73 FR 65 pgs. 18287-18289 - Notice of Hearing: Reconsideration of Disapproval of Montana State Plan Amendment (SPA) 07-004

DEPARTMENT OF HEALTH AND HUMAN SERVICES (HHS)

Centers for Medicare Medicaid Services

Notice of Hearing: Reconsideration of Disapproval of Montana State Plan Amendment (SPA) 07-004

AGENCY:

Centers for Medicare Medicaid Services (CMS), HHS.

ACTION:

Notice of Hearing.

SUMMARY:

This notice announces an administrative hearing to be held on May 20, 2008, at the CMS Denver Regional Office, 1600 Broadway, Suite #700, Vail Conference Room, Denver, Colorado 80202, to reconsider CMS' decision to disapprove Montana SPA 07-004.

Closing Date: Requests to participate in the hearing as a party must be received by the presiding officer by April 18, 2008.

FOR FURTHER INFORMATION CONTACT:

Kathleen Scully-Hayes, Presiding Officer,CMS, 2520 Lord Baltimore Drive, Suite L, Baltimore, Maryland 21244, Telephone: (410) 786-2055.

SUPPLEMENTARY INFORMATION:

This notice announces an administrative hearing to reconsider CMS' decision to disapprove Montana SPA 07-004 which was submitted on May 24, 2007, and disapproved on January 4, 2008.

Under this SPA, the State proposed to eliminate cost sharing with respect to Medicaid services for enrolled members of federally recognized American Indian Tribes. CMS requested additional information from Montana that would describe how the State's proposal was consistent with the Equal Protection Clause of the Fourteenth Amendment of the Constitution and Title VI of the Civil Rights Act of 1964 (prohibiting discrimination on the basis of race, color, and national origin in federally assisted programs). The State submitted a response, but that response did not establish such consistency.

The proposed amendment was disapproved because it is inconsistent with section 1902(a)(10)(B) of the Social Security Act (Act). That provision requires that all categorically eligible individuals receive the same benefit package, and that all individuals within a covered eligibility group receive the same benefit package. CMS concluded that the proposed exemption from cost sharing by enrolled members of Tribes would not be consistent with section 1902(a)(10)(B) because it would result in a greater amount, duration, and scope of medical assistance available to Indians than to other similarly situated non-Indians. Moreover, CMS concluded that the State had not demonstrated that the proposed amendment was consistent with sections 1902(a)(4) and 1902(a)(19) of the Act, because the State had not demonstrated that it was consistent with the Equal Protection Clause and Title VI of the Civil Rights Act. Sections 1902(a)(4) and 1902(a)(19) of the Act require methods of administration necessary for the "proper and efficient" operation of the plan and provision of care and services in a manner "consistent with the best interests of beneficiaries."

The hearing will involve the following issues:

• Whether the State's proposed amendment would result in a different amount, duration, and scope of medical assistance available for some categorically eligible individuals than other similarly situated individuals, and in a different amount, duration, and scope of medical assistance for some individuals in an eligibility group than for others in the same group. The State's proposed amendment would provide a greater amount of medical assistance to Indians than non-Indians because the medical assistance for Indian beneficiaries would be increased by the amount that would otherwise be collected through the imposition of cost sharing.

• Whether the State has demonstrated that the proposed amendment is consistent with the Equal Protection Clause of the Constitution and Title VI of the Civil Rights Act of 1964. Although the State asserted that it only needed to show a "rational basis," the State did not demonstrate that this test has been applied in the same circumstance by reviewing courts. Instead, it appears that the applicable test is "strict scrutiny" and the State did not demonstrate the necessary "compelling State interest" and that the proposed action was narrowly tailored to meet that interest.

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 Montana announcing an administrative hearing to reconsider the disapproval of its SPA reads as follows:

Mr. John Chappuis, State Medicaid Director, Montana Department of Public Health and Human Services, P.O. Box 4210, Helena, MT 59604-4210.

Dear Mr. Chappuis:

I am responding to your request for reconsideration of the decision to disapprove the Montana State plan amendment (SPA) 07-004, which was submitted on May 24, 2007, and disapproved on January 4, 2008.

Under this SPA, the State proposed to eliminate cost sharing with respect to Medicaid services for enrolled members of federally recognized American Indian Tribes. CMS requested additional information from Montana that would describe how the State's proposal was consistent with the Equal Protection Clause of the Fourteenth Amendment of the Constitution and Title VI of the Civil Rights Act of 1964 (prohibiting discrimination on the basis of race, color, and national origin in federally assisted programs). The State submitted a response, but that response did not establish such consistency.

The proposed amendment was disapproved because it is inconsistent with section 1902(a)(10)(B) of the Social Security Act (the Act). That provision requires that all categorically eligible individuals receive the same benefit package, and that all individuals within a covered eligibility group receive the same benefit package. CMS concluded that the proposed exemption from cost sharing by enrolled members of Tribes would not be consistent with section 1902(a)(10)(B) because it would result in a greater amount, duration, and scope of medical assistance available to Indians than to other similarly situated non-Indians. Moreover, CMS concluded that the State had not demonstrated that the proposed amendment was consistent with sections 1902(a)(4) and 1902(a)(19) of the Act, because the State had not demonstrated that it was consistent with the Equal Protection Clause and Title VI of the Civil Rights Act. Sections 1902(a)(4) and 1902(a)(19) of the Act require methods of administration necessary for the "proper and efficient" operation of the plan and provision of care and services in a manner "consistent with the best interests of beneficiaries."

The hearing will involve the following issues:

• Whether the State's proposed amendment would result in a different amount, duration, and scope of medical assistance available for some categorically eligible individuals than other similarly situated individuals, and in a different amount, duration, and scope of medical assistance for some individuals in an eligibility group than for others in the same group. The State's proposed amendment would provide a greater amount of medical assistance to Indians than non-Indians because the medical assistance for Indian beneficiaries would be increased by the amount that would otherwise be collected through the imposition of cost sharing.

• Whether the State has demonstrated that the proposed amendment is consistent with the Equal Protection Clause of the Constitution and Title VI of the Civil Rights Act of 1964. Although the State asserted that it only needed to show a "rational basis," the State did not demonstrate that this test has been applied in the same circumstance by reviewing courts. Instead, it appears that the applicable test is "strict scrutiny" and the State did not demonstrate the necessary "compelling State interest" and that the proposed action was narrowly tailored to meet that interest.

I am scheduling a hearing on your request for reconsideration to be held on May 20, 2008, at the CMS Denver Regional Office, 1600 Broadway, Suite #700, Vail Conference Room, Denver, Colorado 80202, in order to reconsider the decision to disapprove SPA 07-004. 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 (410) 786-2055. 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. 1316; 42 CFR 430.18)

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

Dated: March 26, 2008.

Kerry Weems,

Acting Administrator, Centers for Medicare Medicaid Services.

[FR Doc. E8-6867 Filed 4-2-08; 8:45 am]

BILLING CODE 4120-01-P