[Federal Register Volume 70, Number 165 (Friday, August 26, 2005)]
[Proposed Rules]
[Pages 50262-50268]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-16974]


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

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Parts 447 and 455

[CMS-2198-P]
RIN 0938-AN09


Medicaid Program; Disproportionate Share Hospital Payments

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

ACTION: Proposed rule.

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

SUMMARY: This proposed rule would implement section 1001(d) of the 
Medicare Prescription Drug, Improvement, and Modernization Act of 2003 
(MMA) which establishes new reporting and auditing requirements for 
State Disproportionate Share Hospital payments.

DATES: To be assured consideration, comments must be received at one of 
the addresses provided below, no later than 5 p.m. on October 25, 2005.

ADDRESSES: In commenting, please refer to file code CMS-2198-P. Because 
of staff and resource limitations, we cannot accept comments by 
facsimile (FAX) transmission.
    You may submit comments in one of three ways (no duplicates, 
please):
    1. Electronically. You may submit electronic comments on specific 
issues in this regulation to http://www.cms.hhs.gov/regulations/ecomments. (Attachments should be in Microsoft Word, WordPerfect, or 
Excel; however, we prefer Microsoft Word).
    2. By mail. You may mail written comments (one original and two 
copies) to the following address ONLY: Centers for Medicare & Medicaid 
Services, Department of Health and Human Services, Attention: CMS-2198-
P, P.O. Box 8010, Baltimore, MD 21244-1850.
    Please allow sufficient time for mailed comments to be received 
before the close of the comment period.
    3. By hand or courier. If you prefer, you may deliver (by hand or 
courier) your written comments (one original and two copies) before the 
close of the comment period to one of the following addresses. If you 
intend to deliver your comments to the Baltimore address, please call 
telephone number (410) 786-9994 in advance to schedule your arrival 
with one of our staff members. Room 445-G, Hubert H. Humphrey Building, 
200 Independence Avenue, SW., Washington, DC 20201; or 7500 Security 
Boulevard, Baltimore, MD 21244-8010.
    (Because access to the interior of the HHH Building is not readily 
available to persons without Federal Government identification, 
commenters are encouraged to leave their comments in the CMS drop slots 
located in the main lobby of the building. A stamp-in clock is 
available for persons wishing to retain a proof of filing by stamping 
in and retaining an extra copy of the comments being filed.)
    Comments mailed to the addresses indicated as appropriate for hand 
or courier delivery may be delayed and received after the comment 
period.

FOR FURTHER INFORMATION CONTACT: Jim Frizzera, (410) 786-9535.

SUPPLEMENTARY INFORMATION:

[[Page 50263]]

    Submitting Comments: We welcome comments from the public on all 
issues set forth in this rule to assist us in fully considering issues 
and developing policies. You can assist us by referencing the file code 
CMS-2198-P and the specific ``issue identifier'' that precedes the 
section on which you choose to comment.
    Inspection of Public Comments: All comments received before the 
close of the comment period are available for viewing by the public, 
including any personally identifiable or confidential business 
information that is included in a comment. CMS posts all electronic 
comments received before the close of the comment period on its public 
Web site as soon as possible after they have been received. Hard copy 
comments received timely will be available for public inspection as 
they are received, generally beginning approximately 3 weeks after 
publication of a document, at the headquarters of the Centers for 
Medicare & Medicaid Services, 7500 Security Boulevard, Baltimore, 
Maryland 21244, Monday through Friday of each week from 8:30 a.m. to 4 
p.m. To schedule an appointment to view public comments, phone 1-800-
743-3951.

I. Background

    Title XIX of the Social Security Act (the Act) authorizes Federal 
grants to States for Medicaid programs that provide medical assistance 
to low-income families, the elderly, and persons with disabilities. 
Section 1902(a)(13)(A)(iv) of the Act requires that States make 
Medicaid payment adjustments for hospitals that serve a 
disproportionate number of low-income patients with special needs. 
Section 1923(a)(2)(D) of the Act requires States to provide an annual 
report to the Secretary describing the payment adjustments made to each 
disproportionate share hospital (DSH).
    Section 1923 of the Act also sets out certain limits on Federal 
financial participation for State DSH payments. Section 1923(f) of the 
Act defines, for each State, an aggregate annual limit on Federal 
financial participation for DSH payments. Section 1923(g)(1) of the Act 
also defines hospital-specific limits on Federal financial 
participation for DSH payments. Under the hospital-specific limits, a 
hospital's DSH payments must not exceed the costs incurred by that 
hospital in furnishing services during the year to Medicaid patients 
and the uninsured, less other Medicaid payments made to the hospital 
and payments made by uninsured patients (``uncompensated care costs'').

II. The Medicare Prescription Drug, Improvement, and Modernization Act 
of 2003

    Section 1001(d) of the Medicare Prescription Drug, Improvement, and 
Modernization Act of 2003 (MMA) (Pub. L. 108-173, enacted on December 
8, 2003) added section 1923(j) to the Act to require States to report 
additional information about their DSH programs. Section 1923(j)(1) of 
the Act requires States to submit an annual report that includes the 
following:
     Identification of each DSH that received a DSH payment 
under the State's Medicaid program in the preceding fiscal year and the 
amount of DSH payments paid to that hospital in the same year.
     Such other information as the Secretary of Health and 
Human Services determines necessary to ensure the appropriateness of 
DSH payments.

Section 1923(j)(2) of the Act also requires States to have their DSH 
payment programs independently audited and to submit the independent 
certified audit annually to the Secretary. The certified independent 
audit must verify:
     The extent to which hospitals in the State have reduced 
uncompensated care costs to reflect the total amount of claimed 
expenditures made under section 1923 of the Act.
     DSH payments to each hospital comply with the applicable 
hospital-specific DSH payment limit.
     Only the uncompensated care costs of providing inpatient 
hospital and outpatient hospital services to Medicaid eligible 
individuals and uninsured individuals as described in section 
1923(g)(1)(A) of the Act are included in the calculation of the 
hospital-specific limits.
     The State included all Medicaid payments, including 
supplemental payments, in the calculation of such hospital-specific 
limits.
     The State has separately documented and retained a record 
of all its costs under the Medicaid program, claimed expenditures under 
the Medicaid program, uninsured costs in determining payment 
adjustments under section 1923 of the Act, and any payments made on 
behalf of the uninsured from payment adjustments under section 1923 of 
the Act.

Under section 1923(j) of the Act, Federal matching payments are 
contingent upon a State's submission of the annual DSH report and 
independent certified audit.

III. Provisions of the Proposed Regulations

A. Reporting Requirements

    To implement the reporting requirements in section 1923(j)(1) of 
the Act, we are proposing to modify the DSH reporting requirements in 
Federal regulations at 42 CFR 447.
    Currently, under Sec.  447.299, each State is required to report 
and maintain certain information about DSH program spending. Under 
Sec.  447.299(a) and (b), each State is required to submit and report 
to CMS the quarterly aggregate amount of DSH payments. Each State is 
also required, under Sec.  447.299(c), to maintain and make available 
upon request supporting documentation for the State's DSH program, 
including the amount of DSH payments to each individual hospital each 
quarter. Section 447.299(d) provides that future grant awards may be 
deferred or disallowed if a State fails to comply with these reporting 
requirements.
    We are proposing to add a new paragraph (c) to the reporting 
requirements in Sec.  447.299. We are proposing to redesignate the 
documentation requirements in paragraph (c) as paragraph (d) and 
redesignate the deferrals and disallowances information in paragraph 
(d) as paragraph (e), respectively. We are proposing that the following 
information reflects the data elements necessary to ensure that DSH 
payments are appropriate such that each qualifying hospital receives no 
more in DSH payments than the amount permitted under section 1923(g) of 
the Act. Specifically, proposed paragraph (c) would require each State 
receiving an allotment under section 1923(f) of the Act, beginning with 
the first full State fiscal year (SFY) immediately after the enactment 
of section 1001(d) of the Medicare Prescription Drug, Improvement, and 
Modernization Act (MMA) and each year thereafter, to report to us the 
following information for each DSH hospital:
     Hospital Name.
     Medicare Provider Number.
     Medicaid Provider Number.
     Type of Hospital. The State would indicate if the hospital 
is an acute, long-term care, psychiatric, teaching, children's, 
rehabilitation, or other facility. If other facility, the State would 
be asked to specify the type.
     Type of Hospital Ownership. The State would indicate 
whether the hospital is a privately-owned, State government-owned, non-
State government-owned, or a facility owned by the Indian Health 
Service, or a tribal government. The State would also

[[Page 50264]]

indicate whether the hospital is privately operated, State-government 
operated, non-State government operated, or a facility operated by the 
Indian Health Service, or a tribal government.
     Medicaid Inpatient Utilization Rate. The State would 
indicate the hospital's Medicaid inpatient utilization rate, as defined 
in section 1923(b)(2) of the Act.
     Low Income Utilization Rate. The State would indicate the 
hospital's low income utilization rate, as defined in section 
1923(b)(3) of the Act. The low income utilization rate determination 
should only include those individuals that have no source of third 
party coverage for the inpatient hospital services they receive.
     DSH Payments. The State would indicate the total annual 
DSH payments made to the hospital. States need only report the single, 
aggregate annual amount of DSH payments made to the hospital, 
regardless of the number of separate DSH pools or the number of 
individual payments.
     Regular Medicaid Rate Payments. The State would indicate 
the total annual amount paid to the hospital by the State, not 
including any DSH payments or supplemental/enhanced payments, for 
inpatient hospital and outpatient hospital services furnished to 
Medicaid eligible individuals.
     Medicaid Managed Care Organization Payments. The State 
would indicate the total annual amount paid to the hospital by Medicaid 
managed care organizations for inpatient hospital and outpatient 
hospital services furnished to Medicaid eligible individuals.
     Supplemental/Enhanced Medicaid Payments. The State would 
indicate the total annual amount of supplemental/enhanced Medicaid 
payments made to the hospital by the State for inpatient hospital and 
outpatient hospital services furnished to Medicaid eligible 
individuals. These amounts do not include DSH payments, regular 
Medicaid rate payments, and Medicaid managed care organization 
payments.
     Indigent Care Revenue. The State would indicate the total 
annual payments received by the hospital from individuals with no 
source of third party coverage for inpatient hospital and outpatient 
hospital services they receive.
     Transfers. The State would indicate the total annual 
amount of funds transferred by the hospital to the State or local 
governmental entity as a condition of the hospital receiving any 
Medicaid payment or DSH payment.
     Total Cost of Care. The State would indicate separately 
the total annual costs incurred for furnishing inpatient hospital and 
outpatient hospital services provided to Medicaid individuals and the 
total costs incurred for furnishing those services provided to 
individuals with no source of third party coverage for the inpatient 
hospital and outpatient hospital services they receive.
     Uncompensated Care Costs. The State would indicate 
separately the total annual amount of uncompensated care costs for 
furnishing inpatient hospital and outpatient hospital services to 
Medicaid eligible individuals and to individuals with no source of 
third party coverage for the inpatient hospital and outpatient services 
they receive. The total annual uncompensated care cost equals the total 
cost of care for furnishing inpatient hospital and outpatient hospital 
services to Medicaid eligible individuals and to individuals with no 
source of third party coverage for the inpatient hospital and 
outpatient hospital services they receive less the sum of regular 
Medicaid rate payments, Medicaid managed care organization payments, 
supplemental/enhanced Medicaid payments, and indigent care revenue). 
Uncompensated care costs do not include bad debt or payer discounts.
     Medicaid Eligible and Uninsured Individuals. The State 
would indicate the total annual unduplicated number of Medicaid 
eligible individuals receiving inpatient hospital and outpatient 
hospital services and the total annual unduplicated number of 
individuals with no source of third party coverage for the inpatient 
hospital and outpatient hospital services they receive.
    Section 1011, Federal Reimbursement of Emergency Health Services 
Furnished to Undocumented Aliens, of the MMA, requires that the 
Secretary directly pay hospitals and certain other providers for their 
otherwise un-reimbursed costs of providing services required by section 
1867 of the Act (EMTALA) and related hospital inpatient, outpatient, 
and ambulance services furnished to undocumented aliens, aliens paroled 
into the United States at a U.S. port of entry for the purpose of 
receiving such services, and Mexican citizens permitted temporary entry 
to the U.S. with a laser visa. In addition, payment will be made from 
an allotment that varies by the number of undocumented aliens in each 
State. Provider payments are subject to a pro-rata reduction if the 
State allocation is insufficient to provide full reimbursement under 
the formula established by the Secretary.
    In general, we believe that the receipt of a section 1011 payment 
will not impact the calculation of a hospital's Medicaid DSH payment 
amount if the hospital has not reached its DSH cap. For hospitals 
receiving DSH payments at or near their DSH limit, States will need to 
consider a section 1011 payment when determining the hospital's DSH 
limit, because the total DSH payments should not exceed the total 
amount of uncompensated care at the hospital.
    To ensure uniform and timely data transmission, we have prepared an 
Excel spreadsheet for States to use to transmit their DSH information 
to us. The information supplied on this spreadsheet would satisfy the 
requirements under sections 1923(a)(2)(D) and 1923(j)(1) of the Act.

B. Audit Requirements

    Section 1001(d) of the MMA amended section 1923(j)(2) of the Act to 
require States to annually submit to CMS an independent certified audit 
report that verifies information about DSH payments to hospitals. The 
statute specifies five items that require verification by an 
independent audit. Collectively, these five items will provide 
independent verification that State Medicaid DSH payments comply with 
the hospital-specific DSH limit in section 1923(g) of the Act, and that 
such limits are accurately computed.
    In proposed Sec.  455.201, we state that ``SFY'' stands for State 
fiscal year. In addition, we are proposing to define that an 
``independent audit'' means an audit conducted according to the 
standards specified in the generally accepted government auditing 
standards issued by the Comptroller General of the United States.
    Section 1923(j) of the Act requires that each State must submit 
annually the independent certified audit of its DSH program as a 
condition for receiving Federal payments under section 1903(a)(1) and 
1923 of the Act. We are proposing to add a new Sec.  455.204(a) to 
reflect this requirement.
    As noted previously, each State must obtain an independent 
certified audit, beginning with an audit of its State fiscal year 2005 
DSH program. We are proposing to add a new Sec.  455.204(b) to reflect 
this requirement. We are proposing a submission requirement within 1 
year of the independent certified audit.
    In the audit report, the auditor must verify whether the State's 
method of computing the hospital-specific DSH limit and the DSH 
payments made to the hospital comply with the following five items 
required by section 1923(j)(2) of the Act:
     Verification 1: The extent to which hospitals in the State 
have reduced their uncompensated care costs to reflect the

[[Page 50265]]

total amount of claimed expenditures made under section 1923 of the 
Act.
    Section 1923(g)(1) of the Act defines a hospital-specific limit on 
Federal financial participation for DSH payments. Each State must 
develop a methodology to compute this hospital-specific limit for each 
DSH hospital in the State. As defined in section 1923(g)(1) of the Act, 
the State's methodology must calculate for each hospital, for each 
fiscal year, the difference between the costs incurred by that hospital 
for furnishing inpatient hospital and outpatient hospital services 
during the applicable State fiscal year to Medicaid individuals and 
individuals with no source of third party coverage for the inpatient 
hospital and outpatient hospital services they receive, less all 
Medicaid payments made to the hospital for such hospital services and 
payments made by uninsured individuals for such hospital services. This 
difference, if any, between incurred inpatient hospital and outpatient 
hospital costs and associated Medicaid payments and other payments 
received from or on behalf of individuals with no source of third party 
coverage is considered the hospital's uncompensated care cost (UCC) 
limit. Federal financial participation is not available for DSH 
payments that exceed the hospital's UCC for furnishing inpatient 
hospital and outpatient hospital services to Medicaid eligible 
individuals and individuals with no source of third party coverage in 
any given State fiscal year.
    For purposes of Federal claiming, States report DSH expenditures to 
CMS. These DSH expenditures are matched at the Federal Medicaid 
Assistance Percentage. In some States, the non-Federal share of the DSH 
expenditures are funded by State and/or local government general fund 
appropriations. In other States, the DSH hospitals, either through 
intergovernmental transfers or certified public expenditures, fund the 
non-Federal share of the DSH expenditures. In determining compliance 
with the hospital-specific limit, total DSH expenditures, regardless of 
the source of the non-Federal share, cannot exceed the UCC.
    We interpret section 1923(j)(2)(A) of the Act to require that the 
independent audit verify whether total claimed DSH expenditures for 
each hospital, including the non-Federal share, are included as 
revenues when determining whether DSH payments are less than or equal 
to each hospital's UCC. Obligations of the qualifying DSH hospital to 
fund the non-Federal share of a DSH payment or any other Medicaid 
payment cannot be included as uncompensated care for purposes of the 
hospital-specific DSH limit. We are proposing to add a new Sec.  
455.204(c)(1) to reflect the requirement that the audit report include 
a determination that qualifying hospitals in States have properly 
reduced their uncompensated care costs to reflect the total amount of 
claimed DSH expenditures.
     Verification 2: DSH payments to hospitals comply with the 
hospital-specific DSH limit.
    We interpret section 1923(j)(2)(B) of the Act to require that the 
audit verify whether claimed DSH expenditures for each eligible 
hospital are less than or equal to the hospital's UCC. In order to 
evaluate compliance with this hospital-specific DSH limit, DSH payments 
made in the audited State fiscal year (SFY) must be measured against 
the actual uncompensated care costs in that same audited SFY, which for 
all States will begin with their respective SFY 2005. We are proposing 
to add a new Sec.  455.204(c)(2) to reflect the requirement that the 
audit report include a determination that DSH payments to each 
qualifying hospital in the State comply with the hospital-specific DSH 
payment limit, that is, the DSH payments do not exceed the 
uncompensated care for furnishing inpatient hospital and outpatient 
hospital services to Medicaid eligible individuals and to individuals 
with no source of third party coverage for the inpatient hospital and 
outpatient hospital services they receive.
     Verification 3: Only uncompensated care costs of providing 
inpatient and outpatient hospital services to Medicaid eligible 
individuals and uninsured individuals are included in the hospital-
specific DSH payment limit.
    The independent audit must verify whether the hospital-specific DSH 
limits calculated by the State include only costs incurred for 
inpatient hospital and outpatient hospital services furnished to 
Medicaid eligible individuals and to individuals with no source of 
third party coverage for the inpatient hospital and outpatient hospital 
services they receive.
    First, the audit must verify whether the State has included only 
costs incurred for inpatient hospital and outpatient hospital services 
in the estimate of uncompensated care costs for each DSH hospital. 
Medicaid regulations at Sec.  440.10 and Sec.  440.20(a) define 
inpatient hospital services and outpatient hospital services, which 
generally include facility services furnished under the direction of a 
physician or dentist. The uncompensated care costs of providing 
physician services cannot be included in the calculation of hospital-
specific DSH limit. In some circumstances, government-owned and 
operated hospitals fund the non-Federal share of DSH and other Medicaid 
payments through intergovernmental transfers to the State. These 
intergovernmental transfers cannot be considered an incurred cost for 
the purposes of calculating the hospital-specific DSH limits. The audit 
must verify whether the State has excluded such transfer amounts when 
determining hospitals' costs for the purposes of the hospital-specific 
DSH limits.
    Second, the audit must verify that only costs incurred for Medicaid 
eligible individuals and uninsured individuals are included in the 
hospital-specific limit calculation. Medicaid eligible individuals are 
those individuals that a State has determined to be eligible for its 
Federal Medicaid program in accordance with applicable eligibility 
requirements. Uninsured individuals are individuals with no source of 
third party coverage for the inpatient hospital and outpatient hospital 
services they receive.
    We are proposing to add a new Sec.  455.204(c)(3) to reflect the 
requirement that the audit report include a determination that each 
qualifying hospital's DSH limit is determined by including only the 
uncompensated care costs for furnishing inpatient hospital and 
outpatient hospital services to Medicaid eligible individuals and to 
individuals with no source of third party coverage for the inpatient 
hospital and outpatient hospital services they receive.
     Verification 4: The State included all payments under this 
title, including supplemental payments, in the calculation of hospital-
specific DSH payment limits.
    This provision requires the audit to verify that all sources of 
Medicaid payments received by a hospital are fully counted in the 
State's calculation of the hospital-specific DSH limits. For example, a 
State might supplement the Medicaid payments that are made to hospitals 
under a prospective payment system with additional/enhanced non-DSH 
Medicaid payments. Under these circumstances, the total amount of these 
supplemental/enhanced Medicaid payments should be added to all other 
Medicaid payments received by the hospital to determine the hospital's 
UCC.
    In addition, the audit must verify whether or not the State has 
properly accounted for all Medicaid payments in the calculation of 
uncompensated care

[[Page 50266]]

costs, regardless of whether Medicaid payments exceeded the incurred 
cost of furnishing inpatient hospital and outpatient hospital services 
to Medicaid patients. For purposes of this hospital-specific DSH limit, 
Medicaid payments made to a DSH hospital for furnishing inpatient 
hospital and outpatient hospital services that are in excess of the 
Medicaid incurred costs of such services should be applied against the 
uncompensated care costs of furnishing inpatient hospital and 
outpatient hospital services to patients with no source of third party 
coverage for such services. That is, Medicaid ``overpayments'' for 
Medicaid individuals must be used to offset any shortfalls in payment 
for uninsured individuals. Therefore, the audit must verify whether the 
State has appropriately calculated uncompensated care costs by 
subtracting total, combined payments for Medicaid and uninsured 
payments from total, combined incurred costs of furnishing inpatient 
hospital and outpatient hospital services to Medicaid eligible 
individuals and individuals with no source of third party coverage for 
the inpatient hospital and outpatient hospital services they receive. 
We are proposing to add a new Sec.  455.204(c)(4) to reflect the 
requirement that the audit report include a determination that States 
properly account for all Medicaid payments, including regular Medicaid 
rates and Medicaid supplemental/enhanced payments, made to hospitals 
for furnishing inpatient hospital and outpatient hospital services to 
Medicaid eligible individuals.
     Verification 5: The State has separately documented and 
retained a record of all its costs under this Medicaid program, claimed 
expenditures under this Medicaid program, uninsured costs in 
determining payment adjustments under this section, and any payments 
made on behalf of the uninsured from payment adjustments under this 
section.
    This provision requires that the audit verify whether the State has 
collected and continues to maintain appropriate documentation for its 
calculation of hospital-specific DSH limits and for the payments made 
to eligible hospitals. We are proposing to add a new Sec.  
455.204(c)(5) to reflect the requirement that the audit report include 
a determination that the State has collected, documented, and is 
retaining appropriate documentation for its DSH limits calculation and 
payments to the qualified hospitals.
    As part of the documentation verification, the audit report must 
describe the methodology used by the State to calculate each hospital's 
limit under section 1923(g)(1) of the Act. Included in the description 
of the methodology, the audit report must specify how the State defines 
incurred inpatient hospital and outpatient hospital costs. We are 
proposing to add a new Sec.  455.204(c)(6) to reflect the requirement 
that the audit report include a determination that each State employs 
an appropriate methodology for calculating the hospital-specific DSH 
limit.

IV. Collection of Information Requirements

    Under the Paperwork Reduction Act of 1995, we are required to 
provide 60-day notice in the Federal Register and solicit public 
comment before a collection of information requirement is submitted to 
the Office of Management and Budget (OMB) for review and approval. In 
order to fairly evaluate whether an information collection should be 
approved by OMB, section 3506(c)(2)(A) of the Paperwork Reduction Act 
of 1995 requires that we solicit comment on the following issues:
     The need for the information collection and its usefulness 
in carrying out the proper functions of our agency.
     The accuracy of our estimate of the information collection 
burden.
     The quality, utility, and clarity of the information to be 
collected.
     Recommendations to minimize the information collection 
burden on the affected public, including automated collection 
techniques.
    Therefore, we are soliciting public comments on each of these 
issues for the information collection requirements discussed below.
    The following information collection requirements and associated 
burdens are subject to the PRA.
    We also received one public comment responding to the proposed 
requirements for a Medicaid Disproportionate Share Annual Report for 
Hospitals and Institutions in the Federal Register notice dated March 
26, 2004, (69 FR 15853). We have determined that there was an error in 
the Collection of Information portion of that notice and are drafting a 
correction notice for publication.

Section 447.299 Reporting Requirements

    In summary, paragraph (c) of this section requires the States to 
submit to CMS information for each DSH for the most recently-completed 
State fiscal year beginning with the first full State fiscal year (SFY) 
after the enactment of section 1001(d) of the MMA, which for all States 
will begin with their respective SFY 2005 and each subsequent SFY. This 
paragraph presents the information to be submitted.
    The burden associated with this requirement is the time and effort 
for the States to prepare and submit the required information. We 
estimate that it will take each State approximately 30 minutes to 
prepare and submit the information for each of its DSHs. On average, 
each State has approximately 75 DSHs. Therefore, we estimate it will 
take 38 hours per State to comply for a total of 1,976 annual hours.

Section 455.202 Audit Reporting Requirements

    In summary, this section states what information must be included 
in the audit report.
    The PRA exempts the information collection activities referenced in 
this section. In particular, 5 CFR 1320.4 excludes collection 
activities during the conduct of administrative actions, 
investigations, or audits involving an agency against specific 
individuals or entities.

Section 455.203 Submission Date

    In summary, this section requires States to submit to us an 
independent certified audit.
    The PRA exempts the information collection activities referenced in 
this section. In particular, 5 CFR 1320.4 excludes collection 
activities during the conduct of administrative actions, 
investigations, or audits involving an agency against specific 
individuals or entities.
    We have submitted a copy of this proposed rule to OMB for its 
review of the information collection requirements described above. 
These requirements are not effective until they have been approved by 
OMB.
    If you comment on any of these information collection and record 
keeping requirements, please mail copies directly to the following:

Centers for Medicare & Medicaid Services, Office of Strategic 
Operations and Regulatory Affairs, Regulations Development and 
Issuances Group, Attn: Jimmy Wickcliffe, CMS-2198-P Room C5-11-04, 7500 
Security Boulevard, Baltimore, MD 21244-1850; and
Office of Information and Regulatory Affairs, Office of Management and 
Budget, Room 10235, New Executive Office Building, Washington, DC 
20503, Attn: Katherine Astrich, CMS Desk Officer.

Comments submitted to OMB may also be e-mailed to the following 
address: e-mail: Katherine--T.--Astrich

[[Page 50267]]

@omb.eop.gov; or faxed to OMB at (202) 395-6974.

V. Response to Comments

    Because of the large number of public comments we normally receive 
on Federal Register documents, 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, when we proceed with a subsequent document, we will respond to the 
comments in the preamble to that document.

VI. Regulatory Impact Statement

    We have examined the impact of this rule as required by Executive 
Order 12866 (September 1993, Regulatory Planning and Review), the 
Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), 
section 1102(b) of the Social Security Act, the Unfunded Mandates 
Reform Act of 1995 (Pub. L. 104-4), and Executive Order 13132.
    Executive Order 12866 directs 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). A regulatory impact 
analysis (RIA) must be prepared for major rules with economically 
significant effects ($100 million or more in any 1 year). This rule 
does not reach the economic threshold and thus is not considered a 
major rule.
    The RFA requires agencies to analyze options for regulatory relief 
of small businesses. For purposes of the RFA, small entities include 
small businesses, nonprofit organizations, and government agencies. 
Most hospitals and most other providers and suppliers are small 
entities, either by nonprofit status or by having revenues of $6 
million to $29 million in any 1 year. Individuals and States are not 
included in the definition of a small entity. We are not preparing an 
analysis for the RFA because we have determined that this rule would 
not have a significant economic impact on a substantial number of small 
entities.
    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 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 of a Metropolitan 
Statistical Area and has fewer than 100 beds. We are not preparing an 
analysis for section 1102(b) of the Act because we have determined that 
this rule would 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 also 
requires that agencies assess anticipated costs and benefits before 
issuing any rule that may result in expenditure in any 1 year by State, 
local, or tribal governments, in the aggregate, or by the private 
sector, of $110 million. This rule would have no consequential effect 
on the governments mentioned or on the private sector.
    Executive Order 13132 establishes certain requirements that an 
agency must meet when it promulgates a proposed rule (and subsequent 
final rule) that imposes substantial direct requirement costs on State 
and local governments, preempts State law, or otherwise has Federalism 
implications. Since this regulation does not impose any costs on State 
or local governments, the requirements of E.O. 13132 are not 
applicable.
    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 447

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

42 CFR Part 455

    Fraud, Grant programs-health, Health facilities, Health 
professions, Investigations, Medicaid, Reporting and recordkeeping 
requirements.

    For the reasons set forth in the preamble, the Centers for Medicare 
& Medicaid Services proposes to amend 42 CFR chapter IV as follows:

PART 447--PAYMENTS FOR SERVICES

    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).

    2. Section 447.299 is amended by--
    A. Redesignating existing paragraphs (c) and (d) as paragraphs (d) 
and (e).
    B. Adding a new paragraph (c) to read as set forth below.


Sec.  447.299  Reporting requirements.

* * * * *
    (c) Beginning with each State's fiscal year 2005 and each 
subsequent State fiscal year, States must submit to CMS the following 
information for each DSH hospital:
    (1) Hospital name.
    (2) Medicare provider number.
    (3) Medicaid provider number.
    (4) Type of hospital. Indicate whether the hospital is an acute, 
long-term care, psychiatric, teaching, children's, rehabilitation, or 
other facility. If other facility, specify the type.
    (5) Type of hospital ownership. Indicate whether the hospital is 
owned by a private entity, State government, non-State government, the 
Indian Health Service, or a tribal government. Indicate whether the 
hospital is operated by a private entity, State government, non-State 
government, the Indian Health Service, or a tribal government.
    (6) Medicaid inpatient utilization rate. Indicate the hospital's 
Medicaid inpatient utilization rate, as defined in section 1923(b)(2) 
of the Act.
    (7) Low income utilization rate. Indicate the hospital's low income 
utilization rate, as defined in section 1923(b)(3) of the Act. The low 
income utilization rate calculation only includes individuals that have 
no source of third party coverage for the inpatient and/or outpatient 
hospital services they receive.
    (8) Disproportionate share hospital payments. Indicate total annual 
payment adjustments made to the hospital under section 1923(g) of the 
Act.
    (9) Regular Medicaid rate payments. Indicate the total annual 
amount paid to the hospital by the State, not including DSH payments or 
supplemental/enhanced Medicaid payments, for inpatient and outpatient 
services furnished to Medicaid eligible individuals.
    (10) Medicaid managed care organization payments. Indicate the 
total annual amount paid to the hospital by Medicaid managed care 
organizations for inpatient hospital and outpatient hospital services 
furnished to Medicaid eligible individuals.
    (11) Supplemental/enhanced Medicaid payments. Indicate the total 
annual amount of supplemental/enhanced Medicaid payments made to the 
hospital by the State for inpatient hospital and outpatient hospital 
services furnished to Medicaid eligible individuals. These amounts do 
not include DSH payments, regular Medicaid rate payments, and Medicaid 
managed care organization payments.
    (12) Indigent care revenue. Indicate total annual payments received 
by the

[[Page 50268]]

hospital from individuals with no source of third party coverage for 
inpatient and outpatient hospital services they receive.
    (13) Transfers. Indicate the total annual amount of funds 
transferred by the hospital to the State or local governmental entity 
as a condition of the hospital receiving any Medicaid payment or DSH 
payment.
    (14) Total cost of care. Indicate separately the total annual costs 
incurred for furnishing inpatient hospital and outpatient hospital 
services to Medicaid eligible individuals and the total costs incurred 
for furnishing inpatient hospital and outpatient hospital services to 
individuals with no source of third party coverage for the hospital 
services they receive.
    (15) Uncompensated care costs. Indicate separately the total annual 
amount of uncompensated care costs for furnishing inpatient hospital 
and outpatient hospital services to Medicaid eligible individuals and 
to individuals with no source of third party coverage for the hospital 
services they receive. The total annual uncompensated care cost equals 
the total cost of care for furnishing inpatient hospital and outpatient 
hospital services to Medicaid eligible individuals and to individuals 
with no source of third party coverage for the hospital services they 
receive less the sum of regular Medicaid rate payments, Medicaid 
managed care organization payments, supplemental/enhanced Medicaid 
payments, and indigent care revenue. Uncompensated care costs do not 
include bad debt or payer discounts.
    (16) Medicaid eligible and uninsured individuals. Indicate the 
total annual unduplicated number of Medicaid eligible individuals 
receiving inpatient hospital and outpatient hospital services and the 
total annual unduplicated number of individuals with no source of third 
party coverage for the inpatient hospital and outpatient hospital they 
receive.
* * * * *

PART 455--PROGRAM INTEGRITY: MEDICAID

    1. The authority citation for part 455 continues to read as 
follows:

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

    2. Add new subpart C to read as follows:
Subpart C--Independent Certified Audit of State Disproportionate Share 
Hospital Payment Adjustments
Sec.
455.200 Purpose.
455.201 Definitions.
455.204 Condition for Federal financial participation (FFP).

Subpart C--Independent Certified Audit of State Disproportionate 
Share Hospital Payment Adjustments


Sec.  455.200  Purpose.

    This subpart implements section 1923(j)(2) of the Act.


Sec.  455.201  Definitions.

    For the purposes of this subpart--
    Independent certified audit means an audit that is conducted in 
accordance with generally accepted government auditing standards, as 
defined by the Comptroller General of the United States.
    SFY stands for State fiscal year.


Sec.  455.204  Condition for Federal financial participation (FFP).

    (a) General rule. A State must submit an independent certified 
audit to CMS, according to the requirements in this subpart, to receive 
Federal disproportionate share hospital (DSH) payment under sections 
1903(a)(1) and 1923 of the Act.
    (b) Timing. Beginning with FY 2005, a State must submit to CMS an 
independent certified audit report no later than 1 year after the 
completion of each State's fiscal year.
    (c) Specific requirements. The independent certified audit report 
must verify the following:
    (1) Each hospital that qualifies for a DSH payment in the State has 
reduced its uncompensated care costs for furnishing inpatient hospital 
and outpatient hospital services during the SFY to Medicaid eligible 
individuals and individuals with no source of third party coverage for 
the services in order to reflect the total amount of claimed DSH 
expenditures.
    (2) DSH payments made to each qualifying hospital comply with the 
hospital-specific DSH payment limit. For each audited SFY, the DSH 
payments made in that audited SFY must be measured against the actual 
uncompensated care cost in that same audited SFY.
    (3) Only uncompensated care costs of furnishing inpatient and 
outpatient hospital services to Medicaid eligible individuals and 
individuals with no third party coverage for the inpatient and 
outpatient hospital services they receive as described in section 
1923(g)(1)(A) of the Act are included in the calculation of the 
hospital-specific disproportionate share limit payment limit, as 
described in section 1923(g)(1)(A) of the Act.
    (4) For purposes of this hospital-specific limit calculation, any 
Medicaid payments (including regular Medicaid rate payments, 
supplemental/enhanced Medicaid payments, and Medicaid managed care 
organization payments) made to a disproportionate share hospital for 
furnishing inpatient hospital and outpatient hospital services to 
Medicaid eligible individuals, which are in excess of the Medicaid 
incurred costs of such services, are applied against the uncompensated 
care costs of furnishing inpatient hospital and outpatient hospital 
services to individuals with no source of third party coverage for such 
services.
    (5) Any information and records of all of its inpatient and 
outpatient hospital service costs under the Medicaid program; claimed 
expenditures under the Medicaid program; uninsured inpatient and 
outpatient hospital service costs in determining payment adjustments 
under this section; and any payments made on behalf of the uninsured 
from payment adjustments under this section has been separately 
documented and retained by the State.
    (6) The information specified in paragraph (c)(5) of this section 
includes a description of the methodology for calculating each 
hospital's payment limit under section 1923(g)(1) of the Act. Included 
in the description of the methodology, the audit report must specify 
how the State defines incurred inpatient hospital and outpatient 
hospital costs for furnishing inpatient hospital and outpatient 
hospital services to Medicaid eligible individuals and individuals with 
no source of third party coverage for the inpatient hospital and 
outpatient hospital services they receive.

(Catalog of Federal Domestic Assistance Program No. 93.778, Medical 
Assistance Program)

(Catalog of Federal Domestic Assistance Program No. 93.773, 
Medicare--Hospital Insurance; and Program No. 93.774, Medicare--
Supplementary Medical Insurance Program)

    Dated: January 5, 2005.
Mark B. McClellan,
Administrator, Centers for Medicare & Medicaid Services.
    Approved: May 5, 2005.
Michael O. Leavitt,
Secretary.
[FR Doc. 05-16974 Filed 8-25-05; 8:45 am]
BILLING CODE 4120-01-P