[Federal Register Volume 78, Number 51 (Friday, March 15, 2013)]
[Notices]
[Pages 16506-16507]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-05978]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services


Notice of Hearing: Reconsideration of Disapproval of Florida 
State Plan Amendments (SPA) 12-015

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 
April 30, 2013, at the CMS Atlanta Regional Office, Atlanta Federal 
Center, 3rd Floor, 61 Forsyth Street SW., Suite 3B52, Atlanta, Georgia 
30303-8909, to reconsider CMS' decision to disapprove Florida SPA 12-
015.

DATES: Closing Date: Requests to participate in the hearing as a party 
must be received by the presiding officer by (15 days after 
publication).

FOR FURTHER INFORMATION CONTACT: Benjamin Cohen, Presiding Officer, 
CMS, 2520 Lord Baltimore Drive, Suite L, Baltimore, Maryland 21244, 
Telephone: (410) 786-3169.

SUPPLEMENTARY INFORMATION: This notice announces an administrative 
hearing to reconsider CMS' decision to disapprove Florida SPA 12-015 
which was submitted on September 14, 2012, and disapproved on December 
13, 2012. The SPA reflects a Florida state law that would limit 
outpatient hospital emergency room visits to six per fiscal year for 
non-pregnant adults, 21 years of age and older, effective August 1, 
2012.
    CMS disapproved this SPA after consulting with the Secretary as 
required at 42 CFR 430.15(c)(2), because it appeared to impose a 
limitation on outpatient hospital services that was based on the 
individual's diagnosis, illness, or condition and because the state 
failed to demonstrate that the limitation is consistent with the 
provision of a sufficient amount, duration, and scope to reasonably 
achieve the purpose of the benefit. As a result, CMS concluded that the 
proposed coverage under the SPA would not be sufficient to meet 
statutory requirements set forth in section 1902(a)(10)(A) of the 
Social Security Act (the Act), which incorporates by reference the 
provisions of 1905(a)(2)(A) of the Act, and 42 CFR 440.20(a)(3)(ii), 
and the requirements of section 1902(a)(10)(B) of the Act. We explain 
in more detail below.
    Under section 1902(a)(10)(A) of the Act, a state plan must provide 
for making medical assistance available to eligible individuals, 
including for most eligible individuals the medical assistance 
specified in section 1905(a)(2) of the Act. This provision includes in 
the definition of medical assistance ``outpatient hospital services.'' 
Section 1902(a)(17) of the Act requires the state plan to include 
reasonable standards for determining the extent of medical assistance, 
and under section 1902(a)(19) of the Act, the state plan must assure 
that eligibility for care and services are provided in the best 
interest of the recipients. As the implementing regulations at 42 CFR 
440.230(b) require, a state plan must ``specify the amount, duration, 
and scope of each service that it provides,'' and ``each service must 
be sufficient in amount, duration, and scope to reasonably achieve its 
purpose.'' While states may place ``appropriate limits on a service 
based such criteria as medical necessity or utilization control 
procedures'' under CFR 440.230(d), 42 CFR 440.230(c) specifies that a 
state may not arbitrarily deny or reduce the amount, duration, or scope 
of required services, including physicians' services, solely because of 
the diagnosis, type of illness, or condition.
    The proposed limitation on certain outpatient hospital services 
appeared to be based on the diagnosis, illness, or condition because it 
is limited to outpatient services furnished at a hospital emergency 
room, which are designed to address acute and immediate conditions. 
Thus, the limitation appeared to violate the requirements of 42 CFR 
440.230(c). Even if that were not the case, the state has not 
demonstrated that the limitation is consistent with provision of a 
sufficient amount, duration, and scope to reasonably achieve the 
purpose of the benefit, which in this case would be providing 
reasonable coverage that meets the needs of most beneficiaries who need 
the outpatient hospital services, consistent with 42 CFR 440.230(b).
    In disapproving SPA 12-015, CMS staff suggested to the state some 
alternate methods to address inappropriate utilization of hospital 
emergency rooms, including the development of payment rates for 
hospital emergency rooms that are lower if the individual does not 
require care for an acute and immediate condition, or the use of the 
alternative cost sharing authority available to states under section 
1916(d) of the Act, permitting higher beneficiary cost sharing for 
elective non-emergency use of the emergency room. CMS offered to work 
with the state on these options and technical assistance.
    At issue in this appeal are the following issues, which are more 
detailed than set out in the disapproval letter:
     Whether the exceptions to the proposed general service 
limitations on outpatient hospital services violate comparability 
requirements under section 1902(a)(10)(B) of the Act and implementing 
regulations at 42 CFR 440.230(c) because they provide that some 
individuals described in section 1902(a)(10)(A) of the Act, who have 
particular diagnoses or conditions, will receive benefits that 
individuals with other diagnoses and conditions will not receive.
     Whether the imposition of a limit specifically on 
emergency outpatient hospital visits would violate those comparability 
requirements because the limitation would be imposed only on outpatient 
hospital visits that are warranted to address acute and immediate 
conditions, which means that the limitation is based on the diagnosis 
or condition.
     Whether the exception to the limitation on emergency room 
visits for ``aliens'' would violate section 1902(a)(10)(B) of the Act 
because it would provide that aliens would receive a greater amount, 
duration and scope of emergency outpatient hospital benefits than other 
individuals described in section 1902(a)(10)(A) of the Act.
     Whether the state has demonstrated that the resulting 
outpatient hospital benefits are of a sufficient amount, duration and 
scope to reasonably achieve the purpose of the benefit, consistent with 
the requirements of sections 1902(a)(10)(A) and 1905(a)(2) of

[[Page 16507]]

the Act, and implementing regulations at 42 CFR 440.230(b), which CMS 
has interpreted to mean that the state provides reasonable coverage of 
the benefit that meets the needs of most beneficiaries who need the 
outpatient hospital services. While the state provided information on 
emergency room services, it did not provide information on outpatient 
hospital services.
    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 Florida announcing an administrative hearing to 
reconsider the disapproval of its SPA reads as follows:

Stuart F. Williams, Esq., General Counsel, Agency for Health Care 
Administration, Office of the General Counsel, 2727 Mahan Drive, 
Building 3, MS 3, Tallahassee, FL 323008

    Dear Mr. Williams:
    I am responding to your request for reconsideration of the decision 
to disapprove the Florida State Plan Amendment (SPA) 12-015 which was 
submitted on September 14, 2012, and disapproved on December 13, 2012. 
The SPAs reflects a Florida state law that would limit outpatient 
hospital emergency room visits to six per fiscal year for non-pregnant 
adults, 21 years of age and older, effective August 1, 2012.
    I disapproved Florida SPA 12-015 because it appeared to impose a 
limitation on outpatient hospital services that was based on the 
individual's diagnosis, illness, or condition and because the state 
failed to demonstrate that the limitation is consistent with the 
provision of a sufficient amount, duration and scope to reasonably 
achieve the purpose of the benefit. At issue in this appeal are the 
following issues, which are more detailed than set out in the 
disapproval letter:
     Whether the exceptions to the proposed general service 
limitations on outpatient hospital services violate comparability 
requirements under section 1902(a)(10)(B) of the Act and implementing 
regulations at 42 CFR 440.230(c) because they provide that some 
individuals described in section 1902(a)(10)(A) of the Act, who have 
particular diagnoses or conditions, will receive benefits that 
individuals with other diagnoses and conditions will not receive.
     Whether the imposition of a limit specifically on 
emergency outpatient hospital visits would violate those comparability 
requirements because the limitation would be imposed only on outpatient 
hospital visits that are warranted to address acute and immediate 
conditions, which means that the limitation is based on the diagnosis 
or condition.
     Whether the exception to the limitation on emergency room 
visits for ``aliens'' would violate section 1902(a)(10)(B) of the Act 
because it would provide that aliens would receive a greater amount, 
duration and scope of emergency outpatient hospital benefits than other 
individuals described in section 1902(a)(10)(A) of the Act.
     Whether the state has demonstrated that the resulting 
outpatient hospital benefits are of a sufficient amount, duration and 
scope to reasonably achieve the purpose of the benefit, consistent with 
the requirements of sections 1902(a)(10)(A) and 1905(a)(2) of the Act, 
and implementing regulations at 42 CFR 440.230(b), which CMS has 
interpreted to mean that the state provides reasonable coverage of the 
benefit that meets the needs of most beneficiaries who need the 
outpatient hospital services. While the state provided information on 
emergency room services, it did not provide information on outpatient 
hospital services.
    I am scheduling a hearing on your request for reconsideration to be 
held on April 30, 2013, at the CMS Atlanta Regional Office, Atlanta 
Federal Center, 3rd\h\ Floor, 61 Forsyth Street, SW., Suite 3B52, 
Atlanta, Georgia 30303-8909, to reconsider CMS' decision to disapprove 
Florida SPA 12-015.
    If this date is not acceptable, I 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 Mr. Benjamin Cohen as the presiding officer. If 
these arrangements present any problems, please contact the Mr. Cohen 
at (410) 786-3169. In order to facilitate any communication that may be 
necessary between the parties prior to the hearing, please notify the 
presiding officer to indicate acceptability of the scheduled hearing 
date and provide names of the individuals who will represent the state 
at the hearing.

    Sincerely,

Marilyn Tavenner
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 8, 2013.
Marilyn Tavenner,
Acting Administrator, Centers for Medicare & Medicaid Services.
[FR Doc. 2013-05978 Filed 3-14-13; 8:45 am]
BILLING CODE 4120-01-P