[Federal Register Volume 74, Number 209 (Friday, October 30, 2009)]
[Proposed Rules]
[Pages 56151-56153]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-26297]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Part 440, 447 and 457

[CMS-2232-P2; CMS-2244-P2]
RIN 0938-AP72 and 0938-AP73


Medicaid Program: State Flexibility for Medicaid Benefit Packages 
and Premiums and Cost Sharing

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

ACTION: Proposed Rule.

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SUMMARY: This document proposes to temporarily delay the effective date 
of the November 25, 2008 final rule entitled, ``Medicaid Program; 
Premiums and Cost Sharing'' and the December 3, 2008 final rule 
entitled, ``Medicaid Program; State Flexibility for Medicaid Benefit 
Packages.'' Upon the review and consideration of the new provisions of 
the American Recovery and Reinvestment Act of 2009, the Children's 
Health Insurance Program Reauthorization Act of 2009, and the public 
comments received during the reopened comment period, we believe that 
it is necessary to revise a substantial portion of the November 25, 
2008 and the December 3, 2008 final rules. To allow time to make these 
revisions, the Department has determined that it needs several more 
months to revise the rule. Accordingly, we are asking for public 
comment on this proposal for delaying the effective date of the final 
rules until July 1, 2010.

DATES: To be assured consideration, comments must be received at one of 
the addresses provided below, no later than 5 p.m. on November 19, 
2009.

ADDRESSES: In commenting, please refer to file code CMS-2244-P2 or CMS-
2232-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 under 
the ``More Search Options'' tab.
    2. By regular mail. You may mail written comments to the following 
address ONLY: Centers for Medicare & Medicaid Services, Department of 
Health and Human Services, Attention: CMS-2244-P2 or CMS-2232-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 to 
the following address ONLY: Centers for Medicare & Medicaid Services, 
Department of Health and Human Services, Attention: CMS-2244-P2 or CMS-
2232-P2, Mail Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 
21244-1850.
    4. By hand or courier. If you prefer, you may deliver (by hand or 
courier) your written comments before the close of the comment period 
to either of the following addresses:

    a. For delivery in Washington, DC--Centers for Medicare & Medicaid 
Services, Department of Health and Human Services, Room 445-G, Hubert 
H. Humphrey Building, 200 Independence Avenue, SW., Washington, DC 
20201.

    (Because access to the interior of the Hubert H. Humphrey 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. For delivery in Baltimore, MD--Centers for Medicare & Medicaid 
Services, Department of Health and Human Services, 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: Frances Crystal, (410) 786-1195 for 
State Flexibility for Medicaid Benefit Packages. Christine Gerhardt, 
(410) 786-0693 for Premiums and Cost Sharing.

SUPPLEMENTARY INFORMATION:
    Inspection of Public Comments: All comments received before the 
close of the comment period are available for viewing by the public, 
including any personally identifiable or confidential business 
information that is included in a comment. We post all comments 
received before the close of the comment period on the following Web 
site as soon as possible after they have been received: http://www.regulations.gov. Follow the search instructions on that Web site to 
view public comments.
    Comments received timely will also be available for public 
inspection as they are received, generally beginning approximately 3 
weeks after publication of a document, at the headquarters of the 
Centers for Medicare & Medicaid Services, 7500 Security Boulevard, 
Baltimore, Maryland 21244, Monday through Friday of each week from 8:30 
a.m. to 4 p.m. To schedule an appointment to view public comments, 
phone 1-800-743-3951.

I. Background

A. State Flexibility for Medicaid Benefit Packages

    On December 3, 2008, we published a final rule in the Federal 
Register (73 FR 73694) entitled ``Medicaid Program; State Flexibility 
for Medicaid Benefit Packages.'' The December 2008 final rule 
implements provisions of section 6044 of the Deficit Reduction Act 
(DRA) of 2005, (Pub. L. 109-171), enacted on February 8, 2006, which 
amends the Social Security Act (the Act) by adding a new section 1937 
related to the coverage of medical assistance under approved State 
plans. Section 1937 provides States increased flexibility under an 
approved State plan to provide covered medical assistance through 
enrollment of certain Medicaid recipients in benchmark or benchmark-
equivalent benefit packages. The final rule set forth the requirements 
and limitations for this flexibility, after consideration of public 
comments on the February 22, 2008 proposed rule.
    Subsequent to the publication of the December 3, 2008 final rule, 
we published an interim final rule with comment period in the Federal 
Register on February 2, 2009 (74 FR 5808) to temporarily delay for 60 
days the effective date of the December 3, 2008

[[Page 56152]]

final rule entitled, ``Medicaid Program; State Flexibility for Medicaid 
Benefit Packages.'' The interim final rule also reopened the comment 
period on the policies set out in the December 3, 2008 final rule. We 
received 9 public comments in response to the February 2, 2009 interim 
final rule.
    On February 4, 2009, the Children's Health Insurance Program 
Reauthorization Act (CHIPRA) of 2009 (Pub. L. 111-3) was enacted. 
Certain provisions of the CHIPRA affect current regulations regarding 
State Flexibility for Medicaid Benefit Packages, including the December 
3, 2008 final rule. Specifically, section 611(a)(1)(C) and section 
611(a)(3) of CHIPRA amends section 1937 of the Act, to require States 
to assure that children under the age of 21, rather than those under 19 
as specified in the DRA of 2005, who are included in benchmark or 
benchmark-equivalent plans, have access to the Early Periodic 
Screening, Diagnosis, and Treatment (EPSDT) services. EPSDT services 
may be provided through a benchmark or benchmark-equivalent plan or as 
an additional benefit to those plans.
    Section 611(a)(1)(A)(i) of CHIPRA amends section 1937 of the Act by 
changing the language ``Notwithstanding any other provision of this 
title * * *'' to read ``Notwithstanding section 1902(a)(1)(relating to 
statewideness), section 1902(a)(10)(B) (relating to comparability), and 
any other provision of this title which would be directly contrary to 
the authority * * *''
    On April 3, 2009, we published a second final rule (74 FR 15221) in 
the Federal Register further delaying implementation of the December 3, 
2008 rule until December 31, 2009 and reopening the comment period to 
permit additional comments on the policies set forth in the December 3, 
2008 final rule and the statutory changes contained in CHIPRA. This 
second delay specifically requested comments on the provisions of the 
CHIPRA enacted on February 4, 2009, which corrected language in the DRA 
as if these amendments were included in the DRA, and subsequently 
amended section 1937 of the Act, ``State Flexibility for Medicaid 
Benefit Packages.'' We received 7 timely items of correspondence in 
response to the April 3, 2009 interim final rule.

B. Premiums and Cost Sharing

    On November 25, 2008, we published a final rule entitled, 
``Medicaid Program; Premiums and Cost Sharing'' in the Federal Register 
(73 FR 71828) to implement and interpret the provisions of the DRA and 
the Tax Relief and Health Care Act of 2006 (TRHCA). The DRA was amended 
by TRHCA to include limitations on cost sharing for individuals with 
family incomes at or below 100 percent of the Federal poverty line. The 
DRA also provided State Medicaid agencies with increased flexibility to 
impose premium and cost sharing requirements on certain Medicaid 
recipients. The DRA provisions also specifically addressed cost sharing 
for non-preferred drugs and non-emergency care furnished in a hospital 
emergency department. The November 25, 2008 final rule integrated into 
CMS regulations the statutory flexibility to impose premiums and cost 
sharing that was added by the DRA. In addition, in the November 25, 
2008 final rule, we responded to public comments on the February 22, 
2008 proposed rule.
    Subsequent to the publication of the November 25, 2008 final rule, 
we published a final rule in the Federal Register on January 27, 2009 
(74 FR 4888) that temporarily delayed for 60 days the effective date of 
the November 25, 2008 final rule. The final rule also reopened the 
comment period on the policies set out in the November 25, 2008 final 
rule.
    On February 17, 2009, the American Recovery and Reinvestment Act of 
2009 (the Recovery Act) was enacted subsequent to the publication of 
the January 27, 2009 delay of effective date. Certain provisions of the 
Recovery Act affect current regulations regarding premiums and cost 
sharing. Specifically, under the Recovery Act, effective July 1, 2009, 
Medicaid and CHIP programs are prohibited from imposing premiums or 
other cost sharing payments on Indians who are provided services or 
items covered under the Medicaid State plan by Indian Health providers 
or through referral under contract health services. Similarly, payments 
to Indian Health providers or to a health care provider through 
referral under contract health services for Medicaid services or items 
furnished to Indians cannot be reduced by the amount of any enrollment 
fee, premium, or cost sharing that otherwise would be due from the 
Indians.
    On March 27, 2009, we published a second final rule in the Federal 
Register (74 FR 13346) that further delayed the effective date of the 
November 25, 2008 final rule until December 31, 2009. The final rule 
reopened the comment period to give the public an additional 
opportunity to submit comments on the policy set forth in the final 
rule as well as the provisions of the Recovery Act. Comments were 
specifically solicited on the effect of certain provisions of the 
Recovery Act related to the exclusion of Indians from payments of 
premiums and cost sharing.

II. Provisions of the Proposed Regulation

    We are proposing to delay the effective date of the November 25, 
2008 and December 3, 2008 final rules (collectively, ``the 2008 final 
rules'') until July 1, 2010. Upon review and consideration of the new 
provisions of CHIPRA, the Recovery Act, and the public comments 
received during the reopened comment periods, we believe that it is 
necessary to revise a substantial portion of these final rules. To 
allow time to make these revisions, the Department has determined that 
it needs several more months to revise the rule. Accordingly, we are 
asking for public comment on this proposal for delaying the effective 
date of the final rules until July 1, 2010.
    The comments received during the reopened comment period were 
complex and presented numerous policy issues, which require extensive 
consultation, review, and analysis. Additionally, because both CHIPRA 
and the Recovery Act contain provisions that impact the American Indian 
and Alaska Native community, the development of the final rules 
requires collaboration with other HHS agencies and the Tribal 
governments.
    Therefore, we are proposing to further delay the effective date of 
the 2008 final rules until July 1, 2010. We anticipate that this time 
period would allow sufficient time for CMS to further consider public 
comments, analyze the impact of the revisions on affected stakeholders, 
and develop appropriate revisions to the regulations. We note that, 
although we are proposing to delay the effective date of the 2008 final 
rules jointly because it is more efficient to do so, revisions to the 
2008 final rules will be published as two separate revised final rules.

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.

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


[[Page 56153]]


    Dated: October 22, 2009.
Charlene Frizzera,
Acting Administrator, Centers for Medicare & Medicaid Services.
    Approved: October 27, 2009.
Kathleen Sebelius,
Secretary.
[FR Doc. E9-26297 Filed 10-29-09; 8:45 am]
BILLING CODE 4120-01-P