[Federal Register Volume 82, Number 212 (Friday, November 3, 2017)]
[Notices]
[Pages 51274-51275]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-24007]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

[CMS-6077-N]


Medicare, Medicaid, and Children's Health Insurance Programs: 
Announcement of Decision To Lift the Temporary Moratorium on Enrollment 
of Non-Emergency Ground Ambulance Suppliers in Texas

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

ACTION: Lifting of temporary enrollment moratorium on non-emergency 
ground ambulance suppliers in Texas.

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SUMMARY: This document announces that on September 1, 2017, the 
statewide temporary moratorium on the enrollment of new Medicare Part B 
non-emergency ground ambulance suppliers in Texas was lifted. This 
announcement also applies to the temporary moratorium on enrollment of 
non-emergency ground ambulance suppliers in Medicaid and the Children's 
Health Insurance Program in Texas.

FOR FURTHER INFORMATION CONTACT: Jung Kim, (410) 786-9370. News media 
representatives must contact CMS' Public Affairs Office at (202) 690-
6145 or email them at [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

A. CMS' Implementation of Temporary Enrollment Moratoria

    The Social Security Act (the Act) provides the Secretary with tools 
and resources to combat fraud, waste, and abuse in Medicare, Medicaid, 
and the Children's Health Insurance Program (CHIP). In particular, 
section 1866(j)(7) of the Act provides the Secretary with authority to 
impose a temporary moratorium on the enrollment of new Medicare, 
Medicaid, or CHIP providers and suppliers, including categories of 
providers and suppliers, if the Secretary determines such a moratorium 
is necessary to prevent or combat fraud, waste, or abuse under these 
programs. Regarding Medicaid, section 1902(kk)(4) of the Act requires 
States to comply with any moratorium imposed by the Secretary unless 
the State determines that the imposition of such temporary moratorium 
would adversely impact Medicaid beneficiaries' access to care. In 
addition, section 2107(e)(1)(F) of the Act provides that the Medicaid 
provisions in 1902(kk) are also applicable to CHIP.
    In the February 2, 2011 Federal Register (76 FR 5862), CMS 
published a final rule with comment period titled, ``Medicare, 
Medicaid, and Children's Health Insurance Programs; Additional 
Screening Requirements, Application Fees, Temporary Enrollment 
Moratoria, Payment Suspensions and Compliance Plans for Providers and 
Suppliers,'' which implemented section 1866(j)(7) of the Act by 
establishing new regulations at 42 CFR 424.570. Under Sec.  
424.570(a)(2)(i) and (iv), CMS, or CMS in consultation with the 
Department of Health and Human Services' Office of Inspector General 
(HHS-OIG) or the Department of Justice (DOJ), or both, may impose a 
temporary moratorium on newly enrolling Medicare providers and 
suppliers if CMS determines that there is a significant potential for 
fraud, waste, or abuse with respect to a particular provider or 
supplier type, or particular geographic locations, or both. At Sec.  
424.570(a)(1)(ii), CMS stated that it would announce any temporary 
moratorium in a Federal Register document that includes the rationale 
for the imposition of such moratorium.
    Based on this authority and our regulations at Sec.  424.570, we 
initially imposed moratoria to prevent enrollment of new Home Health 
Agencies, subunits, and branch locations \1\ (hereafter referred to as 
HHAs) in Miami-Dade County, Florida and Cook County, Illinois, as well 
as surrounding counties, and Medicare Part B ground ambulance suppliers 
in Harris County, Texas and surrounding counties, in a notice issued on 
July 31, 2013 (78 FR 46339). These moratoria also applied to Medicaid 
and CHIP. We exercised this authority again in a notice published on 
February 4, 2014 (79 FR 6475) when we extended the existing moratoria 
for an additional 6 months and expanded them to include enrollment of 
HHAs in Broward County, Florida; Dallas County, Texas; Harris County, 
Texas; and Wayne County, Michigan and surrounding counties, and 
enrollment of ground ambulance suppliers in Philadelphia, Pennsylvania 
and surrounding counties. Then, we further extended these moratoria in 
documents issued on August 1, 2014 (79 FR 44702), February 2, 2015 (80 
FR 5551), July 28, 2015 (80 FR 44967), and February 2, 2016 (81 FR 
5444). On August 3, 2016 (81 FR 51120), we extended the moratoria for 
an additional 6 months and expanded them to statewide for enrollment of 
HHAs in Florida, Illinois, Michigan, and Texas, and non-emergency 
ground ambulance suppliers in New Jersey, Pennsylvania, and Texas. We 
also announced the lifting of temporary moratoria for all Part B 
emergency ambulance suppliers as well as emergency ambulance providers 
in Medicaid and CHIP.\2\ Finally, on January 29, 2017 (82 FR 2363) and 
again on July 28, 2017 (82 FR 35122), we extended the statewide 
moratoria of HHAs in Florida, Illinois, Michigan, and Texas, and Part B 
non-emergency ground ambulance suppliers in New Jersey, Pennsylvania, 
and Texas for additional 6 month periods. These extensions also applied 
to such providers in Medicaid and CHIP.
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    \1\ As noted in the preamble to the final rule with comment 
period implementing the moratorium authority (February 2, 2011, CMS-
6028-FC (76 FR 5870), home health agency subunits and branch 
locations are subject to the moratoria to the same extent as any 
other newly enrolling home health agency.
    \2\ CMS also concurrently announced a demonstration under the 
authority provided in section 402(a)(l)(J) of the Social Security 
Amendments of 1967 (42 U.S.C. 1395b-l(a)(l)(J)) that allows for 
access to care-based exceptions to the moratoria in certain limited 
circumstances after a heightened review of that provider has been 
conducted. This demonstration also applies to Medicaid and CHIP 
providers in each state. This announcement may be found in the 
Federal Register document issued on August 3, 2016 (81 FR 51116).
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II. Lifting a Temporary Moratorium

    CMS has authority under Sec.  424.570(d) to lift a temporary 
moratorium at any time in specified situations, including if the 
President declares an area a disaster under the Robert T. Stafford 
Disaster Relief and Emergency Assistance Act. On August 25, 2017, the 
President of the United States signed the Presidential Disaster 
Declaration for several counties in the State of Texas. As a result of 
the President's declaration, CMS carefully reviewed the potential 
impact of continued moratoria in Texas, and decided to lift the 
temporary enrollment moratorium on Medicare Part B non-emergency ground 
ambulance suppliers in Texas in order to aid in the disaster response 
to Hurricane Harvey. This lifting of the moratorium also applied to 
Medicaid and CHIP in Texas. A notification that CMS lifted the 
moratorium was published at https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/MedicareProviderSupEnroll/ProviderEnrollmentMoratorium.html and became effective on September 1, 
2017. In accordance with Sec.  424.570(d), CMS is also publishing this 
document in the Federal Register to announce this action. Non-emergency 
ground ambulance suppliers that were previously unable to enroll in 
Medicare, Medicaid or CHIP in Texas

[[Page 51275]]

because of the moratorium will be able to apply for enrollment and will 
be designated to the ``high'' screening level in accordance with 
Sec. Sec.  424.518(c)(3)(iii) and 455.450(e)(2) if such supplier 
applies at any time within 6 months from the date the moratorium was 
lifted.

III. Clarification of Right to Judicial Review

    Section 1866(j)(7)(B) of the Act provides that there shall be no 
judicial review under section 1869, section 1878, or otherwise, of a 
temporary moratorium imposed on the enrollment of new providers of 
services and suppliers if the Secretary determines that the moratorium 
is necessary to prevent or combat fraud, waste, or abuse. Accordingly, 
our regulations at 42 CFR 498.5(l)(4) state that for appeals of denials 
based on a temporary moratorium, the scope of review will be limited to 
whether the temporary moratorium applies to the provider or supplier 
appealing the denial. The agency's basis for imposing a temporary 
moratorium is not subject to review. Our regulations do not limit the 
right to seek judicial review of a final agency decision that the 
temporary moratorium applies to a particular provider or supplier. In 
the preamble to the February 2, 2011 (76 FR 5918) final rule with 
comment period establishing this regulation, we explained that ``a 
provider or supplier may administratively appeal an adverse 
determination based on the imposition of a temporary moratorium up to 
and including the Department Appeal Board (DAB) level of review.'' We 
are clarifying that providers and suppliers that have received 
unfavorable decisions in accordance with the limited scope of review 
described in Sec.  498.5(l)(4) may seek judicial review of those 
decisions after they exhaust their administrative appeals. However, we 
reiterate that section 1866(j)(7)(B) of the Act precludes judicial 
review of the agency's basis for imposing a temporary moratorium.

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.).

V. Regulatory Impact Statement

    CMS has examined the impact of this document as required by 
Executive Order 12866 on Regulatory Planning and Review (September 30, 
1993), Executive Order 13563 on Improving Regulation and Regulatory 
Review (January 18, 2011), the Regulatory Flexibility Act (RFA) 
(September 19, 1980, Pub. L. 96-354), section 1102(b) of the Social 
Security Act, section 202 of the Unfunded Mandates Reform Act of 1995 
(March 22, 1995; Pub. L. 104-4), Executive Order 13132 on Federalism 
(August 4, 1999), the Congressional Review Act (5 U.S.C. 804(2)), and 
Executive Order 13771 on Reducing Regulation and Controlling Regulatory 
Costs (January 30, 2017).
    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of 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 regulatory 
actions with economically significant effects ($100 million or more in 
any 1 year). This document announces CMS's decision to lift the 
moratorium on new enrollment of non-emergency ground ambulance 
suppliers in Medicare Part B, Medicaid, and CHIP in Texas. Though costs 
may result from allowing non-emergency ambulance enrollment in Texas, 
the monetary amount cannot be quantified. After the imposition of the 
initial moratoria on July 31, 2013, specifically to the non-emergency 
ambulance suppliers, a total of 24 ambulance companies in all 
geographic areas affected by the moratoria had their applications 
denied. Since the moratorium was lifted on September 1, 2017, we have 
had two ambulance enrollments in Texas, and we have seen no evidence 
that there will be a large surge in applications in the immediate 
future. Therefore, this document does not reach the economic threshold, 
and thus is not considered a major action.
    The RFA requires agencies to analyze options for regulatory relief 
of small entities. For purposes of the RFA, small entities include 
small businesses, nonprofit organizations, and small governmental 
jurisdictions. Most hospitals and most other providers and suppliers 
are small entities, either by nonprofit status or by having revenues of 
less than $7.5 million to $38.5 million in any 1 year. Individuals and 
states are not included in the definition of a small entity. CMS is not 
preparing an analysis for the RFA because it has determined, and the 
Secretary certifies, that this document will not have a significant 
economic impact on a substantial number of small entities.
    In addition, section 1102(b) of the Act requires us to prepare a 
regulatory impact analysis if an action 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, CMS defines a small rural 
hospital as a hospital that is located outside of a metropolitan 
statistical area (MSA) for Medicare payment purposes and has fewer than 
100 beds. CMS is not preparing an analysis for section 1102(b) of the 
Act because it has determined, and the Secretary certifies, that this 
document will not have a significant 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 regulatory action whose mandates require spending in any 1 
year of $100 million in 1995 dollars, updated annually for inflation. 
In 2017 that threshold is approximately $148 million. This document 
will have no consequential effect on state, local, or tribal 
governments or on the private sector.
    Executive Order 13771, titled ``Reducing Regulation and Controlling 
Regulatory Costs,'' was issued on January 30, 2017 (82 FR 9339, 
February 3, 2017). It has been determined that this notice is a 
transfer notice that does not impose more than de minimis costs and 
thus is not a regulatory action for the purposes of E.O. 13771.
    Executive Order 13132 establishes certain requirements that an 
agency must meet when it promulgates a proposed regulatory action (and 
subsequent final action) that imposes substantial direct requirement 
costs on state and local governments, preempts state law, or otherwise 
has Federalism implications. Because this document does not impose 
substantial costs on state or local governments, the requirements of 
Executive Order 13132 are not applicable.
    In accordance with the provisions of Executive Order 12866, this 
document was reviewed by the Office of Management and Budget.

    Dated: October 27, 2017.
Seema Verma,
Administrator, Centers for Medicare & Medicaid Services.
[FR Doc. 2017-24007 Filed 11-2-17; 8:45 am]
BILLING CODE 4120-01-P