Anonymous-OH

This comment refers to file code CMS-1493-IFC2. This commenter requests clarification that the moratorium in section 114(d) of the Medicare, Medicaid, and SCHIP Extension Act of 2007 (“MMSEA”) does not apply to the relocation of existing long-term care hospital (“LTCH”) beds. Section 114(d)(1) of the MMSEA places a three-year moratorium on “(A) … the establishment and classification of a long-term care hospital or satellite facility, other than an existing long-term care hospital or facility; and (B) … an increase of long-term care hospital beds in existing long-term care hospitals or satellite facilities.” Congress intended to avoid the establishment of new LTCH beds through these moratorium provisions. But nothing in MMSEA is intended to prevent the mere relocation of existing LTCH beds, whether or not that relocation is to a facility existing prior to December 29, 2007. The exception for “certain long-term care hospitals” set forth in section 114(d)(2)(A) is pertinent to showing Congress’ intent. Pursuant to section 114(d)(2)(A), “[t]he moratorium … shall not apply to a long- term care hospital that as of the date of the enactment of this Act— (A) began its qualifying period for payment as a long-term care hospital under 412.23(e) of title 42, Code of Federal Regulations, on or before the date of the enactment of this Act.” An existing LTCH would have “beg[u]n its qualifying period for payment … before [December 29, 2007].” This exception makes clear that Congress intended to protect existing LTCHs, and there existing LTCH beds, from the moratorium’s prohibitions against the establishment of new long-term care hospitals and satellite facilities. Therefore, CMS’s exclusion from this section of existing LTCHs is directly at odds with the plain language of the statute. (See Federal Register, Vol. 73, No. 100, p. 29705: “In light of how we view the qualifying period …, we note that it is not possible for a LTCH, as of the date of enactment of MMSEA, to begin its qualifying period as a LTCH.”). Accordingly, an existing LTCH could relocate, but not increase, its existing LTCH beds to another facility without violating the moratorium, regardless of the date of transfer or the status of the facility as of December 29, 2007. Additionally, in interpreting the exception in section 114(d)(2)(B), CMS states: In light of … our presumption that new LTCH satellite facilities are included in the exception in section 114(d)(2)(B) of MMSEA applies in the following three circumstances: … (3) an existing LTCH, as of December 29, 2007, has a binding written agreement with an outside unrelated party for the actual construction, renovation, lease or demolition for a new LTCH satellite facility and the LTCH has expended before December 29, 2007 at least 10 percent of the estimated cost of the project (or, if less, $2,500,000). (Federal Register, Vol. 73, No. 100, p. 29706). The proposed regulations for this exception would allow the relocation of existing LTCH beds, but only under restricted circumstances. As shown above, Congress did not intend to restrict whatsoever the movement of existing LTCH beds. Here, CMS is proposing to protect only those existing LTCH bed relocations that meet the requirements of section 114(d)(2)(B); thereby, excluding all other bed relocations. Consequently, CMS’s proposed regulations for sections 114(d)(2)(A) and (B) extend the moratorium beyond its intended reach and each should be interpreted and/or revised to further Congress’s intended purpose.