[Federal Register: November 8, 2002 (Volume 67, Number 217)]
[Notices]
[Page 68140-68142]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08no02-96]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES (HHS)
Centers for Medicare & Medicaid Services
Notice of Hearing: Reconsideration of Disapproval of Maryland
State Plan Amendment 02-05
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
December 19, 2002, Suite 216, The Public Ledger Building, 150 S.
Independence Mall West, Philadelphia, Pennsylvania 19106, at 10 a.m.,
to reconsider our decision to disapprove Maryland State Plan Amendment
02-05.
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: Kathleen Scully-Hayes, Presiding
Officer, Office of Hearings, Centers for Medicare & Medicaid Services,
Suite L, 2520 Lord Baltimore Drive, Baltimore, Maryland 21244-2670,
Telephone: (410) 786-2055.
SUPPLEMENTARY INFORMATION: This notice announces an administrative
hearing to reconsider our decision to disapprove Maryland State Plan
Amendment (SPA) 02-05. This SPA was disapproved on August 26, 2002.
In this amendment, Maryland proposes to cover targeted case
management services for abused and neglected children under foster
care. At issue is whether the Centers for Medicare & Medicaid Services
properly
[[Page 68141]]
concluded as a basis for disapproving the amendment that: (1) The State
had not demonstrated that the proposed services were within the
statutory definition of case management services found in section
1915(g)(2) of the Social Security Act (the Act); (2) the proposed
services are available without charge to the user and thus payment
under the amendment is not reasonable and necessary and would duplicate
payment under other program authorities; and (3) the amendment would
restrict beneficiary freedom of choice by limiting providers to
employees of public welfare agencies.
Medicaid coverage of targeted case management is authorized by
section 1915(g) of the Act, which defines case management as services
that assist beneficiaries in gaining access to needed services and does
not include the direct provision of those services. Because the
services proposed as Medicaid targeted case management are segments of
child welfare services related to the foster care program, CMS is of
the belief that they are integral components of the direct services and
administrative functions of child welfare services.
During conversations between CMS and the State of Maryland, the
State cited section 8435 of the Technical and Miscellaneous Revenue Act
of 1988, Pub. L. 100-647. In this section Congress clarified that the
Secretary may not deny approval of either a SPA or a claim on the basis
that the state is required to provide such services under state law, or
is, or was otherwise paying for the services using non-Federal funds.
However, section 8435 also expressly stated that this was not to be
construed to require the Secretary to make payment for case management
services that are provided without charge to the users of such
services. Approval of SPA 02-05 would be contrary to this express
statutory provision, since this SPA seeks payment from Medicaid program
for services that are available without charge to the users.
In addition, while states are free to set qualifications for
providers, a state must comply with Medicaid law and regulations
concerning freedom of choice at section 1902(a)(23) of the Act and the
implementing regulation at 42 CFR 431.51. These provisions require that
a state plan permit beneficiaries to obtain services from any qualified
provider that undertakes to provide the services. Section 1915(g)(1) of
the Act states ``The provision of case management services under this
subsection shall not restrict the choice of the individual to receive
assistance in violation of section 1902(a)(23).''
Section 1116 of the Act and 42 CFR, part 430 establish Department
procedures that provide an administrative hearing for reconsideration
of a disapproval of a state plan or plan amendment. The 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. Therefore, based on the
reasoning set forth above, and after consultation with the Secretary as
required under 42 CFR 430.15(c)(2), CMS disapproved Maryland SPA (02-
05).
The notice to Maryland announcing an administrative hearing to
reconsider the disapproval of its SPA reads as follows:
Georges C. Benjamin, M.D.
Secretary, Department of Health and Mental Hygiene, 201 West Preston
Street, Baltimore, MD 21201.
Dear Dr. Benjamin: I am responding to your request for
reconsideration of the decision to disapprove Maryland State Plan
Amendment (SPA) 02-05. This SPA was disapproved on August 26, 2002.
In this amendment, Maryland proposes to cover targeted case
management services for abused and neglected children under foster
care. At issue is whether the Centers for Medicare & Medicaid
Services (CMS) properly concluded as a basis for disapproving the
amendment that: (1) The State had not demonstrated that the proposed
services were within the statutory definition of case management
services found in section 1915(g)(2) of the Social Security Act (the
Act); (2) the proposed services are available without charge to the
user and thus payment under the amendment is not reasonable and
necessary and would duplicate payment under other program
authorities; and (3) the amendment would restrict beneficiary
freedom of choice by limiting providers to employees of public
welfare agencies.
Medicaid coverage of targeted case management is authorized by
section 1915(g) of the Act, which defines case management as
services that assist beneficiaries in gaining access to needed
services and does not include the direct provision of those
services. Because the services proposed as Medicaid targeted case
management are segments of child welfare services related to the
foster care program, CMS is of the belief that they are integral
components of the direct services and administrative functions of
child welfare services.
During conversations between CMS and the State of Maryland, the
State cited section 8435 of the Technical and Miscellaneous Revenue
Act of 1988, Pub. L. 100-647. In this section Congress clarified
that the Secretary may not deny approval of either an SPA or a claim
on the basis that the state is required to provide such services
under state law, or is, or was otherwise paying for the services
using non-Federal funds. However, section 8435 also expressly stated
that this was not to be construed to require the Secretary to make
payment for case management services that are provided without
charge to the users of such services. Approval of SPA 02-05 would be
contrary to this express statutory provision, since this SPA seeks
payment from the Medicaid program for services that are available
without charge to the users.
In addition, while states are free to set qualifications for
providers, a state must comply with Medicaid law and regulations
concerning freedom of choice at section 1902(a)(23) of the Act and
the implementing regulations at 42 CFR 431.51. These provisions
require that a state plan permit beneficiaries to obtain services
from any qualified provider that undertakes to provide the services.
Section 1915(g)(1) of the Act states ``The provision of case
management services under this subsection shall not restrict the
choice of the individual to receive assistance in violation of
section 1902(a)(23).'' Therefore, based on the reasoning set forth
above, and after consultation with the Secretary as required under
42 CFR 430.15(c)(2), CMS disapproved Maryland SPA 02-05.
I am scheduling a hearing on your request for reconsideration to
be held on December 19, 2002, Suite 216, The Public Ledger Building,
150 S. Independence Mall West, Philadelphia, Pennsylvania 19106, at
10 a.m. to reconsider our decision to disapprove Maryland SPA 02-05.
If this date is not acceptable, we would be glad to set another
date that is mutually agreeable to the parties. The hearing will be
governed by the procedures prescribed at 42 CFR, part 430.
I am designating Ms. Kathleen Scully-Hayes as the presiding
officer. If these arrangements present any problems, please contact
the presiding officer. In order to facilitate any communication
which may be necessary between the parties to the hearing, please
notify the presiding officer to indicate acceptability of the
hearing date that has been scheduled and provide names of the
individuals who will represent the State at the hearing. The
presiding officer may be reached at (410) 786-2055.
Sincerely,
Thomas A. Scully.
Sec. 1116 of the Social Security Act (42 U.S.C. section 1316); 42
CFR 430.18)
(Catalog of Federal Domestic Assistance Program No. 13.714, Medicaid
Assistance Program)
[[Page 68142]]
Dated: November 4, 2002.
Thomas A. Scully,
Administrator, Centers for Medicare & Medicaid Services.
[FR Doc. 02-28469 Filed 11-7-02; 8:45 am]
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