[Federal Register Volume 71, Number 201 (Wednesday, October 18, 2006)]
[Notices]
[Pages 61481-61482]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-17361]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services


Notice of Hearing: Reconsideration of Disapproval of New York 
State Plan Amendment 05-49

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 22, 2006, at 26 Federal Plaza, Room 38-110a, New York, NY, 
10278, to reconsider CMS' decision to disapprove New York State plan 
amendment 05-49.

Closing Date:  Requests to participate in the hearing as a party must 
be received by the presiding officer by November 2, 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 New York State plan 
amendment (SPA) 05-49 which was submitted on September 29, 2005. This 
SPA was disapproved on June 21, 2006.
    Under SPA 05-49, New York proposed to extend previously approved 
provisions that provide funding to home care agencies for the purpose 
of maintaining or subsidizing health insurance coverage for employed 
home care workers.
    The amendment was disapproved because it did not comport with the 
requirements of sections 1902(a)(4), 1902(a)(10)(A), 1902(a)(30)(A), 
and 1905(a) of the Social Security Act (the Act) and implementing 
regulations.
    The issues in this reconsideration are whether:
    (1) The proposed payments are for services to eligible individuals 
within the scope of the eligibility provisions of section 1902(a)(10) 
of the Act, as applied consistent with the limitations in the 
definition of medical assistance at section 1905(a) of the Act;
    (2) The proposed payments are for services that are within the 
scope of covered medical assistance, as set forth in section 1905(a) of 
the Act and incorporated by section 1902(a)(10) of the Act;
    (3) It is necessary for the proper and efficient operation of the 
plan for the State to include in the State plan a provision to provider 
costs that are not within the statutory definition of medical 
assistance; and
    (4) The proposed payments are consistent with efficiency and 
economy as required by section 1902(a)(30)(A) of the Act.
    We discuss these issues in more detail below, as set forth in the 
initial disapproval decision. The proposed payments under SPA 05-49 are 
not for a group or category of individuals who are eligible under the 
statute under either section 1902(a)(10) of the Act nor as medical 
assistance for a covered benefit under 1905(a) of the Act. The proposed 
methodology would directly compensate home health and personal care 
employers for health insurance costs.
    Under the Medicaid statute, Federal funding is only available for 
medical assistance for Individuals eligible under the approved State 
plan. Section 1902(a)(10) of the Act lists mandatory and optional 
groups of individuals who may be eligible for medical assistance. 
Section 1902(a)(10) of the Act must be read in concert with section 
1905(a) of the Act, which defines medical assistance benefits 
(including additional specification of the categories of eligible 
individuals).
    For the same reasons, SPA 05-49 is not consistent with the 
requirements of section 1902(a)(4) of the Act. Section 1902(a)(4) of 
the Act requires that State Medicaid plans provide for methods of 
administration that are found by the Secretary to be necessary for the 
proper and efficient operation of the plan. It is not considered 
necessary for the proper and efficient operation of the plan for the 
State to include in the State plan a provision which would pay for 
provider

[[Page 61482]]

costs furnished to eligible individuals that are not within the 
statutory definition of medical assistance. It will result in State 
claims for FFP in expenditures as medical assistance which are not 
within the statutory definition of medical assistance.
    Furthermore, section 1902(a)(30)(A) of the Act requires that State 
plan payment rates must be consistent with efficiency, economy, and 
quality of care. The payments that would be made under SPA 05-49 are 
for care or services that are not within the scope of medical 
assistance, and are not furnished to Medicaid-eligible individuals. 
Instead, the SPA would authorize a pool of funding, to subsidize health 
insurance that would be furnished to home health and personal care 
workers. The proposed payments would not be payment for identifiable 
covered Medicaid services, as defined under section 1905(a)(30)(A) of 
the Act.
    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 430.76(c). If the hearing is later rescheduled, the 
presiding officer will notify all participants.
    The notice to New York announcing an administrative hearing to 
reconsider the disapproval of its SPA reads as follows:
    Mr. Gregor N. Macmillan, Director, State of New York, Department 
of Health, Corning Tower, The Governor Nelson A. Rockefeller Empire 
State Plaza, Albany, NY 12237.
    Dear Mr. Macmillan:
    I am responding to your request for reconsideration of the 
decision to disapprove New York State plan amendment (SPA) 05-49, 
which was submitted on September 29, 2005, and disapproved on June 
21, 2006. Under SPA 05-49, New York was proposing to provide 
supplemental funding to home care agencies for the purpose of 
maintaining or subsidizing health insurance coverage for employed 
home care workers.
    The amendment was disapproved because it did not comport with 
the requirements of section 1902(a)(4), 1902(a)(10)(A), 
1902(a)(30)(A), and 1905(a) of the Social Security Act (the Act) and 
implementing regulations.
    The issues in this reconsideration are whether:
    (1) The proposed payments are for services to eligible 
individuals within the scope of the eligibility provisions of 
section 1902(a)(10) of the Act, as applied consistent with the 
limitations in the definition of medical assistance at section 
1905(a) of the Act;
    (2) The proposed payments are for services that are within the 
scope of covered medical assistance, as set forth in section 1905(a) 
of the Act and incorporated by section 1902(a)(10) of the Act;
    (3) It is necessary for the proper and efficient operation of 
the plan for the State to include in the State plan a provision to 
provider costs that are not within the statutory definition of 
medical assistance; and
    (4) The proposed payments are consistent with efficiency and 
economy as required by section 1902(a)(30)(A) of the Act.
    We discuss these issues in more detail below, as set forth in 
the initial disapproval decision.
    The proposed payments under SPA 05-49 are not for a group or 
category of individuals who are eligible under the statute under 
either section 1902(a)(10) of the Act nor as medical assistance for 
a covered benefit under 1905(a) of the Act. The proposed methodology 
would directly compensate home health and personal care employers 
for health insurance costs. Under the Medicaid statute, Federal 
funding is only available for medical assistance for individuals 
eligible under the approved State plan. Section 1902(a)(10) of the 
Act lists mandatory and optional groups of individuals who may be 
eligible for medical assistance. Section 1902(a)(10) must be read in 
concert with section 1905(a) of the Act, which defines medical 
assistance benefits (including additional specification of the 
categories of eligible individuals). For the same reasons, SPA 05-49 
is not consistent with the requirements of section 1902(a)(4) of the 
Act. Section 1902(a)(4) of the Act requires that State Medicaid 
plans provide for methods of administration that are found by the 
Secretary to be necessary for the proper and efficient operation of 
the plan. It is not considered necessary for the proper and 
efficient operation of the plan for the State to include in the 
State plan a provision which would pay for provider costs furnished 
to eligible individuals that are not within the statutory definition 
of medical assistance. It will result in State claims for Federal 
financial participation in expenditures as medical assistance which 
are not within the statutory definition of medical assistance.
    Furthermore, section 1902(a)(30)(A) of the Act requires that 
State plan payment rates must be consistent with efficiency, 
economy, and quality of care. The payments that would be made under 
SPA 05-49 are for care or services that are not within the scope of 
medical assistance, and are not furnished to Medicaid-eligible 
individuals. Instead, the SPA would authorize a pool of funding, to 
subsidize health insurance that would be furnished to home health 
and personal care workers. The proposed payments would not be 
payment for identifiable covered Medicaid services, as defined under 
section 1905(a)(30)(A) of the Act.
    I am scheduling a hearing on your request for reconsideration to 
be held on November 22, 2006, at 26 Federal Plaza, Room 38-110a, New 
York, NY, 10278, to reconsider the decision to disapprove SPA 05-49. 
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. 1316); 42 CFR 
430.18)

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

    Dated: September 29, 2006.
Mark B. McClellan,
Administrator.
 [FR Doc. E6-17361 Filed 10-17-06; 8:45 am]
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