[Federal Register Volume 71, Number 187 (Wednesday, September 27, 2006)]
[Notices]
[Pages 56538-56539]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-15780]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services


Notice of Hearing: Reconsideration of Disapproval of Missouri 
State Plan Amendment 05-11

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

ACTION: Notice of hearing.

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SUMMARY: This notice announces an administrative hearing to be held on 
November 15, 2006, at the Richard Bolling Federal Building, 601 E. 12th 
Street, Kansas City, MO 64106-2898, the Kansas City Room, to reconsider 
CMS' decision to disapprove Missouri State plan amendment 05-11.
    Closing Date: Requests to participate in the hearing as a party 
must be received by the presiding officer by October 12, 2006.

FOR FURTHER INFORMATION CONTACT: Kathleen Scully-Hayes, Presiding 
Officer, CMS Lord Baltimore Drive, Mail Stop LB-23-20, Baltimore, 
Maryland 21244, telephone: (410) 786-2055.

SUPPLEMENTARY INFORMATION: This notice announces an administrative 
hearing to reconsider CMS' decision to disapprove Missouri State plan 
amendment (SPA) 05-11 which was submitted on September 27, 2005. This 
SPA was disapproved on June 16, 2006. Under SPA 05-11, Missouri 
proposed to alter the provider qualifications and payment methodology 
for personal care assistance services by transferring administrative 
responsibility for such providers from one State agency to another.
    At issue is: (1) Whether SPA 05-11 complied with the requirements 
of section 1902(a) of the Social Security Act (the Act) generally, and 
1902(a)(30) of the Act specifically, in providing for coverage of 
services for which the State plan did not contain a clear payment 
methodology that the State had shown was consistent with efficiency and 
economy; (2) whether the proposed coverage of personal care services in 
SPA 05-11 was consistent with the definition of personal care services 
in section 1905(a)(24) of the Act (which is integral to the definition 
of ``medical assistance'' in sections 1905(a) and 1902(a)(10)(A) of the 
Act), and applicable regulations, including services of registered 
nurses.
    This amendment was disapproved because the resulting plan would not 
have comported with the requirements of section 1902(a)(30)(A) and 
section 1905(a)(24) of the Act and implementing regulations.
    Section 1902(a)(30)(A) of the Act requires that State plans have 
methods and procedures to assure that payments are consistent with 
economy, efficiency, and quality of care. While this SPA would have 
provided for coverage of personal care services, the methodology for 
paying for such services was not clearly set forth in the State plan. 
Moreover, Missouri provided information that personal care services, 
and personal care assistance services, are reimbursed based on a 15-
minute service unit. However, the State did not provide to CMS the rate 
for the 15-minute service unit, or any rate derivation information, to 
conclude that this payment is economic or efficient. In light of this, 
CMS cannot conclude that the coverage of the proposed services would 
have been accomplished through an efficient and economical payment 
methodology in compliance with the requirements of section 
1902(a)(30)(A).
    Further, the overall requirement in section 1902(a) for a State 
plan, and the specific requirement at section 1902(a)(30)(A) for 
methods and procedures related to payment, as implemented by Federal 
regulations at 42 CFR 430.10 and 42 CFR 447.252(b) require that the 
State plan include a comprehensive description of the methods and 
standards used to set payment rates. Payment methodologies should be 
understandable and auditable. In addition, since the plan is the basis 
for Federal financial participation, it is important that the plan 
language be clear and unambiguous. The proposed methodology does not 
provide sufficient information for providers to determine the payment 
amount to which they are entitled.
    Additionally, the Medicaid personal care services benefit does not 
include registered nurse services in the definitions at section 
1905(a)(24) of the Act and Federal regulations at 42 CFR 440.167 and 
thus such coverage is not within the scope of ``medical assistance'' 
under sections 1905(a) and 1902(a)(10) of the Act. As CMS had indicated 
in the State Medicaid Manual Part 4, section 4480(C), although personal 
care services may be similar to, or overlap, some services furnished by 
home health aides, ``skilled services that may be performed only by a 
health professional are not considered personal care services.'' It 
would not be consistent with efficiency and economy for a State to pay 
higher rates to attract overqualified individuals (registered nurses) 
to provide personal care services. Registered nurse services may 
instead be furnished as a home health service under 42 CFR 
440.70(b)(1), or as private duty nursing services as defined at 42 CFR 
440.80(a). Furthermore, there is no provision in Medicaid for payment 
for training of personal care providers, including the ``training and 
supervision'' of the ``qualified staff licensed by the Department of 
Mental Health'' or supervision visits by a registered nurse.
    For these reasons, and after consulting with the Secretary as 
required by Federal regulations at 42 CFR section 430.15(c)(2), I 
disapproved this SPA on June 16, 2006.
    Section 1116 of the Act and Federal regulations at 42 CFR Part 430, 
establish Department procedures that provide an administrative hearing 
for reconsideration of a disapproval of a State plan or plan amendment. 
CMS is required to publish a copy of the notice to a State Medicaid 
agency that informs the agency of the time and place of the hearing, 
and the issues to be considered. If we subsequently notify the agency 
of additional issues that will be considered at the hearing, we will 
also publish that notice.
    Any individual or group that wants to participate in the hearing as 
a party must petition the presiding officer within 15 days after 
publication of this notice, in accordance with the requirements 
contained at 42 CFR 430.76(b)(2). Any interested person or organization 
that wants to participate as amicus curiae must petition the presiding 
officer before the hearing begins in accordance with the requirements 
contained at 42 CFR

[[Page 56539]]

430.76(c). If the hearing is later rescheduled, the presiding officer 
will notify all participants.
    The notice to Missouri announcing an administrative hearing to 
reconsider the disapproval of its SPA reads as follows:

Mr. Steven E. Renne, Interim Director, Missouri, Department of 
Social Services, P.O. Box 1527, Broadway State Office Building, 
Jefferson City, MO 65102-1527.

    Dear Mr. Renne: I am responding to your request for 
reconsideration of the decision to disapprove the Missouri State 
plan amendment (SPA) 05-11, which was submitted on September 27, 
2005, and disapproved on June 16, 2006.
    Under SPA 05-11, Missouri was proposing to alter the provider 
qualifications and payment methodology for personal care assistance 
services by transferring administrative responsibility for such 
providers from one State agency to another.
    At issue in this reconsideration is: (1) whether SPA 05-11 
complied with the requirements of section 1902(a) of the Social 
Security Act (the Act) generally, and 1902(a)(30) of the Act 
specifically, in providing for coverage of services for which the 
State plan did not contain a clear payment methodology that the 
State had shown was consistent with efficiency and economy; (2) 
whether the proposed coverage of personal care services in SPA 05-11 
was consistent with the definition of personal care services in 
section 1905(a)(24) of the Act (which is integral to the definition 
of ``medical assistance'' at sections 1905(a) and 1902(a)(10) of the 
Act), and applicable regulations, including services of registered 
nurses.
    This amendment was disapproved because it did not comport with 
the requirements of section 1902(a) generally, section 
1902(a)(30)(A) specifically, and section 1905(a)(24) of the Act and 
implementing regulations.
    Section 1902(a)(30)(A) of the Act requires that State plans have 
methods and procedures to assure that payments are consistent with 
economy, efficiency, and quality of care. While this SPA would have 
provided for coverage of personal care services, the methodology for 
paying for such services was not clearly set forth in the State 
plan. Moreover, Missouri provided information that personal care 
services and personal care assistance services are reimbursed based 
on a 15-minute service unit. However, the State did not provide to 
the Centers for Medicare & Medicaid Services (CMS) the rate for the 
15-minute service unit or any rate derivation information to 
conclude that this payment is economic or efficient. In light of 
this, CMS cannot conclude that coverage of the proposed services 
would be accomplished through an efficient and economical payment 
methodology in compliance with the requirements of section 
1902(a)(30)(A).
    Further, the overall requirement in section 1902(a) for a State 
plan, and the specific requirement at section 1902(a)(30)(A) for 
methods and procedures related to payment, as implemented by Federal 
regulations at 42 CFR Sec. Sec.  430.10 and 447.252(b) require that 
the State plan include a comprehensive description of the methods 
and standards used to set payment rates. Payment methodologies 
should be understandable and auditable. In addition, since the plan 
is the basis for Federal financial participation, it is important 
that the plan language be clear and unambiguous. The proposed 
methodology does not provide sufficient information for providers to 
determine the payment amount to which they are entitled.
    Additionally, the Medicaid personal care services benefit does 
not include registered nurse services in the definitions at section 
1905(a)(24) of the Act and Federal regulations at 42 CFR 440.167, 
and thus such coverage is not within the scope of ``medical 
assistance'' defined under section 1905(a) and 1902(a)(10) of the 
Act. As CMS had indicated in the State Medicaid Manual Part 4, 
section 4480(C), although personal care services may be similar to, 
or overlap, some services furnished by home health aides, ``skilled 
services that may be performed only by a health professional are not 
considered personal care services.'' It would not be consistent with 
efficiency and economy for a State to pay higher rates to attract 
overqualified individuals (registered nurses) to provide personal 
care services. Registered nurse services may instead be furnished as 
a home health service under 42 CFR 440.70(b)(1), or as private duty 
nursing services as defined at 42 CFR 440.80(a). Furthermore, there 
is no provision in Medicaid for payment for training of personal 
care providers, including the ``training and supervision'' of the 
``qualified staff licensed by the Department of Mental Health'' or 
supervision visits by a registered nurse.
    For these reasons, and after consulting with the Secretary as 
required by Federal regulations at 42 CFR section 430.15(c)(2), I 
disapproved this SPA on June 16, 2006.
    I am scheduling a hearing on your request for reconsideration to 
be held on November 15, 2006, at the Richard Bolling Federal 
Building, 601 E. 12th Street, Kansas City, MO 64106-2898, the Kansas 
City Room, to reconsider the decision to disapprove SPA 05-11. If 
this date is not acceptable, we would be glad to set another date 
that is mutually agreeable to the parties. The hearing will be 
governed by the procedures prescribed at 42 CFR part 430.
    I am designating Ms. Kathleen Scully-Hayes as the presiding 
officer. If these arrangements present any problems, please contact 
the presiding officer at (410) 786-2055. In order to facilitate any 
communication which may be necessary between the parties to the 
hearing, please notify the presiding officer to indicate 
acceptability of the hearing date that has been scheduled and 
provide names of the individuals who will represent the State at the 
hearing.

Sincerely,

 Mark B. McClellan, M.D., PhD

(Section 1116 of the Social Security Act (42 U.S.C. section 1316); 
42 CFR section 430.18)

(Catalog of Federal Domestic Assistance program No. 13.714, Medicaid 
Assistance Program)

    Dated: September 20, 2006.
Mark B. McClellan,
Administrator, Centers for Medicare & Medicaid Services.
 [FR Doc. E6-15780 Filed 9-26-06; 8:45 am]
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