E8-5881. Notice of Hearing: Reconsideration of Disapproval of Texas State Plan Amendment (SPA) 07-011

AGENCY:

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

ACTION:

Notice of Hearing.

SUMMARY:

This notice announces an administrative hearing to be held on May 7, 2008, at the CMS Dallas Regional Office, 1301 Young Street, Room 1196, Dallas, Texas 75202, to reconsider CMS' decision to disapprove Texas SPA 07-011.

Closing Date: Requests to participate in the hearing as a party must be received by the presiding officer by April 8, 2008.

FOR FURTHER INFORMATION CONTACT:

Kathleen Scully-Hayes, Presiding Officer, CMS, 2520 Lord Baltimore Drive, Suite L, Baltimore, Maryland 21244, Telephone: [phone].

SUPPLEMENTARY INFORMATION:

This notice announces an administrative hearing to reconsider CMS' decision to disapprove Texas SPA 07-011 which was submitted on September 24, 2007, and disapproved on December 20, 2007.

Under this SPA, the State proposed to revise the Medicaid reimbursement methodology for “birthing center facility” services by eliminating the 2.5 percent rate reduction implemented September 1, 2003.

The amendment was disapproved because “birthing center services” are not a recognized service within the scope of “medical assistance” under section 1905(a) of the Social Security Act (the Act), and “birthing center facility services” are not a recognized provider type under that section. Thus payment to birthing centers is not consistent with the requirements of sections 1902(a)(10)(A) and 1902(a)(32) of the Act. Section 1905(a) of the Act defines those services eligible for medical assistance under Medicaid, generally based on the type of provider or practitioner. Birthing centers are not a recognized type of provider or facility eligible for payment under that section. Nurse midwife services are a recognized service under section 1905(a)(17) of the Act. On June 29, 2006, CMS disapproved Texas SPAs 04-33(b) and 06-004 for the same reasons cited above. The State did not appeal either of these disapprovals. Through those prior disapprovals, CMS notified Texas of its concern that there is no statutory or regulatory authority for birthing center facility payments that are part of the current approved Medicaid State plan.

The hearing will involve the following issues:

• Whether there is legal authority to provide payment to birthing center facility services in the absence of any statutory authorization for coverage of birthing center facility services.
• Whether the express authorization of coverage for “nurse midwife services” as a recognized service under section 1905(a)(17) of the Act identifies the provider of such services as the nurse midwife practitioner rather than as the birthing center.
• Whether direct payment for nurse midwife services can be made to persons or entities other than the nurse midwife, consistent with section 1902(a)(32) of the Act, which provides that payment under the plan may only be made to the provider or practitioner, except under very limited circumstances.

Section 1116 of the Act and Federal regulations at 42 CFR Part 430 establish Department procedures that provide an administrative hearing for reconsideration of a disapproval of a State plan or plan amendment. 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.

The notice to Texas announcing an administrative hearing to reconsider the disapproval of its SPA reads as follows:

Mr. Chris Traylor, State Medicaid CHIP Director, Texas Health and Human Services Commission, P.O. Box 13247, Austin, TX 78711.

Dear Mr. Traylor:

I am responding to your request for reconsideration of the decision to disapprove the Texas State plan amendment (SPA) 07-011, which was submitted on September 24, 2007, and disapproved on December 20, 2007.

Under this SPA, the State proposed to revise the reimbursement methodology for Medicaid services delivered as “birthing center facility” services by eliminating the 2.5 percent rate reduction implemented September 1, 2003.

The amendment was disapproved because “birthing center services” are not a recognized service within the scope of “medical assistance” under section 1905(a) of the Social Security Act (the Act), and “birthing center facility services” are not a recognized provider type under that section. Thus, payment to birthing centers is not consistent with the requirements of sections 1902(a)(10)(A) and 1902(a)(32) of the Act. Section 1905(a) of the Act defines those services eligible for medical assistance under Medicaid, generally based on the type of provider or practitioner. Birthing centers are not a recognized type of provider or facility eligible for payment under that section. Nurse midwife services are a recognized service under section 1905(a)(17) of the Act. On June 29, 2006, CMS disapproved Texas SPAs 04-33(b) and 06-004 for the same reasons cited above. The State did not appeal either of these disapprovals. Through those prior disapprovals, CMS notified Texas of its concern that there is no statutory or regulatory authority for birthing center facility payments that are part of the current approved Medicaid State plan.

The hearing will involve the following issues:

• Whether there is legal authority to provide payment to birthing center facility services in the absence of any statutory authorization for coverage of birthing center facility services.
• Whether the express authorization of coverage for “nurse midwife services” as a recognized service under section 1905(a)(17) of the Act identifies the provider of such services as the nurse midwife practitioner, rather than as the birthing center.
• Whether direct payment for nurse midwife services can be made to persons or entities other than the nurse midwife, consistent with section 1902(a)(32) of the Act, which provides that payment under the plan may only be made to the provider or practitioner, except under very limited circumstances.

I am scheduling a hearing on your request for reconsideration to be held on May 7, 2008, at the CMS Dallas Regional Office, 1301 Young Street, Room 1196, Dallas, Texas 75202, in order to reconsider the decision to disapprove SPA 07-011. 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 by Federal regulations 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 at [phone]. 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.

  Sincerely,

Kerry Weems

Acting Administrator

Section 1116 of the Social Security Act (42 U.S.C. section 1316; 42 CFR section 430.18)

(Catalog of Federal Domestic Assistance program No. 13.714, Medicaid Assistance Program.)

Dated: March 14, 2008.

Kerry Weems,

Acting Administrator, Centers for Medicare & Medicaid Services.