[Federal Register Volume 73, Number 65 (Thursday, April 3, 2008)]
[Notices]
[Pages 18287-18289]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-6867]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES (HHS)

Centers for Medicare & Medicaid Services


Notice of Hearing: Reconsideration of Disapproval of Montana 
State Plan Amendment (SPA) 07-004

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 20, 2008, at the CMS Denver Regional Office, 1600 Broadway, Suite 
700, Vail Conference Room, Denver, Colorado 80202, to 
reconsider CMS' decision to disapprove Montana SPA 07-004.
    Closing Date: Requests to participate in the hearing as a party 
must be received by the presiding officer by April 18, 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 Montana SPA 07-004 
which

[[Page 18288]]

was submitted on May 24, 2007, and disapproved on January 4, 2008.
    Under this SPA, the State proposed to eliminate cost sharing with 
respect to Medicaid services for enrolled members of federally 
recognized American Indian Tribes. CMS requested additional information 
from Montana that would describe how the State's proposal was 
consistent with the Equal Protection Clause of the Fourteenth Amendment 
of the Constitution and Title VI of the Civil Rights Act of 1964 
(prohibiting discrimination on the basis of race, color, and national 
origin in federally assisted programs). The State submitted a response, 
but that response did not establish such consistency.
    The proposed amendment was disapproved because it is inconsistent 
with section 1902(a)(10)(B) of the Social Security Act (Act). That 
provision requires that all categorically eligible individuals receive 
the same benefit package, and that all individuals within a covered 
eligibility group receive the same benefit package. CMS concluded that 
the proposed exemption from cost sharing by enrolled members of Tribes 
would not be consistent with section 1902(a)(10)(B) because it would 
result in a greater amount, duration, and scope of medical assistance 
available to Indians than to other similarly situated non-Indians. 
Moreover, CMS concluded that the State had not demonstrated that the 
proposed amendment was consistent with sections 1902(a)(4) and 
1902(a)(19) of the Act, because the State had not demonstrated that it 
was consistent with the Equal Protection Clause and Title VI of the 
Civil Rights Act. Sections 1902(a)(4) and 1902(a)(19) of the Act 
require methods of administration necessary for the ``proper and 
efficient'' operation of the plan and provision of care and services in 
a manner ``consistent with the best interests of beneficiaries.''
    The hearing will involve the following issues:
     Whether the State's proposed amendment would result in a 
different amount, duration, and scope of medical assistance available 
for some categorically eligible individuals than other similarly 
situated individuals, and in a different amount, duration, and scope of 
medical assistance for some individuals in an eligibility group than 
for others in the same group. The State's proposed amendment would 
provide a greater amount of medical assistance to Indians than non-
Indians because the medical assistance for Indian beneficiaries would 
be increased by the amount that would otherwise be collected through 
the imposition of cost sharing.
     Whether the State has demonstrated that the proposed 
amendment is consistent with the Equal Protection Clause of the 
Constitution and Title VI of the Civil Rights Act of 1964. Although the 
State asserted that it only needed to show a ``rational basis,'' the 
State did not demonstrate that this test has been applied in the same 
circumstance by reviewing courts. Instead, it appears that the 
applicable test is ``strict scrutiny'' and the State did not 
demonstrate the necessary ``compelling State interest'' and that the 
proposed action was narrowly tailored to meet that interest.
    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 Montana announcing an administrative hearing to 
reconsider the disapproval of its SPA reads as follows:

Mr. John Chappuis, State Medicaid Director, Montana Department of 
Public Health and Human Services, P.O. Box 4210, Helena, MT 59604-4210.

Dear Mr. Chappuis:
    I am responding to your request for reconsideration of the decision 
to disapprove the Montana State plan amendment (SPA) 07-004, which was 
submitted on May 24, 2007, and disapproved on January 4, 2008.
    Under this SPA, the State proposed to eliminate cost sharing with 
respect to Medicaid services for enrolled members of federally 
recognized American Indian Tribes. CMS requested additional information 
from Montana that would describe how the State's proposal was 
consistent with the Equal Protection Clause of the Fourteenth Amendment 
of the Constitution and Title VI of the Civil Rights Act of 1964 
(prohibiting discrimination on the basis of race, color, and national 
origin in federally assisted programs). The State submitted a response, 
but that response did not establish such consistency.
    The proposed amendment was disapproved because it is inconsistent 
with section 1902(a)(10)(B) of the Social Security Act (the Act). That 
provision requires that all categorically eligible individuals receive 
the same benefit package, and that all individuals within a covered 
eligibility group receive the same benefit package. CMS concluded that 
the proposed exemption from cost sharing by enrolled members of Tribes 
would not be consistent with section 1902(a)(10)(B) because it would 
result in a greater amount, duration, and scope of medical assistance 
available to Indians than to other similarly situated non-Indians. 
Moreover, CMS concluded that the State had not demonstrated that the 
proposed amendment was consistent with sections 1902(a)(4) and 
1902(a)(19) of the Act, because the State had not demonstrated that it 
was consistent with the Equal Protection Clause and Title VI of the 
Civil Rights Act. Sections 1902(a)(4) and 1902(a)(19) of the Act 
require methods of administration necessary for the ``proper and 
efficient'' operation of the plan and provision of care and services in 
a manner ``consistent with the best interests of beneficiaries.''
    The hearing will involve the following issues:
     Whether the State's proposed amendment would result in a 
different amount, duration, and scope of medical assistance available 
for some categorically eligible individuals than other similarly 
situated individuals, and in a different amount, duration, and scope of 
medical assistance for some individuals in an eligibility group than 
for others in the same group. The State's proposed amendment would 
provide a greater amount of medical assistance to Indians than non-
Indians because the medical assistance for Indian beneficiaries would 
be increased by the amount that would otherwise be collected through 
the imposition of cost sharing.
     Whether the State has demonstrated that the proposed 
amendment is consistent with the Equal Protection Clause of the 
Constitution and Title VI of the Civil Rights Act of 1964. Although the 
State asserted that it only needed to show a ``rational basis,'' the 
State did not demonstrate that this test has been applied in the same 
circumstance by reviewing courts.

[[Page 18289]]

Instead, it appears that the applicable test is ``strict scrutiny'' and 
the State did not demonstrate the necessary ``compelling State 
interest'' and that the proposed action was narrowly tailored to meet 
that interest.
    I am scheduling a hearing on your request for reconsideration to be 
held on May 20, 2008, at the CMS Denver Regional Office, 1600 Broadway, 
Suite 700, Vail Conference Room, Denver, Colorado 80202, in 
order to reconsider the decision to disapprove SPA 07-004. 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. 1316; 42 CFR 
430.18)

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

    Dated: March 26, 2008.
Kerry Weems,
Acting Administrator, Centers for Medicare & Medicaid Services.
[FR Doc. E8-6867 Filed 4-2-08; 8:45 am]
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