2011-14674. Notice of Hearing; Reconsideration of Disapproval of Colorado State Plan Amendments (SPA) 10-034

AGENCY:

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

ACTION:

Notice of hearing.

SUMMARY:

This notice announces an administrative hearing to be held on August 4, 2011, at the CMS Denver Regional Office, Colorado State Bank Building, 1600 Broadway, Suite 700, Denver, Colorado 80202-4367 to reconsider CMS' decision to disapprove Colorado SPA 10-034.

DATES:

Requests to participate in the hearing as a party must be received by the presiding officer by June 29, 2011.

FOR FURTHER INFORMATION CONTACT:

Benjamin Cohen, 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 Colorado SPA 10-034 which was submitted on September 30, 2010, and disapproved on March 10, 2011. The SPA proposed to revise the methods and standards for establishing payment rates for non-brokered and brokered non-emergency medical transportation.

The disapproval was based on a finding that the State had not complied with the requirements of section 1902(a)(73)(A) of the Social Security Act to solicit advice from designees of Indian Health Programs and Urban Indian Organizations prior to submission of a SPA likely to have a direct effect on Indians, Indian Health Programs, or Urban Indian Organizations.

The issues to be considered at the hearing are:

• Applicability: Whether the statutory requirement in section 1902(a)(73)(A) of the Social Security Act (the Act) for solicitation of advice prior to the submission of a SPA that is likely to have a direct effect on Indians, Indian Health Programs, or Urban Indian Organizations is applicable to this SPA when there are significant numbers of Indian beneficiaries who receive transportation services, and Indian Health Programs and Urban Indian Organizations that are transportation providers in the State.
• Solicitation of Advice: Whether Colorado met the statutory requirement at section 1902(a)(73)(A) to solicit advice when it did not include in any issuance to Indian health programs and Urban Indian Organizations prior to the submission of the SPA any specific solicitation of advice or comment on the SPA (or any description of a process for the submission of comments or initiation of a dialogue with the State).
• Timing: Whether Colorado met the statutory requirement at section 1902(a)(73)(A) to solicit advice when it issued general public notice on June 25, 2010, of the rate reductions that were to go into effect July 1, 2010, but did not issue notice to the Indian health programs or Urban Indian Organizations until September 24, 2010, which was only 6 days prior to the date Colorado submitted the SPA to CMS. This issue is whether 6 days is a reasonable time period to allow for the submission and consideration of comments.
• Sufficiency of Solicitation: Whether Colorado met the statutory requirement at section 1902(a)(73) to solicit advice when the notice to the tribes did not describe the potential impact that the rate reduction for transportation would have on the tribes, Indians, Indian health providers, or urban Indian organizations.

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 Colorado announcing an administrative hearing to reconsider the disapproval of its SPAs reads as follows:

Ms. Laurel Karabotsos,

Acting Medical Director,

Department of Health Care Policy and Financing,

Medical & CHP+ Administration Office,

1570 Grant Street,

Denver, CO 80203-1818.

Dear Ms. Karabotsos:

I am responding to your request for reconsideration of Centers for Medicare & Medicaid Services' (CMS) decision to disapprove the Colorado State Plan Amendment (SPA) 10-034, which was submitted to CMS on September 30, 2010, and disapproved on March 10, 2011. The SPA proposed to revise the methods and standards for establishing payment rates for non-brokered and brokered non-emergency medical transportation. The disapproval was based on a finding that the State had not complied with the requirements of section 1902(a)(73)(A) of the Social Security Act to solicit advice from designees of Indian Health Programs and Urban Indian Organizations prior to submission of a SPA likely to have a direct effect on Indians, Indian Health Programs, or Urban Indian Organizations.

The issues to be considered at the hearing are:

• Applicability: Whether the statutory requirement in section 1902(a)(73)(A) of the Social Security Act (the Act) for solicitation of advice prior to the submission of a SPA that is likely to have a direct effect on Indians, Indian Health Programs, or Urban Indian Organizations is applicable to this SPA when there are significant numbers of Indian beneficiaries who receive transportation services, and Indian Health Programs and Urban Indian Organizations that are transportation providers in the State.
• Solicitation of advice: Whether Colorado met the statutory requirement at section 1902(a)(73)(A) to solicit advice when it did not include in any issuance to Indian health programs and Urban Indian Organizations prior to the submission of the SPA any specific solicitation of advice or comment on the SPA (or any description of a process for the submission of comments or initiation of a dialogue with the State).
• Timing: Whether Colorado met the statutory requirement at section 1902(a)(73)(A) to solicit advice when it issued general public notice on June 25, 2010, of the rate reductions that were to go into effect July 1, 2010, but did not issue notice to the Indian health programs or Urban Indian Organizations until September 24, 2010, which was only 6 days prior to the date Colorado submitted the SPA to CMS. This issue is whether 6 days is a reasonable time period to allow for the submission and consideration of comments.
• Sufficiency of Solicitation: Whether Colorado met the statutory requirement at section 1902(a)(73) to solicit advice when the notice to the tribes did not describe the potential impact that the rate reduction for transportation would have on the tribes, Indians, Indian health providers, or urban Indian organizations.

I am scheduling a hearing on your request for reconsideration to be held on August 4, 2011, at the CMS Denver Regional Office, Colorado State Bank Building, 1600 Broadway, Suite 700, Denver, Colorado 80202-4367, in order to reconsider the decision to disapprove SPA 10-034.

If this date is not acceptable, CMS rules provide that the hearing date may be changed by written agreement between CMS and the State. The hearing will be governed by the procedures prescribed by Federal regulations at 42 CFR part 430.

I am designating Mr. Benjamin Cohen 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 to provide names of the individuals who will represent the State at the hearing.

Sincerely,

Donald M. Berwick, M.D.

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: June 8, 2011,

Donald M. Berwick,

Administrator, Centers for Medicare & Medicaid Services.