81 FR 21479 - Medicaid Program; Deadline for Access Monitoring Review Plan Submissions
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Medicare & Medicaid Services Federal Register Volume 81, Issue 70 (April 12, 2016)
Centers for Medicare & Medicaid Services
Federal Register Volume 81, Issue 70 (April 12, 2016)
| Page Range | 21479-21480 | |
| FR Document | 2016-08368 |
[Federal Register Volume 81, Number 70 (Tuesday, April 12, 2016)] [Rules and Regulations] [Pages 21479-21480] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-08368] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services 42 CFR Part 447 [CMS-2328-F2] RIN 0938-AS89 Medicaid Program; Deadline for Access Monitoring Review Plan Submissions AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: In the November 2, 2015 Federal Register, we published a final rule with comment period entitled ``Medicaid Program: Methods for Assuring Access to Covered Medicaid Services.'' The final rule with comment period established that states must develop and submit to CMS an access monitoring review plan by July 1, 2016. This document revises the deadline for states' access monitoring review plan submission to CMS until October 1, 2016. DATES: Effective Date: These regulations are effective on April 8, 2016. FOR FURTHER INFORMATION CONTACT: Jeremy Silanskis, (410) 786-1592. SUPPLEMENTARY INFORMATION: I. Background In the November 2, 2015 Federal Register (80 FR 67576), we published the ``Medicaid Program: Methods for Assuring Access to Covered Medicaid Services'' final rule with comment period that outlined a transparent data-driven process for states to document whether Medicaid payments are sufficient to enlist providers to assure beneficiary access to covered care and services consistent with section 1902(a)(30)(A) of the Social Security Act (the Act). This final rule with comment period included new Sec. 447.203(b)(1) through (8) and revisions to Sec. 447.203(b). These regulations established that states must develop and submit to CMS an access monitoring review plan by July 1, 2016 for the following service categories: Primary care services (including those provided by a physician, FQHC, clinic or dental care); physician specialist services (for example, cardiology, urology, radiology); behavioral health services (including mental health and substance use disorder); pre- and post-natal obstetric services, including labor and delivery; and home health services. II. Discussion and Provisions of This Final Regulation In the November 2, 2015 final rule with comment period, we solicited comments on Sec. 447.203(b)(5). Specifically, we solicited comments on the scope of services required for ongoing review in the review plans, the elements of review required through the plans, whether we should allow exemptions to the rule based on state program characteristics (for example, high managed care enrollment), and the deadline for submission of the initial access monitoring review plan. We received many comments that were outside of the scope of issues on which we solicited comments. Several commenters raised concerns over CMS's characterization in the regulatory preamble of the Supreme Court Decision: Armstrong v. Exceptional Child Center, Inc., 135 S. Ct. 1378 (2015). Though we did not solicit comments on this issue, we agree with commenters that the decision is subject to judicial interpretation and we did not intend to imply an interpretation by the agency. The following is a summary of the comments and our responses on Sec. 447.203(b)(5). Comment: We received many comments requesting that CMS not allow exemptions based on high managed care enrollment or other program features. Response: While we continue to consider whether exemptions might be warranted in some circumstances, we believe that further experience with the access monitoring review system set forth in the final rule with comment period is necessary to determine the appropriate circumstances. The commenters did not offer consistent suggestions or supporting evidence to set a threshold that could exempt states, nor any suggestions for alternatives states might use to demonstrate compliance with section 1902(a)(30)(A) of the Act outside of the final rule with comment period requirements. Comment: A number of commenters recommended that CMS expand the services that CMS requires states to review in access monitoring plans. Response: Commenters that requested additional services did not provide sufficient data to compel us to modify the list of core services subject to the ongoing access reviews. The core services included in the final rule with comment period (that is, primary care services, physician specialist services, behavioral health services, pre- and post-natal obstetric services and home health services) were selected because they are frequently used services in Medicaid and access to these services indicates that an individual has primary sources of care, which may increase the likelihood of having their care needs met. We also note the final rule with comment period provides providers an opportunity and mechanism to bring access concerns to the attention of state Medicaid agencies and provide feedback on rate changes that may have a negative effect on access before states submit proposals to CMS. Comment: Several commenters requested CMS change the due date by which states are required to develop and submit the initial Access Monitoring Review Plans. Commenters noted that state agency staff may have difficulty developing and submitting the initial review plans within the July 1, 2016 timeframe for first year reviews. These commenters offered several different dates as an alternative, including: January 1, 2017, July 1, 2017, and 6 months following the close of the state's next legislative session. A number of other commenters requested CMS maintain the timelines established in the final rule. Response: We established the July 1, 2016 deadline for developing and submitting the access monitoring review plans in the final rule with comment period after careful consideration of issues raised through comments on the notice of proposed rulemaking (76 FR 26342) and after weighing all of the policies discussed in the final rule. Since issuing the final rule with comment period, we have been working closely with states on developing the access monitoring review plans. States are actively engaged in developing plans and have raised significant concerns over fulfilling the requirements of the rule by the July 1, 2016 deadline. Several states have noted that additional time will allow them to develop more robust and proficient review plans, and leave them better prepared to analyze and monitor compliance with section 1902(a)(30)(A) of the Act. We agree with this assessment and believe that there [[Page 21480]] are programmatic benefits to revising the due date and making conforming changes to the deadline for submission in subsequent review periods. Revision to the Access Monitoring Review Plan Timeframe: Based on concerns raised by commenters, in this final rule we are revising the deadline for submission effective date of the initial access monitoring review plan timeframe provision at Sec. 447.203(b)(5) introductory text until October 1, 2016. A conforming change will also be made to the deadline for submission in subsequent review periods at Sec. 447.203(b)(5)(i) to October 1. III. Waiver of Proposed Rulemaking and Delayed Effective Date Under section 553(b) of the Administrative Procedure Act (APA), the agency is required to publish a notice of the proposed rule in the Federal Register before the provisions of a rule take effect. Similarly, section 1871(b)(1) of the Act requires the Secretary to provide for notice of the proposed rule in the Federal Register and provide a period of not less than 60 days for public comment. In addition, section 553(d) of the APA, and section 1871(e)(1)(B)(i) of the Act mandate a 30-day delay in effective date after issuance or publication of a rule. Sections 553(b)(B) and 553(d)(3) of the APA provide for exceptions from the APA notice and comment, and delay in effective date requirements; similarly, sections 1871(b)(2)(C) and 1871(e)(1)(B)(ii) of the Act provide exceptions from the notice and comment, and delay in effective date requirements of the Act. Section 553(b)(B) of the APA and section 1871(b)(2)(C) of the Act authorize an agency to dispense with normal notice and comment rulemaking procedures for good cause if the agency makes a finding that the notice and comment process is impracticable, unnecessary, or contrary to the public interest; and includes a statement of the finding and the reasons for it in the notice. In addition, both section 553(d)(3) of the APA and section 1871(e)(1)(B)(ii) of the Act allow the agency to avoid the 30-day delay in effective date where such delay is contrary to the public interest and the agency includes in the rule a statement of the finding and the reasons for it. Because the deadlines for submission of access monitoring review plans are rules of procedure, the notice and comment requirements of 5 U.S.C. 553 do not apply to this delay of the submission date. See 5 U.S.C. 553(b)(3)(A). To the extent that section 553 applies in these circumstances however, CMS finds that the action comes within the provision's good cause exceptions because obtaining additional public comment is impracticable, unnecessary, and contrary to the public interest. See 5 U.S.C. 553(b)(3)(B). Given the imminence of the submission date, and the need for states to plan and allocate resources in advance, seeking public comment and having a delayed effective date for this short delay in the deadline for submission of access monitoring review plans is impracticable. And, because we provided an opportunity for public comment on issues that included the submission deadlines, further opportunity is not necessary. Moreover, we believe that delay of the submission deadlines would further the public interest in orderly implementation of regulatory requirements, and in ensuring development of viable access monitoring review plans in light of assertions by commenters that compliance with the original submission deadlines might be infeasible or disruptive. IV. Collection of Information Requirements The November 2, 2015 final rule with comment period stipulated that states must develop and submit (to CMS) their initial access monitoring review plan by July 1, 2016. We are now extending the submission deadline to October 1, 2016. Similarly, we are revising the deadline for subsequent review periods from July 1 to October 1. Otherwise, this final rule does not impose any new or revised information collection requirements or burden. The November 2, 2015, information collection requirements and burden are approved by OMB under control number 0938- 1134 (CMS-10391). V. Regulatory Impact Statement In the November 2, 2015 final rule with comment period, we discussed the impact of the access monitoring review plan requirements on states. We do not believe this delay of the deadline for submission of the access monitoring review plans will change any of the discussion in the impact statement of the November 2, 2015 final rule with comment period. In accordance with the provisions of Executive Order 12866, this regulation was reviewed by the Office of Management and Budget. List of Subjects in 42 CFR Part 447 Accounting, Administrative practice and procedure, Drugs, Grant programs-health, Health facilities, Health professions, Medicaid, Reporting and recordkeeping requirements, Rural areas. For the reasons set forth in the preamble, the Centers for Medicare & Medicaid Services amends 42 CFR chapter IV as set forth below: PART 447--PAYMENTS FOR SERVICES 0 1. The authority citation for part 447 continues to read as follows: Authority: Sec. 1102 of the Social Security Act (42 U.S.C. 1302). Sec. 447.203 [Amended] 0 2. Section 447.203 is amended by: 0 a. In paragraph (b)(5) introductory text, removing the date ``July 1, 2016'' and adding in its place the date ``October 1, 2016''. 0 b. In paragraph (b)(5)(i), removing all instances of the date ``July 1'' and adding in their place the date ``October 1''. Dated: March 11, 2016. Andrew M. Slavitt, Acting Administrator, Centers for Medicare & Medicaid Services. Dated: April 6, 2016. Sylvia M. Burwell, Secretary, Department of Health and Human Services. [FR Doc. 2016-08368 Filed 4-8-16; 4:15 pm] BILLING CODE 4120-01-P
![Federal Register / Vol. 81, No. 70 / Tuesday, April 12, 2016 / Rules and Regulations 21479
Paperwork Reduction Act § 447.203(b). These regulations Comment: A number of commenters
This document contains no collection established that states must develop and recommended that CMS expand the
of information requirements. Therefore submit to CMS an access monitoring services that CMS requires states to
the Paperwork Reduction Act does not review plan by July 1, 2016 for the review in access monitoring plans.
following service categories: Primary Response: Commenters that requested
apply to this document.
care services (including those provided additional services did not provide
(Authority: 33 U.S.C. 1321(t).) by a physician, FQHC, clinic or dental sufficient data to compel us to modify
Justin R. Ehrenwerth, care); physician specialist services (for the list of core services subject to the
example, cardiology, urology, ongoing access reviews. The core
Executive Director, Gulf Coast Ecosystem
Restoration Council. radiology); behavioral health services services included in the final rule with
(including mental health and substance comment period (that is, primary care
[FR Doc. 2016–08319 Filed 4–11–16; 8:45 am]
use disorder); pre- and post-natal services, physician specialist services,
BILLING CODE 6560–58–P
obstetric services, including labor and behavioral health services, pre- and
delivery; and home health services. post-natal obstetric services and home
health services) were selected because
DEPARTMENT OF HEALTH AND II. Discussion and Provisions of This they are frequently used services in
HUMAN SERVICES Final Regulation Medicaid and access to these services
In the November 2, 2015 final rule indicates that an individual has primary
Centers for Medicare & Medicaid
with comment period, we solicited sources of care, which may increase the
Services likelihood of having their care needs
comments on § 447.203(b)(5).
Specifically, we solicited comments on met. We also note the final rule with
42 CFR Part 447 comment period provides providers an
the scope of services required for
[CMS–2328–F2] ongoing review in the review plans, the opportunity and mechanism to bring
elements of review required through the access concerns to the attention of state
RIN 0938–AS89
plans, whether we should allow Medicaid agencies and provide feedback
Medicaid Program; Deadline for exemptions to the rule based on state on rate changes that may have a
Access Monitoring Review Plan program characteristics (for example, negative effect on access before states
Submissions high managed care enrollment), and the submit proposals to CMS.
deadline for submission of the initial Comment: Several commenters
AGENCY: Centers for Medicare & access monitoring review plan. We requested CMS change the due date by
Medicaid Services (CMS), HHS. received many comments that were which states are required to develop and
ACTION: Final rule. outside of the scope of issues on which submit the initial Access Monitoring
we solicited comments. Several Review Plans. Commenters noted that
SUMMARY: In the November 2, 2015 state agency staff may have difficulty
commenters raised concerns over CMS’s
Federal Register, we published a final developing and submitting the initial
characterization in the regulatory
rule with comment period entitled review plans within the July 1, 2016
preamble of the Supreme Court
‘‘Medicaid Program: Methods for timeframe for first year reviews. These
Decision: Armstrong v. Exceptional
Assuring Access to Covered Medicaid commenters offered several different
Child Center, Inc., 135 S. Ct. 1378
Services.’’ The final rule with comment dates as an alternative, including:
(2015). Though we did not solicit
period established that states must January 1, 2017, July 1, 2017, and 6
comments on this issue, we agree with
develop and submit to CMS an access months following the close of the state’s
commenters that the decision is subject
monitoring review plan by July 1, 2016. next legislative session. A number of
to judicial interpretation and we did not
This document revises the deadline for other commenters requested CMS
intend to imply an interpretation by the maintain the timelines established in
states’ access monitoring review plan
agency. the final rule.
submission to CMS until October 1,
2016. The following is a summary of the Response: We established the July 1,
comments and our responses on 2016 deadline for developing and
DATES: Effective Date: These regulations § 447.203(b)(5). submitting the access monitoring review
are effective on April 8, 2016. Comment: We received many plans in the final rule with comment
FOR FURTHER INFORMATION CONTACT: comments requesting that CMS not period after careful consideration of
Jeremy Silanskis, (410) 786–1592. allow exemptions based on high issues raised through comments on the
SUPPLEMENTARY INFORMATION: managed care enrollment or other notice of proposed rulemaking (76 FR
program features. 26342) and after weighing all of the
I. Background Response: While we continue to policies discussed in the final rule.
In the November 2, 2015 Federal consider whether exemptions might be Since issuing the final rule with
Register (80 FR 67576), we published warranted in some circumstances, we comment period, we have been working
the ‘‘Medicaid Program: Methods for believe that further experience with the closely with states on developing the
Assuring Access to Covered Medicaid access monitoring review system set access monitoring review plans. States
Services’’ final rule with comment forth in the final rule with comment are actively engaged in developing plans
period that outlined a transparent data- period is necessary to determine the and have raised significant concerns
driven process for states to document appropriate circumstances. The over fulfilling the requirements of the
whether Medicaid payments are commenters did not offer consistent rule by the July 1, 2016 deadline.
jstallworth on DSK7TPTVN1PROD with RULES
sufficient to enlist providers to assure suggestions or supporting evidence to Several states have noted that additional
beneficiary access to covered care and set a threshold that could exempt states, time will allow them to develop more
services consistent with section nor any suggestions for alternatives robust and proficient review plans, and
1902(a)(30)(A) of the Social Security Act states might use to demonstrate leave them better prepared to analyze
(the Act). This final rule with comment compliance with section 1902(a)(30)(A) and monitor compliance with section
period included new § 447.203(b)(1) of the Act outside of the final rule with 1902(a)(30)(A) of the Act. We agree with
through (8) and revisions to comment period requirements. this assessment and believe that there
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![21480 Federal Register / Vol. 81, No. 70 / Tuesday, April 12, 2016 / Rules and Regulations
are programmatic benefits to revising however, CMS finds that the action recordkeeping requirements, Rural
the due date and making conforming comes within the provision’s good cause areas.
changes to the deadline for submission exceptions because obtaining additional For the reasons set forth in the
in subsequent review periods. public comment is impracticable, preamble, the Centers for Medicare &
Revision to the Access Monitoring unnecessary, and contrary to the public Medicaid Services amends 42 CFR
Review Plan Timeframe: Based on interest. See 5 U.S.C. 553(b)(3)(B). Given chapter IV as set forth below:
concerns raised by commenters, in this the imminence of the submission date,
final rule we are revising the deadline and the need for states to plan and PART 447—PAYMENTS FOR
for submission effective date of the allocate resources in advance, seeking SERVICES
initial access monitoring review plan public comment and having a delayed
timeframe provision at § 447.203(b)(5) effective date for this short delay in the ■ 1. The authority citation for part 447
introductory text until October 1, 2016. deadline for submission of access continues to read as follows:
A conforming change will also be made monitoring review plans is Authority: Sec. 1102 of the Social Security
to the deadline for submission in impracticable. And, because we Act (42 U.S.C. 1302).
subsequent review periods at provided an opportunity for public
§ 447.203(b)(5)(i) to October 1. comment on issues that included the § 447.203 [Amended]
III. Waiver of Proposed Rulemaking submission deadlines, further ■ 2. Section 447.203 is amended by:
and Delayed Effective Date opportunity is not necessary. Moreover, ■ a. In paragraph (b)(5) introductory
we believe that delay of the submission text, removing the date ‘‘July 1, 2016’’
Under section 553(b) of the deadlines would further the public and adding in its place the date
Administrative Procedure Act (APA), interest in orderly implementation of ‘‘October 1, 2016’’.
the agency is required to publish a regulatory requirements, and in ■ b. In paragraph (b)(5)(i), removing all
notice of the proposed rule in the ensuring development of viable access instances of the date ‘‘July 1’’ and
Federal Register before the provisions monitoring review plans in light of adding in their place the date ‘‘October
of a rule take effect. Similarly, section assertions by commenters that 1’’.
1871(b)(1) of the Act requires the compliance with the original
Secretary to provide for notice of the Dated: March 11, 2016.
submission deadlines might be
proposed rule in the Federal Register Andrew M. Slavitt,
infeasible or disruptive.
and provide a period of not less than 60 Acting Administrator, Centers for Medicare
days for public comment. In addition, IV. Collection of Information & Medicaid Services.
section 553(d) of the APA, and section Requirements Dated: April 6, 2016.
1871(e)(1)(B)(i) of the Act mandate a 30- The November 2, 2015 final rule with Sylvia M. Burwell,
day delay in effective date after issuance comment period stipulated that states Secretary, Department of Health and Human
or publication of a rule. Sections must develop and submit (to CMS) their Services.
553(b)(B) and 553(d)(3) of the APA initial access monitoring review plan by [FR Doc. 2016–08368 Filed 4–8–16; 4:15 pm]
provide for exceptions from the APA July 1, 2016. We are now extending the BILLING CODE 4120–01–P
notice and comment, and delay in submission deadline to October 1, 2016.
effective date requirements; similarly, Similarly, we are revising the deadline
sections 1871(b)(2)(C) and for subsequent review periods from July
1871(e)(1)(B)(ii) of the Act provide DEPARTMENT OF THE INTERIOR
1 to October 1. Otherwise, this final rule
exceptions from the notice and does not impose any new or revised Fish and Wildlife Service
comment, and delay in effective date information collection requirements or
requirements of the Act. Section burden. The November 2, 2015, 50 CFR Part 20
553(b)(B) of the APA and section information collection requirements and
1871(b)(2)(C) of the Act authorize an burden are approved by OMB under [Docket No. FWS–HQ–MB–2015–0034;
agency to dispense with normal notice control number 0938–1134 (CMS– FF09M21200–167–FXMB1231099BPP0]
and comment rulemaking procedures 10391). RIN 1018–BA70
for good cause if the agency makes a
finding that the notice and comment V. Regulatory Impact Statement
Migratory Bird Hunting; Final
process is impracticable, unnecessary, In the November 2, 2015 final rule Frameworks for Migratory Bird Hunting
or contrary to the public interest; and with comment period, we discussed the Regulations
includes a statement of the finding and impact of the access monitoring review
the reasons for it in the notice. In plan requirements on states. We do not AGENCY: Fish and Wildlife Service,
addition, both section 553(d)(3) of the believe this delay of the deadline for Interior.
APA and section 1871(e)(1)(B)(ii) of the submission of the access monitoring ACTION: Final rule; correction.
Act allow the agency to avoid the 30- review plans will change any of the
day delay in effective date where such discussion in the impact statement of SUMMARY: We, the U.S. Fish and
delay is contrary to the public interest the November 2, 2015 final rule with Wildlife Service, published a final rule
and the agency includes in the rule a comment period. in the Federal Register on March 28,
statement of the finding and the reasons In accordance with the provisions of 2016, that prescribes final frameworks
for it. Executive Order 12866, this regulation from which States may select season
Because the deadlines for submission was reviewed by the Office of dates, limits, and other options for the
jstallworth on DSK7TPTVN1PROD with RULES
of access monitoring review plans are Management and Budget. 2016–17 migratory bird hunting
rules of procedure, the notice and seasons. In that rule, we made an error
comment requirements of 5 U.S.C. 553 List of Subjects in 42 CFR Part 447 in the daily bag limit for canvasbacks in
do not apply to this delay of the Accounting, Administrative practice Alaska. We intended to increase the
submission date. See 5 U.S.C. and procedure, Drugs, Grant programs- daily bag limit for canvasbacks in
553(b)(3)(A). To the extent that section health, Health facilities, Health Alaska, as we did for the rest of the
553 applies in these circumstances professions, Medicaid, Reporting and United States, to 2 birds. We also
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Document Created: 2016-04-12 00:46:33
Document Modified: 2016-04-12 00:46:33
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Contact | Jeremy Silanskis, (410) 786-1592. | |
| FR Citation | 81 FR 21479 | |
| RIN Number | 0938-AS89 | |
| CFR Associated | Accounting; Administrative Practice and Procedure; Drugs; Grant Programs-Health; Health Facilities; Health Professions; Medicaid; Reporting and Recordkeeping Requirements and Rural Areas |
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