[Federal Register Volume 81, Number 70 (Tuesday, April 12, 2016)]
[Rules and Regulations]
[Pages 21479-21480]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-08368]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Part 447

[CMS-2328-F2]
RIN 0938-AS89


Medicaid Program; Deadline for Access Monitoring Review Plan 
Submissions

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

ACTION: Final rule.

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SUMMARY: In the November 2, 2015 Federal Register, we published a final 
rule with comment period entitled ``Medicaid Program: Methods for 
Assuring Access to Covered Medicaid Services.'' The final rule with 
comment period established that states must develop and submit to CMS 
an access monitoring review plan by July 1, 2016. This document revises 
the deadline for states' access monitoring review plan submission to 
CMS until October 1, 2016.

DATES: Effective Date: These regulations are effective on April 8, 
2016.

FOR FURTHER INFORMATION CONTACT: Jeremy Silanskis, (410) 786-1592.

SUPPLEMENTARY INFORMATION: 

I. Background

    In the November 2, 2015 Federal Register (80 FR 67576), we 
published the ``Medicaid Program: Methods for Assuring Access to 
Covered Medicaid Services'' final rule with comment period that 
outlined a transparent data-driven process for states to document 
whether Medicaid payments are sufficient to enlist providers to assure 
beneficiary access to covered care and services consistent with section 
1902(a)(30)(A) of the Social Security Act (the Act). This final rule 
with comment period included new Sec.  447.203(b)(1) through (8) and 
revisions to Sec.  447.203(b). These regulations established that 
states must develop and submit to CMS an access monitoring review plan 
by July 1, 2016 for the following service categories: Primary care 
services (including those provided by a physician, FQHC, clinic or 
dental care); physician specialist services (for example, cardiology, 
urology, radiology); behavioral health services (including mental 
health and substance use disorder); pre- and post-natal obstetric 
services, including labor and delivery; and home health services.

II. Discussion and Provisions of This Final Regulation

    In the November 2, 2015 final rule with comment period, we 
solicited comments on Sec.  447.203(b)(5). Specifically, we solicited 
comments on the scope of services required for ongoing review in the 
review plans, the elements of review required through the plans, 
whether we should allow exemptions to the rule based on state program 
characteristics (for example, high managed care enrollment), and the 
deadline for submission of the initial access monitoring review plan. 
We received many comments that were outside of the scope of issues on 
which we solicited comments. Several commenters raised concerns over 
CMS's characterization in the regulatory preamble of the Supreme Court 
Decision: Armstrong v. Exceptional Child Center, Inc., 135 S. Ct. 1378 
(2015). Though we did not solicit comments on this issue, we agree with 
commenters that the decision is subject to judicial interpretation and 
we did not intend to imply an interpretation by the agency.
    The following is a summary of the comments and our responses on 
Sec.  447.203(b)(5).
    Comment: We received many comments requesting that CMS not allow 
exemptions based on high managed care enrollment or other program 
features.
    Response: While we continue to consider whether exemptions might be 
warranted in some circumstances, we believe that further experience 
with the access monitoring review system set forth in the final rule 
with comment period is necessary to determine the appropriate 
circumstances. The commenters did not offer consistent suggestions or 
supporting evidence to set a threshold that could exempt states, nor 
any suggestions for alternatives states might use to demonstrate 
compliance with section 1902(a)(30)(A) of the Act outside of the final 
rule with comment period requirements.
    Comment: A number of commenters recommended that CMS expand the 
services that CMS requires states to review in access monitoring plans.
    Response: Commenters that requested additional services did not 
provide sufficient data to compel us to modify the list of core 
services subject to the ongoing access reviews. The core services 
included in the final rule with comment period (that is, primary care 
services, physician specialist services, behavioral health services, 
pre- and post-natal obstetric services and home health services) were 
selected because they are frequently used services in Medicaid and 
access to these services indicates that an individual has primary 
sources of care, which may increase the likelihood of having their care 
needs met. We also note the final rule with comment period provides 
providers an opportunity and mechanism to bring access concerns to the 
attention of state Medicaid agencies and provide feedback on rate 
changes that may have a negative effect on access before states submit 
proposals to CMS.
    Comment: Several commenters requested CMS change the due date by 
which states are required to develop and submit the initial Access 
Monitoring Review Plans. Commenters noted that state agency staff may 
have difficulty developing and submitting the initial review plans 
within the July 1, 2016 timeframe for first year reviews. These 
commenters offered several different dates as an alternative, 
including: January 1, 2017, July 1, 2017, and 6 months following the 
close of the state's next legislative session. A number of other 
commenters requested CMS maintain the timelines established in the 
final rule.
    Response: We established the July 1, 2016 deadline for developing 
and submitting the access monitoring review plans in the final rule 
with comment period after careful consideration of issues raised 
through comments on the notice of proposed rulemaking (76 FR 26342) and 
after weighing all of the policies discussed in the final rule. Since 
issuing the final rule with comment period, we have been working 
closely with states on developing the access monitoring review plans. 
States are actively engaged in developing plans and have raised 
significant concerns over fulfilling the requirements of the rule by 
the July 1, 2016 deadline. Several states have noted that additional 
time will allow them to develop more robust and proficient review 
plans, and leave them better prepared to analyze and monitor compliance 
with section 1902(a)(30)(A) of the Act. We agree with this assessment 
and believe that there

[[Page 21480]]

are programmatic benefits to revising the due date and making 
conforming changes to the deadline for submission in subsequent review 
periods.
    Revision to the Access Monitoring Review Plan Timeframe: Based on 
concerns raised by commenters, in this final rule we are revising the 
deadline for submission effective date of the initial access monitoring 
review plan timeframe provision at Sec.  447.203(b)(5) introductory 
text until October 1, 2016. A conforming change will also be made to 
the deadline for submission in subsequent review periods at Sec.  
447.203(b)(5)(i) to October 1.

III. Waiver of Proposed Rulemaking and Delayed Effective Date

    Under section 553(b) of the Administrative Procedure Act (APA), the 
agency is required to publish a notice of the proposed rule in the 
Federal Register before the provisions of a rule take effect. 
Similarly, section 1871(b)(1) of the Act requires the Secretary to 
provide for notice of the proposed rule in the Federal Register and 
provide a period of not less than 60 days for public comment. In 
addition, section 553(d) of the APA, and section 1871(e)(1)(B)(i) of 
the Act mandate a 30-day delay in effective date after issuance or 
publication of a rule. Sections 553(b)(B) and 553(d)(3) of the APA 
provide for exceptions from the APA notice and comment, and delay in 
effective date requirements; similarly, sections 1871(b)(2)(C) and 
1871(e)(1)(B)(ii) of the Act provide exceptions from the notice and 
comment, and delay in effective date requirements of the Act. Section 
553(b)(B) of the APA and section 1871(b)(2)(C) of the Act authorize an 
agency to dispense with normal notice and comment rulemaking procedures 
for good cause if the agency makes a finding that the notice and 
comment process is impracticable, unnecessary, or contrary to the 
public interest; and includes a statement of the finding and the 
reasons for it in the notice. In addition, both section 553(d)(3) of 
the APA and section 1871(e)(1)(B)(ii) of the Act allow the agency to 
avoid the 30-day delay in effective date where such delay is contrary 
to the public interest and the agency includes in the rule a statement 
of the finding and the reasons for it.
    Because the deadlines for submission of access monitoring review 
plans are rules of procedure, the notice and comment requirements of 5 
U.S.C. 553 do not apply to this delay of the submission date. See 5 
U.S.C. 553(b)(3)(A). To the extent that section 553 applies in these 
circumstances however, CMS finds that the action comes within the 
provision's good cause exceptions because obtaining additional public 
comment is impracticable, unnecessary, and contrary to the public 
interest. See 5 U.S.C. 553(b)(3)(B). Given the imminence of the 
submission date, and the need for states to plan and allocate resources 
in advance, seeking public comment and having a delayed effective date 
for this short delay in the deadline for submission of access 
monitoring review plans is impracticable. And, because we provided an 
opportunity for public comment on issues that included the submission 
deadlines, further opportunity is not necessary. Moreover, we believe 
that delay of the submission deadlines would further the public 
interest in orderly implementation of regulatory requirements, and in 
ensuring development of viable access monitoring review plans in light 
of assertions by commenters that compliance with the original 
submission deadlines might be infeasible or disruptive.

IV. Collection of Information Requirements

    The November 2, 2015 final rule with comment period stipulated that 
states must develop and submit (to CMS) their initial access monitoring 
review plan by July 1, 2016. We are now extending the submission 
deadline to October 1, 2016. Similarly, we are revising the deadline 
for subsequent review periods from July 1 to October 1. Otherwise, this 
final rule does not impose any new or revised information collection 
requirements or burden. The November 2, 2015, information collection 
requirements and burden are approved by OMB under control number 0938-
1134 (CMS-10391).

V. Regulatory Impact Statement

    In the November 2, 2015 final rule with comment period, we 
discussed the impact of the access monitoring review plan requirements 
on states. We do not believe this delay of the deadline for submission 
of the access monitoring review plans will change any of the discussion 
in the impact statement of the November 2, 2015 final rule with comment 
period.
    In accordance with the provisions of Executive Order 12866, this 
regulation was reviewed by the Office of Management and Budget.

List of Subjects in 42 CFR Part 447

    Accounting, Administrative practice and procedure, Drugs, Grant 
programs-health, Health facilities, Health professions, Medicaid, 
Reporting and recordkeeping requirements, Rural areas.

    For the reasons set forth in the preamble, the Centers for Medicare 
& Medicaid Services amends 42 CFR chapter IV as set forth below:

PART 447--PAYMENTS FOR SERVICES

0
1. The authority citation for part 447 continues to read as follows:

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


Sec.  447.203  [Amended]

0
2. Section 447.203 is amended by:
0
a. In paragraph (b)(5) introductory text, removing the date ``July 1, 
2016'' and adding in its place the date ``October 1, 2016''.
0
b. In paragraph (b)(5)(i), removing all instances of the date ``July 
1'' and adding in their place the date ``October 1''.

    Dated: March 11, 2016.
Andrew M. Slavitt,
Acting Administrator, Centers for Medicare & Medicaid Services.
    Dated: April 6, 2016.
Sylvia M. Burwell,
Secretary, Department of Health and Human Services.
[FR Doc. 2016-08368 Filed 4-8-16; 4:15 pm]
 BILLING CODE 4120-01-P