[Federal Register Volume 73, Number 57 (Monday, March 24, 2008)]
[Notices]
[Pages 15528-15529]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-5881]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services


Notice of Hearing: Reconsideration of Disapproval of Texas State 
Plan Amendment (SPA) 07-011

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 
May 7, 2008, at the CMS Dallas Regional Office, 1301 Young Street, Room 
1196, Dallas, Texas 75202, to reconsider CMS' decision to disapprove 
Texas SPA 07-011.
    Closing Date: Requests to participate in the hearing as a party 
must be received by the presiding officer by April 8, 2008.

FOR FURTHER INFORMATION CONTACT: Kathleen Scully-Hayes, Presiding 
Officer, CMS, 2520 Lord Baltimore Drive, Suite L, Baltimore, Maryland 
21244, Telephone: (410) 786-2055.

SUPPLEMENTARY INFORMATION: This notice announces an administrative 
hearing to reconsider CMS' decision to disapprove Texas SPA 07-011 
which was submitted on September 24, 2007, and disapproved on December 
20, 2007.
    Under this SPA, the State proposed to revise the Medicaid 
reimbursement methodology for ``birthing center facility'' services by 
eliminating the 2.5 percent rate reduction implemented September 1, 
2003.
    The amendment was disapproved because ``birthing center services'' 
are not a recognized service within the scope of ``medical assistance'' 
under section 1905(a) of the Social Security Act (the Act), and 
``birthing center facility services'' are not a recognized provider 
type under that section. Thus payment to birthing centers is not 
consistent with the requirements of sections 1902(a)(10)(A) and 
1902(a)(32) of the Act. Section 1905(a) of the Act defines those 
services eligible for medical assistance under Medicaid, generally 
based on the type of provider or practitioner. Birthing centers are not 
a recognized type of provider or facility eligible for payment under 
that section. Nurse midwife services are a recognized service under 
section 1905(a)(17) of the Act. On June 29, 2006, CMS disapproved Texas 
SPAs 04-33(b) and 06-004 for the same reasons cited above. The State 
did not appeal either of these disapprovals. Through those prior 
disapprovals, CMS notified Texas of its concern that there is no 
statutory or regulatory authority for birthing center facility payments 
that are part of the current approved Medicaid State plan.
    The hearing will involve the following issues:
     Whether there is legal authority to provide payment to 
birthing center facility services in the absence of any statutory 
authorization for coverage of birthing center facility services.
     Whether the express authorization of coverage for ``nurse 
midwife services'' as a recognized service under section 1905(a)(17) of 
the Act identifies the provider of such services as the nurse midwife 
practitioner rather than as the birthing center.
     Whether direct payment for nurse midwife services can be 
made to persons or entities other than the nurse midwife, consistent 
with section

[[Page 15529]]

1902(a)(32) of the Act, which provides that payment under the plan may 
only be made to the provider or practitioner, except under very limited 
circumstances.
    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 Texas announcing an administrative hearing to 
reconsider the disapproval of its SPA reads as follows:

Mr. Chris Traylor, State Medicaid CHIP Director, Texas Health and 
Human Services Commission, P.O. Box 13247, Austin, TX 78711.

Dear Mr. Traylor:

    I am responding to your request for reconsideration of the 
decision to disapprove the Texas State plan amendment (SPA) 07-011, 
which was submitted on September 24, 2007, and disapproved on 
December 20, 2007.
    Under this SPA, the State proposed to revise the reimbursement 
methodology for Medicaid services delivered as ``birthing center 
facility'' services by eliminating the 2.5 percent rate reduction 
implemented September 1, 2003.
    The amendment was disapproved because ``birthing center 
services'' are not a recognized service within the scope of 
``medical assistance'' under section 1905(a) of the Social Security 
Act (the Act), and ``birthing center facility services'' are not a 
recognized provider type under that section. Thus, payment to 
birthing centers is not consistent with the requirements of sections 
1902(a)(10)(A) and 1902(a)(32) of the Act. Section 1905(a) of the 
Act defines those services eligible for medical assistance under 
Medicaid, generally based on the type of provider or practitioner. 
Birthing centers are not a recognized type of provider or facility 
eligible for payment under that section. Nurse midwife services are 
a recognized service under section 1905(a)(17) of the Act. On June 
29, 2006, CMS disapproved Texas SPAs 04-33(b) and 06-004 for the 
same reasons cited above. The State did not appeal either of these 
disapprovals. Through those prior disapprovals, CMS notified Texas 
of its concern that there is no statutory or regulatory authority 
for birthing center facility payments that are part of the current 
approved Medicaid State plan.
    The hearing will involve the following issues:
     Whether there is legal authority to provide payment to 
birthing center facility services in the absence of any statutory 
authorization for coverage of birthing center facility services.
     Whether the express authorization of coverage for 
``nurse midwife services'' as a recognized service under section 
1905(a)(17) of the Act identifies the provider of such services as 
the nurse midwife practitioner, rather than as the birthing center.
     Whether direct payment for nurse midwife services can 
be made to persons or entities other than the nurse midwife, 
consistent with section 1902(a)(32) of the Act, which provides that 
payment under the plan may only be made to the provider or 
practitioner, except under very limited circumstances.
    I am scheduling a hearing on your request for reconsideration to 
be held on May 7, 2008, at the CMS Dallas Regional Office, 1301 
Young Street, Room 1196, Dallas, Texas 75202, in order to reconsider 
the decision to disapprove SPA 07-011. 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 by Federal regulations 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,

Kerry Weems
Acting Administrator

    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: March 14, 2008.
Kerry Weems,
Acting Administrator, Centers for Medicare & Medicaid Services.
[FR Doc. E8-5881 Filed 3-21-08; 8:45 am]
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