[Federal Register Volume 74, Number 86 (Wednesday, May 6, 2009)]
[Proposed Rules]
[Pages 21230-21232]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-10460]



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Part V





Department of Health and Human Services





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Centers for Medicare & Medicaid Services



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42 CFR Parts 431, 433, 440, et al.



Medicaid Program; Health Care-Related Taxes; Medicaid Program: 
Rescission of School-Based Services Final Rule, Outpatient Services 
Definition Final Rule, and Partial Rescission of Case Management 
Services Interim Final Rule; Proposed Rules

  Federal Register / Vol. 74, No. 86 / Wednesday, May 6, 2009 / 
Proposed Rules  

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Part 433

[CMS-2275-P2]
RIN 0938-AP74


Medicaid Program; Health Care-Related Taxes

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

ACTION: Proposed rule; delay of enforcement.

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SUMMARY: This proposed rule would delay enforcement of certain portions 
of the final rule entitled ``Medicaid Program; Health Care-Related 
Taxes'' from the expiration of a Congressional moratorium on 
enforcement on July 1, 2009 until June 30, 2010. That final rule 
revised the threshold levels under the regulatory indirect guarantee 
hold harmless arrangement test to reflect the provisions of the Tax 
Relief and Health Care Act of 2006, amended the definition of the 
``class of managed care organization services,'' and removed obsolete 
transition period regulatory language. These changes would not be 
affected by this delay of enforcement. The final rule also clarified 
the standard for determining the existence of a hold harmless 
arrangement under the positive correlation test, Medicaid payment test, 
and the guarantee test. This proposed rule would delay enforcement of 
these latter provisions, concerning hold harmless arrangements, for 1 
year.

DATES: Comment Period. To be assured consideration, comments must be 
received at one of the addresses provided below, no later than 5 p.m. 
on June 1, 2009.

ADDRESSES: In commenting, please refer to file code CMS-2275-P2. 
Because of staff and resource limitations, we cannot accept comments by 
facsimile (FAX) transmission.
    You may submit comments in one of four ways (please choose only one 
of the ways listed):
    1. Electronically. You may submit electronic comments on this 
regulation to http://www.regulations.gov. Follow the instructions for 
``Comment or Submission'' and enter the file code to find the document 
accepting comments.
    2. By regular 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-2275-P2, P.O. Box 8010, Baltimore, MD 21244-8010.
    Please allow sufficient time for mailed comments to be received 
before the close of the comment period.
    3. By express or overnight mail. You may send 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-2275-P2, Mail Stop C4-26-05, 7500 Security Boulevard, 
Baltimore, MD 21244-8010.
    4. 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 either of the following addresses:

a. Room 445-G, Hubert H. Humphrey Building, 200 Independence Avenue, 
SW., Washington, DC 20201. (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.)

b. 7500 Security Boulevard, Baltimore, MD 21244-1850. 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.

    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: Lisa Parker, (410) 786-4665.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 1903(w) of the Social Security Act (the Act) provides for a 
reduction of federal Medicaid funding based on State health care-
related taxes unless those taxes are imposed on a permissible class of 
health care services; broad based, applying to all providers within a 
class; uniform, such that all providers within a class must be taxed at 
the same rate; and are not part of hold harmless arrangements in which 
collected taxes are returned, whether directly or indirectly. A similar 
hold harmless restriction applies to provider-related donations. 
Section 1903(w)(3)(E) of the Act specifies that the Secretary shall 
approve broad based (and uniformity) waiver applications if the net 
impact of the health care-related tax is generally redistributive and 
the amount of the tax is not directly correlated to Medicaid payments. 
The broad based and uniformity requirements are waivable through a 
statistical test that measures the degree to which the Medicaid program 
incurs a greater tax burden than if these requirements were met. The 
permissible class of health care services and hold harmless 
requirements cannot be waived. The statute and Federal regulation 
identify 19 permissible classes of health care items or services that 
States can tax without triggering a penalty against Medicaid 
expenditures.
    On February 22, 2008 we published a final rule entitled, ``Medicaid 
Program; Health Care-Related Taxes'' (73 FR 9685). This final rule 
amended provisions governing the determination of whether health care 
provider taxes or donations constitute ``hold harmless'' arrangements 
under which provider tax revenues are repaid, altered the indirect 
guarantee threshold test, revised the definition of the ``class of 
managed care provider,'' and deleted certain obsolete provisions. The 
rule reduced the indirect guarantee threshold test in order to reduce 
the threshold level of permissible taxes on health care providers for 
the period of January 1, 2008, through September 30, 2011, as required 
by the Tax Relief and Health Care Act of 2006 (Pub. L. 109-432).
    The February 22, 2008 final rule was scheduled to become effective 
on April 22, 2008. However, section 7001(a)(3)(C) of the Supplemental 
Appropriations Act of 2008, Public Law No. 110-252, imposed a partial 
moratorium until April 1, 2009, prohibiting CMS from taking any action 
to implement any provisions of the final rule that are more restrictive 
than the provisions in effect on February 21, 2008, with the exception 
of the change in the definition of the class of managed care provider 
and the statutorily-required change to the indirect guarantee threshold 
test. This moratorium was extended by section 5003(a) of the American 
Recovery and Reinvestment Act of 2009, Public Law No. 111-5, until July 
1, 2009. Although not subject to the moratorium, the change in the 
definition of the ``class of managed care provider'' is subject to a 
delayed compliance date of October 1, 2009, in order to permit States 
time to implement necessary changes.

II. Provisions of the Proposed Rule

    We propose to delay the enforcement of the changes made in the 
February 22, 2008 final rule to the hold harmless

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tests under Sec. Sec.  433.54(c) and 433.68(f), other than the 
statutorily-required change to the indirect guarantee threshold level, 
until June 30, 2010. As discussed above, this portion of the regulation 
has been the subject of Congressional moratoria and has not yet been 
implemented by CMS. This additional time is necessary to determine 
whether additional clarification or guidance would be necessary or 
helpful to our State partners. It is our understanding that certain 
States are concerned that the regulatory language is overbroad or 
unclear. We believe the delay will permit more time to obtain 
information about the potential impact of the rule and alternative 
approaches, and to ensure appropriate implementation of the statutory 
restrictions on provider taxes and donations.

III. 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.

IV. Collection of Information Requirements

    This document does not impose information collection and 
recordkeeping requirements. Consequently, it need not be reviewed by 
the Office of Management and Budget under the authority of the 
Paperwork Reduction Act of 1995.

V. Regulatory Impact Analysis

A. Overall Impact

    We have examined the impact of this proposed rule as required by 
Executive Order 12866, the Congressional Review Act, the Regulatory 
Flexibility Act (RFA), section 1102(b) of the Social Security Act, the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), and Executive 
Order 13132 on Federalism. Executive Order 12866 (as amended) directs 
agencies to assess all costs and benefits of all 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).
    The final rule on health-care related taxes was estimated to result 
in savings to the Federal government, by reducing its financial 
participation in the Medicaid program for amounts in excess of the tax-
related threshold, with corresponding responses by States that would 
partially offset these savings. Specifically, the RIA for the final 
rule estimated that Federal Medicaid outlays would be reduced by $85 
million in FY 2008, and $115 million in FY 2009 through FY 2011. These 
savings resulted directly from applying the language in the Tax Relief 
and Health Care Act of 2006 to reduce the maximum threshold on 
exclusion of health care related taxes from 6 percent to 5.5 percent of 
net patient revenue. We do not propose to delay application of this 
reduced threshold, which is already in effect. Accordingly, we believe 
that the proposed delay would not have any substantial economic effect, 
and that this proposed rule is not ``economically significant'' under 
E.O. 12866 or ``major'' under the Congressional Review Act.
    The RFA requires agencies to analyze options for regulatory relief 
of small entities if proposed or final rules have a ``significant 
economic impact on a substantial number of small entities.'' For 
purposes of the RFA, small entities include small businesses, nonprofit 
organizations, and small governmental jurisdictions, including school 
districts. ``Small'' governmental jurisdictions are defined as having a 
population of less than fifty thousand. Individuals and States are not 
included in the definition of a small entity. In the final rule on 
health care related taxes, we analyzed potential impacts on small 
entities that might result from the change in the exclusion threshold. 
Some effects (reduced tax burden) were likely to be positive and some 
(reductions in State reimbursement rates) could be either positive or 
negative. All of these effects would depend on future State decisions 
on taxation and reimbursement that could not be predicted and would in 
any event be indirect effects rather than the direct result of that 
rule. Regardless, because this rule does not propose to delay the 
change in the exclusion threshold, we conclude, and the Secretary 
certifies, that this proposed rule would not have a significant effect 
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 604 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. Our analysis of the final 
rule concluded that it would have had no significant direct effect on a 
substantial number of these hospitals. This proposed rule does not 
impose any new requirements. Accordingly, we are not preparing an 
analysis for section 1102(b) of the Act because we have determined, and 
the Secretary certifies, that this proposed rule would not have a 
direct 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 whose mandates require spending in any 1 year of $100 
million in 1995 dollars, updated annually for inflation. That threshold 
level is currently approximately $130 million. This proposed rule 
contains no mandates that will impose spending costs on State, local, 
or tribal governments in the aggregate, or by the private sector, of 
$130 million.
    Executive Order 13132 on Federalism establishes certain 
requirements that an agency must meet when it promulgates a proposed 
rule (and subsequent final rule) that imposes substantial direct 
requirements on State and local governments, preempts State law, or 
otherwise has Federalism implications. EO 13132 focuses on the roles 
and responsibilities of different levels of government, and requires 
Federal deference to State policy-making discretion when States make 
decisions about the uses of their own funds or otherwise make State-
level decisions. The original final rule, while limiting Federal 
funding, did not circumscribe the States' authority to make policy 
decisions regarding taxes and reimbursement. This proposed rule will 
likewise not have a substantial effect on State or local government 
policy discretion.

B. Anticipated Effects

    As discussed in the final rule published February 22, 2008, States 
had a number of options open to them in addressing any reduction in 
Federal Financial Participation (FFP). They could restructure State 
spending and shift funds among programs, raise funds through increases 
in other forms of generally applicable tax revenue increases, or reduce 
reimbursement to the tax-paying health care providers.

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Presumably most of those States have already made those decisions. 
Although the delay proposed in this rule will not affect the tax 
threshold, it will provide some relief to States in making other 
adjustments.

C. Alternatives

    We welcome comments not only on the proposed delay in enforcement, 
but also on alternatives that may more constructively address the 
underlying problems and their likely impacts on States and other 
stakeholders.
    In accordance with the provisions of Executive Order 12866, this 
regulation was reviewed by the Office of Management and Budget.

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


    Dated: April 30, 2009.
Charlene Frizzera,
Acting Administrator, Centers for Medicare & Medicaid Services.
    Approved: May 1, 2009.
Kathleen Sebelius,
Secretary.
[FR Doc. E9-10460 Filed 5-1-09; 4:15 pm]
BILLING CODE 4120-01-P