[Federal Register Volume 59, Number 64 (Monday, April 4, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-7727]


[[Page Unknown]]

[Federal Register: April 4, 1994]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Public Health Service

42 CFR Part 124

RIN 0905-AE06

 

Medical Facility Construction and Modernization; Requirements for 
Provision of Services to Persons Unable To Pay

AGENCY: Public Health Service, DHHS.

ACTION: Proposed rule.

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SUMMARY: This notice proposes revisions to the rules currently 
governing how certain health care facilities, assisted under titles VI 
and XVI of the Public Health Service Act, fulfill the assurance given 
in their applications for assistance that they would provide a 
reasonable volume of services to persons unable to pay. Public comment 
on the current rules and operational experience with them have 
indicated the need to revise the current requirements with respect to 
nursing homes, many of which are unable under current requirements to 
meet their obligation to provide such services. The intended effect of 
this action is to permit qualified facilities to satisfy their 
uncompensated services assurance.

DATES: Comments must be received on or before June 3, 1994.

ADDRESSES: Written comments may be sent to Mrs. Charlotte G. Pascoe, 
Director, Division of Facilities Compliance, BHRD, HRSA, 5600 Fishers 
Lane, room 11-19, Rockville, Maryland 20857.
    Comments will be available for public inspection during normal 
business hours at this address: PHS will take appropriate steps, where 
necessary, to afford individuals with disabilities an equal opportunity 
to comment.

FOR FURTHER INFORMATION CONTACT: Mrs. Eulas Dortch, 301-443-5656.

SUPPLEMENTARY INFORMATION: The Secretary of Health and Human Services 
proposes an amendment to the rules governing what is popularly known as 
the Hill-Burton uncompensated services program. Health care facilities 
covered by the program received construction assistance under two 
titles of the Public Health Service Act, title VI (the ``Hill-Burton 
Act,'' 42 U.S.C. 291, et seq.) and title XVI (42 U.S.C. 300q, et seq.). 
Under both titles, facilities receiving such construction assistance 
have been required, as a condition of receiving the construction 
assistance, to provide an assurance that ``there will be available in 
the facility or portion thereof to be constructed or modernized a 
reasonable volume of services to persons unable to pay therefor * * 
*.'' 42 U.S.C. 291c(e). See also 42 U.S.C. 300s-1(b)(1)(K)(ii). This 
assurance is known as the ``uncompensated services assurance.''
    Regulations governing compliance with the uncompensated services 
assurance were first issued in 1947, and have been revised several 
times. On May 18, 1979, comprehensive regulations governing compliance 
with the assurance were issued at 44 FR 29372. Among other things, the 
1979 regulations: Established a minimum level of uncompensated services 
which facilities were required to provide; set an annual compliance 
level of uncompensated services to be provided and required facilities 
to make up any deficit in meeting the annual compliance level through 
provision of more uncompensated services in later years; required 
facilities to allocate their uncompensated services either under a plan 
meeting certain requirements or on a first-requested, first-served 
basis; required facilities to notify the public of the existence of 
their uncompensated services programs through public notice and 
provision of personal notice to individuals served by the facilities; 
and required facilities to keep records documenting compliance and to 
periodically report concerning compliance. The 1979 regulations also 
for the first time established national eligibility criteria, based on 
income: Individuals whose annual income was at or below the poverty 
level (known as ``Category A individuals'') were automatically eligible 
for uncompensated services; individuals whose annual income was at or 
below two times the poverty level (known as ``Category B individuals'') 
were also eligible for uncompensated services, unless the facility 
decided to limit its services to Category A individuals only. The 1979 
regulations also provided that amounts to which an individual was 
entitled under a third-party insurance or governmental program could 
not be credited towards a facility's uncompensated services quota.
    On December 3, 1987, the Secretary revised the 1979 regulations at 
52 FR 46022. As pertinent here, the 1987 regulations effected a 
technical revision of the 1979 regulations, making explicit what had 
formerly been implicit in those regulations; i.e., that coverage of an 
indigent under a third-party insurance or governmental program 
precludes eligibility for uncompensated services. 42 CFR 124.505(a)(1) 
(1988). This policy simply reflects the long-standing Department view 
of the uncompensated services program as a program of last resort, 
designed to serve persons who have no source of payment, such as 
Medicaid or private insurance, for medical care.
    This policy has created major compliance problems for many Hill-
Burton-obligated nursing homes. HHS has determined that, of the 287 
nursing homes with outstanding uncompensated services obligations under 
the general compliance standards of the regulations, 243 have deficits; 
the majority of these have received no uncompensated services credit. 
These deficits persist despite many attempts by HHS to provide 
technical assistance to nursing homes to bring them into compliance. 
The fundamental problem is that, in most of these nursing homes, the 
only individuals who meet the income-eligibility requirements for 
receipt of uncompensated services are also covered by their State's 
Medicaid program; hence, they are by definition ineligible for 
uncompensated services under Sec. 124.505(a)(1). Thus, in States in 
which the Medicaid eligibility limits exceed the Hill-Burton 
eligibility limits and which cover most or all medical services, 
nursing homes are in the unenviable position of being chronically 
unable to fulfill their uncompensated services obligations.
    HHS has been aware of this structural problem for some time, and 
established a task force to analyze nursing home compliance issues and 
develop strategies for dealing with compliance problems. The task force 
found that facilities in States which have comprehensive Medicaid 
coverage for nursing home services have the most difficulty finding 
eligible individuals to whom they can provide uncompensated services. 
Thus, the task force recommended increasing the eligibility limit for 
uncompensated services to three times the poverty level to increase the 
pool of individuals potentially eligible for uncompensated services.
    HHS then surveyed the regional offices of the Health Care Financing 
Administration, which administers the Medicaid program, to determine 
whether such a change in income eligibility would permit more nursing 
homes to meet their uncompensated services obligations by setting Hill-
Burton income eligibility limits above Medicaid income eligibility 
limits. This survey indicated that 31 States and the District of 
Columbia have medically needy programs under which Medicaid covers all 
individuals who have annual incomes that are less than the cost of the 
nursing home services received and less than the Medicaid resource 
eligibility limits (usually, $2,000). Based on an average annual 
nursing home cost of $31,000 in 1992, an increase in the Hill-Burton 
income eligibility limit to three times the poverty level (to about 
$20,000) will not significantly increase the opportunity for facilities 
in these States to meet their uncompensated services obligations, since 
patient income is irrelevant unless it exceeds nursing home costs. 
However, even in these States, to the extent nursing home patients 
receive services not covered by Medicaid or are ineligible for Medicaid 
because they have resources exceeding the Medicaid limits, raising the 
Hill-Burton income eligibility limit would increase the pool of 
individuals eligible for uncompensated services. Moreover, in 16 of the 
remaining 19 States, a raise in the Hill-Burton individual income 
eligibility limit from the current $13,940 (double the poverty level) 
to the proposed $20,910 would result in a Hill-Burton income 
eligibility limit substantially above the Medicaid income eligibility 
limit of $15,192 that applies in these States. An increase in the 
income eligibility limit to three times the poverty level for nursing 
home services would thus greatly increase the pool of Hill-Burton 
eligibles in those States, and it seems likely that such a change would 
accordingly increase the opportunity to fulfill the Hill-Burton 
obligation for all 69 nursing homes in those States. While the 
remaining three States have Medicaid income eligibility limits that are 
below the current upper Hill-Burton individual income eligibility limit 
of $13,940, such a change would obviously increase the pool of Hill-
Burton eligible individuals in those States as well. Thus, to the 
extent the compliance problems of nursing homes in those States are a 
function of a lack of eligible patients, an increase in the income 
eligibility limit to three times the poverty level for nursing home 
services would similarly assist them.
    The rules proposed below accordingly would establish a third income 
eligibility level (Category C) for nursing home services only. See, 
proposed Sec. 124.505(a)(2)(iii). Category C individuals would be those 
individuals whose annual incomes are greater than two times, but do not 
exceed three times, the poverty level. The regulations already define 
which facilities are ``nursing homes'' within the scope of the 
regulation. See, Sec. 124.502(h).
    HHS has considered, but rejected, even higher income eligibility 
limits. The higher that income eligibility limits are raised, the 
farther the program gets from targeting services to persons unable to 
pay. On the other hand, given the usual cost of nursing home care, it 
is apparent that individuals in need of such care are still unable to 
pay for the cost of that care, even if they have annual incomes of 
three times the poverty level. Thus, HHS believes that the proposed 
regulation represents a reasonable approach to reducing compliance 
problems for nursing homes and retaining the program's traditional 
focus on persons unable to pay.
    While HHS recognizes that this proposal on its face does not 
resolve all nursing home compliance problems, it also does not expect 
the proposed change to operate in a vacuum. Rather, HHS currently has 
under consideration another compliance alternative, published in the 
Federal Register on November 4, 1993, as a Notice of Proposed 
Rulemaking, designed in part to help alleviate the compliance problems 
of certain private, nonprofit nursing homes. The proposed compliance 
alternative would exempt qualifying facilities from the procedural 
requirements of the general regulations. Qualifying facilities are 
those private, nonprofit facilities that either receive substantial 
philanthropic support and provide free or reduced cost services, or do 
not collect monies directly from persons unable to pay. The combination 
of these two proposed rules should allow all of the 287 Hill-Burton 
obligated nursing homes to satisfy their uncompensated services 
obligations and reduce their uncompensated services deficits more 
easily. In light of this, it appears prudent to minimize the change in 
the underlying program until it is seen what effect the two program 
alterations currently under consideration have in resolving the 
compliance problems of nursing homes.
    The rules proposed below also set out technical and conforming 
amendments to other sections. The only one of note is proposed 
Sec. 124.506(a)(1)(v). That section would provide that if a nursing 
home provides services on a reduced charge basis to both Category B and 
Category C individuals, it may not employ a discount method that gives 
Category C individuals greater discounts than those given to Category B 
individuals. This policy is simply a logical extension of a similar 
policy that already exists with respect to Category A and Category B 
individuals.
    The Secretary solicits comments on the viability and advisability 
of the above proposal. If there are suggestions for alternative 
approaches to addressing the problems of nursing home compliance, the 
Secretary is interested in receiving those as well.

Economic Impact

    Executive Order 12866 requires that all regulations reflect 
consideration of alternatives, of costs, of benefits, of incentives, of 
equity, and of available information. Regulations must meet certain 
standards, such as avoiding unnecessary burden. Regulations which are 
``significant'' because of cost, adverse effects on the economy, 
inconsistency with other agency actions, effects on the budget, or 
novel legal or policy issues, require special analysis. The Regulatory 
Flexibility Act requires that we analyze regulatory proposals to 
determine whether they create a significant impact on a substantial 
number of small entities (for purposes of the Act, all nursing home are 
categorized by HHS as small entities).
    The Department believes that the proposed rule change in this 
regulation is beneficial. This regulation does not have an impact that 
exceeds $100 million for nursing homes. While it will allow nursing 
homes to qualify more individuals for uncompensated services and thus 
reduce facility deficits, it will not alter existing procedural and 
reporting requirements for obligated facilities. For these reasons, we 
do not believe this rule necessitates an economic analysis. Therefore, 
in accordance with the Regulatory Flexibility Act of 1980, the 
Secretary certifies that this regulation will not have a significant 
impact on a substantial number of small entities.
    Pursuant to Executive Order 12866, the Office of Management and 
Budget (OMB) has reviewed this rule. The Department requests comments 
on whether there are any aspects of this proposed rule which can be 
improved to make nursing home compliance more effective, more 
equitable, or less costly.

Paperwork Reduction Act of 1980

    This proposed rule contains no information collection or reporting 
requirements which are subject to review by OMB under the Paperwork 
Reduction Act of 1980. Although this rule discusses the requirement for 
developing and submitting affirmative action plans, the requirement is 
not new and has been previously approved under OMB control number 0915-
0077.

List of Subjects in 42 CFR Part 124

    Grant programs--health; Health facilities; Loan programs--health; 
Low income persons.

    Dated: November 12, 1993.
Philip R. Lee,
Assistant Secretary for Health.
    Approved: February 22, 1994.
Donna E. Shalala,
Secretary.

    For reasons set out in the preamble, subpart F of 42 CFR part 124 
is proposed to be amended as follows:

Subpart F--Reasonable Volume of Uncompensated Services to Persons 
Unable To Pay

    1. The authority citation for 42 CFR part 124, subpart F, continues 
to read as follows:

    Authority: 42 U.S.C. 216; 42 U.S.C. 300s(3).

    2. The first two sentences of Sec. 124.503(b)(4) are revised to 
read as follows:


Sec.  124.503  Compliance level.

* * * * *
    (b) * * *
    (4) Affirmative action plan for precluding future deficits. Except 
where a facility reports to the Secretary in accordance with 
Sec. 124.509(a)(2)(iii) that it was financially unable to provide 
uncompensated services at the annual compliance level, a facility that 
fails to meet its annual compliance level in any fiscal year shall, in 
the following year, develop and implement a plan of action that can 
reasonably be expected to enable the facility to meet its annual 
compliance level. Such actions may include special notice to the 
community through newspaper, radio, and television, or expansion of 
service to Category B, or, with respect to nursing homes, Category C, 
persons. * * *
* * * * *
    3. Section 124.505 is amended by revising paragraph (a)(2)(ii) and 
by adding paragraph (a)(2)(iii) to read as follows:


Sec. 124.505  Eligibility criteria.

    (a) * * *
    (2) * * *
    (ii) Category B--A person whose annual individual or family income, 
as applicable, is greater than, but not more than twice, the poverty 
line issued by the Secretary pursuant to 42 U.S.C. 9902 that applies to 
the individual or family. If persons in Category B are included in the 
allocation plan, the facility shall provide uncompensated services to 
these persons without charge, or in accordance with a schedule of 
charges as specified in the allocation plan.
    (iii) Category C--With respect only to persons seeking or receiving 
nursing home services, a person whose annual or family income, as 
applicable, is more than twice but not greater than three times the 
poverty line issued by the Secretary pursuant to 42 U.S.C. 9902 that 
applies to the individual or family. If persons in Category C are 
included in the allocation plan, the facility shall provide 
uncompensated services to these persons without charge, or in 
accordance with a schedule of charges as specified in the allocation 
plan; and
* * * * *
    4. Section 124.506 is amended by revising paragraph (a)(1)(iii) 
through (a)(1)(v) and the first sentence of paragraph (b)(2) and by 
adding paragraph (a)(1)(vi) to read as follows:


Sec. 124.506  Allocation of services; plan requirement.

    (a)(1) * * *
    (iii) State whether Category B or, in the case of nursing homes 
only, Category C persons will be provided uncompensated services, and 
if so, whether the services will be available without charge or at a 
reduced charge;
    (iv) If services will be made available to Category B persons at a 
reduced charge, specify the method for reducing charges, and provide 
that the method will be applicable to all persons in Category B;
    (v) With respect to nursing homes only, if services will be made 
available to Category C persons at a reduced charge, specify the method 
for reducing charges, provided that such method may not result in 
greater reductions than those afforded to Category B persons, and 
provide that this method will be applicable to all persons in Category 
C; and
    (vi) Provide that the facility will provide uncompensated services 
to all persons eligible under the plan who request uncompensated 
services.
    (b)(1) * * *
    (2) If no plan was previously published in accordance with 
paragraph (a)(2) of this section, the facility must provide 
uncompensated services without charge to all applicants in Category A 
and Category B, and, with respect to nursing homes, Category C, who 
request uncompensated services in the facility.
* * * * *
[FR Doc. 94-7727 Filed 4-1-94; 8:45 am]
BILLING CODE 4160-15-M