[Federal Register Volume 82, Number 169 (Friday, September 1, 2017)]
[Notices]
[Pages 41684-41823]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-18605]



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Vol. 82

Friday,

No. 169

September 1, 2017

Part II





 Department of Health and Human Services





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 Centers for Medicare & Medicaid Services





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Medicare Program; Recognition of Revised NAIC Model Standards for 
Regulation of Medicare Supplemental Insurance; Notice

  Federal Register / Vol. 82 , No. 169 / Friday, September 1, 2017 / 
Notices  

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

[CMS-4177-N]


Medicare Program; Recognition of Revised NAIC Model Standards for 
Regulation of Medicare Supplemental Insurance

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

ACTION: Notice.

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SUMMARY: This notice announces the changes made by the Medicare Access 
and CHIP Reauthorization of 2015 (MACRA) to section 1882 of the Social 
Security Act (the Act), which governs Medicare supplemental insurance. 
This notice also recognizes that the Model Regulation adopted by the 
National Association of Insurance Commissioners (NAIC) on August 29, 
2016, is considered to be the applicable NAIC Model Regulation for 
purposes of section 1882 of the Act, subject to our clarifications that 
are set forth in this notice.

DATES: Amendments made by section 401 of MACRA apply to issuers of 
Medigap policies for policies issued on or after January 1, 2020.

FOR FURTHER INFORMATION CONTACT: Derrick Claggett, (410) 786-2113.

SUPPLEMENTARY INFORMATION: 

I. Background

A. The Medicare Program

    The Medicare program was established by Congress in 1965 with the 
enactment of title XVIII of the Social Security Act (the Act). The 
program provides payment for certain medical expenses for persons 65 
years of age or older, certain disabled individuals, persons with end-
stage renal disease (ESRD), and certain individuals exposed to 
environmental health hazards.
    Medicare has three types of benefits. The Hospital Insurance 
Program (Part A) covers inpatient care. The Supplementary Medical 
Insurance Program (Part B) covers a wide range of medical services, 
including physicians' services and outpatient hospital services, as 
well as equipment and supplies, such as prosthetic devices. The 
Voluntary Prescription Drug Benefit Program (Part D) covers outpatient 
prescription drugs not otherwise covered by Part B.
    Beneficiaries can get their Part A and Part B benefits in two ways. 
Under Original Medicare, beneficiaries get their Part A and Part B 
benefits directly from the Federal government. Beneficiaries can also 
choose to get their Part A and Part B benefits through private health 
plans that contract with Medicare. Most of these contracts are under 
Part C of Medicare, the Medicare Advantage (MA) Program.
    While Medicare provides extensive benefits, it is not designed to 
cover the total cost of medical care for Medicare beneficiaries. Under 
Original Medicare, even if the items or services are covered by 
Medicare, most beneficiaries are responsible for various deductibles, 
coinsurance, and in some cases copayment amounts.
1. Deductibles
    Under Original Medicare, a beneficiary with Part A is generally 
responsible for the Part A inpatient hospital deductible for each 
benefit period. A benefit period is the period beginning on the first 
day of hospitalization and extending until the beneficiary has not been 
an inpatient of a hospital or skilled nursing facility for 60 
consecutive days. The inpatient hospital deductible is updated annually 
in accordance with a statutory formula. The inpatient hospital 
deductible for calendar year (CY) 2016 was $1,288.00 and for CY 2017 it 
is $1,316.00.
    A beneficiary with Part B is responsible for the Part B deductible 
for each calendar year. The deductible is indexed to increase with the 
average cost of Part B services for aged beneficiaries. The Part B 
deductible for CY 2016 was $166.00 and for CY 2017 it is $183.00.
2. Coinsurance
    As previously stated, beneficiaries are generally responsible for 
paying coinsurance for covered items and services. For example, the 
coinsurance applicable to physicians' services under Part B is 
generally 20 percent of the Medicare-approved amount for the 
service(s). If a physician or certain other suppliers accept 
assignment, the beneficiary is only responsible for the coinsurance 
amount. When beneficiaries receive covered services from physicians or 
other suppliers who do not accept assignment of their Medicare claims, 
beneficiaries may also be responsible for some amounts in excess of the 
Medicare approved amount (excess charges).
3. Non-Covered Services
    Some items and services are not covered under either Part A or Part 
B; for example, custodial nursing home care, most dental care, 
eyeglasses, and items or services furnished outside the United States. 
Original Medicare covers many health care services and supplies, but 
beneficiaries are responsible for the out-of-pocket expenses described 
previously. As such, most beneficiaries choose to obtain some type of 
additional coverage to pay some of the costs not covered by Original 
Medicare. For people who do not have coverage from a current or 
previous employer that performs this function, or who do not qualify 
for Medicaid, the most common coverage is Medicare supplemental 
insurance (also called Medigap). Some beneficiaries may also try to 
defray some expenses with hospital indemnity insurance, nursing home or 
long-term care insurance, or specified disease (for example, cancer) 
insurance.

B. Medicare Supplemental Insurance

    A Medicare supplemental (Medigap) policy is a health insurance 
policy sold by private insurance companies specifically to fill 
``gaps'' in Original Medicare coverage. A Medigap policy typically 
provides coverage for some or all of the deductible and coinsurance 
amounts applicable to Medicare-covered services, and sometimes covers 
items and services that are not covered by Medicare. Section 
1882(d)(3)(A)(i) of the Act specifies that a party may not sell a 
Medigap policy with knowledge that the policy duplicates health 
benefits which the applicant is otherwise entitled to, including from 
Medicaid programs that cover Medicare cost-sharing (for example, the 
Qualified Medicare Beneficiary Program), MA plans, and individual 
market plans.
    Section 1882 of the Act sets forth requirements and standards that 
govern the sale of Medigap policies. It incorporates by reference, as 
part of the statutory requirements, certain minimum standards 
established by the National Association of Insurance Commissioners 
(NAIC). These minimum standards, known as the NAIC Model Standards are 
found in the ``Model Regulation to Implement the NAIC Medicare 
Supplement Insurance Minimum Standards Act'' (NAIC Model), initially 
adopted by the NAIC on June 6, 1979, and revised periodically to 
reflect subsequent Federal legislative changes. (For additional 
information, see section 1882(g)(2)(A) of the Act.)
    Under section 1882 of the Act, Medigap policies generally may not 
be sold unless they conform to the standardized benefit packages that 
have been defined and designated by the NAIC. The 10 original 
standardized plans were created in accordance with the Omnibus Budget 
Reconciliation Act of 1990 (OBRA '90), and designated A through J. The 
Balanced Budget Act of

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1997 (BBA) authorized plans F and J to have high deductible options 
that are counted as separate plans. The Medicare Modernization Act of 
2003 (MMA) created new plans K and L, and the Medicare Improvements for 
Patients and Providers Act of 2008 (MIPPA) authorized the creation of 
new plans M and N. Medigap plans E, H, I, and J are no longer available 
for sale. Three states (Massachusetts, Minnesota, and Wisconsin) are 
permitted by statute to have different standardized Medigap plans and 
are sometimes referred to in this context as the ``waiver'' States. 
There are also policies issued before the OBRA '90 requirements became 
applicable in 1992 (pre-standardized policies) that are still in 
effect.
    Effective January 1, 2006, Medigap policies could no longer be sold 
with a prescription drug benefit. Three of the original standardized 
Medigap plans, H, I and J, as well as some Medigap policies in the 
waiver States, may still contain coverage for outpatient prescription 
drugs if the policies were sold before January 1, 2006. In addition, 
some pre-standardized plans cover drugs. If a beneficiary holding one 
of these policies enrolls in Medicare Part D prescription drug 
coverage, the prescription drug coverage is removed from the 
individual's Medigap policy.
    Section 1882(b)(1) of the Act provides that Medigap policies issued 
in a State are deemed to meet the Federal requirements if the State's 
program regulating Medigap policies provides for the application of 
standards is at least as stringent as those contained in the NAIC Model 
Regulation, and if the State requirements are equal to or more 
stringent than those set forth in section 1882 of the Act.
    States must amend their regulatory programs to implement all new 
Federal statutory requirements and applicable changes to the NAIC Model 
Standards. Thus, States will now be required to implement the statutory 
changes made by the Medicare Access and CHIP Reauthorization Act of 
2015 the (MACRA), and the changes to the NAIC Model Standards made to 
comport with the requirements of MACRA. The revised NAIC Model is 
attached to this notice. States generally cannot modify the 
standardized benefit packages set out in the NAIC Model. However, with 
respect to other provisions, States retain the authority to enact 
provisions that are more stringent than those that are incorporated in 
the NAIC Model Standards or in the Federal statutory requirements. (See 
section 1882(b)(1)(B) of the Act.) States that have received a waiver 
under section 1882(p)(6) of the Act may continue to authorize the sale 
of policies that contain different benefits than the standardized 
benefit packages. However, those States are also required to amend 
their regulatory programs to implement the new Federal statutory 
requirements and changes to the NAIC Model Standards as a result of 
MACRA. (See section 1882(z)(3) of the Act.)

II. Legislative Changes Affecting Medigap Policies and Clarification

A. Medicare Access and CHIP Reauthorization Act of 2015 (MACRA)

    Some standardized Medigap plans currently sold on the market 
provide first-dollar coverage for beneficiaries, which means the plan 
pays the Medicare deductibles, coinsurance, and copayments so that the 
beneficiary has no out-of-pocket costs for Medicare covered services. 
MACRA was enacted on April 16, 2015 (Pub. L. 114-10), and beginning on 
January 1, 2020, it prohibits the sale of Medigap plans with first-
dollar coverage to an individual who is a ``newly eligible Medicare 
beneficiary,'' which is further defined in section II.C.1. of this 
notice. The effect of this provision is that as of this date, a ``newly 
eligible Medicare beneficiary'' will be required to pay out-of-pocket 
for the Medicare Part B deductible. The Part B deductible for CY 2016 
was $166.00 and for CY 2017 it is $183.00.

B. Changes to the NAIC Model #651 (Model Regulation To Implement the 
NAIC Medicare Supplement Insurance Minimum Standards Model Act) 
Approved by the NAIC on August 29, 2016

    Consistent with the process authorized in section 1882(p)(1) of the 
Act, the NAIC formulated a task force consisting of State regulators, 
consumer advocates, industry representatives, and staff from the 
Centers for Medicare & Medicaid Services (CMS) to draft changes to the 
Medigap standardized plan structure and the NAIC Model Standards to 
align with section 401 of MACRA. The draft changes were approved by the 
NAIC task force on April 4, 2016. The revised NAIC Model (with the 
approved changes) was adopted by the NAIC on August 29, 2016. The 
changes apply to Medigap policies or certificates issued on or after 
January 1, 2020.
    The following are the changes, effective January 1, 2020, to the 
standardized Medigap plans:
     A new Plan G With High Deductible is created, which is 
identical to the Plan F With High Deductible except there is no 
coverage for the Part B deductible.
     For a ``newly eligible Medicare beneficiary''--
    ++ Plan C is redesignated as Plan D, which does not provide 
coverage for the Part B deductible;
    ++ Plan F is redesignated as Plan G, which does not provide 
coverage for the Part B deductible; and
    ++ Plan F With High Deductible is redesignated as Plan G With High 
Deductible, which does not provide coverage for the Part B deductible.
    As a result of these changes, the revised NAIC Model contains the 
following three sets of standardized plans:
     Sections 8 and 9 of the NAIC Model outline the benefits 
for standardized plans with an effective date of coverage prior to June 
1, 2010 (the 1990 standardized plans).
     Sections 8.1 and 9.1 of the NAIC Model spell out the 
benefits for the standardized plans with an effective date for coverage 
on or after June 1, 2010 (the ``2010 standardized plans'').
     Section 9.2 of the NAIC Model contains the benefits for 
the standardized plans for an individual who is a ``newly eligible 
Medicare beneficiary'' with an effective date for coverage on or after 
January 1, 2020 (the 2020 standardized plans for Newly Eligible 
Medicare Beneficiaries).

C. Clarifications

1. Definition of Newly Eligible Medicare Beneficiary
    Section 401 of MACRA defines a newly eligible Medicare 
beneficiary'' as an individual who is neither of the following:
     An individual who has attained age 65 before January 1, 
2020.
     An individual who was entitled to benefits under Medicare 
Part A pursuant to section 226(b) or 226A of the Act, or deemed 
eligible for benefits under 226(a) of the Act, before January 1, 2020.
    Section 9.2.B. of the NAIC Model captures this definition. An 
individual who is not a newly eligible Medicare beneficiary can 
continue to purchase Medigap policies that provide coverage of the 
Medicare Part B deductible.
    Individuals retroactively entitled to Medicare Part A after January 
1, 2020, with an effective date for Medicare coverage before January 1, 
2020 would not fall under the definition of a ``newly eligible Medicare 
beneficiary'' because their Part A benefits would begin before January 
1, 2020. In addition, an individual who has attained age 65 before 
January 1, 2020, but who was not entitled to Medicare Part A until 
after January 1, 2020, would also not be a ``newly eligible Medicare 
beneficiary.'' Similarly, environmental exposure

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affected individuals deemed eligible for Medicare before January 1, 
2020 would not be a ``newly eligible Medicare beneficiary.''
2. Upon Exhaustion Benefit
    Section 8.B. of the NAIC Model describes the standards for basic 
benefits common to the 1990 standardized Plans A through J. Section 
8.D.(1) of the NAIC Model describes the standards for benefits common 
to the 1990 standardized Plans K and L. Section 8.1.B. of the NAIC 
Model describes the basic benefits common for the 2010 standardized 
plans A through D, F, F with High Deductible, G, M and N. Section 
9.1.E.(8) of the NAIC Model describes the standards for benefits common 
to the 2010 standardized plans K and L. Section 9.2.A. of the NAIC 
Model describes the standards for benefits common to the 2020 
standardized plans for a ``newly eligible Medicare beneficiary''. 
Sections 8.B.(3)., 8.D.(1)(c)., 8.1.B.(3)., and 9.1.E.(8)(c). of the 
NAIC Model describe what is commonly referred to as the ``upon 
exhaustion'' benefit. Medicare provides inpatient hospital benefits for 
up to 90 days in a benefit period, plus any of the 60 lifetime reserve 
days that have not already been used. After a beneficiary exhausts this 
coverage, including the lifetime reserve days, all Medigap policies 
cover 100 percent of Medicare Part A eligible expenses for 
hospitalization paid at the applicable prospective payment system (PPS) 
rate or other appropriate Medicare standard of payment, subject to a 
lifetime maximum benefit of 365 days.
    We note that the last sentence of sections 8.B.(3)., 8.D.(1)(c)., 
8.1.B.(3)., and 9.1.E.(8)(c). of the NAIC Model is not part of the 
benefit description of the ``upon exhaustion'' benefit. Therefore, a 
State's failure to include this language in its regulatory program does 
not affect the State's compliance with Federal Medigap standards and 
requirements. Similarly, section 17.D.(4). of the NAIC Model sets forth 
the outlines of coverage for Plans A through D, F or High Deductible F, 
G or High Deductible G, K through N. Each outline contains, at the 
bottom of the chart on Part A benefits, a ``NOTICE'' to prospective 
purchasers about the ``upon exhaustion'' benefit. The final sentence of 
this notice is also not part of the benefit description, and therefore, 
a State's failure to include this language in the outlines of coverage 
does not affect the State's compliance with Federal Medigap standards 
and requirements.
3. Guaranteed Issue Opportunities
    Consistent with the December 4, 1998 (63 FR 67078) Federal Register 
notice published in recognizing the BBA changes to the NAIC Model, we 
reiterate that, in contrast to both the general open enrollment 
provision of section 1882(s)(2)(A) of the Act and the guaranteed issue 
provision in section 1882(s)(3)(B)(vi) of the Act, which specifically 
state that the protected individual must be at least at age 65, the 
guaranteed issue provisions in section 1882(s)(3)(B)(i) through (v) of 
the Act do not contain an age restriction. Therefore, the latter 
provisions apply by their terms both to individuals eligible for 
Medicare based on age, and those whose eligibility is based on 
disability, end stage renal disease (ESRD) or exposure to an 
environmental hazard. All individuals who meet the criteria set forth 
in section 1882(s)(3)(B)(i) through (v) of the Act qualify for the 
Federal guaranteed issue protections. (In some situations policies may 
not be available to beneficiaries under 65. In other situations, a 
policy designated B, C, or F may not be available in a particular 
State.) Furthermore, we note that in some states, individuals under age 
65 with Medicare have additional rights under State law to purchase 
Medigap coverage on a guaranteed issue basis.
    Section 1882(z)(4) of the Act, as added by section 401 of MACRA, 
generally provides that for a ``newly eligible Medicare beneficiary'' 
any reference in section 1882 of the Act to Plans C and F shall be 
deemed, as of January 1, 2020, to be a reference to Plans D and G, 
respectively. As a result, the references to Plans C and F as plans 
that must be offered by issuers on a guaranteed issue basis under 
section 1882(o)(5), (s)(3)(C)(i), and (v)(3)(A)(i) of the Act are 
replaced with references to Plans D and G, respectively, for a ``newly 
eligible Medicare beneficiary.'' Further, State laws that currently 
provide additional guaranteed issue rights for Plans C and F may need 
to be changed for coverage with an effective date on or after January 
1, 2020, to align with MACRA prohibition on the sale of first-dollar 
Medigap coverage to a ``newly eligible Medicare beneficiary.''
4. Definition of Medicare-Eligible Expenses
    Payment of Medigap benefits is, in many cases, based on whether a 
service is one that is generally covered by Medicare. The NAIC Model 
accordingly contains a definition of ``Medicare eligible expenses.'' 
This definition provides that ``Medicare eligible expenses'' means only 
those expenses of the kinds covered by Medicare Parts A and B, to the 
extent recognized as reasonable and necessary by Medicare. As outlined 
in the March 25, 2005 Federal Register (70 FR 15394), this definition 
clarifies that a Medigap policy does not pay cost-sharing for expenses 
under Medicare Part D and also clearly states the position of the NAIC 
and CMS that Medigap policies do not pay cost sharing incurred under 
Part C.
5. New Standardized Plan G With High Deductible
    Consistent with section 1882(z)(4) of the Act, section 9.2A.(4) of 
the revised NAIC Model redesignates Plan F With High Deductible as a 
new Plan G With High Deductible for an individual who is a ``newly 
eligible Medicare beneficiary,'' as defined by section 401 of MACRA. As 
a result, the references to Plan F With High Deductible under section 
1882(p)(11)(A)(i) of the Act is replaced with a reference to Plan G 
With High Deductible for a ``newly eligible Medicare beneficiary.'' 
Plan G With High Deductible does not provide coverage for any portion 
of the Part B deductible and will be available beginning on January 1, 
2020.
    Section 9.1.E.(7). of the NAIC Model provides that states may 
permit the sale of Plan ``G'' With High Deductible to an individual who 
is not a ``newly eligible Medicare beneficiary.'' While states are 
permitted to provide additional rights and protections beyond the 
Federal minimum standards, we note that this option and the last 
sentence of section 9.1.E.(7). of the NAIC are not part of the Federal 
standards. Therefore, a state's failure to include this language in its 
regulatory program does not affect the state's compliance with Federal 
Medigap standards and requirements.

III. Standardized Benefit Packages

    The following tables list the standardized Medigap benefit packages 
(by standardized plan year and effective date of coverage), with a 
cross-reference to the sections of the attached NAIC Model where the 
packages are described in detail. The revised NAIC Model, adopted by 
the NAIC on August 29, 2016, is reprinted at the end of this notice. 
The NAIC has granted permission for the NAIC Model to be published and 
reproduced. Under 1 CFR 2.6, there is no restriction on the 
republication of material as it appears in the Federal Register.

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   Table 1--1990 Standardized Plans With an Effective Date of Coverage
                          Prior to June 1, 2010
------------------------------------------------------------------------
                   Plan                      NAIC model  section number
------------------------------------------------------------------------
Plan A (Core Benefit Plan)................  Section 9.E.(1).
Plan B....................................  Section 9.E.(2).
Plan C....................................  Section 9.E.(3).
Plan D....................................  Section 9.E.(4).
Plan E....................................  Section 9.E.(5).
Plan F....................................  Section 9.E.(6).
Plan F High Deductible....................  Section 9.E.(7).
Plan G....................................  Section 9.E.(8).
Plan H....................................  Section 9.E.(9).
Plan I....................................  Section 9.E.(10).
Plan J....................................  Section 9.E.(11).
Plan J High Deductible....................  Section 9.E.(12).
Plan K....................................  Section 9.F.(1).
Plan L....................................  Section 9.F.(2).
------------------------------------------------------------------------


 Table 2--2010 Standardized Plans With an Effective Date of Coverage On
           or After June 1, 2010 But Prior to January 1, 2020:
------------------------------------------------------------------------
                   Plan                      NAIC model  section number
------------------------------------------------------------------------
Plan A (Core Benefit Plan)................  Section 9.1.E.(1).
Plan B....................................  Section 9.1.E.(2).
Plan C....................................  Section 9.1.E.(3).
Plan D....................................  Section 9.1.E.(4).
Plan F....................................  Section 9.1.E.(5).
Plan F High Deductible....................  Section 9.1.E.(6).
Plan G....................................  Section 9.1.E.(7).
Plan K....................................  Section 9.1.E.(8).
Plan L....................................  Section 9.1.E.(9).
Plan M....................................  Section 9.1.E.(10).
Plan N....................................  Section 9.1.E.(11).
------------------------------------------------------------------------


 Table 3--2020 Standardized Plans With an Effective Date of Coverage On
 or After January 1, 2020 for a ``Newly Eligible Medicare Beneficiary,''
                   as Defined by Section 401 of MACRA
------------------------------------------------------------------------
                   Plan                      NAIC model  section number
------------------------------------------------------------------------
Plan A (Core Benefit Plan)................  Section 9.1.E.(1).
Plan B....................................  Section 9.1.E.(2).
Plan D....................................  Section 9.1.E.(4).
Plan G....................................  Section 9.1.E.(7).
Plan G High Deductible....................  Section 9.1.E.(7).
Plan K....................................  Section 9.1.E.(8).
Plan L....................................  Section 9.1.E.(9).
Plan M....................................  Section 9.1.E.(10).
Plan N....................................  Section 9.1.E.(11).
------------------------------------------------------------------------


 Table 4--2020 Standardized Plans With an Effective Date of Coverage On
or After January 1, 2020 for an Individual Who Is Not A ``Newly Eligible
       Medicare Beneficiary,'' as Defined by Section 401 of MACRA
------------------------------------------------------------------------
                   Plan                      NAIC model  section number
------------------------------------------------------------------------
Plan A (Core Benefit Plan)................  Section 9.1.E.(1).
Plan B....................................  Section 9.1.E.(2).
Plan C....................................  Section 9.1.E.(3).
Plan C....................................  Section 9.1.E.(4).
Plan F....................................  Section 9.1.E.(5).
Plan F High Deductible....................  Section 9.1.E.(6).
Plan G....................................  Section 9.1.E.(7).
Plan G High Deductible....................  Section 9.1.E.(7).\1\
Plan K....................................  Section 9.1.E.(8).
Plan L....................................  Section 9.1.E.(9).
Plan M....................................  Section 9.1.E.(10).
Plan N....................................  Section 9.1.E.(11).
------------------------------------------------------------------------
\1\ Consistent with the last sentence of section 9.1.E.(7) of the NAIC
  Model, states may permit the sale of Plan G With High Deductible to an
  individual who is not a ``newly eligible Medicare beneficiary.''
  However, a State's failure to adopt this sentence and provide this
  option does not affect the State's compliance with Federal Medigap
  standards and requirements.

IV. Collection of Information Requirements

    This document does not impose information collection requirements, 
that is, reporting, recordkeeping or third-party disclosure 
requirements. Consequently, there is no need for review by the Office 
of Management and Budget under the authority of the Paperwork Reduction 
Act of 1995 (44 U.S.C. 3501 et seq.).

    Dated: August 24, 2017.
Seema Verma,
Administrator, Centers for Medicare & Medicaid Services.
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[FR Doc. 2017-18605 Filed 8-31-17; 8:45 am]
BILLING CODE 4120-01-C