the clarity of our rule, so 
we are not adopting that suggestion. We appreciate the recommendation 
for a certification closely aligned to MITA and will take it into 
consideration as we finalize the MMIS certification criteria. We are 
currently piloting use of MITA aligned business processes in a Phased 
MMIS Gate Review process.
    Comment: One commenter expressed concern that open source software 
may create a security risk for protected health information (PHI).
    Response: We believe that the use of open source software is not 
necessarily a risk to PHI. All HIPAA regulations apply, and PHI must be 
protected in any implementation as specified in this rule at Sec.  
433.112(b)(12).
    Comment: One commenter supports the flexibility to solicit, but not 
the mandated use of, open source products where appropriate. Several 
possible issues are mentioned, such as quality of proposals or workable 
solutions, evaluation of proposals, etc.
    Response: We appreciate this supportive comment and we believe that 
open source software is one possible solution but not necessarily the 
only solution. The states still have great discretion in making 
procurement choices. Our intent is that sharing and reuse be encouraged 
to avoid redundant custom development and to facilitate collaboration 
not typically enabled by non-open source software solutions.
    Comment: Another commenter suggested that we ensure flexible and 
proper fiscal allocation to address enrollment fluctuations.
    Response: Cost allocation plans are flexible and states may propose 
a number of methodologies, including population based methodologies, 
for consideration and approval by CMS and other federal partners. Cost 
allocation plans may be updated as needed according to HHS cost 
allocation regulations at 45 CFR part 75, subpart E--Cost Principles.
    Comment: One commenter expressed a concern that CMS allows only one 
point of connection to the FDSH per state and the importance of 
recognizing that there may be multiple connections along the path to 
the FDSH that establish such interoperability. The commenter suggested 
that a state may satisfy the interoperability with Marketplace 
requirement if either component--the eligibility or the enrollment 
system--coordinates with the Marketplace.
    Response: We appreciate the comment; however we disagree with the 
recommendation to determine eligibility in separate components as it 
creates duplicative processes, and as such, the recommendation will not 
be incorporated into the final rule.
    Comment: There were several comments related to the reusability of 
existing or shared components. These involved technical definitions, 
real-time interfaces, number of application program interfaces (APIs), 
amount of data, stability, security and authentication, specialty 
vendors, batch data exchanges, business rules, absence of single sign 
on, and absence of real-time interfaces to MMIS.
    Response: We consider these technical recommendations to be outside 
the scope of this regulation since the technical specifications for 
shared modules are to be found in MITA 3.0 and IT Standards and 
Guidance 2.0.
    Currently, regulations at Sec.  95.617(b) provide that the federal 
government shall have a royalty-free, nonexclusive and irrevocable 
license to reproduce, publish or otherwise use and to authorize others 
to use for federal government purposes, software, modifications and 
documentation that are developed with federal support. We also sought 
comments on requiring that states affirmatively document and make 
available such software to ensure that it may be used by others.
    Consistent with these requirements, and to encourage broader use 
and reuse of federally funded software, we also proposed at Sec.  
433.112(b)(20) and (21) that software developed with the 90

[[Page 75833]]

percent federal match be adequately documented so that it can be 
operated by contractors and other users, and that states consider 
strategies to minimize the costs and difficulty of operating the 
software using alternate hardware or operating systems.
    We received the following comments on proposed Sec.  433.112(b)(20) 
and (21).
    Comment: One commenter requested that open source software be 
documented according to the Open Source Institute standard.
    Response: We appreciate and will consider this recommendation in 
the formulation of subregulatory guidance.
    Comment: A commenter stated that that CMS should be the entity that 
takes recommendations from the industry in order to establish IT 
standards relevant to Medicaid systems, and that the standards should 
be housed and maintained in a publicly accessible repository.
    Response: We appreciate the suggestion and will explore how we can 
engage with existing standards bodies and stakeholders to support the 
development and adoption of IT standards relevant to Medicaid business 
processes. We will also consider options for a publicly accessible 
repository.
    Comment: One commenter commends CMS for the proposed requirement 
regarding documentation detail.
    Response: We acknowledge this support.
    Comment: A commenter recommended we explore innovative ways to 
create a multi-state ``vendor and state'' repository as well as a 
structured pilot process that formalizes and publicizes processes, 
lessons learned, and how those lessons change future processes.
    Response: We concur with the commenter's recommendation and have 
implemented many aspects in the roll-out of the Affordable Care Act to 
include establishing the Collaborative Application Lifecycle Tool 
(CALT) as a first step in creating a multi-state ``vendor and state'' 
repository. We will take into consideration the commenter's 
recommendation on a structured pilot process, building learning 
communities, creating a technical assistance portal, and expanding the 
most effective approaches to reuse.
    Comment: A commenter asked that CMS clarify what it means for 
software to be ``documented.'' They make the point that software that 
can be legitimately run by contractors and other users will have 
different documentation needs from software that is proprietary or is 
being maintained as a shared service and will not be transferred to 
another entity.
    Response: The intent was for software that was custom developed to 
be sufficiently documented such that another vendor or state staff 
could operate it. It is not meant to refer to proprietary COTS 
software, which would necessarily already include through the licensing 
agreement provisions for support of operations. Nor is it meant to 
apply to SaaS or Business-Solutions-as-a-Service, which operate under 
totally different parameters from states' custom-developed solutions.
    Comment: A commenter anticipated an increase in costs for developed 
software to create the documentation supporting transfer to another 
state and to design the solution to operate on alternate hardware and 
operating systems. They asked whether we intend to designate the 
hardware and operating system manufacturers that must be supported. The 
commenter makes the point that the challenges for designing solutions 
to operate on alternate hardware and operating systems includes having 
the necessary knowledge of the alternate hardware, software components, 
and operating systems and having the alternate environments available 
for testing. The same commenter also asked if we intend to provide more 
specific guidance on how states are to gauge when the software and 
related technical architecture is adequately documented so that it can 
be operated by contractors and other users.
    Response: We agree that these are good points and that they call 
for further discussion. We do not intend to designate specific hardware 
and operating systems that must be supported because we do not wish to 
limit the provision. We will provide more specifics in subregulatory 
guidance so that states can assess whether or not this requirement is 
met.
    Comment: In reaction to the CMS proposal that software custom 
developed with the 90 percent federal match be adequately documented so 
that it can be operated by contractors and that states consider 
strategies to minimize the costs of operating the software using 
alternate hardware or operating systems, several commenters provided 
feedback. Concerns have been expressed that this appears to burden 
states with conducting a cost benefit analysis for software 
applicability across multiple hardware or operating systems. Another 
concern was that adequate documentation should not be subject to 
trademark, or patent to promote reuse.
    Response: We agree that this software should be adequately 
documented and that states should use strategies to minimize costs.
    Comment: One commenter requested clarification on CMS documentation 
standards so MMIS modules can be used by other contractors and states.
    Response: We appreciate this comment and will address in future 
subregulatory guidance.
    Comment: One commenter recommended CMS should provide the 
opportunity to establish a repository of reusable business rules and 
regularly updated references to standards that are necessary to support 
interoperability as it could also store best-practice materials on 
performance measurement and management, such as service level 
agreements, dashboard formats, and other performance tracking and 
reporting capabilities.
    Response: We concur with the commenter's recommendation and have 
established the CALT, as a repository environment of reusable business 
rules and regularly updated references to standards that are necessary 
to support interoperability.
    Comment: One commenter recommended that CMS clearly define and 
standardize its communication methodology and tools to ensure states 
and vendors work together, as historically CMS has had a practice of 
only communicating directly with states regarding system changes. Also, 
the commenter recommended that CMS develop a repository for states and 
vendors to share documents, to host learning communities, and to serve 
as a channel of regular communication about changes.
    Response: We concur with the commenter's recommendation and have 
established the CALT, a repository environment to create a multi-state 
``vendor and state'' repository. We will take into consideration the 
recommendation to adopt a model similar to the Office of the National 
Coordinator for Health IT (ONC) collaborative leadership with agencies, 
providers, and vendors.
    Comment: One commenter suggested that CMS allow free sharing of 
assets, such as documentation and code, without Memorandum of 
Understanding (MOUs).
    Response: We encourage states to collaborate to the extent possible 
but as we do not require MOUs, it is outside of the scope of this final 
rule to address how states' sharing should be governed.
    Comment: With respect to sharing and reuse a commenter recommends 
that the market for sharing and reusing software will need to be 
established between CMS and states so that states are more likely to 
openly participate.

[[Page 75834]]

    Response: These recommendations will be considered. We recognize 
the need for a repository to make software available to states for re-
use. We are exploring the best means to achieve that end.
    We conduct periodic reviews of the states' MMIS and E&E system 
functionality and operations. Current regulations at Sec.  433.120 
allow for reduction of FFP for system operations from 75 percent to 50 
percent if the system fails to meet any or all of the standards and 
conditions. We proposed to allow for the FFP reduction to be tailored 
where appropriate to specific operational expenditures related to the 
subpar system component rather than only being able to apply it across 
all operational expenditures. We also proposed to revise current 
regulations that require the disallowance to be for a minimum of four 
quarters so that there is no defined timeframe. Furthermore, we 
proposed to remove the restriction on the FFP reduction occurring at 
least four quarters after the system was initially approved.
    We received the following comments in reference to the proposals 
concerning FFP.
    Comment: Several commenters expressed their support for changes at 
Sec.  433.120 and expressed concerns about how this change to current 
regulation will be implemented. One commenter asked which expenditures 
for system operations could be reduced and whether CMS will be 
providing a list for the states. There were questions regarding 
application of the policy to legacy systems and the necessity for a 
grace period prior to applying the policy to legacy systems was 
mentioned. Two commenters asked about timeframes for determining non-
compliance and how corrective action plans might be used as a mechanism 
to ensure compliance prior to reduction of FFP. One commenter asked 
whether we would be providing a predefined list of expenditures; or in 
the alternative, will a case by case analysis be applied to determine 
which expenditures could be exposed to a decrease in FFP due to 
noncompliance. A commenter expressed that E&E system builds have been a 
priority under the Affordable Care Act and have required a considerable 
amount of state resources. Due to a lack of resources some states have 
experienced a lag in their modernization efforts for MMIS systems which 
could lead to noncompliance, a reduction in FFP, and an increase in 
state's share of MMIS operational costs. One commenter asked for 
reassurances that we would not order a reduction in funds without first 
providing the state with an opportunity to provide feedback on the 
disallowance.
    Response: We conduct periodic reviews of the states' MMIS and E&E 
system functionality and operations. Current regulations at Sec.  
433.120 allow for reduction of FFP for systems that are found to be 
noncompliant; and, we will consider the suggestions, recommendations, 
and clarification requests as content for subregulatory guidance. We 
will provide a series of artifacts, supporting tools, documentation, 
and diagrams to the states as part of our on-going technical 
assistance, monitoring, and governance of MMIS systems design and 
development. The goal is to assist states in being successful and would 
only deploy this approach after a meaningful escalation process after 
which it was determined that there was persistent non-compliance that 
lacked an approvable workaround and/or plans for timely remediation.
    Comment: Two commenters provided alternative language to modify the 
rule at Sec.  433.120. Commenters asked that we state that only 
expenditures that relate to the failure to meet the conditions of re-
approval for system operations could be reduced. Another commenter 
asked us to add language stating that system components receiving a 
reduction in FFP may include MMIS modules or other discrete components 
of the MMIS system.
    Response: We agree that the reductions may be applicable only to 
certain modules or a single module. We believe that the reference to 
``non-compliant functionality or system components'' adequately 
captures the meaning of the suggested language, therefore, we are 
finalizing the language as proposed. We will, however, discuss these 
issues in greater depth in subregulatory guidance.
    Comment: Two commenters asked that we retain the language that 
restricts FFP reduction during the first four quarters following 
initial approval because states should not be subject to reductions in 
FFP for intermittent periods of subpar performance of system components 
during the initial periods of operation of newly installed system 
components; and, projects that require remediation should not be 
jeopardized.
    Response: We agree with the commenter and it is not our intention 
to adopt this approach for circumstances as described above. We are 
committed to working with states and understand the realities of system 
launches. We are finalizing the language as proposed.
    Comment: For Sec. Sec.  433.112 and 433.120 regarding the proposal 
to reduce FFP for system non-compliance, many commenters proposed 
changes to the wording, made recommendations to change the proposed 
penalties or process, or requested clarification of the proposed 
process.
    Response: We considered the proposals, recommendations, and 
clarification requests. As described in the proposed rule, we will 
provide a series of artifacts, supporting tools, documentation, and 
diagrams to the states as part of our on-going technical assistance, 
monitoring, and governance of MMIS systems design and development. We 
will continue to work with states that show a good faith effort to 
comply with certification requirements, and as described in the 
proposed rule, we will continue to work with the states as systems are 
designed and developed so that issues and solutions are identified and 
addressed prior to the certification stage. We described in the 
proposed rule that there is an established notice and state appeals 
rights in existing regulations. Those rights regulations are not 
changing with these final regulations.
    Comment: A state asks CMS to clarify whether the proposed increase 
in reduction includes only the number of quarters or also the increase 
in reduction of percentage of FFP. One commenter is concerned that this 
rule ultimately may increase states' share of MMIS operational costs, 
noting that the Affordable Care Act required states to implement a 
significant number of changes to E&E systems, resulting in state 
investment of vast resources on a short timeline to ensure compliance 
under the Affordable Care Act. For states, this may have resulted in a 
lag in MMIS modernization efforts. Therefore, applying the proposed 
rule equally to both E&E systems and MMIS systems may inherently 
increase states' share of MMIS operational costs.
    Response: This rule provides that the reduction in FFP was for a 
certain number of quarters that could be fewer than 4, and that the 
operations costs could be reduced from 75 percent to 50 percent. We are 
aware of the multiple requirements that states must implement, and will 
engage in dialogue with states regarding resources and priorities 
before imposing a reduction in FFP.
    Comment: A commenter requested clarity on the process to correct a 
reduction in FFP related to a non-compliant system component, and 
whether this provision applies to legacy systems, and if so, requests a 
grace period for implementing necessary changes.
    Response: We will provide a description of how states can address

[[Page 75835]]

system non-compliance through subregulatory guidance. With this final 
rule, we are not proposing a new requirement for systems to be in 
compliance, therefore a grace period is not appropriate.
    Comment: A state requests a specific timeframe for determining non-
compliance and whether a state can submit a corrective action plan 
before having FFP reduced.
    Response: We will provide clarification of the process to resolve 
system non-compliance in subregulatory guidance, and this will address 
corrective action plans.
    Comment: A commenter recommended that CMS reconsider its proposal 
to remove the restriction on reducing FFP during the first four 
quarters of the maintenance and support period where a system does not 
meet requirements, and expressed concern that the rule could jeopardize 
projects that require remediation during this period. Another commenter 
expressed concern that this rule will allow CMS to order a reduction of 
funds without providing the affected state an opportunity to review and 
provide feedback on the disallowance. That state asks CMS to explicitly 
provide a federal mechanism for reviewing E&E systems for disallowance 
before reducing FFP.
    Response: We proposed the revisions to the regulations to allow 
flexibility in deciding if, when, and to what extent amounts might be 
denied for system non-compliance. When significant non-compliance is 
identified, we will seek appropriate relative penalties and only after 
discussion, corrective action plans and good faith efforts have been 
unsuccessful. We have an established escalation process that allows for 
state notification and appeal rights during which the state can provide 
mitigating information prior to disallowance.
    Comment: A commenter asked for clarification about what ``operating 
continuously'' means in the context of when CMS would conduct MMIS 
certifications.
    Response: The full requirement is that the system be operated 
continuously ``during the period for which FFP is requested.'' Although 
this question does not relate to this rule, the requirement means that 
the state must operate its system without interruption in a manner that 
meets the system certification requirements. Temporary interruptions 
that are consistent with normal operations (such as when necessary for 
updates or maintenance) would not affect compliance with this 
requirement.
    We also received the following general comments.
    Comment: Many commenters expressed support for matching COTS 
products at the 90 percent FFP.
    Response: We appreciate the support for this rule that allows COTS 
products to be matched at 90 percent FFP, and we believe this will 
encourage reuse and development of new products that can be shared.
    Comment: Many commenters expressed support for modularity, as it 
will encourage states to pursue smaller and more modular procurements 
and reduce the risk of large IT implementation projects. They also 
support our direction to encourage modularity, reusability and the 
flexibility to try new approaches.
    Response: We appreciate this positive feedback and will continue to 
support this approach in future subregulatory guidance and in our work 
with states and vendors engaged in modular builds.
    Comment: Some commenters expressed concurrence with the need for 
meaningful interoperability standards and concern that seamless 
coordination will not be truly achieved until these standards are in 
place. One commenter expressed support of adopting standards for 
Medicaid Health Information Enterprises that are eligible for enhanced 
FFP. Another commenter recommended that CMS specify the review criteria 
for how the interoperability requirement is to be satisfied.
    Response: We concur with the commenter in support of meaningful 
interoperability standards. We welcome a dialogue with vendors and 
states on this topic.
    Comment: One comment expressed the need for states to use industry 
standards to help ensure success of modular solutions. A commenter 
recommends that modular development for MMIS facilitate a phased 
approach to procurement/implementation and that the risks can be 
mitigated by the use of a systems integrator to manage the timing and 
approach to integration and to facilitate interoperability.
    Response: We concur.
    Comment: A commenter expressed concern that some of the 
requirements included in Sec.  433.112(b) may not be applicable in an 
Administrative Services Organization (ASO) model. The commenter offered 
several recommendations to address this. The commenter also offered 
recommendations for improved wording to accommodate the ASO model.
    Response: We concur with the commenter's recommendation to include 
revisions in the final rule to include the ASO model, and have included 
this change at Sec.  433.111(b)(2)(ii). The ASO model is already 
supported under current regulations, but this final rule is modified to 
specifically address ASOs.
    Comment: One commenter expressed that funding for E&E systems 
should not be approved unless and until the states seeking such funding 
can demonstrate a clearly articulated roadmap for integrated 
eligibility and contract bidders should be required to describe how 
their solution is able to assist states and CMS in reaching the goal of 
integrated eligibility. The commenter also recommended that CMS work 
with states and the broader IT community to allow for more 
standardization across the program.
    Response: We agree with the commenter's concern around integrated 
eligibility roadmap; however, it is better addressed via subregulatory 
guidance. We welcome a dialogue with vendors and states regarding an 
effective approach to standardization across the program as we develop 
that guidance.
    Comment: A commenter noted that we should consider enhanced FFP for 
Organizational Change Management and related activities.
    Response: We appreciate the comment; however Organizational Change 
Management is out of the scope of this final rule.
    Comment: One commenter suggested those counties that provide direct 
services to Medicaid beneficiaries should be allowed to apply directly 
for FFP for enhancements to E&E systems.
    Response: We acknowledge the suggestion; however FFP is only 
available to the single state agency that has oversight for 
implementation of the Medicaid program.
    Comment: A commenter expressed concern that by requiring systems to 
use industry standards adopted by ONC, in addition to those standards 
already specified for Medicaid MMIS and E&E systems, this increases the 
standards applied to State systems and the States' responsibility in 
monitoring and adapting to these additional standards. The commenter 
requests that CMS take a leadership role to assure that states have 
appropriate notice and response time to give input on ONC proposed 
industry standards. One commenter asked whether CMS, as the certifying 
agency, will represent the State Medicaid Agencies on standards 
proposed by ONC.
    Response: We acknowledge the state's concern with regard to 
industry standards. We will consider ways to improve communication of 
states' concerns for new standards from ONC. While we do not believe it 
is our role to represent states in national standards

[[Page 75836]]

development processes, we do believe it is our role to support all 
partners, including states, in considering appropriate standards for 
widespread adoption.
    Comment: CMS was urged to develop and test innovative models that 
are modular and to prioritize critical requirements and functionality 
that will deliver features for customers.
    Response: We agree with this suggestion and will discuss further 
with states and stakeholders, however it is not necessary to address it 
in the final regulation.
    Comment: Some commenters expressed concurrence that state Medicaid 
systems must support seamless operational coordination and integration 
not only with the marketplaces, but also with community organizations 
providing outreach and enrollment assistance services. One commenter 
recommended a prioritized list of ``modifications to further improve 
interaction and alignment between state Medicaid agencies and the 
Exchange program''. Additionally, this commenter placed importance on 
aligning and streamlining eligibility policies and encouraged CMS work 
with states and vendors to explore a variety of communications.
    Response: We concur with the supportive comments and reviewed the 
prioritized list of ``modifications to further improve interaction and 
alignment between state Medicaid agencies and the Exchange program''. 
We welcome a dialogue with vendors and states regarding aligning and 
streamlining eligibility policies.
    Comment: A commenter recommended adding a definition for ``seamless 
coordination and integration''. One commenter inquired if the 
definition in the context of proposed rule will include the 
coordination and integration with the Marketplace, the FDSH, as well as 
interoperability with health information exchanges, public health 
agencies, human services programs and community organizations providing 
outreach and enrollment assistance as applicable.
    Response: We welcome a dialogue with vendors and states regarding 
the definition for ``seamless coordination and integration'' and will 
reflect outcomes in subregulatory guidance, as described above.
    Comment: One commenter suggested CMS adopt similar strategy as the 
Innovation Center's strategy to develop and test innovation models.
    Response: We appreciate the comment to adopt a similar strategy as 
the Innovation Center's strategy to develop and test innovation models. 
Although, this comment is out of the scope of this final rule, we 
believe this idea is valuable and we will take this strategy under 
consideration.
    Comment: Several commenters expressed concern that the growth in 
the number of beneficiaries, as well as the increased need to 
communicate personal information between parties, will inevitably lead 
to increased misuse of beneficiary identities, for health care purposes 
as well as non-healthcare purposes. Further, they expressed that the 
use of the Social Security number as the primary identifier among 
stakeholders such as hospitals, medical practices, and Managed Medicaid 
beneficiaries will continue to be used as identification.
    Response: We have received several comments about improving privacy 
and security processes to reduce Medicaid fraud and prevent identity 
theft of Medicaid beneficiaries. We appreciate the commenter's 
recommendation of implementing a HealthCare ID; however, this 
recommendation is outside of the scope of this final rule. If we decide 
to implement a HealthCare ID, we will address this in subregulatory 
guidance.
    Comment: A few commenters suggested that states should consider 
modifying their single streamlined application to include questions to 
determine an individual's MSP eligibility. One commenter recommended 
enhancements to state E&E systems regarding MSP determinations and 
renewals, including the ability to apply online, automatic eligibility 
determinations, enhancing notices, and minimizing human error to avoid 
incorrect determinations of eligibility at renewal. Another commenter 
urged CMS to identify more straight forward paths to using MAGI 
methodology to simplify the ABD application process
    Response: We consider these comments to be outside of the scope of 
this rule, however, we will take these comments into consideration.
    Comment: One commenter requested CMS clarification regarding the 
waiver requirements for Sec.  435.949 connecting to the FDSH for 
verification.
    Response: Although this is outside of the scope of this rule, we 
will take this into consideration.
    Comments: One comment requested that enhancements that are 
interfaces to existing state E&E systems and other data systems should 
be prioritized for FFP, as these enhancements have the flexibility to 
span multiple data sets to improve direct service delivery.
    Response: We appreciate this suggestion; however, we consider this 
comment to be outside the scope of the proposed rule, and therefore, 
will not address it in this final rule.
    Comment: A commenter recommended that those states who are still 
using paper fax machines switch over to an electronic fax system.
    Response: We appreciate the comment; however, it is outside the 
scope of the proposed rule, and therefore, is not addressed in this 
final rule.

B. Technical Changes to 42 CFR Part 433, Subpart C--Mechanized Claims 
Processing and Information Retrieval Systems

    We solicited comments concerning the following proposed technical 
changes:
     Sec.  433.110(a)(1) referred to ``45 CFR part 74''. Our 
proposed rule replaced this citation with, ``45 CFR part 92''. This 
final rule corrects Sec.  433.110(a)(1) to refer to ``45 CFR part 75''.
     Due to a drafting error in the April 19, 2011 rule, Sec.  
433.110(a)(2) is followed by paragraphs (ii) and (iii) which are 
unrelated to (a)(2). The intent of the 2011 rule was to remove these 
paragraphs along with the requirement for a triennial review of an 
MMIS. In this final rule paragraphs (ii) and (iii) are removed from 
Sec.  433.110(a)(2).
     Sec.  433.110 is amended to remove paragraph (b) because 
the statutory waiver authority upon which this provision was based was 
deleted in the Balanced Budget Act of 1997, Public Law 105-33, sec. 
4753.
     Sec.  433.116(c) referenced the conditions (1) through 
(16) under Sec.  433.112(b). Since new conditions have been added to 
Sec.  433.112(b) we updated Sec.  433.116(c) to reference the 
conditions (1) through (22) under Sec.  433.112(b).
     Sec.  433.119 required compliance with Sec.  
433.112(b)(1), (3), (4), and (7) through (16). This final rule reflects 
the newly added conditions at Sec.  433.112(b)(1) through (22).
    We received no comments on these technical corrections to part 433 
and are finalizing these as proposed.

C. Changes to 45 CFR Part 95--General Administration--Grant Programs, 
Subpart F

    In the final rule titled ``State Systems Advance Planning Document 
(APD) Process'', (75 FR 66319, October 28, 2010), Sec.  95.611 was 
modified to include an acquisition threshold for prior approval of the 
state costs at the regular matching rate but noted that equipment or 
services at the enhanced matching rate necessitated prior approval 
regardless of the cost. We proposed to amend Sec.  95.611 to align all 
Medicaid IT

[[Page 75837]]

requirements with existing policy for MMIS regarding prior approvals, 
such that what is currently acceptable for regular match would be 
acceptable for enhanced match as well. We proposed that if there is 
already an approved APD, prior approval will be required in order for 
the state to release acquisition solicitation documents or execute 
contracts when the contract is anticipated to or will exceed $500,000. 
For all Medicaid IT acquisition documents, an exemption from prior 
federal approval shall be assumed in the approval of an APD provided 
that: The acquisition summary provides sufficient detail to base an 
exemption request; the acquisition does not deviate from the terms of 
the exemption; and, the acquisition is not the initial acquisition for 
a high risk activity, such as software application development. All 
acquisitions must comply with the federal provisions contained in Sec.  
95.610(c)(1)(viii) and (c)(2)(vi) or submit an Acquisition Checklist 
for prior approval.
    For noncompetitive acquisitions, including contract amendments, 
when the resulting contract is anticipated to exceed $1,000,000, the 
state will be required to submit a sole source justification in 
addition to the acquisition document. The sole source justification can 
be provided as part of the APD.
    If the state does not opt for an exemption or submittal of an 
Acquisition Checklist for the contract, prior to the execution, the 
state will be required to submit the contract when it is anticipated to 
exceed the following thresholds, unless specifically exempted by CMS: 
Software application development--$6,000,000 or more (competitive) and 
$1,000,000 or more (noncompetitive); Hardware and COTS software--
$20,000,000 or more (competitive) and $1,000,000 or more 
(noncompetitive); Operations and Software Maintenance acquisitions 
combined with hardware, COTS or software application development--the 
thresholds stated in Sec.  95.611(b)(1)(v)(A) and (B) apply.
    For contract amendments within the scope of the base contract, 
unless specifically exempted by the Department, prior to execution of 
the contract amendment involving contract cost increases which 
cumulatively exceed 20 percent of the base contract cost.
    The following is a summary of the comments we received regarding 
the proposed changes to part 95.
    Comment: We received several comments commending CMS for aligning 
the acquisition thresholds for E&E systems to that of the MMIS. One 
commenter conveyed their commitment to work with our Federal partners 
in ACF and the USDA, Food and Nutrition Services who oversee the 
Supplemental Nutrition Assistance Program (SNAP) to clarify the 
acquisition costs and thresholds for all benefiting programs in support 
of an integrated E&E system.
    Response: We concur with the supportive comments and we are pleased 
with the expressed commitment to work with our federal partners.
    Comment: A commenter asked, regarding prior approval requirements, 
if the $500,000 threshold is for a specific piece of work that is part 
of a larger project, or if the threshold applies when the $500,000 is 
met in the aggregate.
    Response: The $500,000 threshold is for a specific procurement, or 
contract action and is not an aggregate.
    Comment: A commenter asked CMS to confirm that the prior federal 
approval exemption can be applied to projects under enhanced funding 
and for clarity on the requirement to provide ``sufficient detail to 
base an exemption request'' in the APD acquisition summary. The 
commenter also requested clarification on whether or not contract 
amendments based on an approved initial acquisition contract can 
qualify for the prior federal approval exemption.
    Response: We believe that existing regulation at Sec.  95.610 
already provides sufficient detail stating that for all Medicaid IT 
acquisition documents, an exemption from prior federal approval, 
including enhanced funding, shall be assumed in the approval of an APD 
provided that the acquisition summary provides sufficient detail to 
base an exemption request; the acquisition does not deviate from the 
terms of the exemption; and, the acquisition is not the initial 
acquisition for a high risk activity, such as software application 
development. All acquisitions must comply with the federal provisions 
contained in Sec.  95.610(c)(1)(viii) and (c)(2)(vi) or submit an 
Acquisition Checklist for prior approval.
    In addition, we proposed to amend Sec.  95.611(a)(2) by removing 
the reference to 45 CFR 1355.52. This paragraph provides prior approval 
requirements when states plan to acquire ADP equipment or services with 
FFP at an enhanced matching rate for the Title IV-D, IV-E, and XIX 
programs, regardless of acquisition costs. We proposed to delete the 
reference to the Title IV-E regulation, 45 CFR 1355.52 because enhanced 
funding for information systems supporting the Title IV-E program 
expired in 1997.
    We received no comments in response to our technical amendment to 
Sec.  95.611 and will finalize as proposed.

IV. Provisions of the Final Regulations

    For the most part, this final rule incorporates the provisions of 
the proposed rule. Those provisions of this final rule that differ from 
the proposed rule are as follows:
     In Sec.  433.110 of the proposed rule, we inadvertently 
proposed to remove and reserve paragraph (b). Therefore, in this final 
rule, we are not finalizing this change.
     In Sec.  433.111(b), we expanded the definition of 
mechanized claims processing and information retrieval system to 
include language consistent with the concept of modularity and to 
elaborate on the functionalities included in such systems. We included 
in the revised definition a concept of ``System of systems'', to 
emphasize that such a system may consist of multiple, interoperable 
subsystems, or modules to support MMIS and E&E. Note that in this final 
rule the words ``subsystem'' and ``module'' have the same meaning.
     In Sec.  433.111(b), we deleted ``non-proprietary'' to 
remove this limitation from the description of Mechanized Claims 
Processing and Information Retrieval System modules.
     In Sec.  433.111(b)(1)(i) through (iii), we substituted 
the word ``module(s)'' for ``subsystem(s)'' to be consistent with our 
modular approach.
     In Sec.  433.111(b)(2)(i), we added clarifying language to 
indicate that E&E systems are used to determine eligibility for 
enrollment.
     In Sec.  433.111(b)(2)(ii), we added language to clarify 
that MMIS are used to perform other management and administrative 
functions, to reference the MMIS Certification Toolkit, and to clarify 
that this is applicable in fee for service, managed care and ASO 
environments.
     In Sec.  433.111(f), we added a definition of ``Service.''
     In Sec.  433.111(g), we slightly altered the definition of 
``shared service'' to clarify that such services are available to other 
entities, including states, for use, and may include SaaS.
     In Sec.  433.111(h), we replaced ``MMIS Module'' with the 
term ``module'' to broaden the meaning to apply to either MMIS or E&E.
     In Sec.  433.111(i), we deleted the sentence that excluded 
software developed for public assistance programs from the definition 
of COTS software, to permit their inclusion, if appropriate.
     In Sec.  433.111(j), we have added a definition of SaaS.

[[Page 75838]]

     In Sec.  433.112(b)(19), we added that key state personnel 
must be identified by name.
     In Sec.  433.112(b)(20), we struck ``MMIS'' to make the 
condition more broadly applicable to both MMIS and E&E.
     In Sec.  433.112(b)(21), we struck ``MMIS'' to make the 
condition more broadly applicable to both MMIS and E&E.
     In Sec.  433.116(j), we modified this paragraph to remove 
the compliance date of December 31, 2015.

V. Collection of Information Requirements

    While this rule sets out information collection requirements, the 
rule does not contain any new or revised reporting, recordkeeping, or 
third-party disclosure requirements. Consequently, the provisions of 
the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35) and its 
implementing regulations (5 CFR part 1320) do not apply.

VI. Regulatory Impact Analysis

A. Statement of Need

    Experience with the Affordable Care Act implementation has shown 
that Medicaid eligibility policies and business processes benefit from 
continued updating and strengthening. System transformations are needed 
to apply new rules to adjudicate eligibility for the program; enroll 
millions of newly eligible individuals through multiple channels; renew 
eligibility for existing enrollees; operate seamlessly with the Health 
Insurance Marketplaces (``Marketplaces''); participate in a system to 
verify information from applicants electronically; incorporate a 
streamlined application used to apply for multiple sources of coverage 
and financial assistance; and produce notices and communications to 
applicants and beneficiaries concerning the process, outcomes, and 
their rights to dispute or appeal.
    We wish to ensure that our technology investments result in a high 
degree of interaction and interoperability to maximize value and 
minimize burden and costs on providers and beneficiaries. Thus, we are 
committed to providing ongoing 90 percent FFP for DDI or 75 percent FFP 
for M&Os of such systems. We have provided that states must commit to a 
set of standards and conditions to receive the enhanced FFP. This 
enhanced FFP reduces the financial burden on states to 10 percent of 
the costs compared to the 50 percent financial burden currently in 
place and ensures that states continue to utilize current technology 
development and deployment practices and produce reliable business 
outputs and outcomes.

B. Overall Impact

    We have examined the impacts of this rule as required by Executive 
Order 12866 on Regulatory Planning and Review (September 30, 1993), 
Executive Order 13563 on Improving Regulation and Regulatory Review 
(January 18, 2011), the Regulatory Flexibility Act (RFA) (September 19, 
1980, Pub. L. 96-354), section 1102(b) of the Act, section 202 of the 
Unfunded Mandates Reform Act of 1995 (March 22, 1995; Pub. L. 104-4), 
Executive Order 13132 on Federalism (August 4, 1999) and the 
Congressional Review Act (5 U.S.C. 804(2).
    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Section 
3(f) of Executive Order 12866 defines a ``significant regulatory 
action'' as an action that is likely to result in a rule: (1) Having an 
annual effect on the economy of $100 million or more in any 1 year, or 
adversely and materially affecting a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or state, local or tribal governments or communities (also 
referred to as ``economically significant''); (2) creating a serious 
inconsistency or otherwise interfering with an action taken or planned 
by another agency; (3) materially altering the budgetary impacts of 
entitlement grants, user fees, or loan programs or the rights and 
obligations of recipients thereof; or (4) raising novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the Executive Order.
    A regulatory impact analysis (RIA) must be prepared for major rules 
with economically significant effects ($100 million or more in any 1 
year). We estimate that this rulemaking is ``economically significant'' 
as measured by the $100 million threshold, and hence also a major rule 
under the Congressional Review Act. Accordingly, we have prepared a 
Regulatory Impact Analysis that to the best of our ability presents the 
costs and benefits of the rulemaking.

C. Anticipated Effects

    1. While it is difficult to predict state behavior, we believe all 
states will comply with the standards and conditions in this regulation 
to receive the 90 percent FFP, and have assumed that for the purpose of 
these estimates.
    To meet the requirements of the Affordable Care Act, states, the 
District of Columbia and the U.S. Territories must build new E&E 
systems or modernize existing E&E systems. Most states have added new 
functionalities to interface with the Marketplaces and implemented new 
adaptability standards and conditions (such as incorporation of 
mandated eligibility categories).
    There are currently 9 states that have relatively new E&E systems 
and do not need replacement of whole systems, but are instead making 
modular improvements and upgrades. We assumed that the cost per state 
for the 9 states improving rather than replacing systems would be $3.8 
million on average, for a total of $34 million FFP. For these 9 states, 
we believe upgrades would occur even in the absence of this rule, 
during the initial 5 years of enhanced funding. We believe that most 
states have not had sufficient time to complete the total system 
replacement for both MAGI and non-MAGI eligibility functionality, as we 
believe that new system builds will take 4-6 years. We assume that an 
additional 19 states will retire their legacy E&E systems with ongoing 
90 percent FFP for design and development within 2-3 years. We 
estimated that the average cost savings for each state will be $16.6 
million per year. We expect all 19 states to eliminate their legacy E&E 
systems by 2019; therefore, the total cost savings by 2019 for those 19 
states will be about $368 million. Based on previous spending trends, 
we assumed that those 9 states with new systems account for 15 percent 
of E&E spending and the 28 states that we anticipate retiring their 
legacy E&E systems by 2025 account for 55 percent of E&E spending. We 
believe that by eliminating 28 legacy systems, we reduce M&O costs by 
maintaining only one E&E system per state. Eventually, we assume that 
all states will replace their current E&E legacy system(s) using 
ongoing 90 percent FFP. We expect almost all states to eliminate their 
legacy E&E systems by 2025, adding about $3 billion in cost savings. To 
calculate the impact of the regulation, we assumed that new E&E systems 
on average would cost $50 million over 3 years for each state ($15 
million federal costs at 90 percent FFP per year).

[[Page 75839]]

    States will see a decrease in their net state share due to the 
enhanced federal match for eligibility systems and states will also 
realize benefits by putting in place the set of standards and 
conditions articulated in this final regulation.
    The state net costs from FY 2016 through 2025 for implementing the 
regulation on eligibility systems is approximately -$1.1 billion. This 
includes approximately $572 million in state costs for system design 
and development, offset by lower anticipated M&Os costs. These costs 
represent only the state share.

                                                         Table 1--State Net Costs by Fiscal Year
                                                                      [In millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                    2016       2017       2018       2019       2020       2021       2022       2023       2024       2025    2016-2025
--------------------------------------------------------------------------------------------------------------------------------------------------------
E&E Systems--DDI...............        199        244         37         31         20         16         10          5          5          5        572
E&E Systems--M&O...............       (19)       (19)       (95)      (120)      (165)      (213)      (240)      (263)      (280)      (286)    (1,700)
    Total......................        180        225       (58)       (89)      (145)      (197)      (230)      (258)      (275)      (281)    (1,128)
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Numbers in parentheses represent savings to State Governments.

    Similar to the federal budget impact, we expect to see higher 
savings achieved by states over the 10-year budget window due to the 
increased savings by moving away from operating two or more systems, 
and replacing legacy systems.
    The RFA requires agencies to analyze options for regulatory relief 
of small entities, if a rule has a significant impact on a substantial 
number of small entities.
    Since this rule would primarily affect states, which are not 
considered small entities, the Secretary has determined that this final 
rule will not be likely to have a significant economic impact on a 
substantial number of small entities. Therefore, we have not prepared a 
regulatory flexibility analysis.
    In addition, section 1102(b) of the Act requires us to prepare a 
regulatory impact analysis if a rule may have a significant impact on 
the operations of a substantial number of small rural hospitals. This 
analysis must conform to the provisions of section 604 of the RFA. For 
purposes of section 1102(b) of the Act, we define a small rural 
hospital as a hospital that is located outside of a metropolitan 
statistical area and has fewer than 100 beds. This rule will not have a 
significant impact on hospitals. Therefore, the Secretary has 
determined that this final rule will not have a significant impact on 
the operations of a substantial number of small rural hospitals.
    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) also 
requires that agencies assess anticipated costs and benefits before 
issuing any rule whose mandates require spending in any 1 year of $100 
million in 1995 dollars, updated annually for inflation. In 2015, that 
is approximately $144 million. This rule does not mandate expenditures 
by the state governments, local governments, tribal governments, or the 
private sector. This rule provides that states can receive enhanced FFP 
if states ensure that the mechanized claims processing and information 
retrieval systems, including those that perform eligibility 
determination and enrollment activities, as well as the Medicaid 
portion of integrated eligibility determination systems, meet with 
certain conditions including migrating to the MITA framework and 
meeting certain performance requirements. This is a voluntary activity 
and the rule imposes no substantial mandates on states.
    2. The federal net costs from FY 2016 through 2025 of implementing 
the regulation on eligibility systems is approximately $3 billion. This 
includes approximately $5.1 billion in increased federal costs for 
system design and development, offset by lower anticipated M&Os costs. 
These costs represent only the federal share. Uncertainty exists 
because we are unsure of the rate of adoption for states to make the 
changes in this final rule.

                                                        Table 2--Federal Net Costs By Fiscal Year
                                                                      [In millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                    2016       2017       2018       2019       2020       2021       2022       2023       2024       2025    2016-2025
--------------------------------------------------------------------------------------------------------------------------------------------------------
E&E Systems--DDI...............      1,788      2,192        333        277        184        143         89         47         44         44      5,141
E&E Systems--M&O...............       (19)       (19)       (95)      (120)      (165)      (298)      (325)      (344)      (360)      (367)    (2,112)
    Total......................      1,769      2,173        238        157         19      (155)      (236)      (298)      (315)      (323)      3,029
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Numbers in parentheses represent savings to the Federal Government.

    We considered a number of ways in which application of the 
standards and conditions, including increased use of MITA, could result 
in savings; however, as no states have yet reached MITA maturity, it is 
difficult to predict the savings that may accrue over any certain 
timeframe. These areas include the following:
     Modular technology solutions: As states, or groups of 
states, would begin to develop ``modular'' technology solutions, these 
solutions could be used by others through a ``plug and play'' approach, 
in which pieces of a new MMIS would not need to be reinvented from 
scratch every time, but rather, could be incorporated into the MMIS 
framework.
    We assume that savings associated with reusable technology could be 
achieved in both the development and operation of new systems.
     Increased use of industry standards and open source 
technologies: While HIPAA administrative transaction standards have 
existed for 8 to 10 years, use of more specific industry standards to 
build new systems would allow such systems to exchange information 
seamlessly. We also believe that more open source technology would 
encourage the development of software solutions that address the needs 
of a variety of diverse activities--such as eligibility, member 
enrollment, and pharmacy analysis of drug claims. Software that is 
sufficiently flexible to meet different needs and perform different 
functions could result in cost savings, as states are able to use the

[[Page 75840]]

systems without making major adaptations to them.
     Maintenance and operations: As states continue to 
implement changes, the M&O costs of new systems should decrease. Less 
maintenance should be required than that necessary to reengineer 
special, highly customized systems every time there is a new regulatory 
or legal requirement.
     Reengineering business processes, more web based 
solutions, service-oriented architecture (SOA): Savings are likely to 
result from the modular design and operation of systems, combined with 
use of standardized business processes, as states are being compelled 
to rethink and streamline processes as a result of greater reliance on 
technology.
    There are uncertainties regarding our assumptions, including state 
behavior, and the associated cost estimates for states implementing new 
systems. However, we have based our assumptions on data on states' 
previous behavior, spending and APDs over the last 4 years. It is 
important to point out that we believe that systems transformation is 
necessary to meet the vision of the Affordable Care Act and 
consequently, these costs provide for efficient systems that in the end 
would provide for more efficient and effective administration of the 
state plan.

D. Alternatives Considered

    We considered as an alternative to our rule to not continue to 
provide enhanced match for state eligibility systems builds after 
December 2015, and to not update federal standards and conditions for 
Medicaid IT development. We also considered an extension for a 2 or 3 
year timeline but deduced that it was both insufficient for states to 
effectively transition out of their legacy systems and to complete 
human services integration in the new shared eligibility system. 
Furthermore, this assumes that all significant policy changes that 
trigger the need for IT updates were limited to those in the Affordable 
Care Act, however systems reforms are an on-going facet of eligibility 
policy with an accompanying ongoing financial burden. A limited 
extension would also ignore that states that already modernized and did 
not replace their systems starting in 2011 will eventually need to do 
so to maintain system integrity and modernity sometime after a 2 or 3-
year extension. Absent an ongoing extension, states would receive the 
traditional 50 percent FFP for reasonable administrative expenditures 
for designing, developing, installing, or enhancing Medicaid 
eligibility determination systems. Similarly, states would receive 50 
percent FFP for expenditures associated with the M&O of such systems. 
However, states would have to continue to meet the requirements of 
federal legislation. Since the Affordable Care Act significantly alters 
Medicaid eligibility, we believe that treating E&E systems as an 
integral part of mechanized claims processing system and information 
retrieval systems is consistent with the federal statute. This would 
have the effect of continuing the higher federal matching rate, which 
would provide states additional resources to meet this challenge. In 
addition, the federal guidance in the form of clearer federal standards 
and conditions would facilitate the design, development, 
implementation, and operation of IT and systems projects that fully 
support the Medicaid program, including the new responsibilities under 
the Affordable Care Act. Supporting the transformation of Medicaid E&E 
systems through these enhanced funding and clearer federal guidelines 
will also reduce duplication of systems and overall system costs.

E. Accounting Statement and Table

    Whenever a rule is considered a significant rule under Executive 
Order 12866, we are required to develop an Accounting Statement. We 
have prepared an accounting statement showing the classification of the 
expenditures associated with the provisions of this rule. Tables 3 
through 5 provide our best estimate of the net costs as a result of the 
changes presented in this rule.

                                           Table 3--Federal Net Costs
----------------------------------------------------------------------------------------------------------------
                                                                                       Units
                                                                 -----------------------------------------------
                    Category                         Estimates                     Discount rate      Period
                                                                    Year dollar          %            covered
----------------------------------------------------------------------------------------------------------------
Annualized Monetized ($million/year)............           444.3            2016               7       2016-2025
                                                           363.6            2016               3       2016-2025
----------------------------------------------------------------------------------------------------------------


                                            Table 4--State Net Costs
----------------------------------------------------------------------------------------------------------------
                                                                                       Units
                                                                 -----------------------------------------------
                    Category                         Estimates                     Discount rate
                                                                    Year dollar          %        Period covered
----------------------------------------------------------------------------------------------------------------
Annualized Monetized ($million/year)............           -81.2            2016               7       2016-2025
                                                           -99.1            2016               3       2016-2025
----------------------------------------------------------------------------------------------------------------


   Table 5--Estimated Net Present Value of Federal Costs, FY 2016-2025
                        [In millions of dollars]
------------------------------------------------------------------------
                                                   Discount rate
                                         -------------------------------
                                                7%              3%
------------------------------------------------------------------------
Federal Costs NPV.......................        $3,120.6        $3,101.8

[[Page 75841]]

 
State Costs NPV.........................         -$570.7         -$845.5
------------------------------------------------------------------------
*Note: The 10-year federal costs are less than the net present value of
  the federal costs and savings due to the pattern of projected costs
  and savings over the 10-year period. There are costs in the first
  several years of the period, followed by savings in the last several
  years. When the costs and savings are discounted, the savings are more
  heavily discounted when calculating the net present value because they
  occur later. Therefore, the net present values under the discount
  factors used here are actually greater than the 10-year net cost.

    We received the following comment about this analysis:
    Comment: One commenter requested CMS identify the nine states 
referred to as having relatively new E&E systems and the 28 states 
referred to as having legacy E&E systems.
    Response: The nine states that have relatively new E&E systems that 
do not need system replacements are; Colorado, Florida, Idaho, Montana, 
New Mexico, North Carolina, Oklahoma, Texas, and Utah. The twenty-eight 
states/territories that are referred to as having a legacy E&E system 
that we believe will eventually retire their legacy system with ongoing 
90 percent FFP are: Alabama, Alaska, American Samoa, California, 
Connecticut, Georgia, Guam, Illinois, Louisiana, Maine, Maryland, 
Massachusetts, Michigan, Nebraska, Nevada, New York, North Dakota, 
Ohio, Oregon, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, 
South Dakota, Tennessee, Vermont, Virgin Islands, and Wyoming. We 
believe that the remaining states would have retired their legacy E&E 
systems with a 2-year 90 percent FFP extension.

F. Conclusion

    We considered a number of ways in which application of the 
standards and conditions, including increased use of MITA, could result 
in savings. We see increased investments in DDI somewhat offset by 
lower costs over the 10-year budget window due to the increased savings 
to operating one E&E system and eliminating legacy systems. The costs 
shift from mostly 90 percent FFP for design, development, and 
installation to 75 percent FFP for M&Os over time.
    The federal net costs from FY 2016 through 2025 of implementing the 
regulation on eligibility systems is approximately $3 billion. This 
includes approximately $5.1 billion in increased federal costs for 
system design and development, offset by lower anticipated M&Os costs. 
The state net costs from FY 2016 through 2025 for implementing the 
regulation on eligibility systems is approximately -$1.1 billion. This 
includes approximately $572 million in state costs for system design 
and development, offset by lower anticipated M&Os costs.
    There are uncertainties regarding our assumptions, including state 
behavior, and the associated cost estimates for states implementing new 
systems. However, we have based our assumptions on data on states' 
previous behavior, spending and APDs over the last 4 years. It is 
important to point out that we believe that systems transformation is 
necessary to meet the vision of the Affordable Care Act and 
consequently, these costs are necessary and would provide for efficient 
systems that in the end would provide for more efficient and effective 
administration of the state plan.
    The analysis above, together with the remainder of this preamble, 
provides a Regulatory Impact Analysis. The reason to refer to other 
portions of the preamble is that they include sections, such as the 
statutory authority and purpose that are required but are not normally 
included in the impact analysis section.
    In accordance with the provisions of Executive Order 12866, this 
regulation was reviewed by the Office of Management and Budget.

List of Subjects

42 CFR Part 433

    Administrative practice and procedure, Child support, Claims, Grant 
programs--health, Medicaid, Reporting and recordkeeping requirements.

45 CFR Part 95

    Claims, Computer technology, Grant programs--health, Grant 
programs--social programs, Reporting and recordkeeping requirements, 
Social security.
    For the reasons set forth in the preamble, the Centers for Medicare 
& Medicaid Services amends 42 CFR chapter IV as set forth below:

PART 433--STATE FISCAL ADMINISTRATION

0
6. The authority citation for part 433 continues to read as follows:

    Authority:  Section 1102 of the Social Security Act, (42 U.S.C. 
1302).


Sec.  433.110  [Amended]

0
2. In Sec.  433.110, amend paragraph (a)(1) by removing the reference 
``45 CFR part 74'' and adding in its place ``45 CFR part 75'', removing 
paragraphs (a)(2)(ii) and (iii), and removing and reserving paragraph 
(b).

0
3. Section 433.111 is amended by revising paragraph (b) and adding 
paragraphs (d) through (j) to read as follows:


Sec.  433.111  Definitions.

* * * * *
    (b) ``Mechanized claims processing and information retrieval 
system'' means:
    (1) ``Mechanized claims processing and information retrieval 
system'' means the system of software and/or hardware used to process 
claims for medical assistance and to retrieve and produce service 
utilization and management information required by the Medicaid single 
state agency and Federal government for program administration and 
audit purposes. It may include modules of hardware, software, and other 
technical capabilities that are used by the Medicaid Single State 
Agency to manage, monitor, and administer the Medicaid enterprise, 
including transaction processing, information management, and reporting 
and data analytics.
    (2) ``Mechanized claims processing and information retrieval 
system'' includes a ``System of Systems.'' Under this definition all 
modules or systems developed to support a Medicaid Management 
Information System (MMIS) and Eligibility and Enrollment (E&E) may be 
implemented as discrete, independent, interoperable elements. Use of a 
System of Systems requires interoperability between the systems.

[[Page 75842]]

    (i) The system consists of--
    (A) Required modules specified by the Secretary.
    (B) Required changes to the system or required module that are 
specified by the Secretary.
    (C) Approved enhancements to the system or module.
    (ii) A ``Mechanized claims processing and information retrieval 
system'' include--s--
    (A) An Eligibility and Enrollment (E&E) System which is used to 
process applications from Medicaid or CHIP applicants and beneficiaries 
to determine eligibility for enrollment in the Medicaid or CHIP 
programs, as well as change in circumstance updates and renewals; and
    (B) A Medicaid Management Information System (MMIS) which is used 
to process claims for Medicaid payment from providers of medical care 
and services furnished to beneficiaries under the medical assistance 
program and to perform other functions necessary for economic and 
efficient operations, management, monitoring, and administration of the 
Medicaid program. The pertinent business areas are those included in 
the MMIS Certification Toolkit, and they may be applicable to Fee-For-
Service, Managed Care, or an Administrative Services Organization (ASO) 
model.
* * * * *
    (d) ``Open source'' means software that can be used freely, 
changed, and shared (in modified or unmodified form) by anyone. Open 
source software is distributed under Open Source Initiative-approved 
licenses that comply with an open source framework that allows for free 
redistribution, provision of the source code, allowance for 
modifications and derived works, free and open distribution of licenses 
without restrictions and licenses that are technology-neutral.
    (e) ``Proprietary'' means a closed source product licensed under 
exclusive legal right of the copyright holder with the intent that the 
licensee is given the right to use the software only under certain 
conditions, and restricted from other uses, such as modification, 
sharing, studying, redistribution, or reverse engineering.
    (f) ``Service'' means a self-contained unit of functionality that 
is a discretely invokable operation. Services can be combined to 
provide the functionality of a large software application.
    (g) ``Shared Service'' means the use of a service, including SaaS, 
by one part of an organization or group, including states, where that 
service is also made available to other entities of the organization, 
group or states. Thus the funding and resourcing of the service is 
shared and the providing department effectively becomes an internal 
service provider.
    (h) ``Module'' means a packaged, functional business process or set 
of processes implemented through software, data, and interoperable 
interfaces that are enabled through design principles in which 
functions of a complex system are partitioned into discrete, scalable, 
reusable components.
    (i) ``Commercial Off the Shelf'' (COTS) software means specialized 
software (which could be a system, subsystem or module) designed for 
specific applications that is available for sale or lease to other 
users in the commercial marketplace, and that can be used with little 
or no modification.
    (j) ``Software-as-a-Service'' (SaaS) means a software delivery 
model in which software is managed and licensed by its vendor-owner on 
a pay-for-use or subscription basis, centrally hosted, on-demand, and 
common to all users.

0
4. Section 433.112 is amended by revising the section heading and 
paragraphs (b) introductory text, (b)(12) and (16), and (c) and adding 
paragraphs (b)(17) through (22) to read as follows:


Sec.  433.112  FFP for design, development, installation or enhancement 
of mechanized processing and information retrieval systems.

* * * * *
    (b) CMS will approve the E&E or claims system described in an APD 
if certain conditions are met. The conditions that a system must meet 
are:
* * * * *
    (12) The agency ensures alignment with, and incorporation of, 
industry standards adopted by the Office of the National Coordinator 
for Health IT in accordance with 45 CFR part 170, subpart B: The HIPAA 
privacy, security and transaction standards; accessibility standards 
established under section 508 of the Rehabilitation Act, or standards 
that provide greater accessibility for individuals with disabilities, 
and compliance with Federal civil rights laws; standards adopted by the 
Secretary under section 1104 of the Affordable Care Act; and standards 
and protocols adopted by the Secretary under section 1561 of the 
Affordable Care Act.
* * * * *
    (16) The system supports seamless coordination and integration with 
the Marketplace, the Federal Data Services Hub, and allows 
interoperability with health information exchanges, public health 
agencies, human services programs, and community organizations 
providing outreach and enrollment assistance services as applicable.
    (17) For E&E systems, the State must have delivered acceptable 
MAGI-based system functionality, demonstrated by performance testing 
and results based on critical success factors, with limited mitigations 
and workarounds.
    (18) The State must submit plans that contain strategies for 
reducing the operational consequences of failure to meet applicable 
requirements for all major milestones and functionality.
    (19) The agency, in writing through the APD, must identify key 
state personnel by name, type and time commitment assigned to each 
project.
    (20) Systems and modules developed, installed or improved with 90 
percent match must include documentation of components and procedures 
such that the systems could be operated by a variety of contractors or 
other users.
    (21) For software systems and modules developed, installed or 
improved with 90 percent match, the State must consider strategies to 
minimize the costs and difficulty of operating the software on 
alternate hardware or operating systems.
    (22) Other conditions for compliance with existing statutory and 
regulatory requirements, issued through formal guidance procedures, 
determined by the Secretary to be necessary to update and ensure proper 
implementation of those existing requirements.
    (c)(1) FFP is available at 90 percent of a State's expenditures for 
the design, development, installation or enhancement of an E&E system 
that meets the requirements of this subpart and only for costs incurred 
for goods and services provided on or after April 19, 2011.
    (2) Design, development, installation, or enhancement costs include 
costs for initial licensing of commercial off the shelf (COTS) 
software, and the minimum necessary costs to analyze the suitability of 
COTS software, install, configure and integrate the COTS software, and 
modify non-COTS software to ensure coordination of operations. The 
nature and extent of such costs must be expressly described in the 
approved APD.
0
5. Section 433.116 is amended by revising paragraphs (b), (c), and (j) 
to read as follows:


Sec.  433.116  FFP for operation of mechanized claims processing and 
information retrieval systems.

* * * * *
    (b) CMS will approve enhanced FFP for system operations if the 
conditions specified in paragraphs (c) through (i) of this section are 
met.

[[Page 75843]]

    (c) The conditions of Sec.  433.112(b)(1) through (22) must be met 
at the time of approval.
* * * * *
    (j) Beginning, and no earlier than, April 19, 2011, FFP is 
available at 75 percent of a State's expenditures for the operation of 
an E&E system that meets the requirements of this subpart. FFP is not 
available for E&E systems that do not meet the standards and 
conditions.

0
6. Section 433.119 is amended by revising paragraph (a)(1) to read as 
follows:


Sec.  433.119  Conditions for reapproval; notice of decision.

    (a)* * *
    (1) The system meets the requirements of Sec.  433.112(b)(1), (3), 
(4), and (7) through (22).
* * * * *

0
7. Section 433.120 is revised to read as follows:


Sec.  433.120  Procedures for reduction of FFP after reapproval review.

    (a) If CMS determines after the reapproval review that the system 
no longer meets the conditions for reapproval in Sec.  433.119, CMS may 
reduce FFP for certain expenditures for system operations.
    (b) CMS may reduce FFP from 75 percent to 50 percent for 
expenditures related to the operations of non-compliant functionality 
or system components.
    For the reasons set forth in the preamble, the Department of Health 
and Human Services amends 45 CFR part 95 as set forth below:

PART 95--GENERAL ADMINISTRATION--GRANT PROGRAMS (PUBLIC ASSISTANCE, 
MEDICAL ASSISTANCE AND STATE CHILDREN'S HEALTH INSURANCE PROGRAMS)

0
8. The authority citation for part 95 continues to read as follows:

    Authority:  5 U.S.C 301, 42 U.S.C. 622(b), 629b(a), 652(a), 
652(d), 654A, 671(a), 1302, and 1396a(a).


0
9. Section 95.611 is amended by revising paragraph (a)(2) to read as 
follows:


Sec.  95.611  Prior approval conditions.

    (a)* * *
    (2) A State must obtain prior approval from the Department which is 
reflected in a record, as specified in paragraph (b) of this section, 
when the State plans to acquire ADP equipment or services with proposed 
FFP at the enhanced matching rate subject to one of the following:
    (i) If authorized by Sec.  205.35 of this title and part 307 of 
this title, regardless of the acquisition cost.
    (ii) If authorized by 42 CFR part 433, subpart C, if the contract 
is anticipated to or will exceed $500,000.
* * * * *

    Dated: November 16, 2015.
Andrew M. Slavitt,
Acting Administrator, Centers for Medicare & Medicaid Services.
    Dated: November 18, 2015.
Sylvia M. Burwell,
Secretary, Department of Health and Human Services.
[FR Doc. 2015-30591 Filed 12-3-15; 8:45 am]
 BILLING CODE 4120-01-P