[Federal Register Volume 59, Number 136 (Monday, July 18, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17220]


[[Page Unknown]]

[Federal Register: July 18, 1994]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES
42 CFR Part 440

[MB-085-P]
RIN 0938-AG73

 

Medicaid Program: Nurse-Midwife Services

AGENCY: Health Care Financing Administration (HCFA), HHS.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would expand coverage of nurse-midwife 
services under the Medicaid program by including coverage for those 
services that nurse-midwives perform outside the maternity cycle as 
allowed by State law and regulation. This proposal would conform 
Medicaid regulations to provisions of the Omnibus Budget Reconciliation 
Act of 1993.

DATES: Comments will be considered if we receive them at the 
appropriate address, as provided below, no later than 5 p.m. on 
September 16, 1994.

ADDRESSES: Mail written comments (1 original and 3 copies) to the 
following address: Health Care Financing Administration, Department of 
Health and Human Services, Attention: MB-085-P, P.O. Box 7518, 
Baltimore, MD 21207.
    If you prefer, you may deliver your written comments (1 original 
and 3 copies) to one of the following addresses:

Room 309-G, Hubert H. Humphrey Building, 200 Independence Avenue, SW., 
Washington, DC
    or
Room 132, East High Rise Building, 6325 Security Boulevard, Baltimore, 
MD.

    Because of staffing and resource limitations, we cannot accept 
comments by facsimile (FAX) transmission. In commenting, please refer 
to file code MB-085-P. Comments received timely will be available for 
public inspection as they are received, generally beginning 
approximately 3 weeks after publication of a document, in Room 309-G of 
the Department's offices at 200 Independence Avenue, SW., Washington, 
DC, on Monday through Friday of each week from 8:30 a.m. to 5 p.m. 
(phone: (202) 690-7890).
    For comments that relate to information collection requirements, 
mail a copy of comments to: Lauren Oliven, HCFA Desk Officer, Office of 
Information and Regulatory Affairs, Room 3002, New Executive Office 
Building, Washington, DC 20503.

FOR FURTHER INFORMATION CONTACT: Robert Wardwell, (410) 966-5659.

SUPPLEMENTARY INFORMATION:

I. Background

A. Scope of Covered Services

    Title XIX of the Social Security Act (the Act) authorizes States to 
establish Medicaid programs to provide medical assistance to needy 
individuals. Section 1902(a)(10) of the Act describes the two broad 
classifications of most individuals to whom medical assistance may be 
provided: the categorically needy (section 1902(a)(10)(A)) and the 
medically needy (section 1902(a)(10)(C)). Section 1905 of the Act 
defines medical assistance as payment of part or all of the costs of 
specified services to eligible individuals.
    Section 1905(a)(17) of the Act includes, as a service for which 
medical assistance may be available, nurse-midwife services which the 
nurse-midwife is authorized to practice under State law or regulation. 
Nurse-midwife services are mandatory for the categorically needy under 
section 1902(a)(10)(A) of the Act. At the State's option, a State may 
also provide these services to the medically needy.
    Prior to October 1, 1993, section 1905(a)(17) of the Act (through a 
cross-reference to section 1861gg of the Act) and implementing 
regulations at 42 CFR 440.165 required that a nurse-midwife must be a 
registered nurse who (1) is either certified as a nurse-midwife by an 
organization recognized by the Secretary or has completed a program of 
study and clinical experience that has been approved by the Secretary 
and (2) performs services in the care of mothers and babies throughout 
the maternity cycle. Section 1905(a)(17) (again, through a cross-
reference to section 1861gg of the Act) also specifies that the 
services that a nurse-midwife is legally authorized to perform under 
State law and regulations must be covered whether or not the nurse-
midwife is under the supervision of, or associated with, a physician or 
other health care provider.
    Section 13605 of the Omnibus Budget Reconciliation Act of 1993 
(OBRA '93), Public Law 103-66, amended section 1905(a)(17) of the Act 
to remove the limitation that a nurse-midwife can provide services only 
during the maternity cycle.

B. Current Regulatory Provisions

    There are four existing sections of Medicaid regulations in the CFR 
which are affected by this legislation. Section 440.165 of the existing 
Medicaid regulations defines nurse-midwife services as a distinct 
service category and lists the requirements for coverage of services 
under that category. Three other existing sections, Secs. 440.10, 
440.20, and 440.90, contain cross-references to Sec. 440.165 to 
indicate that nurse-midwife services may be performed in specified 
settings. Sections 440.10 and 440.20 provide that nurse-midwife 
services may be performed in inpatient and outpatient hospital 
settings. Section 440.90 provides that nurse-midwife services may be 
performed in clinic settings. These Federal regulations allow State 
laws or regulations governing nurse-midwife services, the policies of 
hospitals regarding the granting of staff privileges, and the judgments 
of health professionals to govern the need for supervision of nurse-
midwife services in inpatient and outpatient settings.

II. Provisions of the Proposed Regulations

    We are proposing the following changes to the Medicaid regulations 
based on the provisions of OBRA '93 and our reexamination of existing 
regulations.
     We would amend Sec. 440.165 by removing paragraphs (a)(1) 
and (c) to delete the definition of, and all other references to, the 
maternity cycle in accordance with the OBRA '93 amendment that provides 
for the coverage of nurse-midwife services whether or not the services 
are performed in the management of care of mothers and babies 
throughout the maternity cycle. Removal of this limitation will allow 
nurse-midwives to perform any service that is allowed under State law 
or regulation.
     We would remove the exception cross-references to 
Sec. 440.165 contained in Secs. 440.10, 440.20, and 440.90. Because 
nurse-midwife services are defined as a distinct service category under 
Sec. 440.165, we have determined that the inclusion of cross-references 
to the description of covered nurse-midwife services within the 
descriptions of other covered Medicaid services is more confusing than 
clarifying.

III. Impact Statement

    We generally prepare an initial regulatory flexibility analysis 
that is consistent with the Regulatory Flexibility Act (RFA) (5. U.S.C. 
601 through 612) unless the Secretary certifies that a proposed rule 
would not have a significant economic impact on a substantial number of 
small entities. For purposes of the RFA, we consider all providers and 
suppliers of health care and services for Medicaid recipients to be 
small entities. Individuals and States are not included in the 
definition of a small entity.
    Also, section 1102(b) of the Act requires the Secretary to prepare 
a regulatory impact analysis for any proposed rule that may have a 
significant impact on the operations of a substantial number of small 
rural hospitals. Such an analysis must conform to the provisions of 
section 603 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 a 
Metropolitan Statistical Area and has fewer than 50 beds.
    We have determined, and the Secretary certifies, that these 
proposed regulations would not have a significant impact on a 
substantial number of small entities and would not have a significant 
impact on the operation of a substantial number of small rural 
hospitals. Therefore we have not prepared a regulatory flexibility 
analysis or an analysis of the effect on small rural hospitals.
    For the most part, cost savings as a result of these proposed 
regulations will be incurred regardless of the promulgation of these 
regulations. The provisions of this rule merely conform the regulations 
to the legislative provisions of OBRA '93.
    In accordance with the provisions of Executive Order 12866, this 
proposed rule has not been reviewed by the Office of Management and 
Budget.

IV. Collection of Information Requirements

    This document does not impose information collection and 
recordkeeping requirements. Consequently, it need not be reviewed by 
the Office of Management and Budget under the authority of the 
Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.).

V. Response to Comments

    Because of the large number of items of correspondence we normally 
receive on Federal Register documents published for comment, we are not 
able to acknowledge or respond to them individually. We will consider 
all comments we receive by the date and time specified in the ``DATES'' 
section of this preamble, and we will respond to the comments in the 
preamble of the final rule.

List of Subjects

42 CFR Part 440

    Grant programs-health, Medicaid.

    42 CFR part 440 would be amended as set forth below:

PART 440--SERVICES: GENERAL PROVISIONS

    1. The authority citation for part 440 continues to read as 
follows:

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

    2. In Sec. 440.10 the introductory text of paragraph (a) is 
republished, paragraph (a)(2) is revised, the text of paragraph (a)(3) 
introductory text is republished, and paragraph (a)(3)(iii) is revised 
to read as follows:


Sec. 440.10  Inpatient hospital services, other than services in an 
institution for mental diseases.

    (a) Inpatient hospital services means services that--* * *
    (2) Are furnished under the direction of a physician or dentist; 
and
    (3) Are furnished in an institution that--* * *
    (iii) Meets the requirements for participation in Medicare as a 
hospital; and
* * * * *
    3. In section 440.20 the introductory text to paragraph (a) is 
republished, paragraph (a)(2) is revised, the text of paragraph (a)(3) 
introductory text is republished and paragraph (a)(3)(ii) is revised to 
read as follows:


Sec. 440.20  Outpatient hospital services and rural health clinic 
services.

    (a) Outpatient hospital services means preventive, diagnostic, 
therapeutic, rehabilitative, or palliative services that--* * *
    (2) Are furnished by or under the direction of a physician or 
dentist; and
* * * * *
    (3) Are furnished by an institution that--* * *
    (ii) Meets the requirements for participation in Medicare as a 
hospital; and
* * * * *
    4. Section 440.90 is amended by removing paragraph (c).
    5. In Sec. 440.165, paragraph (a) is revised and paragraph (c) is 
removed to read as follows:


Sec. 440.165  Nurse-midwife service.

    (a) Nurse-midwife services means services that--
    (1) Are furnished by a nurse-midwife within the scope of practice 
authorized by State law or regulation, and in the case of inpatient or 
outpatient hospital services or clinic services, are furnished by or 
under the direction of a nurse-midwife to the extent permitted by the 
facility; and
    (2) Unless required by State law or regulation or a facility, are 
paid without regard to whether the nurse-midwife is under the 
supervision of, or associated with a physician or other health care 
provider. (See Sec. 441.21 of this chapter for provisions on 
independent provider agreements for nurse-midwives.)
* * * * *
(Catalog of Federal Domestic Assistance Program No. 93.778, Medical 
Assistance Program)

    Dated: April 4, 1994.
Bruce C. Vladeck,
Administrator, Health Care Financing Administration.
    Dated: May 6, 1994.
Donna E. Shalala,
Secretary.
[FR Doc. 94-17220 Filed 7-15-94; 8:45 am]
BILLING CODE 4120-01-P