[Federal Register Volume 60, Number 77 (Friday, April 21, 1995)]
[Rules and Regulations]
[Pages 19856-19862]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-9954]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Health Care Financing Administration
42 CFR Parts 440 and 441
[MB-41-F]
RIN 0938-AF12
Medicaid Program; Required Coverage of Nurse Practitioner
Services
AGENCY: Health Care Financing Administration (HCFA), HHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule stipulates the requirements for coverage of
and payment for pediatric and family nurse practitioner services under
the Medicaid program. The coverage of these additional services under
the Medicaid program increases the availability and accessibility of
medical care for specified Medicaid recipients.
This final rule adds to the Medicaid regulations provisions of
sections 1902(a)(10)(A) and 1905(a)(21) of the Social Security Act, as
amended by section 6405 of the Omnibus Budget Reconciliation Act of
1989.
EFFECTIVE DATE: These regulations are effective May 22, 1995.
FOR FURTHER INFORMATION CONTACT: Robert Wardwell, (410) 966-5659.
SUPPLEMENTARY INFORMATION:
I. General Background
Title XIX of the Social Security Act (the Act) authorizes States to
establish Medicaid programs to provide medical assistance to needy
individuals. Section 1902(a)(10) of the Act describes the two broad
classifications of most individuals to whom medical assistance may be
provided: The categorically needy (section 1902(a)(10)(A)) and the
medically needy (section 1902(a)(10)(C)). Section 1905 of the Act
defines medical assistance for purposes of the Medicaid program and
specifies the services that constitute medical assistance.
Section 6405 of the Omnibus Budget Reconciliation Act of 1989 (OBRA
'89), Public Law 101-239, enacted on December 19, 1989, redesignated
section 1905(a)(21) as section 1905(a)(22) and added a new section
1905(a)(21) to the Act to include services furnished by certified
pediatric nurse practitioners (CPNPs) and by certified family nurse
practitioners (CFNPs) in the definition of ``medical assistance.''
Section 1905(a)(21) describes the added services as those that a nurse
practitioner is legally authorized to perform under State law, whether
or not the nurse practitioner is under the supervision of, or
associated with, a physician or other health care provider.
In addition, section 6405 of OBRA '89 amended section
1902(a)(10)(A) to include the nurse practitioner services listed in
section 1905(a)(21) of the Act as services that must be made available
to categorically needy recipients. Nurse practitioner services can be
provided to medically needy recipients at the option of the State
Medicaid agency.
Program instructions to help States implement the provisions of
section 6405 of OBRA '89 were initially published in the State Medicaid
Manual, Part 4, Services, in August 1990 (Transmittal Number 48). As a
result, since July 1, 1990, States have been required to provide for
direct payment to nurse practitioners for their services if the
services are not billed by an employing provider (for example, a
hospital clinic). These instructions included an administratively
imposed requirement that CPNPs and CFNPs must be certified by national
accrediting bodies.
II. Notice of Proposed Rulemaking
On December 23, 1991, we published in the Federal Register (56 FR
66392) a proposed rule to include in the Medicaid regulations coverage
of and payment for services furnished by CPNPs and CFNPs, as provided
by section 6405 of OBRA '89.
The proposed rule included revisions to 42 CFR parts 440 and 441 to
define nurse practitioner services for purposes of this benefit, to set
out the requirements for CPNPs and CFNPs, and to describe the
permissible methods of payment for services. Under proposed
Sec. 440.166(a), we defined nurse practitioner services as services
furnished within the scope of practice authorized by State law or
regulations, by a practitioner who meets the requirements for a CPNP or
a CFNP, regardless of whether the nurse practitioner is under the
supervision of, or associated with, a physician or other health care
provider.
In Sec. 440.166(b), we proposed that a CPNP must--
Be a registered professional nurse;
Be currently licensed to practice in the State as a
registered professional nurse;
Meet the State requirements for qualification of pediatric
nurse practitioners or nurse practitioners in the State in which he or
she furnishes the services; and
Be currently engaged in a pediatric nurse practice within
the scope of applicable State law. [[Page 19857]]
We proposed in Sec. 440.166(c) that a CFNP must--
Be a registered professional nurse;
Be currently licensed to practice in the State as a
registered professional nurse;
Meet the State requirements for qualification of family
nurse practitioners or nurse practitioners in the State in which he or
she furnishes the services; and
Be currently engaged in a family nurse practice within the
scope of applicable State law.
We did not include in the proposed regulations the national
certification requirement for CPNPs and CFNPs that we issued in the
State Medicaid Manual, Part 4, Services, in August 1990. We eliminated
this requirement to allow States the opportunity to use criteria other
than national certification to qualify individuals as nurse
practitioners in specialties.
In Sec. 440.166(d), we proposed to require State Medicaid agencies
to pay nurse practitioners directly under an independent provider
agreement with the State Medicaid agency or, at the option of the nurse
practitioner, through an employing provider. We proposed a new
Sec. 441.22(c) to require that State plans provide nurse practitioners
with these payment options.
We proposed to revise Sec. 440.210 and to add a new Sec. 441.22(a)
to require that nurse practitioner services described in Sec. 440.166
be furnished to categorically needy recipients. We also proposed a new
Sec. 441.22(b) to require that a State plan specify whether the State
is electing the option to furnish nurse practitioner services to the
medically needy.
We proposed a new Sec. 440.225 to specify that any service not
required to be provided either to the categorically needy or to the
medically needy may be furnished under a State plan at the State's
option.
We also proposed some technical changes.
III. Summary of Public Comments on the Proposed Rule and Departmental
Responses
We received 28 timely pieces of correspondence that commented on
the December 23, 1991, proposed rule. The comments came from State
Medicaid agencies, medical centers, hospitals, consultant groups, nurse
practitioners and associations of nurse practitioners, nurses, and
medical directors. A summary of these public comments and our responses
follow.
A. Requirements for CPNPs and CFNPs
Comment: Several commenters addressed our omission of the
requirement that we had included in the State Medicaid Manual
stipulating that CPNPs or CFNPs be certified by one of two specific
national accrediting organizations. Two commenters indicated that we
should have included the requirement in the proposed regulations,
stating that the omission will result in less consistent quality of
care and a less credible national standard. Three commenters supported
our decision to omit the requirement, stressing the importance of
allowing States flexibility to base qualifications on existing State
certification mechanisms. These commenters stressed that this
flexibility will result in additional qualified nurse practitioners.
Response: We intentionally did not incorporate the requirement
included in the manual instructions that nurse practitioners be
certified by national accrediting organizations into the proposed
regulations. We omitted this requirement to avoid excluding from
coverage nurse practitioners in several States that have detailed
requirements for nurse practitioners that do not include use of
national certification. This exclusion would be contrary to the
statute's intent to provide maximum access to nurse practitioner
services. Consequently, we are not making any change to the proposed
Sec. 440.166 to include the requirement that CPNPs or CFNPs be
certified by national accrediting organizations. In the final rule, we
are allowing States to determine their own requirements for pediatric
and family nurse practitioners. In this way, by State law, a State can
establish its own standards for these nurse practitioner specialties.
For example, a State may specify its own requirements for training of
pediatric or family nurse practitioners or, if it chooses, a State may
require that nurse practitioners be certified by a national
certification board.
Comment: Two commenters requested that we change the provision in
the proposed rule that CPNPs and CFNPs must ``meet the State
requirements for qualification of pediatric or family nurse
practitioners or nurse practitioners'' to CPNPs and CFNPs must ``meet
the State requirements for nurses in advanced practice or nurse
practitioners.'' The commenters pointed out that, in many States, State
laws do not name nurse practitioners according to specialty; that is,
pediatric or family practice, and instead refer to ``nurses in advanced
practice.'' In addition, both commenters suggested that we require the
nurses to be certified by a national certification board in pediatrics
or family practice. One of these commenters also suggested that we
define nurses in advanced practice as those who are authorized under
State law to furnish those services stipulated by the State Board of
Nursing and that we leave the definition of pediatric and family
practice up to the State.
Response: The language used in the proposed rule provides
parameters for practitioners in States that do not have specific
requirements for pediatric or family nurse practitioners. In these
States, the practitioner must have a pediatric nurse practice limited
to providing primary health care to persons less than 21 years of age,
or a family nurse practice limited to providing primary health care to
individuals and families.
We did not intend to exclude from participation pediatric nurse
practitioners or family nurse practitioners in any State where State
law does not specifically name nurse practitioners according to
specialty. We agree with commenters that those States that do not
specifically define the specialties may instead define nurses in
``advanced practice'' or ``nurse practitioners.'' Generally this means
that the nurse has met advanced practice requirements beyond the 2 to 4
years of basic nursing education required of all registered nurses. In
these States, therefore, registered nurses must meet the State
requirements for nurses in ``advance practice'' or general nurse
practitioners and must have a pediatric nurse practice limited to
providing primary health care to persons less than 21 years of age, or
a family nurse practice limited to providing primary health care to
individuals and families. We have, therefore, revised Sec. 440.166
(b)(2) and (c)(2) and included reference to nurses in advanced
practice. Nurses in advanced practice or general nurse practitioners
who wish to have their services covered under this benefit must be
practicing as pediatric or family nurse practitioners within broad
Federal definitions established in these regulations.
We encourage States to establish requirements for pediatric and
family nurse practitioners and to define the scope of their practices.
A State may require that nurse practitioners be certified by a national
certification board as a pediatric or family nurse practitioner, or a
State, itself, may define the scope of services that constitute
pediatric or family nurse practitioner services. The Federal
definitions will apply in those States [[Page 19858]] that have not
established their own definitions.
Comment: One commenter disagreed with the requirement that CPNPs
and CFNPs be currently engaged in a pediatric or family nurse practice,
contending that this requirement could bar access to services; for
example, by excluding new practitioners.
Response: We agree that the requirements that all nurse
practitioners meet the State requirements for pediatric and family
nurse practitioners and be currently engaged in a pediatric or family
nurse practice could reduce the provider base of nurse practitioners.
Consequently, we have revised the final regulations at Sec. 440.166 (b)
and (c) to require that licensed registered nurses in States that have
specific requirements for pediatric and family nurse practitioners will
need only to meet those State requirements. In States that do not have
specific requirements for pediatric or family nurse practitioners,
nurses in advanced practice and nurse practitioners may qualify by
being engaged in a pediatric or family nurse practice within the scope
of the Federal definitions. Thus, being currently engaged in a
pediatric or family nurse practice will be one way that an individual
can qualify as a provider of these services, but it will not be the
only way an individual can qualify.
Comment: One commenter requested that we specify that the State
requirements that CPNPs and CFNPs must meet are State requirements ``as
specified by the State Board of Nursing'', since, according to this
commenter, it is the State entity that interprets laws and regulations
on the scope of practice for nurses. This commenter also suggested that
the nurses in advanced practice be defined as those who are authorized
under State law to furnish those services stipulated by the State Board
of Nursing, and leave the definition of pediatric and family practice
up to the States.
Response: While a State Board of Nursing may be the State entity
legally responsible for defining the scope of practice for nurse
practitioners in most States, we believe it is not feasible to specify
the particular State governmental entity in Federal regulations, since
the requirements in the regulations must apply to all States.
Comment: A large number of commenters requested that nurse
practitioners with distinct specialties be included in coverage under
this regulation. Four commenters supported the inclusion of nurse
practitioners who specialize in providing family planning,
gynecological, and prenatal care services, including obstetrics-
gynecology nurse practitioners, reproductive health nurse
practitioners, and women's health nurse practitioners. Four commenters
requested the inclusion of adult nurse practitioners-- pointing out
that these practitioners often provide access to care for adolescents
and economically disadvantaged adults. Three commenters recommended
covering the services of geriatric nurse practitioners. Four commenters
noted that the inclusion of psychiatric clinical nurse specialists
would provide important services for the mentally ill, reduce
inappropriate care, and be unlikely to increase costs. One commenter
asked for a clarification on whether other groups of nurse
practitioners are included.
Response: Under the final regulations (Sec. 440.166 (b)(1) and
(c)(1)), States will be able to define the scope of pediatric and
family nurse practitioner services. The final rule specifies only that
in States that have not established requirements for pediatric or
family nurse practitioners or defined the scope of their practice, (1)
pediatric nurse practitioners have a practice limited to providing
primary health care to persons less than 21 years of age, and (2)
family nurse practitioners have a practice limited to providing primary
health care to individuals and families. These Federal definitions will
apply only in States that have not established their own requirements
or definitions. In these States, the State will decide if the
practitioner's specialty fits within the broad Federal definitions and
apply the regulations accordingly. The services performed by many of
the specific nurse practitioners cited by the commenters may be covered
under the nurse practitioner benefit if they fall under the broad
Federal definition. Many of these specific nurse practitioner services
could also be covered, at a State's option, under the Medicaid benefit
of medical or other remedial care provided by licensed practitioners as
specified in Sec. 440.60.
Comment: One commenter requested that the requirements for family
nurse practitioners who provide services to nursing facility residents
include geriatric and drug therapy training.
Response: While we do not challenge the value of such training for
CFNPs, we believe it is inappropriate for these regulations to specify
requirements at this level of detail. A State may choose to address the
need for this specific training in the requirements it establishes for
certification of CFNPs.
B. Classification of Nurse Practitioner Services
Comment: One commenter opposed any provision of services in nursing
facilities that are not under the direction of a physician, and raised
concerns about nurse practitioners practicing independently in those
settings. Another commenter asked for clarification on whether direct
payment to nurse practitioners can be offered in any setting.
Response: These concerns raise some very complex Medicaid coverage
issues. To help clarify the payment process for nurse practitioners, we
are starting this response with some general information on how all
Medicaid services are paid. We are following this with some more
specific information on nurse practitioner services.
Generally, Medicaid services are classified by categories. Each
separate category may have specific Federal requirements relating to
supervision or location of services. Some services, such as inpatient
hospital, nursing facility, and clinic services, are described in terms
of their setting. Other services, such as rehabilitation or physical
therapy, are described by the type of service being furnished. Finally,
some services, such as nurse practitioner and physician services, are
described in terms of the individual providing services. Each category
is separate and has a distinct set of requirements.
While we view each category of services as separate, some services,
including nurse practitioner services, can be classified in more than
one category. However, the specific circumstances under which a service
is provided will determine which category the provider should use when
submitting a claim. It is possible that a specific claim could meet the
requirements under one category and not another even though, as a
general rule, the service could be submitted under either category.
When a provider submits a claim for payment, the provider must
identify the service by using a procedure code. The claim is reviewed
to assure that it meets the requirements for payment. This review is
based on the information provided on the claim submission. Therefore,
any service that is submitted for Medicaid payment must meet the
requirements of the procedure code that the provider designates on a
claim for payment. Consequently, the provider must use care when
submitting a claim to avoid having the claim rejected because it does
not meet the requirements of the designated category. The claim must
meet those [[Page 19859]] requirements to be eligible for payment;
otherwise, it will be rejected. (A rejected claim could be resubmitted
under the proper category.)
The category of nurse practitioner services has certain
similarities to physician services that should help clarify how nurse
practitioner services are classified under Medicaid.
First, like physician services, nurse practitioner services are
limited in scope only through State licensure or scope of practice
laws.
Second, at the Federal level, there are no restrictions on where
either physician or nurse practitioner services are furnished.
Third, the Medicaid statute does not dictate that a physician who
practices in a hospital or clinic must receive payment through the
hospital or clinic. This same type of flexibility extends to nurse
practitioners.
Fourth, while services provided by physicians or nurse
practitioners can each be classified in its distinct category, both
services can also be billed in other categories such as outpatient
hospital and clinic services.
As an example of how the billing category governs the
classification of nurse practitioner services, we can compare two
methods of billing for nurse practitioner services performed in a
clinic setting. If the clinic bills the program for the nurse
practitioner services, the services will be considered to be clinic
services and all Federal requirements relating to clinics must be met.
That is, the service provided by a nurse practitioner in the clinic
setting must be provided under the overall direction of a physician.
If, instead, a nurse practitioner bills for the services as nurse
practitioner services (which happen to be furnished in a clinic
setting), supervision is irrelevant.
Generally, to be acceptable for direct payment, billing for nurse
practitioner services provided in any setting must be submitted under
the category of nurse practitioner services. A nurse practitioner
furnishing services in a hospital or clinic should not bill Medicaid
for direct payment under the categories of hospital or clinic services
because the nurse practitioner would not be able to meet the criteria
for payment under these categories, for example, the conditions of
participation applicable to hospitals.
The issue of the setting of the services also has an impact on both
the supervision of services and the billing for services. If a nurse
practitioner furnishes services in a hospital or a clinic and bills
Medicaid independently under the Medicaid service category of nurse
practitioner services, the issue of supervision is generally irrelevant
for purposes of Medicaid coverage. The issue of supervision is more
complex for nurse practitioner services performed in nursing facilities
and rural health clinics. However, for reasons discussed below, we will
also allow direct billing for nurse practitioner services performed in
these latter settings.
As mentioned by a commenter, section 1919(b)(6) of the Act requires
that the health care of every resident of a nursing facility be
provided under the supervision of a physician (or at State option,
under the supervision of an nurse practitioner who is not an employee
of the facility but is working in collaboration with a physician). When
providing services in a nursing facility, a nurse practitioner must
either be under the supervision of, or have an association with, a
physician.
Services furnished in rural health clinics, as defined at section
1905(1) of the Act (which refers to section 1861(aa) of the Act),
similarly require supervision of a nurse practitioner by a physician.
Because supervision is required under sections 1919(b)(6) and
1905(1), these sections appear to prohibit any nurse practitioner that
works in a nursing facility or rural health clinic from directly
billing Medicaid for services. We believe it would be contrary to the
Congressional intent of section 1905(a)(2) of the Act to prohibit a
nurse practitioner working in either of these settings from billing for
direct payment for nurse practitioner services. Consequently, we are
allowing a nurse practitioner to bill directly for nurse practitioner
services furnished in a nursing facility or rural health clinic even
though the services must be furnished under the supervision of, or in
association with, a physician.
Because nurse practitioner services can now be billed either
directly or indirectly, we recognize that there is some potential for
duplicate billing. However, we anticipate that nurse practitioners will
enter into billing agreements with other health care providers, for
example, clinics. We expect that these agreements will specify which
entity will bill the Medicaid program for the services and how a nurse
practitioner will be paid--either directly by the Medicaid program or
indirectly through the other health care provider. In addition, the
respective provider agreements with a State Medicaid agency may also
include provisions which ensure that duplicate payments are not made.
The State, however, may not require a nurse practitioner to be
associated with or bill through another health care provider.
C. Physician Referral and Supervision Issues
Comment: One commenter requested that HCFA amend the regulation
regarding long-term care facilities (Sec. 483.40) to allow a physician
to delegate tasks to a nurse practitioner only if the nurse
practitioner is not an employee of the facility.
Response: This suggested revision has already been published under
Sec. 483.40 (56 FR 48875, September 26, 1991) effective April 1, 1992.
Comment: One commenter requested that we amend the regulation at
Sec. 440.110 that requires that physical therapy and occupational
therapy be prescribed by a physician, and that speech, hearing, and
language services be referred by a physician. The commenter pointed out
that the proposed rule defines nurse practitioner services as services
that the CPNP or CFNP is legally authorized to perform under State law,
and that, in the commenter's State, nurse practitioners are legally
authorized to order these therapy services for recipients. The
commenter stated that an amendment that allowed nurse practitioners to
prescribe or refer patients for these therapy services would further
the statutory intent of ensuring that Medicaid payment is available for
these services. The commenter noted that Federal regulations for a
number of other services allow the services to be recommended by a
physician or other licensed practitioner.
Response: We agree that the regulation, as written, requiring
physician prescription or referral for the therapy services creates a
barrier to allowing nurse practitioners to provide services that they
are authorized to provide under State law in some States. This was not
our intent. Consequently, we are expanding Sec. 440.110 to permit a
licensed practitioner of the healing arts, within the scope of his or
her practice under State law, to prescribe or refer these therapy
services for recipients. This revision enables nurse practitioners to
refer recipients to physical therapy, occupational therapy, speech
services and language services when allowed under State law.
D. Payment Options for Nurse Practitioner Services
Comment: One State agency disagreed with the proposed rule that
requires States to permit nurse practitioners to be paid through
employing providers. This State pays nurse practitioners directly
through independent provider agreements. The commenter contended that
this method allows the State to [[Page 19860]] avoid duplicate billing
and verify licensing requirements. The commenter asserted that the
change will create claims, reporting, and systems problems.
Response: The intent of the statute clearly is to provide maximum
access to certain nurse practitioner services by providing alternative
modes of payment. Payment for such services may be made either directly
to a nurse practitioner or indirectly through an employing provider.
Direct payment may be made to a nurse practitioner who is a
participating Medicaid provider without regard to whether he or she
practices independently or works under the supervision of, or in
association with, health care providers. Indirect payment may be made
when a nurse practitioner is paid through an employing provider and
does not bill Medicaid. For example, if the nurse practitioner is an
employee of a hospital or a clinic, the hospital or clinic may pay the
nurse practitioner and bill Medicaid for hospital or clinic services.
The State will need to establish administrative arrangements to avoid
duplicate payments. While we realize that this places some
administrative burden on States, we believe it is clearly the intent of
the statute to allow nurse practitioners to participate in the Medicaid
program and bill for services when appropriate (that is, if the
services are not paid by an employing provider such as a hospital or
clinic).
Comment: In one State, according to a commenter, nurse
practitioners are limited by State law to providing routine nursing
care. The commenter opposed the direct payment to a nurse practitioner
for these services, and questioned whether the regulation intends to
mandate direct payment to a nurse practitioner who provides this
limited scope of services. The commenter indicated a willingness to
propose a change in State law to allow nurse practitioners to provide
advanced services, but must first determine the services that the nurse
practitioners could perform that would qualify for payment.
Response: The statute states that the nurse practitioner services
that are to be covered are those which a nurse practitioner is legally
authorized to perform under State law. We believe the statute does not
give us authority to override State nurse practice rules. Hence, any
service that a nurse practitioner is authorized to perform under State
law, such as the routine nursing care the commenter described, must be
covered as nurse practitioner services. As the commenter pointed out,
States can choose to expand or restrict the services that nurse
practitioners are legally authorized to perform in the State by
changing State laws or regulations defining nurse practitioner
services.
Comment: Two commenters recommended changes that would clarify that
States are required to allow a nurse practitioner to be paid either
through an employing provider or through an independent provider
agreement, whether or not the nurse practitioner is under the
supervision of, or associated with, a physician or other health care
provider. One commenter asked that we clarify the language in
Sec. 440.166(d) that the Medicaid agency ``may pay'' for nurse
practitioner services, and the other commenter suggested that we
clarify the wording in Sec. 441.22(c).
Response: The intent of the regulations on payment is to emphasize
that States are required to allow a nurse practitioner the option of
being paid either through an independent provider agreement as a
Medicaid participating provider or through an employing provider when
the employing provider bills Medicaid. We have clarified Sec. 441.22(c)
to explain a nurse practitioner may be paid through either method
whether he or she is under the supervision of, or associated with, a
physician or other health care provider.
E. Other Issues
Comment: One commenter disagrees with the decision to make nurse
practitioner services optional for the medically needy. The commenter
pointed out that nurse midwife services are mandated for the medically
needy under the section of the regulations that describes the required
services for the medically needy (Sec. 440.220), and stated that the
Congress intended to include nurse practitioner services in this
section.
Response: We do not agree that the Congress intended to mandate
nurse practitioner services for the medically needy. Moreover,
Sec. 440.220 simply reiterates the options in the statute and does not
mandate nurse midwife services for the medically needy. Under section
1902(a)(10)(C) (iii) and (iv) of the Act, if a State chooses to provide
services to any medically needy group in institutions for mental
diseases or intermediate care facilities for the mentally retarded, or
both, the State must include for all medically needy groups at least
the services listed in section 1905(a) (1) through (5) and (17) (nurse
midwife services) or any seven services under section 1905(a) (1)
through (21). A State may choose to not cover nurse midwife services
for the medically needy by choosing seven other services. We have
retained the proposed Sec. 440.225 to clarify that any service that is
not mandated for the categorically needy or medically needy may be
furnished under a State plan at the State's option.
IV. Provisions of the Final Rule
We are adopting the proposed regulations as final regulations with
the following revisions:
We have revised Sec. 440.110 to include provisions that
allow a licensed practitioner of the healing arts, within the scope of
his or her practice under State law, to prescribe physical and
occupational therapy services for recipients and to refer recipients
for other therapy services.
We have revised the proposed Sec. 440.166(a) to describe
nurse practitioner services as services that are furnished by a
registered professional nurse who meets a State's advanced educational
and clinical practice requirements, if any, beyond the 2 to 4 years of
basic nursing education required of all registered nurses.
We have revised the proposed Sec. 440.166 (b) and (c) to
include the requirements that nurses in advanced practice must meet to
qualify as CFNPs and CPNPs. Licensed registered nurses in States that
have specific requirements for pediatric and family nurse practitioners
will need only to meet those State requirements. In States that do not
have specific requirements for pediatric or family nurse practitioners,
nurses in advanced practice and general nurse practitioners may qualify
by being engaged in a pediatric or family nurse practice within the
scope of the State's definitions or within Federal definitions.
We have revised the proposed Sec. 441.22(c) to clarify
that a nurse practitioner has the option of being paid either through
an independent provider agreement or through an employing provider
regardless of whether he or she is under the supervision of, or
associated with, a physician or other health care provider.
V. Regulatory Impact Statement
We generally prepare a regulatory impact analysis that is
consistent with the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
through 612), unless the Secretary certifies that a final regulation
will not have a significant economic impact on a substantial number of
small entities. For purposes of RFA, physicians and all nurse
practitioners who work on a consulting basis or who are self-employed
are considered to be small entities. [[Page 19861]]
Also, section 1102(b) of the Act requires the Secretary to prepare
a regulatory impact analysis if a final rule may have an impact on the
operations of a substantial number of small rural hospitals. Such an
analysis must conform to the provisions of section 604 of the RFA. For
purposes of section 1102(b) of the Act, we consider a small rural
hospital as a hospital that is located outside a Metropolitan
Statistical Area and that has fewer than 50 beds.
This final rule adopts the December 23, 1991, proposed rule with
modifications, based on comments submitted by the public. A summary of
the public comments and the departmental responses are included in part
II above. In the proposal, we included an impact analysis (57 FR 66394)
that indicated that the impact was negligible. None of the responses to
our request for public comment addressed our proposed impact analysis.
In addition, we believe that none of the changes incorporated into the
final rule require any revision to our statement in the proposal that
the impact was negligible. Consequently, we continue to believe that
the impact of this final rule is negligible. We are, therefore, not
preparing a regulatory impact analysis for this final rule.
We have determined, and the Secretary certifies, that these final
regulations will not have significant economic impact on a substantial
number of small entities and will not have a significant impact on the
operations of a substantial number of small rural hospitals. Therefore,
we have not prepared a regulatory flexibility analysis or an analysis
of effects on small rural hospitals.
In accordance with the provisions of Executive Order 12866, this
final regulation was reviewed by the Office of Management and Budget.
VI. Paperwork Burden
Section 441.22 of this final rule contains information collection
requirements that are subject to Office of Management and Budget (OMB)
approval under the Paperwork Reduction Act of 1980 (44 U.S.C. Chapter
35). Under these final regulations, a State will be required to specify
in its State Medicaid plan that it provides nurse practitioner services
to the categorically needy. A State must also specify whether or not it
furnishes nurse practitioner services to the medically needy. In
addition, a State must provide that services furnished by a nurse
practitioner, regardless of whether the nurse practitioner is under the
supervision of, or associated with, a physician or other health care
provider, may be paid by the State Medicaid agency through an
independent provider agreement between the State and the nurse
practitioner; or be paid through the employing provider. The public
reporting burden for this collection of information is estimated to be
a half hour per response. A notice will be published in the Federal
Register when OMB approval is received.
List of Subjects
42 CFR Part 440
Grant programs--health, Medicaid.
42 CFR Part 441
Family planning, Grant programs--health, Infants and children,
Medicaid, Penalties, Prescription drugs, Reporting and recordkeeping
requirements.
42 CFR Chapter IV is amended as follows:
PART 440--SERVICES: GENERAL PROVISIONS
A. Part 440 is amended as follows:
1. The authority citation for part 440 continues to read as
follows:
Authority: Sec. 1102 of the Social Security Act (42 U.S.C.
1302).
2. In Sec. 440.110, paragraphs (a)(1), (b)(1), and (c)(1), are
revised to read as follows:
Sec. 440.110 Physical therapy, occupational therapy, and services for
individuals with speech, hearing, and language disorders.
(a) Physical therapy. (1) Physical therapy means services
prescribed by a physician or other licensed practitioner of the healing
arts within the scope of his or her practice under State law and
provided to a recipient by or under the direction of a qualified
physical therapist. It includes any necessary supplies and equipment.
* * * * *
(b) Occupational therapy. (1) Occupational therapy means services
prescribed by a physician or other licensed practitioner of the healing
arts within the scope of his or her practice under State law and
provided to a recipient by or under the direction of a qualified
occupational therapist. It includes any necessary supplies and
equipment.
* * * * *
(c) Services for individuals with speech, hearing, and language
disorders. (1) Services for individuals with speech, hearing, and
language disorders means diagnostic, screening, preventive, or
corrective services provided by or under the direction of a speech
pathologist or audiologist, for which a patient is referred by a
physician or other licensed practitioner of the healing arts within the
scope of his or her practice under State law. It includes any necessary
supplies and equipment.
* * * * *
3. A new Sec. 440.166 is added to read as follows:
Sec. 440.166 Nurse practitioner services.
(a) Definition of nurse practitioner services. Nurse practitioner
services means services that are furnished by a registered professional
nurse who meets a State's advanced educational and clinical practice
requirements, if any, beyond the 2 to 4 years of basic nursing
education required of all registered nurses.
(b) Requirements for certified pediatric nurse practitioner. The
practitioner must be a registered professional nurse who meets the
requirements specified in either paragraphs (b)(1) or (b)(2) of this
section.
(1) If the State specifies qualifications for pediatric nurse
practitioners, the practitioner must--
(i) Be currently licensed to practice in the State as a registered
professional nurse; and
(ii) Meet the State requirements for qualification of pediatric
nurse practitioners in the State in which he or she furnishes the
services.
(2) If the State does not specify, by specialty, qualifications for
pediatric nurse practitioners, but the State does define qualifications
for nurses in advanced practice or general nurse practitioners, the
practitioner must--
(i) Meet qualifications for nurses in advanced practice or general
nurse practitioners as defined by the State; and
(ii) Have a pediatric nurse practice limited to providing primary
health care to persons less than 21 years of age.
(c) Requirements for certified family nurse practitioner. The
practitioner must be a registered professional nurse who meets the
requirements specified in either paragraph (c)(1) or (c)(2) of this
section.
(1) If the State specifies qualifications for family nurse
practitioners, the practitioner must--
(i) Be currently licensed to practice in the State as a registered
professional nurse; and
(ii) Meet the State requirements for qualification of family nurse
practitioners in the State in which he or she furnishes the services.
(2) If the State does not specify, by specialty, qualifications for
family nurse [[Page 19862]] practitioners, but the State does define
qualifications for nurses in advanced practice or general nurse
practitioners, the practitioner must--
(i) Meet qualifications for nurses in advanced practice or general
nurse practitioners as defined by the State; and
(ii) Have a family nurse practice limited to providing primary
health care to individuals and families.
(d) Payment for nurse practitioner services. The Medicaid agency
must reimburse nurse practitioners for their services in accordance
with Sec. 441.22(c) of this subchapter.
4. In Sec. 440.210, the introductory text of paragraph (a) and
paragraph (a)(1) are revised to read as follows:
Sec. 440.210 Required services for the categorically needy.
(a) A State plan must specify that, at a minimum, categorically
needy recipients are furnished the following services:
(1) The services defined in Secs. 440.10 through 440.50, 440.70,
and (to the extent nurse-midwives and nurse practitioners are
authorized to practice under State law or regulation) the services
defined in Secs. 440.165 and 440.166, respectively.
* * * * *
5. A new Sec. 440.225 is added to read as follows:
Sec. 440.225 Optional services.
Any of the services defined in subpart A of this part that are not
required under Secs. 440.210 and 440.220 may be furnished under the
State plan at the State's option.
B. Part 441 is amended as follows:
PART 441--SERVICES: REQUIREMENTS AND LIMITS APPLICABLE TO SPECIFIC
SERVICES
1. The authority citation for part 441 continues to read as
follows:
Authority: Sec. 1102 of the Social Security Act (42 U.S.C.
1302).
2. Section 441.10 is revised to read as follows:
Sec. 441.10 Basis.
This subpart is based on the following sections of the Act which
state requirements and limits on the services specified or provide
Secretarial authority to prescribe regulations relating to services:
(a) Section 1102 for end-stage renal disease (Sec. 441.40).
(b) Section 1138(b) for organ procurement organization services
(Sec. 441.13(c)).
(c) Sections 1902(a)(10)(A) and 1905(a)(21) for nurse practitioner
services (Sec. 441.22).
(d) Sections 1902(a)(10)(D) and 1905(a)(7) for home health services
(Sec. 441.15).
(e) Section 1903(i)(1) for organ transplant procedures
(Sec. 441.35).
(f) Section 1903(i)(5) for certain prescribed drugs (Sec. 441.25).
(g) Section 1903(i)(6) for prohibition (except in emergency
situations) of FFP in expenditures for inpatient hospital tests that
are not ordered by the attending physician or other licensed
practitioner (Sec. 441.12).
(h) Section 1905(a)(4)(C) for family planning (Sec. 441.20).
(i) Sections 1905 (a)(12) and (e) for optometric services
(Sec. 441.30).
(j) Section 1905(a)(17) for nurse-midwife services (Sec. 441.21).
(k) Section 1905(a) (following (a)(24)) for prohibition of FFP in
expenditures for certain services (Sec. 441.13).
3. A new Sec. 441.22 is added to read as follows:
Sec. 441.22 Nurse practitioner services.
With respect to nurse practitioner services that meet the
definition of Sec. 440.166(a) and the requirements of either
Sec. 440.166(b) or Sec. 440.166(c), the State plan must meet the
following requirements:
(a) Provide that nurse practitioner services are furnished to the
categorically needy.
(b) Specify whether those services are furnished to the medically
needy.
(c) Provide that services furnished by a nurse practitioner,
regardless of whether the nurse practitioner is under the supervision
of, or associated with, a physician or other health care provider,
may--
(1) Be reimbursed by the State Medicaid agency through an
independent provider agreement between the State and the nurse
practitioner; or
(2) Be paid through the employing provider.
(Catalog of Federal Domestic Assistance Program No. 93.778, Medical
Assistance Program)
Dated: August 30, 1994.
Bruce C. Vladeck,
Administrator, Health Care Financing Administration.
Dated: January 24, 1995.
Donna E. Shalala,
Secretary.
[FR Doc. 95-9954 Filed 4-20-95; 8:45 am]
BILLING CODE 4120-01-P
