[Federal Register Volume 75, Number 43 (Friday, March 5, 2010)]
[Notices]
[Pages 10289-10290]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-4671]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Medicare & Medicaid Services
Notice of Opportunity for a Hearing on Compliance of Missouri
State Plan Provisions Concerning Payments for Home Health Services With
Title XIX (Medicaid) of the Social Security Act
AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS.
ACTION: Notice of Opportunity for a Hearing; Compliance of Missouri
Medicaid State Plan Home Health Benefit.
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SUMMARY: This notice announces the opportunity for an administrative
hearing to be held no later than 60 days following publication in the
Federal Register at the CMS Kansas City Regional Office, 601 E. 12th
Street, Kansas City, Missouri 64106, to consider whether Missouri State
plan provisions concerning payments for home health services comply
with the requirements of the Social Security Act as discussed in the
February 26, 2010 letter sent to the State and published herein.
Closing Date: Requests to participate in the hearing as a party
must be received by the presiding officer by April 5, 2010.
FOR FURTHER INFORMATION CONTACT: Benjamin R. Cohen, Presiding Officer,
CMS, 2520 Lord Baltimore Drive, Suite L, Baltimore, Maryland 21244,
Telephone: (410) 786-3169.
SUPPLEMENTARY INFORMATION: This notice announces the opportunity for an
administrative hearing concerning the finding of the Administrator of
the Centers for Medicare & Medicaid Services (CMS) that the approved
State plan under title XIX (Medicaid) of the Social Security Act (the
Act) for the State of Missouri is not in compliance with the provisions
of sections 1902(a) of the Act and the proposed withholding of Federal
financial participation for a portion of Missouri's expenditures for
home health services. In particular, CMS has found that the State plan
does not provide for home health services for Medicaid beneficiaries
who are not ``confined to the home.'' As a result of this ``homebound''
requirement, certain Medicaid beneficiaries are not receiving the full
benefit package required under the Act and applicable regulations.
Consequently, Federal payments for a portion of the Federal funding for
home health services will be withheld, subject to the opportunity for a
hearing described below. This notice is being provided pursuant to the
requirements of section 1904 of the Act, as implemented at 42 CFR
430.35 and 42 CFR part 430, subpart D.
Section 1902(a)(10)(D) requires that State plans provide for the
coverage of home health services for any individual who, under the
State plan, is entitled to nursing facility services. Nursing facility
services are a required service for categorically needy populations
under section 1902(a)(10)(A), as defined in section 1905(a)(4)(A).
Under CMS regulations, a service included as a covered benefit under a
State plan must be ``sufficient in amount, duration and scope to
reasonably achieve its purpose'' (42 CFR 440.230(b)) and, for required
services, cannot be denied or reduced to an eligible beneficiary
``solely because of the diagnosis, type of illness, or condition'' (42
CFR 440.230(c)). It is not consistent with these requirements to deny
home health services to eligible individuals who need such services on
the basis that they are not ``homebound.''
The CMS provided interpretive guidance indicating that these
statutory requirements preclude denial of home health services to
eligible individuals because they are not ``homebound.'' On July 25,
2000, CMS, then the Health Care Financing Administration, issued
Olmstead Update 3 which clarified that the Medicare rule for
home health services requiring an individual to be ``homebound'' did
not apply to the receipt of Medicaid home health services.
Specifically, Olmstead Update 3 states that the ``homebound''
requirement violates Federal regulatory requirements at 42 CFR section
440.230(c) and section 440.240(b).
The ``homebound'' requirement in Missouri was raised during the
review of Missouri State plan amendment (SPA) 05-09. At that time,
Missouri chose to withdraw the page containing the ``homebound''
language but did not reverse the policy. Since that time, there have
been numerous discussions between CMS and Missouri regarding this
issue. On October 30, 2009, CMS provided Missouri with notice of the
preliminary determination that it appeared to be out of compliance with
Federal Medicaid requirements. In addition, CMS requested that Missouri
submit a SPA to remove the ``homebound'' requirement.
In its response dated December 31, 2009, Missouri indicated that it
was operating under its approved State plan and that the requirements
of Missouri's home health program are the same as those of the Federal
Medicare program. The State did not submit a SPA. CMS believes that
Missouri has had numerous opportunities to come into compliance with
Federal requirements.
The notice to Missouri, dated February 26, 2010, containing the
details concerning the compliance issue, the proposed withhold, and the
opportunity for an administrative hearing reads as follows:
CERTIFIED MAIL--RETURN RECEIPT REQUESTED
Mr. Ronald J. Levy, Director, Department of Social Services, Broadway
State Office Building, Jefferson City, MO 65102.
Dear Mr. Levy: This letter provides notice that the Centers for
Medicare & Medicaid Services (CMS) has found that Missouri is not
providing all Medicaid beneficiaries with home health benefits that are
required under title XIX of the Social Security Act (the Act) and that
until this deficiency is corrected (by making home health services
available to all beneficiaries entitled to such services), a portion of
the Federal funding for home health services will be withheld, subject
to the opportunity for a hearing. The details of the finding, proposed
withholding, and opportunity for a hearing are described in detail
below.
Specifically, CMS has found that the approved Missouri State plan
under title XIX (Medicaid) of the Act is not in compliance with the
provisions of section 1902(a) of the Act with respect to the home
health benefit. In particular, CMS has found that the State plan does
not provide for home health services for Medicaid beneficiaries who are
not ``confined to the home.'' As a result of this ``homebound''
requirement, certain Medicaid beneficiaries are not receiving the full
benefit package required under section 1902(a)(10) of the Act, which in
subparagraph (D) provides for the inclusion of home health services in
the standard Medicaid benefit package.
[[Page 10290]]
Moreover, the ``homebound'' requirement does not comply with section
1902(a)(10)(B) of the Act, which requires that State plans provide a
comparable amount, duration, and scope of benefits to all individuals
eligible for the standard Medicaid benefit package, and within each
optional group of individuals eligible for benefits based on medical
need.
The basic framework of Medicaid coverage of home health services is
set forth in the Federal statute and regulations. Section
1902(a)(10)(D) of the Act requires that State plans provide for the
coverage of the home health services benefit, set forth in section
1905(a)(7) of the Act, for any individual who, under the State plan, is
entitled to nursing facility services. Pursuant to section 1902(a)(10)
of the Act, the nursing facility service benefit described at section
1905(a)(4)(A) of the Act is a required benefit that must be included in
the standard Medicaid benefit package for categorically needy
populations described in section 1902(a)(10)(A) of the Act. Section
1902(a)(10)(B) of the Act sets forth the benefit comparability
principle, that the amount, duration, and scope of medical assistance
benefits for all categorically needy individuals described in section
1902(a)(10)(A) of the Act must be equal.
Under CMS regulations implementing the benefit package requirements
at sections 1902(a)(10) and 1905(a) of the Act that are described
above, home health services are included as a mandatory benefit for the
categorically needy under 42 CFR 440.210(a)(1). Moreover, a service
included as a covered benefit under a State plan must be ``sufficient
in amount, duration, and scope to reasonably achieve its purpose'' (42
CFR 440.230(b)) and, for required services, cannot be denied or reduced
to an eligible beneficiary ``solely because of the diagnosis, type of
illness, or condition'' (42 CFR 440.230(c)). It is not consistent with
these requirements to deny home health services to eligible individuals
who need such services based on a ``homebound'' requirement.
The State has had clear notice that a ``homebound'' requirement is
inconsistent with the Medicaid statute. In response to the June 22,
1999, Supreme Court decision in the case of Olmstead v. L.C. & E.W.,
which reinforced the Americans with Disabilities Act by affirming the
right of individuals with disabilities to live in their communities,
CMS, then the Health Care Financing Administration (HCFA), issued a
series of State Medicaid Director letters to clarify Medicaid policy on
issues impacted by the Olmstead decision. On July 25, 2000, HCFA issued
Olmstead Update 3 which clarified that the Medicare rule for
home health services requiring an individual to be ``homebound'' did
not apply to the receipt of Medicaid home health services. Olmstead
Update 3 specifically stated that the ``homebound''
requirement violates Federal regulatory requirements at 42 CFR section
440.230(c) and section 440.240(b).
The CMS notified the State in a request for additional information
on proposed State plan amendment (SPA) 05-09 that the State needed to
change its ``homebound'' requirement to comply with Federal
requirements. At that time, Missouri withdrew the SPA page that raised
this issue but did not reverse its policy in order to comply with
Federal requirements. Subsequently, CMS has raised the issue with the
State in numerous conversations and again in a letter dated October 30,
2009. Your letter of December 31, 2009, indicated that the State did
not intend to make the required changes.
For all of these reasons, and in light of the need to protect
beneficiaries by ensuring that they receive all the services to which
they are required, I am taking this compliance action to withhold a
portion of the Federal financial participation in State expenditures
for home health services, subject to the opportunity for a hearing
described below, until such time as I am satisfied that the State is
complying with the Federal requirements discussed above. The
withholding will initially be 10 percent of the Federal share of the
State's quarterly claim for home health services as reported on Line 12
of your Form CMS-64. The withholding percentage will then increase 5
percentage points each quarter (i.e., 15%, 20%, etc.) that the State
remains out of compliance, up to a maximum withholding percentage of
100 percent. The withholding will end when a SPA bringing the State
into compliance is approved by CMS.
The State has 30 days from the date of this letter either to submit
a plan for how the State will come into compliance or to request a
hearing. As specified in the accompanying Federal Register notice we
are providing an opportunity for an administrative hearing to ensure
that you have an opportunity for a hearing prior to this determination
becoming final. However, it is up to the State as to whether you choose
to go forward with this hearing. If you choose to proceed with a
hearing, you must submit a request within 30 days of the date of this
letter. If a request for a hearing is timely submitted, the hearing
will be convened by the Hearing Officer designated below on [no later
than 60 days after the date of the Federal Register notice], or a later
date by agreement of the parties and the Hearing Officer, at the CMS
Regional Office in Kansas City, Missouri in accordance with the
procedures set forth in Federal regulations at 42 CFR Part 430, Subpart
D. The overall issue in any such appeal will be whether the Missouri
homebound requirement is consistent with Federal requirements. Any
request for such a hearing should be sent to the designated hearing
officer. The Hearing Officer also should be notified if you request a
hearing but cannot meet the timeframe expressed in this notice. Your
Hearing Officer is: Benjamin R. Cohen, Hearing Officer, Centers for
Medicare & Medicaid Services, 2520 Lord Baltimore Drive, Suite L,
Baltimore, MD 21244.
If you choose not to request a hearing, and plan to come into
compliance, please submit within 30 days of the date of this letter an
explanation of how you plan to come into compliance with Federal
requirements and the timeframe for doing so. We are available to
provide further information or assistance on the steps necessary to
bring the State into compliance.
Should you not come into compliance and not request a hearing
within 30 days, a notice of withholding will be sent to you and the
withholding of Federal funds will begin as described above.
If you have any questions or wish to discuss this determination
further, please contact: Mr. James G. Scott, Associate Regional
Administrator, Division of Medicaid and Children's Health Operations,
CMS Kansas City Regional Office, 601 E. 12th Street, Kansas City, MO
64106.
Sincerely,
Charlene Frizzera,
Acting Administrator.
(Catalog of Federal Domestic Assistance Program No. 13.714, Medicaid
Assistance Program.)
Dated: February 26, 2010.
Charlene Frizzera,
Acting Administrator, Centers for Medicare & Medicaid Services.
[FR Doc. 2010-4671 Filed 3-4-10; 8:45 am]
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