AGENCY:

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

ACTION:

Proposed rule.

SUMMARY:

This proposed rule would promote transparency by establishing new reporting requirements for states to provide CMS with certain information on supplemental payments to Medicaid providers, including supplemental payments approved under either Medicaid state plan or demonstration authority, and applicable upper payment limits. Additionally, the proposed rule would establish requirements to ensure that state plan amendments proposing new supplemental payments are consistent with the proper and efficient operation of the state plan and with efficiency, economy, and quality of care. This proposed rule addresses the financing of supplemental and base Medicaid payments through the non-federal share, including states' uses of health care-related taxes and bona fide provider-related donations, as well as the requirements on the non-federal share of any Medicaid payment.

DATES:

To be assured consideration, comments must be received at one of the addresses provided below, no later than 5 p.m. on January 17, 2020.

ADDRESSES:

In commenting, please refer to file code CMS-2393-P. Because of staff and resource limitations, we cannot accept comments by facsimile (FAX) transmission.

Comments, including mass comment submissions, must be submitted in one of the following three ways (please choose only one of the ways listed):

1. Electronically. You may submit electronic comments on this regulation to http://www.regulations.gov. Follow the “Submit a comment” instructions.

2. By regular mail. You may mail written comments to the following address ONLY: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-2393-P, P.O. Box 8016, Baltimore, MD 21244-8016.

Please allow sufficient time for mailed comments to be received before the close of the comment period.

3. By express or overnight mail. You may send written comments to the following address ONLY: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-2393-P, Mail Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850.

For information on viewing public comments, see the beginning of the SUPPLEMENTARY INFORMATION section.

FOR FURTHER INFORMATION CONTACT:

Andrew Badaracco, (410) 786-4589, Richard Kimball, (410) 786-2278, and Daniil Yablochnikov, (410) 786-8912, for Medicaid Provider Payments, Supplemental Payments, Upper Payment Limits, Provider Categories, Intergovernmental Transfers, and Certified Public Expenditures.

Timothy Davidson, (410) 786-1167, Jonathan Endelman, (410) 786-4738, and Stuart Goldstein, (410) 786-0694, for Health Care-Related Taxes, Provider-Related Donations, and Disallowances.

Lia Adams, (410) 786-8258, Charlie Arnold, (404) 562-7425, Richard Cuno, (410) 786-1111, and Charles Hines, (410) 786-0252, for Medicaid Disproportionate Share Hospital Payments and Overpayments.

Jennifer Clark, (410) 786-2013, and Deborah McClure, (410) 786-3128, for Children's Health Insurance Program (CHIP).

SUPPLEMENTARY INFORMATION:

Inspection of Public Comments: All comments received before the close of the comment period are available for viewing by the public, including any personally identifiable or confidential business information that is included in a comment. We post all comments received before the close of the comment period on the following website as soon as possible after they have been received: http://www.regulations.gov. Follow the search instructions on that website to view public comments.

I. Background

A. Overview

Title XIX of the Social Security Act (the Act) established the Medicaid program as a federal-state partnership for the purpose of providing and financing medical assistance to specified groups of eligible individuals. States have considerable flexibility in designing their programs, but must abide by requirements specified in the federal Medicaid statute and regulations. Each state is responsible for administering its Medicaid program in accordance with an approved state plan, which specifies the scope of covered services, groups of eligible individuals, payment methodologies, and all other information necessary to assure the state plan describes a comprehensive and sound structure for operating the Medicaid program, and ultimately, provides a clear basis for claiming federal matching funds.

As discussed in more detail below, the goal of this proposed rule is to strengthen overall fiscal integrity of the Medicaid program. The proposed rule focuses on four topic areas that are frequently discussed as program vulnerabilities by federal oversight authorities, including the Government Accountability Office (GAO), the Department of Health and Human Services' Office of Inspector General (OIG), and the Medicaid and CHIP Payment and Access Commission (MACPAC). These topics include: Medicaid fee-for-service (FFS) provider payments; disproportionate share hospital (DSH) payments; Medicaid program financing; supplemental payments; and health care-related taxes and provider-related donations. Due to the complex nature of these topic areas, we have organized this proposed rule to separately discuss each topic and describe the programmatic concerns that we seek to address through this proposed rule. However, the proposed provisions would rely on similar strategies to improve our and states' abilities to oversee fiscal integrity by requiring transparency through better data reporting, clarifying regulatory payment and financing definitions, refining administrative procedures used by states to comply with federal regulations, clarifying regulatory language that could be subject to misinterpretation, and removing regulatory requirements that have been difficult to administer and do not further our oversight objectives. As a result, the provisions of the proposed rule aim to address multiple topic areas as part of the overall strategy to improve fiscal integrity.

While some of the proposed policies are new, there are policies within the proposed rule that CMS has operationalized through our work with states and interpretations of the statute in subregulatory guidance and federal regulations. We have implemented this subset of policies using existing legal authority. Some of the proposed policies in the proposed rule, such as the non-bona fide provider related donations provisions, have been reviewed and upheld by the Departmental Appeals Board (DAB) and the courts. Therefore, we are clarifying the regulatory language in this proposed rule that may have been subject to misinterpretation by states and other stakeholders, or that otherwise could benefit from additional specificity. In these cases, as discussed below, we are not proposing new statutory interpretations, but are merely proposing to codify existing policies into the Code of Federal Regulations (CFR) to improve guidance to states and other stakeholders and, to the extent possible, help prevent states from implementing policies that do not comport with applicable statutory requirements.

B. General Information on Certain Medicaid Financial Topics Addressed in This Proposed Rule

1. Medicaid FFS Provider Payments

a. General Background

States are responsible for developing FFS rates to pay providers for furnishing health care services to beneficiaries who receive covered services through the FFS delivery system. In recognition of the states' front line responsibility, the statute affords states considerable flexibility by not prescribing any particular rate setting approach or method (for most Medicaid services), but instead allows states to develop their own approaches unique to their local circumstances so long as they are consistent with applicable statutory requirements and provide the public and interested parties an opportunity to comment and offer input. In particular, section 4711 of the Balanced Budget Act of 1997 (BBA 97) (Pub. L. 105-33, enacted August 5, 1997) amended section 1902(a)(13)(A) of the Act to give states greater flexibility to develop their own payment methods and standards by replacing prescriptive rate setting requirements with the present standard that rates for inpatient hospital, nursing facility, and intermediate care facility for individuals with intellectual disabilities (ICF/IID) services be established in accordance with a public process. The public process emphasizes transparency in how states approach rate setting by providing stakeholders with a reasonable opportunity to review and comment on the proposed FFS rates, rate setting methodologies, and justifications before states publish final rates, underlying methodologies, and justifications. However, it does not impose any constraints on states with respect to the payment methodologies they may wish to adopt to purchase Medicaid services.

Similarly, states are free to develop their own approach to establishing payment rates for other Medicaid services and, under longstanding regulations at § 447.205, generally must publish public notice in advance to implement new, or change existing, methods and standards for setting payment rates for services. For example, states may decide to use a prospective payment or a retrospective payment system and may elect to reimburse on a per unit, per day, or per discharge basis. Whatever payment methodology or system a state elects to implement, the state must describe the methodology or system comprehensively in its Medicaid state plan and submit the proposed methodology to CMS for review and approval in a manner consistent with 42 CFR part 430, subpart B.

State payment methodologies typically provide for a standard payment to all Medicaid providers on a per claim basis for services rendered to a Medicaid beneficiary in a FFS environment. We refer to these payments as “base payments.” Base payments also include any payment adjustments, add-ons, or other additional payments received by the provider that can be attributed to services identifiable as having been provided to an individual beneficiary, including those that are made to account for a higher level of care or complexity or intensity of services provided to an individual beneficiary.

Having established a base payment system, states may wish to offer extra compensation to certain providers by establishing supplemental payments within the state's overall approach to reimbursing Medicaid providers. “Supplemental payments” are payments made to providers that are in addition to the base payment the provider receives for services furnished. They can be directed to all providers or directed to a designated set of providers, with the amount of the payment depending upon applicable upper payment limit (UPL) demonstration requirements in §§ 447.272 and 447.321 for inpatient and outpatient settings, respectively. Unlike base FFS payments, which are directly attributable to a covered service furnished to an individual beneficiary, supplemental payments are often made to the provider in a lump sum on a monthly, quarterly, or annual basis apart from payments for a provider claim, and therefore, cannot be directly linked to a provider claim for specific services provided to an individual Medicaid beneficiary. Effectively, the supplemental payments serve to increase total Medicaid payments to a provider for all Medicaid services furnished over a set period of time as shown in the state's UPL demonstration. The UPL demonstration is the means by which the state documents that the Medicaid payments for the applicable services are below the aggregate UPL amount. In general, supplemental payments are recognized as service payments as they supplement base payments previously made to purchase Medicaid services from providers. Typically, they are made under FFS state plan authority but, more recently, states have made similar types of payments through demonstration and managed care authorities.

As discussed previously, for most services, the Medicaid statute does not prescribe a particular payment approach; however, the statute does contemplate that states will be prudent purchasers of health care services. More specific to rate setting, section 1902(a)(30)(A) of the Act requires states to have methods and procedures to assure Medicaid payments for services, including any base and supplemental payments, are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area. Under section 1902(a)(30)(A) authority, implementing federal regulations establish UPLs for certain services and rely on these limits to help assure that state Medicaid payments are consistent with “efficiency and economy.” Federal financial participation (FFP) is not available for state Medicaid expenditures that exceed an applicable UPL.

Medicaid UPLs are codified in regulations at §§ 447.272 and 447.321 and apply to payments for Medicaid inpatient hospital, nursing facility and ICF/IID services, as well as for outpatient hospital and clinic services. For each of these Medicaid benefits, the UPLs are first constructed by categorizing providers into groups (“ownership groups”) according to the ownership or operational interests: State government-owned or operated, non-state government-owned or operated, and privately-owned and operated. States are restricted, in the aggregate for each ownership group, from paying more than a reasonable estimate of the amount Medicare would pay for the services furnished by the providers in the applicable ownership group. The aggregate application of these UPLs has preserved state flexibility for setting facility-specific payments while creating an overall payment ceiling as a mechanism for determining economy and efficiency of payment for the services described above, consistent with section 1902(a)(30)(A) of the Act.

Where Medicaid base payments are below the aggregate UPL calculation, states have the ability to make supplemental payments to providers, by ownership group, up to the calculated limit. With the aggregate UPL calculations, states have the ability to pay some providers in excess of a reasonable amount that Medicare would pay those individual providers for their services furnished, so long as the aggregate Medicaid payments are less than or equal to the aggregate UPL amount for the ownership category. Should states wish to make payments up to the UPL and have the non-federal share available to do so, after giving public notice, they may modify their state plan payment methodologies to provide for supplemental payments. We note that, without a regulatory standard to govern UPLs for practitioner services, CMS has allowed states to make Medicaid supplemental payments for practitioner services up to Medicare payment amounts or, based on data documentation, up to the average commercial rate (ACR) made to providers. As discussed later in this proposed rule, ACRs are payments developed using the average of some commercial payers' payment rates for medical services to establish a supplemental Medicaid rate for certain practitioners, typically physicians, under the state plan. Unlike other supplemental payments subject to UPLs, some of these practitioner supplemental payments have resulted in payments to providers in excess of a reasonable estimate of what Medicare would have paid for the services furnished, as the relevant ACRs generally are higher than Medicare rates. This result is possible because there currently is no UPL applicable to payments for practitioner services based on a reasonable estimate of what Medicare would pay.

Under our current UPL regulations and CMS policy, approval of a supplemental payment is not an indication that a state's proposal to use supplemental payments within its payment system is the best approach to setting Medicaid payments. Instead, our approvals have been based on the state's documentation of UPL calculations, where applicable, showing that the total Medicaid payments (base and supplemental) paid to providers under the state plan are within the federal limits. Beyond that test and a review of state plan amendments (SPAs) which propose to add or amend supplemental payment methodologies or aggregate supplemental payments, we have not closely examined how states distribute Medicaid payments to individual providers as a matter of routine oversight.

Through the policies proposed in this proposed rule, we are seeking to better understand the relationship between and among the following: Supplemental provider payments, costs incurred by providers, current UPL requirements, state financing of the non-federal share of supplemental payments, and the impact of supplemental payments on the Medicaid program (such as improvements in the quality of, or access to, care). It often appears to us that most of these payment methodologies do not result in an equitable distribution of payments to improve adequacy of rates across providers within the service class or ownership group, or otherwise improve the Medicaid program in some measurable, value-added way. Instead, many supplemental payment strategies appear to target only those providers that can participate in financing the non-federal share funding required to support a state's claim for FFP. In certain circumstances, this practice may be inconsistent with section 1902(a)(2) of the Act, which requires states to assure that a lack of funds from local sources will not result in lowering the amount, duration, scope, or quality of services or level of administration under the plan, since the payments are only available to providers with the means to provide the non-federal share.

For instance, states might use the entire UPL gap (the difference between the amounts paid in base payments and the aggregate UPL) for each service type and provider ownership group to make a supplemental payment to only a small subset of providers in the group. In an example of this type of supplemental payment structure, one state implemented an inpatient hospital supplemental payment methodology to make payments up to the UPL for non-state government operated hospitals. The supplemental payment was funded by intergovernmental transfers (IGTs) from a local (city) government. Although the total amount of the supplemental payment was based on the available UPL room for 26 non-state government operated hospitals, under the terms of the methodology, only three hospitals qualified to receive the supplemental payment. This resulted in total payments to those three hospitals that far exceeded their reported total cost incurred for all Medicaid services, which is inconsistent with section 1902(a)(30)(A) of the Act.

Supplemental payments now comprise a large and growing percentage of total Medicaid payments. They are commonly paid both to institutional providers (for example, inpatient hospitals, nursing facilities, and ICF/IIDs) and for outpatient services (for example, outpatient hospitals, clinics, and physician services). Currently, 48 states reported using at least one type of supplemental payment methodology under the Medicaid state plan. As a percentage of total Medicaid payments for institutional providers, data from the Medicaid Budget and Expenditure System (MBES) indicate that supplemental payments have steadily increased from 9.4 percent in FY 2010, the first year in which states separately reported these payments, to 17.5 percent of all FFS payments to hospitals, nursing facilities, ICF/IIDs, and physician service payments in FY 2017. Supplemental payments to providers under demonstration authority, which can allow additional flexibility to cover beneficiaries and services not usually permitted under state plan authority, have also grown. In December 2018, MACPAC released the “Medicaid Inpatient Hospital Services Fee-for Service Payment Policy” issue brief where it noted that expenditures for hospital UPL supplemental payments increased from 2 to 3 percent of total expenditures for Medicaid benefits between 2001 and 2016.^[1] In the MACPAC analysis, the totality of supplemental payments, DSH payments, and uncompensated care payments made under demonstration authority, as a share of the total computable Medicaid payments to hospitals in FY 2016, was 27 percent. In all, the MACPAC analysis concluded that the total expenditures in 2016 for DSH payments were $16.5 billion, for UPL supplemental payments were $16.4 billion, and for uncompensated care payments were $8.5 billion.

b. Current CMS Review of Provider Payments and Oversight Concerns

The Medicaid statute and regulations require states to report program-related information to CMS regarding their payment methodologies and incurred expenditures that are claimed for federal matching funds. Section 1902(a)(6) of the Act requires the Medicaid agency to make reports as the Secretary of Health and Human Services (the Secretary) may require and to comply with provisions the Secretary finds necessary to assure the correctness and verification of such reports. Implementing regulations at 42 CFR 431.107(b) require states to ensure that providers maintain auditable documentation of the services furnished to beneficiaries for which the state makes program expenditures and claims FFP, to allow the federal government to ensure that all applicable federal requirements are met. Additionally, 42 CFR 430.30(c) requires states to submit the Form CMS-64, which is a quarterly accounting statement of the state's actual recorded expenditures that serves as the primary basis for Medicaid payments to states under section 1903(a)(1) of the Act.

The primary means to collect information on Medicaid program eligibility, services, and expenditures has historically been through CMS' Medicaid Statistical Information System (MSIS), which is populated by FFS claims and managed care encounter data from states' Medicaid Management Information Systems (MMIS), which are an integrated group of procedures and computer processing operations (sub-systems) developed at the general design level to meet principal objectives, and CMS' MBES, which is the system through which states file quarterly Medicaid expenditures on the Form CMS-64. These systems have been essential to both the states and the federal government in operating Medicaid and provide valuable program information. However, neither the modern Transformed Medicaid Statistical Information System (T-MSIS), which has replaced MSIS, discussed further below, nor MBES, separately or together, provides the level of detail on the payment and financing of supplemental payments necessary to effectively monitor and evaluate the use and impact of those payments.

MSIS is an eligibility and claims data set that provides a summary of services and payments linked to specific beneficiaries on the basis of claims submitted to the states by providers. However, the MSIS data include very little information about the providers furnishing services. In addition, MSIS is unable to capture the providers' supplemental payments since those payments are not directly tied to specific beneficiaries, but rather, typically, are made based on the volume of Medicaid services rendered and generally are paid to providers as lump sums, separately from payments for service claims. Another often cited problem with MSIS data is that, in spite of regulations requiring timely reporting, there is generally a considerable time lag between when the services are paid for by the state and when data on those payments is furnished to CMS through MSIS.

To improve the completeness and timeliness of such data for the purposes of program monitoring and oversight, we currently are working with states to collect more robust data through an expansion and update of MSIS, which is referred to as the T-MSIS. T-MSIS data improves our ability to study utilization patterns and trends, identify high cost and high needs populations, analyze expenditures by category of service and provider type, monitor enrollment and expenditures within delivery systems, assess the impact of different types of delivery system models on beneficiary outcomes, and examine access to care issues. However, although we are currently working to improve T-MSIS' reporting capability for supplemental payments, T-MSIS will not capture supplemental payments at the level of detail proposed under this proposed rule. It should be noted that T-MSIS is capable of capturing the non-federal share of base rate payments. Currently, there are significant gaps in state reporting related to this particular data element, which we also are working with states to correct.

MBES data include all state expenditures filed on the Form CMS-64. The Form CMS-64 is a summary of a state's actual Medicaid expenditures, for both state program administration and medical assistance (that is, payments for services furnished to beneficiaries), derived from source documents including invoices, payment vouchers, governmental funds transfers, expenditure certifications, cost reports and settlements, and eligibility records. This form shows the disposition of Medicaid grant funds for the quarter being reported and any prior period adjustments. It also accounts for any overpayments, underpayments, refunds received by the state Medicaid agency, and income earned on grant funds. With limited exceptions, MBES does not contain beneficiary, provider, or claim-level information for the reported expenditures, including supplemental payments. We can only obtain such information by requesting separate supporting documentation from the state. Attempting to improve oversight and transparency of supplemental payments, we added expenditure reporting lines in MBES in 2010 for states to separately report the amounts of supplemental payments made for various types of services. This information is reported at the aggregate service level and does not include details on which providers receive those payments, the specific amount received by each, or the source of the non-federal share that supports those expenditures. While this reporting requirement slightly improved transparency, there were large variations in the total payment amounts reported through MBES and the total payment amounts through UPL demonstrations and we are concerned that state reporting has not always been complete and accurate and should be improved.

We also gather information on the nature and extent of proposed supplemental payments during our review of SPAs. As part of the documentation submitted with payment-related SPAs, states must describe which providers would be eligible for the payments and how the payments would be calculated and distributed, provide an estimate of the fiscal impact, and disclose the source of the non-federal share of the proposed expenditures. The opportunity to evaluate the permissibility and potential impact of supplemental payments is presented when a state submits a proposal. Current regulations do not contemplate that, once we have approved a SPA, as described in part 430, subpart B, we would routinely monitor the implementation and effects of the SPA in a formal, systematic way. The opportunity to review state payments after the agency has approved a SPA generally is limited to the submission of SPAs to update or change the supplemental payment methodology. Our other mechanisms for review are financial management reviews and audits of state programs which may cover any area of the Medicaid program and require advanced planning and are resource intensive for CMS and states. We also have relied upon reviews conducted by other government oversight bodies. These reviews are often resource intensive and require a large amount of data sharing, consultation, discussions, and policy reviews. As such, many years may pass before we are able to finalize the reviews and revisit supplemental payment methodologies, either through financial management review or the submission of a SPA. Because of this, we are unable to periodically evaluate these payment arrangements, including individual underlying provider payment amounts, to determine if the payments have been consistent with economy, efficiency, quality, access, and appropriate utilization, as required by statute. We do not generally collect further information associated with a SPA in a centralized manner, and such information generally is not presented at the provider level.

In its March 2014 Report to the Congress on Medicaid and CHIP, MACPAC noted that supplemental payments to hospitals, according to their analysis of supplemental payments in 5 states, accounted for more than 20 percent of total computable Medicaid FFS payments to hospitals in those 5 states, and in some states account for more than 50 percent of such payments.^[2] MACPAC has recommended that the Secretary collect provider-level data on supplemental payments to, among other things, provide greater transparency regarding Medicaid payments and facilitate assessments of Medicaid payments and analysis of the relationship between supplemental payments and access to care, as well as the economy and efficiency of Medicaid payments. In developing this proposed rule, we also considered the findings reported by MACPAC in the March 2012 Report to the Congress on Medicaid and CHIP, which identified data limitations regarding lump-sum Medicaid supplemental payments as an impediment to comparing payment levels across providers and states, determining the total amount of Medicaid spending on specific services and populations, and evaluating the impact of Medicaid payment policies.^[3]

Without complete provider-level payment information, we do not have sufficient information to evaluate whether rate methodologies result in payments within a service type and provider ownership group that are economic and efficient as required under section 1902(a)(30)(A) of the Act. The GAO has issued a series of reports which note that the lack of reliable CMS data about Medicaid payments to providers and state financing of the non-federal share hinders our ability to adequately oversee the Medicaid program. To help ensure that each state meets the statutory and regulatory requirements regarding its oversight responsibilities, data reporting, and financial participation, the GAO has recommended that regulatory and legislative efforts be strengthened. Specific to Medicaid supplemental payments, the GAO has had longstanding concerns regarding the need for improved transparency and accountability. For example, in 2015, the GAO issued a report entitled, “Medicaid: CMS Oversight of Provider Payments Is Hampered by Limited Data and Unclear Policy,” that stated, “[w]ithout good data on payments to individual providers, a policy and criteria for assessing whether the payments are economical and efficient, and a process for reviewing such payments, the federal government could be paying states hundreds of millions, or billions, more than what is appropriate.” ^[4] As a result, the GAO has recommended that to better ensure the fiscal integrity of the program, we should establish financial reporting at a provider-specific level and clarify permissible methods for calculating Medicaid supplemental payment amounts.

Since the availability of FFS supplemental payments under the aggregate UPL is driven by the volume of services provided through the FFS system, a shift to managed care or certain demonstration projects results in a lowered UPL estimate and a corresponding decrease in the level of FFS supplemental payments that a state can make. For example, there are instances when pool payments established through a demonstration authorized under section 1115(a) of the Act pay for uncompensated care costs for the provision of health care services to Medicaid beneficiaries, the underinsured, and the uninsured, or for state projects that promote delivery system reforms. States have also authorized pass-through payments or incentive arrangements to providers under managed care contracts that can operate similarly to existing FFS supplemental payments. We have authorized these payments within certain requirements described in 42 CFR part 438 and demonstration terms and conditions, as applicable, noting that the financing requirements in 42 CFR parts 430 and 433 and addressed in this proposed rule are applicable to FFS, managed care, and demonstration authorities.

Given the growing prevalence of supplemental payments and concerns raised by federal oversight agencies, we are concerned that our past practice of basing approval of SPAs regarding supplemental payments primarily on aggregate UPL compliance does not provide us with sufficient information to adequately ensure that supplemental payments are consistent with statutory requirements for economy and efficiency, quality of care, and access, or otherwise with sound program management principles. As a result, as discussed in greater detail in section II. of this proposed rule, the Provisions of the Proposed Rule section, we are proposing to gather additional information to better understand how states distribute supplemental payments to individual providers and whether there are benefits to the Medicaid program resulting from the supplemental payments.

2. Disproportionate Share Hospital (DSH) Payments

a. Background

States have statutory authority to make DSH payments to qualifying hospitals. Section 1902(a)(13)(A)(iv) of the Act requires that states take into account the situation of hospitals that serve a disproportionate share of low-income patients with special needs, in a manner consistent with section 1923 of the Act. These are not considered part of the base rate payments or supplemental payments, as they are made under distinct statutory authority. Section 1923 of the Act contains specific requirements related to DSH payments, including aggregate annual state-specific DSH allotments that limit FFP for statewide total DSH payments under section 1923(f) of the Act, and hospital-specific limits on DSH payments under section 1923(g) of the Act. Under the hospital-specific limits, a hospital's DSH payments may not exceed the costs incurred by that hospital in furnishing inpatient and outpatient hospital services during the year to Medicaid beneficiaries and the uninsured, less payments received from or on behalf of the Medicaid beneficiaries or uninsured patients. In addition, section 1923(a)(2)(D) of the Act requires states to provide an annual report to the Secretary describing the DSH payment adjustments made to each DSH.

Section 1001(d) of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA) (Pub. L. 108-173, enacted December 8, 2003) added section 1923(j) of the Act to require states to report additional information about their DSH programs. Section 1923(j)(1) of the Act requires states to submit an annual report including an identification of each DSH that received a DSH payment adjustment during the preceding fiscal year (FY) and the amount of such adjustment, and such other information as the Secretary determines necessary to ensure the appropriateness of the DSH payment adjustments for such fiscal year. Additionally, section 1923(j)(2) of the Act requires states to submit an independent certified audit of the state's DSH program, including specified content, annually to the Secretary.

b. Concerns Raised Regarding Overpayments Identified Through Annual DSH Audits

The “Medicaid Program; Disproportionate Share Hospital Payments” final rule published in the December 19, 2008 Federal Register (73 FR 77904) (and herein referred to as the 2008 DSH audit final rule) requires state reports and audits to ensure the appropriate use of Medicaid DSH payments and compliance with the hospital-specific DSH limits under section 1923(g) of the Act.

The regulations at 42 CFR part 455, subpart D, implement section 1923(j)(2) of the Act. FFP is not available for DSH payments that are found in the independent certified audit to exceed the hospital-specific limit. Amounts in excess of the hospital-specific limit are regarded as overpayments to providers, under 42 CFR part 433, subpart F. The discovery of overpayments necessitates the return of the federal share or redistribution by the state of the overpaid amounts to other qualifying hospitals, in accordance with the state's approved Medicaid state plan. The regulations in part 433, subpart F provide for refunding of the federal share of Medicaid overpayments paid to providers. While the preamble to the 2008 DSH audit final rule generally addressed the return or redistribution of provider overpayments identified through DSH audits, it did not include specific procedural requirements for returning or redistributing overpayments. As described below, we are proposing to incorporate into regulation procedural requirements associated with the return and redistribution of DSH overpayments.

While the information included in the independent certified audits and associated reports provides CMS and states with robust data, we are often unable to determine whether a DSH overpayment to a provider has occurred, the root causes of any overpayments, and the amount of the overpayments associated with each cause. Despite the robust data, potential data gaps may exist as a result of an auditor identifying an area, or areas, in which documentation is missing or unavailable for certain costs or payments that are required to be included in the calculation of the total eligible uncompensated care costs. Therefore, in current practice, an auditor may include a finding (or “caveat”) in the audit stating that the missing information may impact the calculation of total eligible uncompensated care costs, instead of making a determination of the actual financial impact of the identified issue. This lack of transparency results in uncertainty and restricts CMS' and states' ability to ensure proper recovery of all FFP associated with DSH overpayments identified through annual DSH audits. For example, an audit may identify that a hospital was unable to satisfactorily document the outpatient services it provided to Medicaid-eligible patients, indicating that charges and payments were not included in the DSH uncompensated care calculation. Based on this lack of documentation, the audit includes a caveat of its finding indicating that the hospital's uncompensated care cost may be misstated as a result of this exclusion and that the impact is unknown. Given this lack of quantification of the financial impact of this finding, we are unable to determine whether an overpayment, if any, has resulted from this audit finding. To obtain such information, either CMS and/or the state would have to conduct a secondary review or audit, which would be burdensome and largely redundant. Specifically, conducting a secondary review or audit after the independent auditors have completed theirs would lengthen the review process, and therefore, delay the results of the audit. It would also require additional time, personnel, and resources by CMS, states, and hospitals to participate in a secondary review or audit.

The OIG and GAO have raised concerns similar to ours with respect to our ability to adequately oversee the Medicaid DSH program. Specifically, the OIG published the report, “Audit of Selected States' Medicaid Disproportionate Share Hospital Programs” in March 2006,^[5] in which the OIG recommended that we establish regulations requiring states to implement procedures to ensure that future DSH payments are adjusted to actual incurred costs, incorporate these adjustment procedures into their approved state plans, and include only allowable costs as uncompensated care costs in their DSH calculations. The 2008 DSH audit final rule addressed the concerns raised by the OIG in regulations implementing the independent certified audit requirements under section 1923(j) of the Act, by requiring states to include data elements as specified in § 447.299(c) with their annual audits. In 2012, the GAO published the report, “Medicaid: More Transparency of and Accountability for Supplemental Payments are Needed,” ^[6] in which the GAO examined how information on DSH audits facilitates our oversight of DSH payments. In the report, GAO analyzed the 2010 DSH audits submitted by states. Of the 2,953 audits submitted to CMS, 228 had data reliability or documentation issues that inhibited the auditor's ability to determine compliance with DSH audit requirements. While the independent certified audit requirements have allowed us to identify various compliance issues and quantify some provider overpayments, in some instances, audits have identified issues related to incomplete or missing data and have failed to make a determination regarding the financial impact of these issues. Therefore, we have identified this area as an opportunity to strengthen program oversight and integrity protections, specifically with respect to the overpayment and redistribution reporting process and requirements for identifying the financial impact of audit findings. In proposing an additional data element, as discussed below, we hope to further enhance our oversight to better ensure the integrity of hospital-specific limit calculations.

The new data element we are proposing to add to annual DSH reporting would require auditors to quantify the financial impact of any finding, including those resulting from incomplete or missing data, which may affect whether each hospital has received DSH payments for which it is eligible within its hospital-specific DSH limit. We believe that requiring the quantification of these findings would limit the burden on both states and CMS of performing follow-up reviews or audits and will help ensure appropriate recovery and redistribution, as applicable, of all DSH overpayments.

To enhance federal oversight of the Medicaid DSH program and improve the accuracy of DSH audit overpayments identified and collected through annual DSH audits, we are also proposing to require states to report overpayments identified through annual DSH audits and related payment redistributions on the Form CMS-64 in a timely and transparent manner. Specifically, we propose to clarify the reporting requirement for overpayments identified through the annual DSH audits at § 447.299(f), by directing states to return payments in excess of hospital-specific cost limits to the federal government by reporting the excess amount on Form CMS-64, as a decreasing adjustment. We are proposing to require states to report these decreasing adjustments to correspond with the fiscal year DSH allotment on the Form CMS-64. Additionally, we are proposing to establish reporting requirements on the redistribution of DSH overpayments, as determined under § 447.299(g) of this chapter in accordance with a redistribution methodology in the approved Medicaid state plan. We propose to require states to report the redistribution of DSH overpayments to correspond with the fiscal year DSH allotment and Medicaid state plan rate year, on the Form CMS-64. This proposal memorializes our redistribution policy in regulations and enhances proper oversight. We are proposing that overpayment amounts be redistributed within 2 years from the date of discovery, as proposed under § 447.299(g).

c. Modernizing the Publication of Annual DSH Allotments

Section 447.297 provides a process and timeline for CMS to publish preliminary and final annual DSH allotments and national expenditure targets in the Federal Register. The current requirements specify that we publish DSH allotments and national expenditure targets, in preliminary and final formats, by October 1st (preliminary target and allotments) and April 1st (final target and allotments) of each federal fiscal year. We have found the current regulatory Federal Register publication process to be time consuming and administratively burdensome and are concerned that the information is not available to states and other interested parties in a timely and easily accessible manner. In this proposed rule, we propose to make allotment and national expenditure targets available more timely by posting the information on Medicaid.gov and in MBES, or its successor website or system, instead of publishing this information in the Federal Register.

3. Medicaid Program Financing

a. Background

Medicaid expenditures are jointly funded by the federal and state governments. Section 1903(a)(1) of the Act provides for payments to states of a percentage of medical assistance expenditures authorized under the approved state plan. FFP is available when there is a covered Medicaid service provided to a Medicaid beneficiary, which results in a federally matchable expenditure that is funded in part through non-federal funds from the state or a non-state governmental entity (except when the statute provides a 100 percent federal match rate for specified expenditures). The percentage of federal funding is the federal medical assistance percentage (FMAP) that is determined for each state using a formula set forth in section 1905(b) of the Act, or other applicable federal matching rates specified by the statute.

The foundation of federal-state shared responsibility for the Medicaid program is that the state must participate in the financial burdens and risks of the program, which provides the state with an interest in operating and monitoring its Medicaid program in a manner that results in receiving the best value for the funds expended. Sections 1902(a), 1903(a), and 1905(b) of the Act require states to share in the cost of medical assistance and in the cost of administering the state plan. Section 1902(a)(2) of the Act and its implementing regulation in part 433, subpart B require states to share in the cost of medical assistance expenditures and permit other units of state or local government to contribute to the financing of the non-federal share of medical assistance expenditures. These provisions are intended to safeguard the federal-state partnership, irrespective of the Medicaid delivery system or authority (for example, FFS, managed care, and demonstration authorities), by ensuring that states are meaningfully engaged in identifying, assessing, mitigating, and sharing in the risks and responsibilities inherent in a program as complex and economically significant as Medicaid and are accordingly motivated to administer their programs economically and efficiently.

Of the permissible means for financing the non-federal share of Medicaid expenditures, the most common is through state general funds, typically derived from tax revenue appropriated directly to the Medicaid agency. Revenue derived from health care-related taxes can be used to finance the non-federal share only when consistent with federal statutory requirements at section 1903(w) of the Act and implementing regulations at part 433, subpart B. The non-federal share may also be funded in part from provider-related donations to the state, but these donations must be “bona fide” in accordance with section 1903(w) of the Act and implementing regulations, which means truly voluntary and not part of a hold harmless arrangement that effectively repays the donation to the provider (or to providers furnishing the same class of items and services).

Non-federal share financing sources can also come from IGTs or certified public expenditures (CPEs) from local units of government or other units of state government in which non-state governmental entities contribute funding of the non-federal share for Medicaid either by transferring their own funds to and for the unrestricted use of the Medicaid agency or by certifying to the state Medicaid agency the amount of allowed expenditures incurred. In each instance, allowable IGTs and CPEs, as with funds appropriated to the state Medicaid Agency, must be derived from state or local tax revenue or from funds appropriated to state university teaching hospitals. IGTs may not be derived from impermissible health care-related taxes or provider-related donations (discussed below); they are subject to all applicable federal statutory and regulatory restrictions. Even when using funds contributed by local governmental entities, the state must meet the requirements at section 1902(a)(2) of the Act and § 433.53 that obligate the state to fund at least 40 percent of the non-federal share of total Medicaid expenditures (both service related and administrative expenditures) with state funds. Additionally, these authorities require states to assure that a lack of funds from local sources will not result in lowering the amount, duration, scope, or quality of services or level of administration under the plan in any part of the state.

The extent to which private providers may participate in the funding of any Medicaid payment (for example, managed care, FFS base, or supplemental payments) is essentially restricted to the state's authority to levy limited health care-related taxes and to rely on bona fide provider-related donation in accordance with statutory and regulatory requirements. Since the use of IGTs and CPEs are restricted to governmental entities, states and providers increasingly have turned to the use of health care-related taxes to enable the maintenance of, or increases to, Medicaid payments to providers. In addition, several states have explored the use of provider-related donation arrangements to further leverage private provider funding.

b. Current CMS Review of Medicaid Financing and Oversight Concerns

We employ various oversight mechanisms to review state methods for funding the non-federal share of Medicaid payments including, but not limited to, reviews of proposed SPAs, quarterly financial reviews of state expenditures reported on the Form CMS-64, focused financial management reviews, and reviews of state health care-related tax and provider-related donation proposals and waiver requests. As discussed in detail above, states must submit Medicaid SPAs to CMS for review and approval when adding or changing FFS provider payment methodologies. We review the SPAs to ensure the methodologies meet all federal requirements and the proposed payments and sources of the non-federal share may be approved and serve as the basis for FFP. In making approval decisions, we ask for certain information from states to document the source of the non-federal share during our SPA review process.

In response to our inquiries, states will typically describe whether the non-federal share is sourced through funds appropriated by the state legislature directly to the single state Medicaid agency, or whether the state relies on state or local government units to participate in funding the non-federal share through IGTs or CPEs. Additionally, states are asked to disclose whether the underlying financing involves a health care-related tax or a provider-related donation. When states rely on IGTs and CPEs as the source of the non-federal share, we request details on the transferring or certifying entities that participate in funding expenditures, including assurances that the entities are units of government, and the source of a unit of government's IGT. Based on the information that we receive from states, we may also ask for additional documentation to ensure the source of non-federal share complies with all applicable federal laws, regulations, and requirements, particularly those describing permissible health care-related taxes and provider-related donations.

Though our current SPA review processes allow us to ensure states identify a permissible source of non-federal share at the time that we approve an amendment, we have no reliable mechanism to track and understand whether the source of the non-federal share changes after a SPA has been approved. Based on studies conducted by the GAO (see for example, States' Increased Reliance on Funds from Health Care Providers and Local Governments Warrants Improved CMS Data Collection, GAO-14-627, July 29, 2014), we are aware that states are increasingly reliant on non-state units of government to fund the non-federal share through IGTs, CPEs, and health care-related taxes. In fact, the GAO cites Medicaid supplemental payments and the associated non-federal share as a Medicaid High Risk Issue (GAO Report to Congressional Committees High-Risk Series Substantial Efforts Needed to Achieve Greater Progress on High-Risk Areas, GAO-19-157SP, March 6, 2019) and has called for CMS to implement improved oversight and data collection processes to track sources of non-federal share.

It is important to acknowledge that section 1903(w)(6)(A) of the Act specifically permits state and local units of government to share in financing the Medicaid program through IGTs and CPEs. Such local participation is inherent in the Medicaid program and recognizes the shared role that state and local government units can play in delivering Medicaid services. Nothing in this proposed rule would result in limiting state and local government units from contributing to the Medicaid program through allowable IGT and CPE funding sources. However, as discussed in the GAO's studies, the increasing reliance on Medicaid funding derived from units of state and local government may serve to undermine the state and federal financing partnership, as where states establish payment methodologies that favor certain providers solely on the basis of whether a unit of state or local government can provide the non-federal share to support Medicaid supplemental payments. Notably, section 1902(a)(2) of the Act requires states to assure that a lack of funds from local sources will not result in lowering the amount, duration, scope, or quality of services or level of administration under the plan. We have concerns that, in certain circumstances, increased reliance on units of states or local government to fund the non-federal share may result in conflicts with section 1902(a)(30)(A) of the Act.

For example, we have identified and worked to address various Medicaid financing arrangements that appear designed to increase the federal share of Medicaid funding without a commensurate state or local contribution as required by sections 1902(a), 1903(a), and 1905(b) of the Act, which require states to share in the cost of medical assistance and in the cost of administering the state plan. We have identified manipulations of Medicaid UPL demonstration calculations that would serve to increase a state's ability to make supplemental payments above a reasonable Medicare estimate in states that have used, or proposed to use, an unallowable IGT to fund the state share of a Medicaid supplemental payment. We have also identified the manipulation of cost identification data providers rely on to certify Medicaid expenditures through a CPE process that, whether intentional or not, results in the federal government paying for costs that are unallowable under the Medicaid program.

Some of the more complicated, and unallowable, Medicaid financing arrangements we have reviewed resulted from public-private partnership arrangements between private entities and units of government. These arrangements attempt to mask non-bona fide provider-related donations as an allowable IGT and result in increased supplemental payments to the donating private entity or entities. Discussed in detail in State Medical Director Letter (SMDL) 14-004 and elsewhere in this preamble, partnership arrangements between a private provider and a government entity have involved the private provider providing cash, a service, or other in-kind donation to the government entity that is seemingly unrelated to the Medicaid program. In exchange for the private provider's contribution, the government entity will make an IGT to the Medicaid agency, which is then used as the non-federal share of supplemental Medicaid payments which are then returned to the private entity to repay them for the non-bona fide provider-related donation consistent with the underlying hold harmless agreement. The IGT is derived from funds that the government entity previously would have spent on the medical services (or other obligation) that are now being provided or paid for by the private entity. These funds would not be available to use as state share of Medicaid expenditures, if not for the public-private partnership arrangement, since the funds are derived from the non-bona fide provider-related donation (and not derived from state or local tax revenue or from funds appropriated to the state university teaching hospitals).^[7]

The provisions of this proposed rule seek to address these and similar financing concerns through a number of strategies. Proposed improvements to state reporting associated with supplemental payments and sources of the non-federal share would allow CMS to monitor changes in non-federal share funding after a SPA is approved and any associated increases in federal expenditures for supplemental payments, relative to state expenditures. Additional specificity in definitions relevant to Medicaid financing arrangements and in requirements for information states must provide to support various funding mechanisms and supplemental payments would strengthen oversight of program expenditures by us and the states. Finally, we propose to address certain egregious funding schemes that mask non-bona fide donations as allowable IGTs by clarifying where an indirect hold harmless arrangement may exist and by expressly prohibiting supplemental payments that support these schemes. Together, proposed new policies and the proposed codification of existing policies related to Medicaid financing aim to provide CMS and states with better information and guidance to identify existing and emerging financing issues, provide more clarity on allowable financing arrangements, promote state accountability, and strengthen the fiscal integrity of the Medicaid program.

4. Health Care-Related Taxes and Provider-Related Donations

a. Background

States first began to use health care-related taxes and provider-related donations in the mid-1980s as a way to finance the non-federal share of Medicaid payments (Congressional Research Service, “Medicaid Provider Taxes”, August 5, 2016, p.2). Providers would agree to make a donation or would support (or not oppose) a tax upon their activities or revenues, and these mechanisms would generate funds that could then be used to raise Medicaid payment rates to the providers. Frequently, these programs were designed to hold Medicaid providers “harmless” for the cost of their donation or tax payment. As a result, federal expenditures rapidly increased without any corresponding increase in state expenditures, since the funds used to increase provider payments came from the providers themselves and were matched with federal funds. In 1991, the Congress passed the Medicaid Voluntary Contribution and Provider-Specific Tax Amendments (Pub. L. 102-234, enacted December 12, 1991) to curb the use of provider-related donations and health care-related taxes to finance the non-federal share of Medicaid expenditures. Section 1903(w)(1)(A) of the Act specifies that, for purposes of determining the federal matching funds to be paid to a state, the total amount of the state's Medicaid expenditures must be reduced by the amount of revenue the state collects from impermissible health care-related taxes and non-bona fide provider-related donations.

The statute requires that taxes be imposed on a permissible class of health care items or services; and be broad based, meaning that all non-federal, nonpublic providers and all items and services within a class of health care items or services would be taxed, as well as uniform, meaning that the tax rate would be the same for all health care items or services in a class, as well as providers of such items or services. The statute prohibits hold harmless arrangements in which collected taxes are returned directly or indirectly to taxpayers. The Secretary is required by section 1903(w)(3)(E) of the Act to waive either the broad based and/or uniformity requirements as long as the state establishes, to the Secretary's satisfaction, that the net impact of the tax and associated expenditures is generally redistributive in nature, and the amount of the tax is not directly correlated to Medicaid payments for items and services with respect to which the tax is imposed.

Section 1903(w)(2)(A) of the Act defines a provider-related donation as any donation or other voluntary payment (in-cash or in-kind) made directly or indirectly to a state or unit of a local government by a health care provider, an entity related to a health care provider, or an entity providing goods or services under the state plan for which payment is made under section 1903(a)(2), (3), (4), (6), or (7) of the Act (generally, administrative goods and services). Section 1903(w)(2)(B) of the Act defines a bona fide provider-related donation as a provider-related donations that has no direct or indirect relationship (as determined by the Secretary) to payments made under title XIX to that provider, to providers furnishing the same class of items and services as the donating provider, or to any related entity, as established to the satisfaction of the Secretary. The statute gives the Secretary the authority to specify, by regulation, types of provider-related donations that will be considered to be “bona fide.” Regulations at part 433, subpart B describe the requirements necessary, irrespective of the Medicaid delivery system authority (for example, FFS, managed care, or demonstration authorities), for a donation to be considered bona fide.

In response to the Medicaid Voluntary Contribution and Provider-Specific Tax Amendments of 1991, we published the “Medicaid Program; Limitations on Provider-Related Donations and Health Care-Related Taxes; Limitations on Payments to Disproportionate Share Hospitals” interim final rule with comment period in the November 24, 1992 Federal Register (57 FR 55118) (November 1992 interim final rule) and the subsequent final rule published in the August 13, 1993 Federal Register (58 FR 43156) (August 1993 final rule) establishing when states may receive funds from provider-related donations and health care-related taxes without a reduction in medical assistance expenditures for the purposes of calculating FFP. These rules established the statistical tests used to judge requests for waivers of the broad-based and uniformity requirements and defined bona fide provider-related donations.

After the publication of the August 1993 final rule, we revisited the issue of health care-related taxes and provider-related donations in the “Medicaid Program; Health-Care Related Taxes” final rule (73 FR 9685) which published in the February 22, 2008 Federal Register (February 2008 final rule). The February 2008 final rule, in part, implemented section 1903(w)(7)(A)(viii) of the Act by expanding the Medicaid managed care organization (MCO) class of health care items and services (73 FR 9698) to include all MCOs specified in section 6051 of the Deficit Reduction Act of 2005 (DRA) (Pub. L. 109-171, enacted February 8, 2006). Specifically, it amended the class of health care services and providers specified in § 433.56(a)(8) from services of Medicaid MCOs to services of MCOs including health maintenance organizations (HMOs) and preferred provider organizations (PPOs). As a result of this change, states could no longer impose a tax solely on MCOs providing services to only Medicaid beneficiaries.

The regulation also made explicit that certain practices would constitute a hold harmless arrangement, in response to certain state tax programs that we believed contained hold harmless provisions. Five states had imposed a tax on nursing homes and simultaneously created programs that awarded grants or tax credits to private pay residents of nursing facilities that enabled these residents to pay increased charges imposed by the facilities, which thereby recouped their own tax costs. We believed that these payments held the taxpayers (the nursing facilities) harmless for the cost of the tax, as the tax program compensated the facilities indirectly, through the intermediary of the nursing facility residents. However, in 2005, the DAB (Decision No. 1981) ruled that such an arrangement did not constitute a hold harmless arrangement under the regulations then in place. To clarify agency interpretation that this practice does constitute a hold harmless arrangement, the February 2008 final rule clarified the direct guarantee test found at § 433.68(f) by specifying that a direct guarantee to hold the taxpayer harmless for the cost of the tax through a direct or indirect payment will be found when, “a payment is made available to a taxpayer or party related to a taxpayer” so that a reasonable expectation exists that the taxpayer will be held harmless for all or part of the cost of the tax as a result of the payment (73 FR 9694). As an example of a party related to the taxpayer, the preamble cited the example of, “as a nursing home resident is related to a nursing home (73 FR 9694). As a result, whenever there existed a “reasonable expectation” (73 FR 9695) that the taxpayer would be held harmless for the cost of the tax, a hold harmless situation would exist and the tax would be impermissible.

b. Concerns Relating to Health Care-Related Tax Waivers

States and their units of local government have the ability to impose broad-based and uniform health care-related taxes without explicit CMS approval. However, if the tax implemented by the state or unit of local government is not broad-based and/or uniform, the state must apply to CMS for a waiver of the applicable tax requirements. As part of these requirements, the state must demonstrate to the satisfaction of the Secretary that the tax passes a statistical test specified in regulation to waive either the broad-based requirement, or the uniformity requirement, or both, as specified in § 433.68(e)(1) or (2). These tests were designed to evaluate whether or not a proposed tax would be “generally redistributive,” as required by section 1903(w)(3)(E)(ii)(I) of the Act. The preamble to the November 1992 interim final rule indicated that, in interpreting the statutory phrase “generally redistributive,” we “attempted to balance our desire to give states some degree of flexibility in designing tax programs with our need to preclude use of revenues derived from taxes imposed primarily on Medicaid providers and activities” (57 FR 55128). In the preamble of August 1993 final rule, we interpreted “generally redistributive” to mean “the tendency of a state's tax and payment program to derive revenues from taxes imposed on non-Medicaid services in a class and to use these revenues as the state's share of Medicaid payments” (57 FR 55128).

At the time of these rules, we anticipated the two mathematical tests in § 433.68(e)(1) and (2) would be sufficient to ensure that a proposed tax would be “generally redistributive,” as we interpret that statutory language. Specifically, the first test known as the “P1/P2 test” in § 433.68(e)(1) is required for taxes that are uniform, but not broad based. At the time of these rules, we anticipated the two mathematical tests in § 433.68(e)(1) and (2) would be sufficient to ensure that a proposed tax would be “generally redistributive,” as we interpret that statutory language. Specifically, the first test known as the “P1/P2 test” in § 433.68(e)(1) is required for taxes that are uniform, but not broad based. As described in the November 1992 interim final rule (57 FR 55128), the test requires the State to calculate the proportion of the tax applicable to Medicaid under a broad-based tax (designated as P1), and the proportion applicable to Medicaid under the tax as imposed by the State (called P2). By dividing P1 by P2, the test was intended to measure whether or not the uniform, but non-broad based tax was redistributive. Resulting values higher than one indicated the tax was more redistributive than a broad-based and uniform tax, while values less than one would indicate it was less redistributive and placed a disproportionate share of the tax burden on the Medicaid program (57 FR 55128).

The November 1992 interim final rule (57 FR 55128) also described the second test known as the “B1/B2 test,” applying in situations when the state requests a waiver of the uniformity requirement whether or not the tax is broad-based. In this test, the State would calculate the slope of two linear regressions: One for the tax program for which waiver is requested, and one for the tax if it were applied uniformly and as a broad-based tax where the slope (that is, the X coefficient) of the linear regression applicable to the hypothetical broad-based uniform tax (called B1) is divided by the slope of the linear regression applicable to the tax for which a waiver is sought (called B2) (57 FR 55128). Similar to the P1/P2 test for uniform taxes that are not broad based, the B1/B2 test was designed to show that values higher than one indicate the non-uniform tax was more redistributive than a broad-based and uniform tax, while values less than one would indicate that it was less redistributive and disproportionately burdened the Medicaid program (57 FR 55128).

However, subsequent experience has proven that the two mathematical tests do not ensure, in all cases, that proposed taxes that pass the applicable test are generally redistributive. Certain states have identified a loophole where taxes can pass the statistical test(s) despite their imposition of undue burden on the Medicaid program. For example, several states have imposed taxes on managed care entities that, by design, clearly impose a greater and undue tax burden on the Medicaid program than other payers. States have structured the taxes by dividing the universe of entities subject to taxation into smaller taxpayer groups based on various attributes, such as annual member-months by payer. In this example, states have imposed significantly higher rates on some taxpayer groups defined by a relatively higher number of Medicaid member-months than on commercial payer member-months, with some Medicaid activity (member-months in this example) subject to taxation at a rate more than 25 times higher than the rate for otherwise similar commercial activity. Counterintuitively, these taxes are able to pass the statistical tests designed to ensure that the tax is generally redistributive, despite the states' own information indicating, in one state, that plan revenue from Medicaid paid 88 percent of the assessed tax even though only 45 percent of the member months subject to the tax were attributable to Medicaid beneficiaries. Under these tax conditions, the proposed rule would give CMS the authority to determine that the tax is not generally redistributive, despite the fact that it could pass the applicable statistical test under current regulations, because it places an undue burden on the Medicaid program (as indicated in the example by the disproportionate share of the tax attributable to Medicaid relative to Medicaid's share of total member months). The August 1993 final rule noted that, “to the extent a tax is imposed more heavily on low Medicaid utilization than high Medicaid providers, the tax would be considered redistributive,” in that case, there would be a “tendency of a state's tax and payment program to derive revenues from taxes imposed on non-Medicaid services in a class and to use these revenues as the state's share of Medicaid payments” (57 FR 55128). However, in the situations involving the type of statistical manipulation described above, the exact opposite is the case. In these instances, states are imposing taxes that place a greater tax burden on Medicaid-reimbursed health care items and services, and providers of such items and services, than on comparable entities not reimbursed by Medicaid. Such a tax is not generally redistributive in nature.

In an effort to more effectively prohibit tax arrangements that are not generally redistributive, for us to approve a waiver of the broad based and/or uniformity requirements, this proposed rule would require that a tax must not impose undue burden on health care items or services paid for by Medicaid or on providers of such items and services that are reimbursed by Medicaid. Generally, as discussed in greater detail below, we would provide that the tax may not be structured in a way that places a greater tax burden on taxpayer groups that have a greater level of Medicaid activity, as proposed to be defined below, than those that have less or no Medicaid activity.

Some states have designed non-broad based and/or non-uniform tax structures that exclude, or lower tax rates on, taxpayers grouped together on the basis of their lack of or low levels of Medicaid activity compared to other taxpayers in the class. We believe that such tax structures inherently impose undue burden on the Medicaid program, and therefore, do not meet the statutory generally redistributive requirement. Similarly, we are concerned that some states might provide tax relief to taxpayers grouped together ostensibly on a basis other than Medicaid activity, but that the specific basis for the grouping is designed to obscure a true purpose to define the group based on lack of or relatively low Medicaid activity. For example, a state could attempt to exclude from taxation or place a lower tax rate on all hospitals within a certain geographic area that has certain demographic characteristics, such as all counties with populations between 40,000 and 85,000 residents. Under the particular conditions in the state, it could result that this commonality serves as a substitute for the included hospitals having low or no Medicaid activity. In this example, the commonality could be viewed as a substitute for Medicaid activity if only two counties in the state met this criteria, and the hospitals in these two counties had relatively low Medicaid activity compared to hospitals in the other counties in the state, as might occur in the case of a county with relatively low Medicaid enrollment in the county and surrounding counties. Such a tax program likely would result in the Medicaid program funding a disproportionate share of tax revenues, as counties containing hospitals with low levels of Medicaid activity would be excluded by the structure of the tax. In that case, the burden of the tax would fall upon hospitals with higher Medicaid activity. Therefore, as discussed below, we are proposing to consider tax structures not to be generally redistributive when taxpayers are grouped together in a manner that isolates taxpayers with relatively higher or lower levels of Medicaid activity and when taxpayers with relatively higher Medicaid activity are taxed relatively more heavily. We propose to consider the totality of the circumstances when deciding whether the tax program involves taxpayer groupings that, by proxy, have the effect of sorting taxpayers by relatively higher or lower levels of Medicaid activity. The proposed rule would retain the two statistical tests currently at § 433.68 when determining whether or not the proposed tax waiver would be generally redistributive as required by statute. However, in determining whether or not a tax program is generally redistributive, consideration would also be given to examine the totality of the circumstances in addition to the applicable statistical test.

We aim to balance preserving state flexibility in designing tax programs with ensuring health care-related taxes meet statutory generally redistributive requirements. We do not intend to interfere with states' ability to exclude from taxation or impose lower tax rates on health care items and services or on providers based on genuine commonalities that meet legitimate policy objectives. However, it is incumbent upon us to prevent tax structures designed to impose an undue burden on the Medicaid program, including on participating providers and/or health care items and services for which Medicaid pays, in contravention of federal statutory requirements.

c. Concerns Relating to the Definition of a Health Care-Related Tax

Section 1903(w)(3)(A)(i) of the Act defines a health care-related tax using multiple tests that must be applied to tax proposals. Section 1903(w)(3)(A)(i) of the Act stipulates health care-related taxes are related to: (1) Health care items or services; (2) the provision of, or the authority to provide, health care items or services; or (3) payment for health care items or services. Section 1903(w)(3)(A)(ii) of the Act further stipulates that a tax is a health care-related tax when it is not limited to health care-related items or services, but provides for treatment of individuals or entities that provide or pay for health care-related items or services that is different than treatment of “other individuals or entities.” Any tax must be fully evaluated against all components of the statutory definition to determine whether it qualifies as a health care-related tax.

In determining whether a tax is related to health care items or services, section 1903(w)(3)(A) of the Act also specifies that if at least 85 percent of the tax burden falls on health care providers, it is considered to be related to health care items or services. However, this provision does not establish a safe harbor for any tax on health care providers that falls below the threshold. Section 433.55(c) specifies that if less than 85 percent of the tax burden falls on health care items or services, the tax may still be considered to be health care-related if differential treatment exists for entities providing or paying for health care items or services relative to other entities. If less than 85 percent of the tax burden falls on health care items or services, the treatment of those entities must still be analyzed to determine if the tax treats them equally.

Outside oversight bodies have raised concerns that states have attempted to subvert federal regulations regarding health care-related taxes by masking them as part of larger non-health care-related taxes. States may do so by including impermissible health care-related taxes inside larger tax programs that include non-health care-related taxes in such a way so as to avoid being considered a health care-related tax in accordance with § 433.55. The OIG identified one such attempt in a May 2014 report (A-03-13-00201),^[8] in which the OIG described a state that appeared to be taxing only income from Medicaid MCO services by incorporating only Medicaid MCOs into larger (often existing) state and local taxes otherwise unrelated to Medicaid, despite the DRA provisions which prohibited taxation of only Medicaid MCOs. Specifically, section 6051 of the DRA amended section 1903(w)(7)(A) of the Act to change the relevant permissible class of health care items and services from “[M]edicaid managed care organizations” to MCOs generally. In its report, the OIG recommended that CMS issue clarification to states regarding its interpretation of statute and regulations regarding health care-related taxes as soon as possible and warned that failure to do so could result in a proliferation of similar Medicaid MCO taxes if states believed that it was permissible to incorporate otherwise impermissible health care-related taxes into pre-existing, non-health care-related tax programs as long as less than 85 percent of the tax burden fell on health care providers. Absent clarifying guidance, we were also concerned that states could mistakenly believe that selectively incorporating a tax on health care items or services for which Medicaid is a significant payer, like home and community-based services (HCBS), into a broader state tax program would result in the HCBS tax not being defined as health-care related.

In July 2014, we issued State Health Official (SHO) letter #14-001 (SHO #14-001) on health care-related taxes. This guidance clarified that even in cases where less than 85 percent of a tax falls on health care items or services, the tax can be considered health care-related. If a tax treats health care items or services differently, the tax is still considered a health care-related tax. Specifically, SHO #14-001 stated that taxing a subset of health care services or providers at the same rate as a statewide sales tax, for example, does not result in equal treatment if the tax is applied specifically to a subset of health care services or providers (such as only Medicaid MCOs), since the providers or users of those health care services are being treated differently than others who are not within the specified universe. Despite this guidance, some states have continued to selectively incorporate health care items or services into larger tax programs that also levy taxes on goods and services unrelated to health care in an apparent attempt to circumvent the statutory restrictions on health care-related taxes. These impermissible tax arrangements have not been limited to states incorporating only Medicaid MCOs into broader state or local taxes, but have included other health care items or services, such as private non-medical institution services.

Often, the health care items and services (or providers) subject to such taxes are subsets of health care items and services (or providers) highly utilized by Medicaid beneficiaries and/or do not meet the permissible class definition in § 433.56. For example, a state may try to impose a tax on a service that is mostly (if not entirely) reimbursed by Medicaid, which does not fall under an existing permissible class at § 433.56, such as HCBS. A state may include a service like this among other goods and services that are taxed under a larger tax program that is not explicitly related to health care, such as a tax program principally concerned with natural resources or telecommunications. The proposed rule clarifies that by targeting a specific type of health care-related item or service and incorporating it into a larger tax (the HCBS portion of this tax to continue with the above example) would be considered health care-related—even if 85 percent of the revenue from the tax overall did not come from health care-related items or services or providers of such items or services.

The preamble to the November 1992 interim final rule with comment period discussed the circumstances in which health care items and services included within a larger non-health care related-tax would cause the tax to be considered health care-related in situations where they did not constitute 85 percent of the tax revenue. To illustrate when such taxes would or would not be considered health care-related, the preamble gave the hypothetical example of a 5 percent tax on the gross revenues of hospitals and gas stations that generated $100 million dollars in tax revenue. The preamble stated that if the hospitals paid $90 million of the tax, then the tax would be considered to be health care-related because this would exceed the 85 percent threshold. However, if the hospitals paid only $60 million dollars, then the tax would not be considered health care-related because the tax rate is the same for health care items or services and non-health care items or services and the hospitals would be taxed at under the 85 percent threshold established in regulation.

We are aware that this example may not have been as clear as possible and could have led to confusion as to what different treatment for health care items and services means in the context of § 433.55(c). Specifically, we are concerned some parties misinterpreted this example as indicating approval of states selecting specific health care-related items and services for inclusion within a broader tax program without the tax being considered health care-related as long as less than 85 percent of the tax burden falls on such items and services. We believe this potential misinterpretation is inconsistent with section 1903(w)(3)(A)(ii) of the Act, § 433.55(c), and the preamble to the August 1993 final rule, which stated in response to a commenter, “We believe section 1903(w)(3)(A)(ii) [of the Act] prevents the state from implementing a tax that may be masked by an existing non-health care-related tax” (58 FR 43160). In the aforementioned preamble example, a tax in which hospitals paid $60 million and gas stations paid $40 million under a flat 5 percent gross revenues tax was not necessarily considered health care-related because the burden on providers of health care items and services is less than 85 percent. While § 433.55(c) states that in situations where less than 85 percent of the tax burden falls on health care items or services the tax may still be considered health care-related if differential treatment exists for entities providing or paying for health care items or services. However, § 433.55(c) does not specify the reference group against which one should measure differential treatment.

While statute and regulation specify that differential treatment results in a tax being considered health care-related, existing law and regulations do not explicitly describe what constitutes differential treatment. Therefore, we are proposing to clarify what constitutes differential treatment to clarify when taxes are health care-related and when they are not. We believe this clarification would assist in prohibiting state or local units of government from incorporating an impermissible tax on health care items or services into a larger existing tax, such as a state-wide sales tax, or creating a new tax that treats health care items or services differently to avoid federal statutory and regulatory requirements related to health care-related taxes. Therefore, we are proposing to clarify that differential treatment occurs when a tax program treats some individuals or entities that are providing or paying for health care items or services differently than (1) individuals or entities that are providers or payers of any health care items or services that are not subject to the tax or (2) other individuals or entities that are subject to the tax.

Due to the complexity of this issue, we are providing a few illustrative examples of when a tax program does or does not constitute differential treatment. First, we are providing examples relating to evaluating differential treatment of individuals or entities that are providing or paying for health care items or services that are subject to the tax compared to individuals or entities that are providers or payers of any health care items or services that are not subject to the tax. For example, if the state imposes a tax on telecommunication services, but also includes inpatient hospital services, this would constitute differential treatment. Given that inpatient hospital services are not reasonably related to the other services subject to taxation (that is, telecommunication services), as discussed below, we would consider the tax to be treating inpatient hospital services differently than other individuals or entities providing or paying for health care items or services, which are not included in the tax. While some might consider this example as being similar to the example involving a tax on gas stations and hospitals in the November 1992 interim final rule, we are taking this opportunity to clarify our interpretation of section 1903(w)(3)(A)(ii) of the Act. We have never ruled out the extistence of differential treatment in all instances where health care items or services are included in a larger non-health care-related tax program, even where less than 85 percent of the tax burden falls on health care providers and all entities and services are subject to the same tax rate. As we emphasized in the 2014 SHO letter, taxes where less than 85 percent of the tax burden falls on health care items or services may still be considerd health care-related if only a subset of health care items or services are taxed, even if they are taxed at the same rate as items or services not related to health care that are also included in the tax. Prior to the issuance of the 2014 SHO letter, several states attempted to mask taxes on such subsets, including Medicaid-only MCOs, by including them within larger, non-exclusively health care-related tax programs. Notably, the taxes on Medicaid-only MCOs would not have been approvable on their own, if implemented by the state separately from the taxation of items and services unrelated to health care. States included taxes on Medicaid-only MCOs within larger, non-exclusively health care-related tax programs, such as sales taxes and gross receipts taxes, in an attempt to bypass federal statutory and regulatory prohibitions by effectively masking the health care-related component of the tax. We have worked with the OIG to ensure that these and similar practices that ran counter to the letter and spirit of federal statute and regulation were stopped. We view this proposed rule as a continuation of our efforts to ensure that health care-related taxes follow all applicable requirements.

In instances where a state or other unit of government imposes a tax on reasonably related items or services that includes some non-health care items or services and some health care items or services, we would not consider differential treatment to occur if all health care items or services that are reasonably related to the taxed universe are included in the tax and all health care items and services subject to the tax are taxed at the same rate as the non-health care items or services subject to the tax. We will consider items or services within the tax to be reasonably related if there exists a logical or thematic connection between the items or services or individuals or entities being taxed. Examples of such a connection could include, but would not be not limited to, industry, such as electronics; geographical area, such as city or county; net revenue volume; or number of employees. When determining whether or not individuals, entities, items, or services are reasonably related, we will examine the parameters of the given tax. In this context, the parameters of the tax means the grouping of individuals, entities, items or services, on which the tax is imposed. For example, if a state or unit of government imposed a one percent tax on all revenue from licensed professional services (for example, accounting services, legal services, etc.), including revenue from services provided by medical professionals, this would not constitute differential treatment, because all health care items or services reasonably related to the universe of items and services subject to the tax are themselves subject to the tax, and such services are taxed at the same rate as the included non-health care items or services. Provided that less than 85 percent of the tax burden falls on health care providers, the tax in this example would not be considered a health care-related tax. However, if the state or unit of government imposing the tax structures the parameters of the tax in such a way to include items or services that are not reasonably related and only selected health care items or services are included in the tax while others are excluded, the tax would be considered health care-related, as in the above example of a tax on telecommunications services and inpatient hospital services.

When determining whether or not differential treatment occurs, we evaluate the totality of the circumstances of the arrangement. For example, under some circumstances, it could be permissible for the state or unit of government to impose a tax on businesses employing 50 to 500 full-time equivalent (FTE) employees; such that the tax likely would include a number of entities providing or paying for health care items and services, and a number of entities selling non-health care items and services, within its parameters. However, it could be that, within a certain geographical area of the state, most businesses employing 50 to 500 FTE employees are entities providing or paying for health care items and services. If the tax were geographically targeted to include this area but not other areas of the state or unit of government's jurisdiction with a more diverse mix of businesses employing 50 to 500 FTE employees, this targeting could be evidence that the state or unit of government is using the numeric FTE employee parameter as a proxy to concentrate the tax burden on certain entities providing or paying for health care items or services.

While the examples given above illustrate hypothetical taxes we would consider to be health care-related where less than 85 percent of the tax falls on providers of health care items or services, they do not represent an exhaustive list of all possible forms of differential treatment, as we cannot foresee every possible arrangement. Differential treatment may still exist even in situations other than those described previously and identified in proposed § 433.55(c)(1) and (2). Therefore, we are also proposing to examine the parameters of the tax as defined by the state or other unit of government, as well as the totality of the circumstances relevant to which individuals, entities, items, or services are subject (and not subject) to the tax, and the tax rate applicable to each, in determining whether the tax program involves differential treatment as provided in section 1903(w)(3)(A)(ii) of the Act. The proposed rule aims to preserve appropriate state flexibility on tax and health care policy, while clarifying what constitutes differential treatment within the meaning of section 1903(w)(3)(A)(ii) of the Act and § 433.55(c) and helping ensure that states do not design tax structures to circumvent statutory requirements.

d. Concerns About Hold Harmless and Health Care-Related Taxes

We have become aware of impermissible arrangements that exist where a state or other unit of government imposes a health-care related tax, then uses the tax revenue to fund the non-federal share of Medicaid payments back to the taxpayers. The taxpayers enter into an agreement, which may or may not be written, to redistribute these Medicaid payments to ensure that taxpayers, when accounting for both the original Medicaid payment (from the state, unit of local government, or MCO) and any redistribution payment from another taxpayer or taxpayers, receive all or any portion of their tax amount back. The net effect of the arrangement is clear evidence that taxpayers have a reasonable expectation that their forthcoming Medicaid payment (including any redistribution), which results in participating taxpayers being held harmless for all or a portion of the tax amount. Regardless of whether the taxpayers participate voluntarily, whether the taxpayers receive the Medicaid payments from a MCO, or whether taxpayers themselves make redistribution payments from funds other than Medicaid to other taxpayers, the net effect of the arrangement is the same: The taxpayers have a reasonable expectation to be held harmless for all or a portion of their tax amount.

Such arrangements undermine the fiscal integrity of the Medicaid program and are inconsistent with existing statutory and regulatory requirements prohibiting hold harmless arrangements. The February 2008 final rule on health care-related taxes and provider-related donations specified that hold harmless arrangements prohibited by § 433.68(f)(3) exist “. . . when a state payment is made available to a taxpayer or a party related to the taxpayer (for example, as a nursing home resident is related to a nursing home), in the reasonable expectation that the payment would result in the taxpayer being held harmless for any part of the tax” (73 FR 9694). Despite the statutory and regulatory prohibitions, we are concerned that states, local units of government, and/or providers continue to design and execute hold harmless practices that are antithetical to federal law and regulation. To aid in preventing and ending such complex financing arrangements, the proposed rule would add clarifying language to the hold harmless definition in § 433.68(f)(3) to specify that CMS considers a “net effect” standard in determining whether or not a hold harmless arrangement exists.

In the example cited above involving some taxpayers that received more in Medicaid reimbursement (from the state, unit of local government, or MCO) than the amount of tax paid which they then transfered to other taxpayers that did not, we would consider such an arrangement to include a hold harmless arrangement because the taxpayers had a reasonable expectation to be held harmless from all or a portion of the cost of their tax through either or both of the Medicaid payments from the state or other unit of government or from MCOs, and redistribution payments from other taxpayers participating in the arrangement whose payments from the state or other unit of government or from MCOs met or exceeded their own tax cost. The fact that a private entity makes the redistribution payment does not change the essential nature of the payment, which constitutes an indirect payment from the state or unit of government to the entity being taxed that holds it harmless for the cost of the tax. As noted in the February 2008 final rule, “An indirect payment to the taxpayer would also constitute a direct guarantee” (73 FR 9896). When looking for the presence or absence of a hold harmless arrangement in health care-related taxes, conclusive evidence lies not in the presence or absence of individual elements, but the sum total of all the elements when viewed collectively. While the presence or absence of a single individual factor may not be sufficient to establish conclusively that such an arrangement exists, the cumulative effect of many such factors may be sufficient to make such a determination. Only after reviewing the totality of the circumstances and making a judgment about how the overall arrangement operates are we able to determine whether or not the state provides for a direct or indirect payment, offset, or waiver that holds the taxpayer harmless for any portion of the tax. This proposal does not reflect any change in policy or approach, but merely codifies currently prohibited practices, and would provide further clarification to states regarding how they may finance the non-federal share of Medicaid expenditures.

e. Concerns Regarding Permissible Tax Classes of Health Care Services and Providers

Over the past several years, we have become aware that several states have instituted taxes on health insurers or health insurance premiums. In an effort to maintain consistent federal oversight of health care-related taxes, modernize the permissible class definitions, and permit states additional flexibility to implement health care-related taxes, this rule proposes to add services of health insurers, other than MCOs listed in § 433.56 (a)(8), as permissible classes of health care items or services under § 433.56, under section 1903(w)(7)(A)(ix) of the Act. In an effort to avoid being overly prescriptive, we have decided against proposing a narrow definition of the term “health insurer.” However, the definition of “health insurance issuer” at 45 CFR 144.103 provides a helpful point of reference. That regulation defines a health insurance issuer as an insurance company, insurance service, or insurance organization (including an HMO) that is required to be licensed to engage in the business of insurance in a state and that is subject to state law that regulates insurance (within the meaning of section 514(b)(2) of ERISA). However, the term health insurer in the proposed additional class at § 433.56, explicitly excludes MCOs such as HMOs because these organizations are already included under section 1903(w)(7)(A)(viii) of the Act, unlike the term health insurance issuer at § 144.103. The proposed class would include insurers that issue policies for the group market and/or the individual market, including such coverage with high-deductible or “catastrophic” plans. The proposed class would also include issuers of short-term limited-duration policies as defined in § 144.103, as well as issuers of coverage for “excepted benefits” defined in 45 CFR 146.145 in the group market and the individual market at 45 CFR 148.220, such as dental-only and vision-only policies. Such a health care-related tax could include, but need not be limited to, an assessment on health insurance premiums, covered lives, or revenue. The class may include cost sharing measures, including premiums, from Medicare, such as private FFS plans under Medicare Advantage offered as part of Medicare Part C or prescription drug insurance plans as part of Medicare Part D, as well as any premiums paid by individuals as part of a section 1115 waiver where Medicaid funding is used for premium assistance to help beneficiaries purchase commercial health insurance plans. Such a tax cannot include CMS or any state agencies involved in administering title XVIII, title XIX, or title XXI, including state Medicaid agencies. We are soliciting comments on the definition of this permissible class to ensure that the appropriate entities and services are included.

f. Concerns Regarding Non-Bona Fide Provider-Related Donations

We are concerned that certain states, localities, and private health care providers have designed complex financing structures to mask non-bona fide, provider-related donations used to fund the non-federal share of Medicaid payments. States, localities, and private providers appear to be utilizing these complex arrangements to obfuscate the source of non-federal share and avoid the statutorily-required reduction to state medical assistance expenditures. They also appear to violate a variety of requirements in section 1903(w) of the Act and its implementing regulations, which mandate that the state's Medicaid expenditures for which FFP is provided shall be reduced by the sum of any revenues resulting from provider-related donations received by the state during the fiscal year other than bona fide provider-related donations. Such practices may also run afoul of section 1902(a)(30)(A) of the Act, which requires that payments be made consistent with efficiency, economy and quality of care. Additionally, they may result in payments that are inconsistent with the proper and efficient operation of the state plan (see section 1902(a)(4) of the Act) and its design for a cooperative state-federal partnership by generating increases in federal spending without a corresponding increase in state financial participation, with no direct link to additional services furnished, beneficiaries assisted, or other benefit to the Medicaid program.

Often, these arrangements involve a transfer of value of some kind from a private provider to a governmental entity and the governmental entity does not reimburse the private entity at fair market value. For example, the transfer may involve the private provider assuming an obligation previously performed by a governmental entity without being reimbursed fair market value, performing services previously performed by a governmental entity without being reimbursed at fair market value, or renting real property from a governmental entity at a price above fair market value. In such cases, the difference between the fair market value of the assumption of the obligation, performance of the services, or rental value of the property and the value actually transferred is in effect a donation by the private provider to the governmental entity. The governmental entity then executes an IGT, funded by the donation, to the state Medicaid agency, which is then used to fund the non-federal share of Medicaid expenditures. The Medicaid agency then makes a supplemental payment to the private donating provider, which effectively compensates it for the value it transferred to the governmental entity (the assumption of an obligation, performance of services, or excess rent paid). Often, this arrangement will not be executed as a contract or other formal business arrangement, or otherwise reduced to writing of which evidence is available to us. Instead, it will be based on a series of reciprocal actions performed by each party. As a result of such an arrangement, the private provider makes a direct or indirect donation, and the state returns all or a portion of the value of the donation to the private provider effectively using only federal dollars without a corresponding outlay in state expenditures, and such an arrangement constitutes a non-bona fide donation becase there is a pre-existing hold harmless agreement. The net effect of such an arrangement is to artificially inflate the state Medicaid expenditures eligible for FFP, sometimes up to 100 percent, in a manner inconsistent with statute and regulation.

Recently, we have identified and taken action to prevent or end impermissible financing practices in which states have attempted to mask non-bona fide provider-related donations. Some of these arrangements include instances where transfers of licenses occur without consideration of, or below, fair market value from a private provider to a unit of government to enable formerly private providers to receive certain supplemental payments available to governmental providers. In other situations, governmental entities have leased the same facilities back to private providers at rents above fair market value as a way of allowing the private facilities to make non-bona fide donations to the governmental entity, which then transfers the funds to the state Medicaid agency through IGTs. Ultimately, these schemes have the net effect of reducing the overall percentage of total computable Medicaid expenditures funded with state dollars, while at the same time causing a corresponding increase in federal funding.

We have taken several steps to curtail public-private partnerships that lead to non-bona fide provider-related donations. In 2014, we issued SMDL #14-004, the second in a series of two SMDLs that discuss mutual obligations and accountability with respect to the Medicaid program for the federal government and states. SMDL #14-004 addressed the deleterious impact that public-private partnerships designed to skirt federal requirements concerning provider-related donations can have on fiscal integrity. In 2016, we issued a disallowance to recover FFP associated with impermissible provider-related donations where private providers assumed financial obligations of local governmental entities to free up government funds, and the freed up funds were then used as the state's share of supplemental payments to the donating provider. The CMS disallowance was upheld when the state appealed to the DAB (DAB No. 2886, Texas Health and Human Services Commission (2018)).

This proposed rule would clarify the hold-harmless definition related to donations to account for the net effect of complex donation arrangements, including where the donation takes the form of the assumption of governmental responsibilities. In the provisions of § 433.54 addressing when a guarantee would exist to hold the provider harmless for value related to a donation to the governmental entity, this proposed rule would establish a net effect standard. Any exchange of value that constitutes a governmental entity reimbursing a private entity for value related to the private entity's donation need not arise to the level of a legally enforceable obligation, but must be considered in terms of its net effect, thus incorporating the language in DAB No. 2886, Texas Health and Human Services Commission (2018). In that case, the DAB held that “the net effect of the arrangements under review amounted to impermissible provider donations” and that as a result, the supplemental payments made by state Medicaid agency to the private provider were impermissible (p.25). The DAB also found that it is not necessary for a legally enforceable obligation to exist, such as under a statute or contract, for a donation to be found. In line with the Board's reasoning, we are proposing to establish a net effect standard to look at the overall arrangement in terms of the totality of the circumstances to judge if a non-bona fide donation of cash, services or other transfer of value to a unit of government has occurred. In § 433.52, the proposed definition of “provider-related donation” would clarify that the assumption by a private entity of an obligation formerly performed by a unit of government where the unit of government fails to compensate the private entity at fair market value would be considered an indirect donation made from the private entity to the unit of government. This proposed rule would also clarify that such an exchange need not arise to the level of a legally enforceable obligation.

C. Previous CMS Efforts To Understand and Monitor Medicaid Payments and Financing

We have already taken action to strengthen our approach to authorizing, monitoring, and evaluating Medicaid payments and financing to ensure that statutory and regulatory requirements are satisfied. To monitor supplemental payments made under state plan authority, in 2010, we began requiring states to separately report through MBES amounts paid for the most common and largest supplemental payments in accordance with § 430.30(c). States report statewide aggregate amounts for only some supplemental payments and do not include provider-level detail. In 2013, we issued SMDL #13-003, which discussed a submission process to comply with the UPL requirements in §§ 447.272 and 447.321. This SMDL discussed methods of complying with these two regulations through annual UPL submissions apart from the normal state plan process, as the regulations do not specify time frames for the submission of UPL demonstrations. The SMDL also provided further guidance regarding UPL calculation methodologies and requested that states identify the source of non-federal funding for the payments described in the UPL demonstration. This guidance improved our ability to analyze supplemental payments and validate that aggregate supplemental payments for each class of provider ownership group do not exceed what Medicare would have paid for the services or, in an alternative approach that may be selected by the states, do not exceed the cost of providing those services.

We have also intensified our examination of SPAs proposing supplemental payments, and their associated funding arrangements, and have developed a greater understanding of how to ensure that payment and financing arrangements comply with statutory requirements. These reviews focus on ensuring more transparency for supplemental payments by requiring more comprehensive SPA language so that providers and other stakeholders can fully understand how providers will receive payment and any conditions on those payments. We are also asking more questions regarding states' assumptions about the value that proposed supplemental payments would bring to the Medicaid program, including in terms of improving access and quality of care outcomes, in our efforts to ensure that states' payment systems are consistent with section 1902(a)(30)(A) of the Act.

Although we made improvements to the parameters around aggregate payment levels as reflected in UPL demonstrations, there have been concerns from oversight entities, noted elsewhere in the preamble, regarding payments to individual providers, including concern that some governmental providers were being paid Medicaid payments far in excess of the costs incurred in providing the underlying services. In response to those concerns, we issued the “Medicaid Program; Cost Limit for Providers Operated by Units of Government and Provisions to Ensure the Integrity of Federal-State Financial Partnership” final rule with comment period in the May 29, 2007 Federal Register (72 FR 29748), which limited payments to any governmentally operated provider to the cost incurred for delivery of Medicaid services. The May 29, 2007 final rule with comment period was challenged by states and health care providers. After a series of Congressional moratoria against its implementation, Congress stated its sense that it should not be implemented. In 2010, the final rule was rescinded (75 FR 73972) and we have not moved forward with this or any similar approach.

We have previously recognized the need in other instances to obtain provider-level payment reporting. Section 1923(j) of the Act and its implementing regulations delineate annual DSH audit and reporting requirements. To ensure that Medicaid DSH payments are in compliance with federal statutory requirements, we published the 2008 DSH audit rule, which requires that states report and account for certain provider-level information on the hospitals receiving these payments. The rule also requires states to have their DSH payment programs independently audited to verify that the payments comply with applicable hospital-specific DSH limits. Such information includes reporting of supplemental payments and ensuring that such payments are factored into the hospital-specific DSH limit. However, this data set is limited in that it only includes reporting for those hospitals that receive Medicaid DSH payments and are due to us more than 3 years after the completion of each state plan rate year. Therefore, in § 447.288 of this proposed rule, to help ensure timely and comprehensive reporting on the Medicaid financing for all payments to hospitals, we are proposing to require the annual amount of total Medicaid DSH payments made to any provider be reported in the annual provider-level payment data report for this regulation, along with all Medicaid supplemental payments.

II. Provisions of the Proposed Rule

A. Proposed Provisions

1. Disallowance of Claims for FFP (§ 430.42)

Section 1116(d) and (e)(1) of the Act outline the disallowance reconsideration process and provide that a state may request administrative reconsideration of a disallowance if such a request is made within a 60-day period that begins on the date the state receives notice of the disallowance. However, the statute does not specify the format of the notice of disallowance or request for reconsiderations. We are proposing to amend § 430.42 to alter the means of communication with regard to the disallowance reconsideration process from one based on registered or certified mail to one based on electronic mail or another electronic system as specified by the Secretary. When § 430.42 as now in effect was finalized, certified mail was considered to be the optimal way to establish the dates on which a communication was sent and received, which is important to establish compliance with timeframes specified in regulation. However, email is a preferred form of communication today in the normal course of agency business and can be used to establish the time when a communication is sent and received, since email messages typically are transmitted near-instantaneously. Further, by eliminating mailing and paper costs, the use of email could slightly reduce the administrative burden associated with the disallowance process under § 430.42. As a result, we are proposing to revise all of the references to registered or certified mail or to “written requests” to make clear that such requests need not be in a physical, as opposed to an electronic format in § 430.42(b)(2)(i)(A) introductory text, (b)(2)(i)(B) and (C), (c)(3), (c)(4)(i), (c)(6), and (d)(1) to replace references to registered or certified mail with references to electronic mail (email) or another electronic system as specified by the Secretary. In addition, we propose to remove the word “written” from § 430.42(b)(2)(i)(A) and (B) to avoid a possible misunderstanding that the request must be in the form of a physical writing, since we propose to adopt an electronic process. The date that the communication is successfully sent or received by electronic mail (email) or electronic system as specified by the Secretary would be substituted for current references to the date that the communication was sent or received by registered or certified mail.

2. State Share of Financial Participation (§ 433.51)

We are proposing to amend § 433.51 to more clearly define the allowable sources of the non-federal share to more closely align with the provisions in section 1903(w) of the Act. In § 433.51(a) and (c), we are proposing to replace the current reference to “public funds” with “state or local funds” which is consistent with statutory language as in section 1903(w)(6)(A) of the Act. Public funds is not a phrase used in section 1903(w) of the Act, and the use of this phrase in regulation has caused confusion with respect to permissible sources of non-federal share. We are proposing to revise § 433.51(b) by similarly replacing the current reference to public funds and by specifying more precisely the funds that states may use as state share. Although we have applied the statutory language to our review and approval of state financing mechanisms, the term public funds in the regulatory text has created confusion among states, and has led to state requests to derive IGTs from sources other than state or local tax revenue (or funds appropriated to state university teaching hospitals), which is not permitted under the statute in section 1903(w)(6)(A) of the Act. The proposed amendment to paragraph (b) would clearly limit permissible state or local funds that may be considered as the state share to state general fund dollars appropriated by the state legislature directly to the state or local Medicaid agency; IGTs from units of government (including Indian tribes), derived from state or local taxes (or funds appropriated to state university teaching hospitals), and transferred to the state Medicaid Agency and under its administrative control, except as provided in proposed § 433.51(d); or CPEs, which are certified by the contributing unit of government as representing expenditures eligible for FFP and reported to the state as provided in proposed § 447.206.

We are proposing these revisions to specifically align the allowable sources of the non-federal share with the statute. The proposed provisions would make clear that allowable state general fund appropriations under § 433.51(b)(1) are those made directly to the state or local Medicaid agency, and are differentiated from appropriations made to other units of government that otherwise may be tangentially involved in financing Medicaid payments through IGTs or CPEs. We would describe allowable IGTs and CPEs in proposed § 433.51(b)(2) and (3), respectively. The statute clearly differentiates between these sources of funds. Specifically, section 1903(w)(6)(A) of the Act provides that states generally may finance the state share using funds derived from state or local taxes (or funds appropriated to state university teaching hospitals) transferred from or certified by units of government within a state as the non-federal share of Medicaid expenditures. The phrase “transferred from or certified by” refers to the IGT and CPE, respectively, and the statute clearly indicates that those funding mechanisms must be derived from state or local taxes (or funds appropriated to state university teaching hospitals). The inclusion of the above reference to “funds appropriated to state university teaching hospitals” in § 433.51(b)(2) is a direct reference to language in section 1903(w)(6)(A) of the Act to more precisely implement the Act in this regulatory provision.

We are proposing to identify “certified public expenditures” specifically in regulation as an allowable source of state share in a manner consistent with section 1903 of the Act, and to describe the protocols states may use to identify allowable Medicaid expenditures associated with the use of a CPE as the source of non-federal share. Thus, we propose to include a reference in § 433.51(b)(3) to proposed § 447.206 to require that, for a state to use a CPE as a source of state share, the state must meet the requirements of proposed § 447.206, discussed in detail below, with respect to payments funded by the CPE. In particular, in § 447.206(b)(1), we propose that such payments, to a provider that is a unit of government, would be limited to the state or non-state government provider's actual, incurred cost of providing covered services to Medicaid beneficiaries using reasonable cost allocation methods.

Lastly, we are proposing to add paragraph (d) to this section to clearly indicate that state funds provided as an IGT from a unit of government but that are contingent upon the receipt of funds by, or are actually replaced in the accounts of, the transferring unit of government from funds from unallowable sources, would be considered to be a provider-related donation that is non-bona fide under §§ 433.52 and 433.54. This language is intended to implement the preclusion under section 1903(w)(6)(A) of the Act on the use of IGTs where the IGT is derived from a non-bona fide provider-related donation by making it abundantly clear that, as indicated in the statute, the IGT must come from state or local tax revenue (or funds appropriated to state university teaching hospitals), and any IGTs that are derived from, or are related to, non-bona fide provider-related donations would be prohibited.

3. General Definitions (§ 433.52)

The terms “Medicaid activity” and “non-Medicaid activity” are used in the proposed § 433.68(e)(3), discussed in detail below, in determining whether a health care-related tax program is generally redistributive in nature in accordance with section 1903(w)(3)(E)(ii)(I) of the Act. The definitions for “Medicaid activity” and “non-Medicaid activity” in this proposed rule would apply only to determining whether a state or other unit of government tax program is generally redistributive as required in section 1903(w)(3)(E)(ii)(I) of the Act. We are proposing to define “Medicaid activity” to mean any measure of the degree or amount of health care items or services related to the Medicaid program or utilized by Medicaid beneficiaries, including, but not limited to, Medicaid patient bed days, the percentage of an entity's net patient revenue attributable to Medicaid, Medicaid utilization, units of medical equipment sold to individuals utilizing Medicaid to pay for or supply such equipment or Medicaid member months covered by a health plan.

We are proposing to define “non-Medicaid activity” to mean any measure of the degree or amount of health care items or services not related to the Medicaid program or utilized by Medicaid beneficiaries. Such a measure could include, but would not necessarily be limited to, non-Medicaid patient bed days, percentage of an entity's net patient revenue not attributable to Medicaid, the percentage of patients not utilizing Medicaid to pay for health care items or services, units of medical equipment sold to individuals not utilizing Medicaid funds to pay for or supply such equipment, or non-Medicaid member months covered by a health plan.

We are proposing to define the term “net effect” to mean the overall impact of an arrangement, considering the actions of all of the entities participating in the arrangement, including all relevant financial transactions or transfers of value, in cash or in kind, among participating entities. The net effect of an arrangement is determined in consideration of the totality of the circumstances, including the reasonable expectations of the participating entities, and may include consideration of reciprocal actions without regard to whether the arrangement or a component of the arrangement is reduced to writing or is legally enforceable by any entity.

The term “parameters of a tax” is used in the proposed § 433.55(c), discussed in detail below, in determining whether a tax is health care-related as provided in section 1903(w)(3)(A) of the Act. We are proposing to define “parameters of a tax” to mean the grouping of individuals, entities, items or services, on which a state or unit of government imposes a tax.

Currently, § 433.52 specifies a definition of “Provider-related donation” that includes an introductory paragraph and three numbered paragraphs. We propose to redesignate paragraphs (2) and (3) as paragraphs (3) and (4), respectively, and to add a new paragraph (2). Proposed paragraph (2) would specify that any transfer of value where a health care provider or provider-related entity assumes an obligation previously held by a governmental entity and the governmental entity does not compensate the private entity at fair market value would be considered a donation made indirectly to the governmental entity. We are proposing that such an assumption of obligation need not rise to the level of a legally enforceable obligation to be considered a donation, but would be considered by examining the totality of the circumstances and judging the arrangement's net effect. For example, if a private provider assumes any contractual obligation, such as staffing costs for accounting services, of a non-state governmental entity without a corresponding transfer of value at market value, we would consider that to be a provider-related donation from the private provider to the unit of government.

This proposal does not represent a new policy, but a clarification of current law designed to aid in preventing and, where they currently may exist, terminating impermissible financing practices involving provider-related donations. The current definition does not explicitly address circumstances involving the assumption of a governmental obligation, or our policy to determine the net effect of an arrangement in determining whether or not a donation has occurred.

We are also proposing to revise newly redesignated paragraphs (3) and (4) by changing the term “health care related” to “provider-related” to align with usage where provider-related donations are addressed throughout part 433, subpart B, and by changing the language in newly redesignated paragraph (4) from “the percentage of donations the organization received from the providers during that period” to “the percentage of the organization's revenue during that period that was received as donations from providers or provider-related entities.” We are proposing this change because we believe that this language is clearer and more transparent for states.

Some health care-related tax programs exclude certain items, services, or providers from taxation or impose variable rates. To do so, states or non-state units of government often divide the universe of entities subject to taxation into groups based on various attributes. We are proposing to define “taxpayer group” to mean one or more entities grouped together based on one or more common characteristics for purposes of imposing a tax on a class of items or services specified under § 433.56. This term is used in proposed § 433.56(e)(3), which is discussed in detail below, in determining whether or not a tax program is generally redistributive in nature, in accordance with section 1903(w)(3)(E)(ii)(I) of the Act.

4. Bona Fide Donations (§ 433.54)

Section 1903(w)(2)(B) of the Act provides that the Secretary may by regulation specify types of provider-related donations described in that subparagraph that will be considered to be bona fide provider-related donations. The statute requires that bona fide provider-related donations may have no direct or indirect relationship (as determined by the Secretary) to Medicaid payments to the provider, providers furnishing the same class of items and services as the provider, or to any related entity, as established by the state to the satisfaction of the Secretary. Accordingly, implementing regulations in § 433.54(b) require that bona fide provider-related donations must not be returned to the individual provider, provider class, or related entity under a hold harmless provision or practice as described in § 433.54(c). We are proposing to revise § 433.54(c)(3) to clarify the standard used to determine whether the state (or other unit of government) receiving a donation provides for any direct or indirect payment, offset, or waiver, such that the provision of that payment, offset, or waiver directly or indirectly guarantees the return of any portion of the donation to the provider (or other party or parties responsible for the donation). The clarification would make express our current policy of examining the totality of the circumstances that determine the net effect of an arrangement between the state (or other unit of government) and the provider, provider class, or provider-related entity responsible for the donation. Specifically, we are proposing that a direct guarantee of the return of all or part of a donation would be found to exist where, considering the totality of the circumstances, the net effect of an arrangement between the state (or other unit of government) and the provider (or other party or parties responsible for the donation) results in a reasonable expectation that the provider, provider class, or related entity will receive a return of all or a portion of the donation either directly or indirectly. As noted in the 2008 final rule on Health Care-Related Taxes, “An indirect payment to the taxpayer would also constitute a direct guarantee” (73 FR 9698). Section 433.68 at paragraphs (f)(1), (2) and (3) describe the three situations that constitute a direct hold harmless arrangement. Paragraphs (f)(3)(i)(A) and (B) detail the two “prongs” of the indirect hold-harmless guarantee test. These two “prongs” constitute the “safe harbor threshold” of 6 percent and the “75/75” test. The safe harbor threshold states that taxes that are under 6 percent of net patient revenue attributable to an assessed permissible class pass the indirect hold harmless test. If a tax collection exceeds the 6 percent net patient revenue threshold, the second prong is applied. This prong is known as the “75/75” test and states that CMS will consider an indirect hold harmless arrangement to exist if 75 percent or more of the taxpayers receive 75 percent or more of their total tax costs back in enhanced Medicaid payments or other state payments. If the tax fails this prong, CMS considers an indirect hold harmless arrangement to exist. Direct and indirect payments are used in the proposed rule in the same way as they are used currently in § 433.68(f). This clarification is designed to aid in preventing and, where they may currently exist, eliminating complex financing arrangements designed to obfuscate the fact that non-bona fide provider-related donations are the source of the non-federal share of certain Medicaid payments. This is consistent with our current policy, which we have applied in the past and discussed in SMDL 14-004 on impermissible provider-related donations. We are also proposing to revise paragraph (c)(3) to clarify that a singular party, not just multiple “parties,” could be responsible for a provider-related donation described in this paragraph.

5. Health Care-Related Taxes Defined (§ 433.55)

Section 1903(w)(3)(A) of the Act defines a health care-related tax as a tax that is (1) related to health care items or services, or to the provision of, the authority to provide, or payment for, such items or services; or (2) is not limited to such items or services but provides for treatment of individuals or entities that are providing or paying for such items or services that is different from the treatment provided to other individuals or entities. In the case of (1), a tax is considered related to health care items or services if at least 85 percent of the tax burden falls on health care providers. Implementing regulations are codified in § 433.55(c). This proposed rule would amend § 433.55(c) by clarifying that differential treatment occurs when a tax program treats some individuals or entities that are providing or paying for health care items or services differently than (1) individuals or entities that are providers or payers of any health care items or services not subject to the tax or (2) other individuals or entities subject to the tax. Additionally, we would amend § 433.55(c) to clarify that we examine the parameters of the tax as defined by the state or other unit of government, as well as the totality of the circumstances relevant to which individuals, entities, items, or services are subject (and not subject) to the tax and at which rate, in determining whether the tax program involves differential treatment as provided in section 1903(w)(3)(A)(ii) of the Act. Finally, the proposed rule would also add paragraphs (c)(1) and (2) to clarify when CMS would consider the treatment of individuals or entities providing or paying for health care items or services to be different from the treatment provided to other individuals or entities.

In the proposed § 433.55(c)(1), we propose to clarify that differential treatment for providers of health care items or services would occur where the state or other unit of government imposing the tax makes some individuals or entities providing or paying for health care items or services subject to the tax, but excludes others. For example, a state imposing a tax on telecommunication services and inpatient hospital services would constitute differential treatment because some providers or payers of health care items or services subject to the tax are being treated differently than providers or payers of health care items or services not subject to the tax. States or local units of government imposing a tax cannot structure the parameters of the tax in such a way as to include items or services that are not reasonably related so that only selected health care items or services are included in the tax while others are excluded. Selective incorporation would also occur when the state or other unit of government imposing the tax structures the parameters of the tax in a way that has the effect of specifically excluding or including certain providers of health care items or services from the tax. This would constitute differential treatment because it would have the same effect as selecting certain health care items or services for inclusion in the tax when such items or services are not reasonably related to the other items being taxed.

Additionally, we propose in § 433.55(c)(2) to specify that differential treatment would result when entities providing or paying for health care items or services are treated differently than other entities also included in the tax. For example, if the state taxes all businesses in the state, but places a higher tax rate on hospitals and nursing facilities than on other businesses, this would result in differential treatment.

We are concerned that taxes of the sort described in proposed § 433.55(c)(1) and (2) are not consistent with applicable statutory (and current regulatory) requirements because they may include individuals or entities providing or paying for health care items or services that receive high levels of reimbursement from Medicaid for such items or services, and that may receive a return of their tax costs in the form of increased Medicaid payments. In particular, we are concerned about tax programs that treat health care items or services that are mostly reimbursed by Medicaid differently than other health care items or services with low Medicaid reimbursement. For example, a statewide revenue tax of 5 percent of net revenue on all businesses in the state that includes only a subset of health care items or services that happens to be reimbursed heavily by Medicaid, such as HCBS, but which is designed to exclude other providers of health care items or services with lower rates of Medicaid reimbursement such as continuing care retirement facilities (CCRCs), would result in differential treatment. Any time a tax structure selectively incorporates a subset of health care items or services for inclusion in a tax and excludes others, we would consider this differential treatment, as reflected in proposed § 433.55(c)(1). Selective incorporation generally occurs in two situations: First, when the state or unit of government includes some, but not all, health care-related items or services and those items or services are not reasonably related to the other items being taxed. Second, when the state or other unit of government structures the parameters of the tax in such a way that has the effect of such selective incorporation described above. Reasonably related means there exists a logical or thematic connection between the items or services being taxed. Examples of such a connection include, but are not limited to, industry, such as electronics; geographical area, such as city or county; net revenue volume; or number of employees.

Additionally, any time the tax treats individuals or entities providing or paying for health care items or services differently than other entities also included in the tax, we would also consider this to be differential treatment, as reflected in proposed § 433.55(c)(2). We note that the examples provided in these proposed paragraphs do not constitute an exhaustive list of all possible manifestations of differential treatment. Other circumstances constituting differential treatment for health care items or services, or entities providing or paying for health care items or services, would result in the tax being considered health care-related based on the differential treatment provisions in § 433.55(c).

The proposed language related to selective incorporation does not mean that the state or other unit of government must tax every provider of health care items or services within its jurisdiction to avoid its tax being considered health-care related in situations where less than 85 percent of the tax burden falls on health care items or services. It does mean that the state or other unit of government cannot include in or exclude from the tax only certain providers, or a class or classes of providers, by its own specification of the parameters of the tax. In addition, the state cannot structure the parameters of the tax in such a way so as to have the same effect of carving out or in only certain providers, or a class or classes of provider.

6. Classes of Health Care Services and Providers Defined (§ 433.56)

Section 1903(w)(7)(A)(ix) of the Act provides that the permissible classes of health care items and services include such other classifications consistent with section 1903(w)(7)(A) of the Act as the Secretary may establish by regulation. In addition to the specific classifications that Congress identified in statute, current regulations in § 433.56(a) specify certain additional classes established by the Secretary. We are proposing to add a new class of health care items and services to the list of permissible classes at § 433.56(a) by redesignating paragraph (a)(19) as paragraph (a)(20), revising paragraph (a)(18), and adding a new paragraph (a)(19). We propose to strike “and” from paragraph (a)(18), to accommodate the proposed paragraph (a)(20). In new proposed paragraph (a)(19), we would permit states and units of local government to impose taxes on services of health insurers beside those already identified in paragraph (a)(8) of the same section.

We have become aware that a number of states may be imposing taxes on health insurers in the form of a tax on health insurance premiums or volume of services. Section 1903(w)(7)(A)(ix) of the Act delegates to the Secretary the power to specify such other classification of health care items and services consistent with the paragraph as the Secretary may establish by regulation. We are proposing to expand the permissible class list to provide states with additional flexibility, while maintaining the fiscal integrity of the Medicaid program by ensuring that the proposed new permissible class would not be limited to items or services that are primarily or exclusively provided or paid for by the Medicaid program. Taxes imposed on health care items or services or providers of such items or services financed primarily or exclusively by Medicaid would harm the fiscal integrity of the Medicaid program by imposing a higher tax burden on the program and would not be generally redistributive as required by section 1903(w)(3)(E)(ii)(I) of the Act. Specifically, we are proposing to establish services of health insurers, besides services of MCOs (including HMOs and PPOs), as a new permissible class. Services of MCOs (including HMOs and PPOs) are already a permissible class of services identified in § 433.56(a)(8). Some examples of possible metrics that could be used to assess a tax on services of health insurers include health care premiums, covered lives, or revenue. The proposed class would include health insurers offering plans to Medicaid beneficiaries under a section 1115 demonstration for a premium assistance program to such beneficiaries to purchase qualified health plans through the Health Insurance Exchange. We are seeking comment on the exact scope of this permissible class to ensure all appropriate services of health insurers are included within this class. As with other permissible classes, taxes imposed on this proposed category of health care services would be subject to applicable legal requirements, including the broad-based requirements in § 433.68(b)(1), the uniformity requirements in § 433.68(b)(2), and the hold harmless provisions in § 433.68(f).

The preamble of the August 1993 final rule listed criteria that should be met by any additional class of health care items and services under consideration to be added to the permissible classes under section 1903(w)(7)(A) of the Act. The preamble stated three criteria: The revenue of the class is not predominantly from Medicaid and Medicare (not more than 50 percent from Medicaid and not more than 80 percent from Medicaid, Medicare, and other federal programs combined); the class must be clearly identifiable, such as through designation for state licensing purposes, recognition for federal statutory purposes, or being included as a provider in state plans; and the class must be nationally recognized and not be unique to a state (58 FR 43162). We believe that the class of providers of health care items or services which we are proposing to add to § 433.56 meets all of these requirements. First, according to the most recent data available from the U.S. Census Bureau (See Health Insurance Coverage in the United States, September 12, 2018, Report Number P-60 264, Edward R. Berchick, Emily Hood, and Jessica C. Barnett, p. 1-2), 67.2 percent of individuals in the United States that are insured have private health insurance, whereas 37.7 percent have government coverage including 19.3 percent that have Medicaid and 17.2 percent that have Medicare. In addition, not all Medicaid or Medicare beneficiaries must pay premiums or cost sharing, and the amounts that they do pay, when required, are generally limited by federal statute and regulation and typically are lower than premiums and cost sharing amounts paid by enrollees in private insurance coverage. As a result, we do not believe that revenue from the proposed class, services of health insurers besides services of MCOs (including HMOs and PPOs) is predominantly from Medicaid and Medicare. Specifically, we believe that such revenue is not more than 50 percent from Medicaid and not more than 80 percent from Medicaid, Medicare, and other federal programs combined. Second, each state already defines and regulates health insurers in the state, through state law. As a result, the class is clearly identifiable. To the extent that state law specifically includes or excludes certain types of issuers of health insurance policies as health insurers, we propose deferring to the state in determining which such entities are included within the proposed class and which are not. For example, certain groups of businesses may band together to offer health insurance plans to their employees, a practice known as association health plans under section 3(5) of the Employee Retirement Income and Security Act (ERISA) (Pub. L. 93-406, enacted September 2, 1974). The degree to which an issuer of an association health plan is considered to be a health insurer depends on state law. Finally, health insurers exist nationwide, and are not particular to any individual state. Neither we (that is, CMS, either with respect to our administration of Medicare or Medicaid), the state Medicaid agency, or any agency involved in administering title XVIII, title XIX, or title XXI is considered to be a health insurer in terms of the proposed class to be added at § 433.56. As a result, the proposed class meets all of the criteria specified in the 1993 final rule and is appropriate to add to the classes of health care items and services upon which states may impose health care-related taxes without a reduction in FFP, subject to all applicable federal statutory and regulatory requirements.

7. Permissible Health Care-Related Taxes (§ 433.68(e) and (f))

Section 1903(w)(3)(E)(ii)(I) of the Act provides that the Secretary shall approve a state's application for a waiver of the broad based and/or uniformity requirements for a health care-related tax, if the state demonstrates to the Secretary's satisfaction that the tax meets specified criteria, including that the net impact of the tax and associated Medicaid expenditures as proposed by the state is generally redistributive in nature. Implementing regulations in § 433.68(e) specify a statistical test for evaluating whether a proposed tax is generally redistributive: If the state is seeking only a waiver of the broad based requirement, paragraph (e)(1) specifies a test referred to as “P1/P2” described above, while a state seeking a waiver of the uniformity requirement or both the broad-based and uniformity requirements must meet the test specified in paragraph (e)(2), referred to as “B1/B2”, also described above. Although these tests were designed to ensure that a proposed tax is generally redistributive in accordance with section 1903(w)(3)(E)(ii)(I) of the Act, we have found that these tests alone have been insufficient in some circumstances as described above. As a result, we are proposing to add § 433.68(e)(3), to ensure that a proposed tax is truly generally redistributive.

Specifically, we are proposing to amend § 433.68(e) to provide that a proposed tax must satisfy both paragraph (e)(3) of this section, and, as applicable, paragraph (e)(1) or (2) of this section. At paragraph (e)(3), we propose that a tax must not impose undue burden on health care items or services paid for by Medicaid or on providers of such items and services that are reimbursed by Medicaid. We would consider a tax to impose undue burden under this paragraph if taxpayers are divided into taxpayer groups and any one or more of the following conditions apply: (1) The tax excludes or places a lower tax rate on any taxpayer group defined by its level of Medicaid activity than on any other taxpayer group defined by its relatively higher level of Medicaid activity; (2) within each taxpayer group, the tax rate varies based on the level of Medicaid activity, and the tax rate imposed on any Medicaid activity is higher than the tax rate imposed on any non-Medicaid activity (except as a result of excluding from taxation Medicare revenue or payments as described in § 433.68(d)); (3) the tax excludes or imposes a lower tax rate on a taxpayer group with no Medicaid activity than on any other taxpayer group, unless all entities in the taxpayer group with no Medicaid activity meet at least one of four specified exceptions; or (4) the tax excludes or imposes a lower tax rate on a taxpayer group defined based on any commonality that, considering the totality of the circumstances, CMS reasonably determines to be used as a proxy for the taxpayer group having no Medicaid activity or relatively lower Medicaid activity than any other taxpayer group. These four conditions represent specific parameters of tax structures that, in addition to those identified through the P1/P2 and B1/B2 test, inherently result in undue burden on the Medicaid program. CMS considers taxes that pose an undue burden on the Medicaid program to be inherently not generally redistributive because they impose a higher tax burden on health care items or services, or providers of such items and services, that are financed by Medicaid than those not financed by Medicaid, as explained in the preamble to the August 1993 final rule, discussed above.

We are proposing to require states to ensure compliance with the proposed requirement at paragraph (e)(3) to avoid placing an undue burden on the Medicaid program beginning on the effective date of any final rule for tax waivers that have not yet been approved before the effective date of any final rule. For tax waivers approved before the effective date of any final rule, we are proposing that states must come into compliance with this requirement when submitting a new waiver request. As described below, in § 433.72, we are proposing to add new paragraphs (c)(3) and (4) to specify the date on which a waiver approved under § 433.72(b) will no longer be effective. We are proposing that an approved waiver would have a 3-year term; for a waiver approved before the effective date of the final rule the 3-year term would run from the effective date of the final rule. A state would be free to apply for renewal of an expired or expiring waiver, subject to the same approval criteria applicable to an initial waiver request under § 433.72(b). As a result, for existing tax waivers, we are proposing to require states to come into compliance with proposed § 433.68(e)(3) when they submit a new tax waiver request, which we are proposing would be no later than 3 years after the effective date of any final rule, depending on whether the state makes any substantial changes to the health care-related tax as specified in proposed § 433.72(d). We believe that this time frame would ensure our goal of supporting the fiscal integrity of the Medicaid program while giving states the necessary time to comply with the proposed regulatory amendments.

It is important to note that nothing in this proposed rule would interfere with states' permissible use of tax revenues to fund provider payments or reliance on such use of tax revenues to justify or explain the tax in the legislative process, as provided in section 1903(w)(4) of the Act. Tax structures that place an undue burden on Medicaid, however, would not be considered to be generally redistributive for the purposes of § 433.68(e). We seek comment on our proposed amendments to § 433.68(e), and on additional conditions that could result in a tax program imposing undue burden on the Medicaid program, and therefore, failing to be generally redistributive in nature that are not included in this proposed list.

Section 1903(w)(1)(A)(iii) of the Act states that the total amount expended during the fiscal year as medical assistance under the state plan shall be reduced by the sum of any revenues received by the state during the fiscal year from a broad-based health care-related tax if there is in effect a hold harmless provision with respect to the tax. Section 1903(w)(4)(C) of the Act states that there is in effect a hold harmless provision with respect to a health care-related tax if the state or other unit of government imposing the tax provides directly or indirectly for any payment, offset, or waiver that guarantees to hold the taxpayer harmless for any portion of the costs of the tax. Section 433.68(f)(3) echoes this language. The proposed rule would add a net effect standard to § 433.68(f)(3). This proposed change represents a clarification of existing policy and would not impose any new obligations or place any new restrictions on states that do not currently exist. The language added by the proposed rule would specify that a direct or indirect hold harmless guarantee will be found to exist where, considering the totality of the circumstances, the net effect of an arrangement between the state (or other unit of government) and the taxpayer results in a reasonable expectation that the taxpayer will receive a return of all or any portion of the tax amount as discussed above. We propose that the net effect of such an arrangement may result in the return of all or any portion of the tax amount, regardless of whether the arrangement is reduced to writing or is legally enforceable by any party to the arrangement.

Proposed § 433.68(f)(3) aims to thwart efforts by states to skirt hold harmless provisions by paying supplemental payments to private entities, who then pass these funds on to other private entities that have lost gross revenue due to a health care-related tax. The use of an intermediary does not change the essential nature of the transaction: That it is a payment made by a state or unit of government to a provider that holds that provider harmless for the cost of the tax. While states are free to impose broad-based and uniform health care-related taxes, or generally redistributive health care-related taxes that meet applicable requirements for a waiver of either or both of these requirements, to fund the non-federal share of Medicaid expenditures, states may not do so in a way that guarantees to return all or part of the cost of the tax to the taxpayers. The proposed language adding the net effect standard to the direct hold harmless guarantee test at § 433.68(f)(3) clarifies to states the range of permissible tax and reimbursement arrangements for health care-related taxes. Such clarifying language allows states and CMS to work more harmoniously together by solidifying a shared understanding regarding what constitutes a guarantee to hold taxpayers harmless for the cost of a health care-related tax and reduces the likelihood of disagreement concerning the interpretation of the regulation. As such, the proposed amendment would allow states to operate their Medicaid financing programs with greater clarity and consistency than before.

We seek comment on our proposed amendments to § 433.68(f)(3). Additionally, we are soliciting comments on other qualitative or quantitative measures that could further safeguard the fiscal health and integrity of the Medicaid program through modifications to the provisions of § 433.68.

8. Waiver Provisions Applicable to Health Care-Related Taxes (§ 433.72)

In § 433.72, we are proposing to add new paragraphs (c)(3) and (4) to specify the date on which a waiver approved under paragraph (b) of this section would no longer be effective. We are proposing that an approved waiver should have a 3-year term; for a waiver already approved before the effective date of the final rule, if this proposal is finalized, the 3-year term would run from the effective date of the final rule. A state would be free to apply for renewal of an expired or expiring waiver, subject to the same approval criteria applicable to an initial waiver request under § 433.72(b). We are proposing a 3-year limit to ensure the tax program continues to meet all applicable requirements under part 433, subpart B, including whether or not the tax program continues to meet generally redistributive requirements at § 433.68(e)(1) and (2) and proposed paragraph (e)(3).

We are proposing to limit waiver approvals to 3 years because the provider data that states provide to CMS for use in the statistical tests at § 433.68 and the providers in the class subject to the waiver change over time. As a result, while a tax may be generally redistributive when the state first requests the waiver, it may cease to be so as the composition of the providers or payers, or the volume of items or services subject to the tax changes. In an effort to ensure consistent fiscal oversight of the non-federal share of Medicaid expenditures and to ensure that health care items and services, and providers of health care items or services, financed by Medicaid are not taxed more heavily than those not financed by Medicaid, we believe that this proposed time period would aid in ensuring state tax programs are and remain consistent with section 1903(w)(3)(E)(ii) of the Act. This provision establishes that the Secretary will approve waivers if the state establishes to the satisfaction of the Secretary that the net impact of the tax is generally redistributive in nature and the amount of the tax is not directly correlated to Medicaid payments. We believe it is necessary for the proper and efficient operation of the Medicaid program to establish that a tax for which a state seeks a waiver meets statutory requirements not just when the waiver is initially approved, but on an ongoing basis as well. We propose to allow states with already existing health care-related tax waivers 3 years from the effective date of the final rule, as stated in proposed § 433.72(c)(4), to seek reapproval of their waivers, in an effort to provide states with sufficient time to evaluate and, as may be necessary, modify existing tax programs to comply with applicable requirements.

We are proposing to add new § 433.72(d), to ensure ongoing compliance of tax waivers with the original conditions of the waiver approval. In this proposed paragraph, we would specify that, for a state to continue to receive tax revenue (within specified limitations) under an approved waiver without a reduction in FFP as would otherwise be required under section 1903(w)(1)(A)(ii) of the Act and § 433.70, the state must: (1) Ensure that the tax program for which CMS approved the waiver continues to meet the waiver conditions identified in § 433.72(b)(1) through (3) at all times during which the waiver is in effect; and (2) request a new waiver if the state or other unit of government imposing the tax modifies the tax program in specified ways. We propose that, if the state or other unit of government imposing the tax modifies the tax in a non-uniform manner, meaning the change in tax or tax rate does not apply in an equal dollar amount or percentage change to all taxpayers, the state would be required to request a new waiver subject to effective date requirements in § 433.72(c). If the state or other unit of government imposing the tax modifies the criteria for defining the taxpayer group or groups subject to the tax, the state would be required to request a new waiver subject to effective date requirements in § 433.72(c). As with the 3-year waiver validity period at proposed § 433.72(c)(3) and (4), the proposed new requirements at paragraph (d) would help ensure that the tax remains generally redistributive while the waiver is in effect, since these changes could affect the determination whether it meets applicable requirements. States would be permitted to make changes that would not affect the compliance of the tax with all applicable broad-based and uniformity standards (including waiver standards) without receiving a new approval of a tax waiver from CMS. However, states wishing to make changes to their tax structures that modify any of the proposed, specified elements would be required to submit a new tax waiver request and obtain approval from us before beginning to collect such a tax. States may not make changes to the tax structure that result in taxpayers being held harmless for some or all of the cost of the tax without experiencing a reduction in their amount of medical assistance expenditures for purposes of claiming FFP as specified by section 1903(w)(1)(A) of the Act.

9. When Discovery of Overpayment Occurs and its Significance (§ 433.316)

Section 1903(d)(2)(C) of the Act provides that, when an overpayment by a state is discovered, the state has a 1-year period to recover or attempt to recover the overpayment before an adjustment is made to FFP to account for the overpayment. Currently, regulations in § 433.316 provide for determining the date of discovery of an overpayment, which is necessary to determine the statutory 1-year period, in three distinct cases: When the overpayment results from a situation other than fraud, under § 433.316(c); when the overpayment results from fraud, under § 433.316(d); and when the overpayment is identified through a federal review, under § 433.316(e). It is not explicitly clear in the current regulations how the date of discovery is determined when an overpayment is discovered through the annual DSH independent certified audit required under § 455.304. Therefore, we believe an amendment is appropriate to specify the date of discovery of overpayments as it relates to the annual DSH independent certified audit. Accordingly, we are proposing to redesignate paragraphs (f), (g), and (h) as paragraphs (g), (h), and (i), respectively, and to add new proposed paragraph (f). In new paragraph (f), we are proposing that in the case of an overpayment identified through the DSH independent certified audit required under part 455, subpart D, we will consider the overpayment as discovered on the earliest of the date that the state submits the DSH independent certified audit report required under § 455.304(b) to CMS, or any of the dates specified in § 433.316: Paragraph (c)(1) (the date on which any Medicaid agency official or other state official first notifies a provider in writing of an overpayment and specifies a dollar amount that is subject to recovery); paragraph (c)(2) (the date on which a provider initially acknowledges a specific overpaid amount in writing to the Medicaid agency); and paragraph (c)(3) (the date on which any state official or fiscal agent of the state initiates a formal action to recoup a specific overpaid amount from a provider without having first notified the provider in writing).

10. State Plan Requirements (§ 447.201)

We are proposing to add new § 447.201(c) to specify that the state plan may not provide for variation in FFS payment for a Medicaid service on the basis of a beneficiary's Medicaid eligibility category, enrollment under a waiver or demonstration, or federal matching rate available for services provided to a beneficiary's eligibility category under the plan. As discussed below, this provision would implement sections 1902(a)(4) and (a)(30)(A) of the Act, and codify our current practice, by prohibiting variations in service payments on the basis of available FFP.

States seeking to increase payments only on the basis of a higher available FFP for the relevant beneficiary population creates inequity in the Medicaid program. By approving Medicaid state plan payments, we are making an administrative decision that the payment rates are consistent with section 1902(a)(30)(A) of the Act; specifically, that such payments are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area. In the absence of an access issue, it would not be consistent with efficiency and economy to pay providers more, only because the federal matching rate is increased with respect to certain categories of beneficiaries. In addition, where payment rates under the state plan do result in insufficient access for Medicaid beneficiaries, the state must increase rates to rectify the access problem for all Medicaid beneficiaries, not only those for whom the statute provides for an increased FMAP.

We have allowed states to set payment rates based on higher costs for the delivery of care (for example, difference in acuity or particular health needs); however, we have not allowed states to pay higher rates based on policies that are unrelated to actual increases in the cost of furnishing services to the relevant beneficiaries. For example, we have allowed states to pay higher rates to a provider based upon a higher provider qualifications, which may be equated with a higher cost of furnishing services, but that payment difference is for all Medicaid beneficiaries that receive services provided by that provider. Similarly, we have not allowed states to target higher payments based on eligibility status or enhanced matching rates, since those factors are not established to have any relationship to the cost of delivering care. Rates that are structured without regard to service costs and care delivery are not economic and efficient and are inconsistent with section 1902(a)(30)(A) of the Act. This proposed provision is intended to make clear that variation in payment rates solely on the basis of FFP is prohibited, as it would be inconsistent with efficiency and economy to allow states to pay providers more, only because such payments can be funded by drawing down additional federal dollars at a marginally increased cost to the state (and at net savings to the state, versus the costs the state would incur if the relevant beneficiary population qualified for standard FMAP). We believe that this proposed provision is necessary to ensure the proper and efficient operation of the Medicaid state plan, in a manner that complies with the requirements of section 1902(a)(4) and (a)(30)(A) of the Act.

This proposed approach would be consistent across both FFS and managed care. Specifically, in the 2016 Medicaid managed care final rule, we articulated in § 438.4(b)(1) that any differences among capitation rates according to covered populations must be based on valid rate development standards and not be based on the FFP associated with the covered populations (81 FR 27566).

We also considered proposing a rule that would require states to pay the same rate to a facility for all beneficiaries, unless the state could demonstrate that different case mixes or health care needs, or other reasons consistent with economy, efficiency, quality of care, and access justified paying a different rate for a different group of beneficiaries. We decided instead to propose that the plan must provide for no variation in FFS payment for a Medicaid service on the basis of a beneficiary's Medicaid eligibility category, enrollment under a waiver or demonstration project, or FMAP rate available for services provided to an individual in the beneficiary's eligibility category, because, as stated above, where payment rates under the state plan do result in insufficient access for Medicaid beneficiaries, the state must increase rates to rectify the access problem for all Medicaid beneficiaries, not only those for whom the statute provides for an increased FMAP. We seek comment on proposed § 447.201.

11. Payments Funded by Certified Public Expenditures Made to Providers That are Units of Government (§ 447.206)

We are proposing to add § 447.206 to codify longstanding policies implementing the following sections of the statute: Section 1902(a)(4) for proper and efficient operation of the state plan; section 1902(a)(30)(A) requiring that payments be economic and efficient; and section 1903(w)(6)(A) permitting states to use CPEs, which are expenditures certified by units of government within a state, as a source of non-federal share. The specific standards for states to document Medicaid expenditures that units of government may certify through a CPE for a claim for FFP has not previously been defined in regulation. While CPEs are not necessarily “payments” in the usual sense of the term, instead they are transactions which take the place of regular FFS payment. However, we refer to payments generally to mean the total computable amount the provider receives for performing Medicaid services. We are proposing in § 447.206(a) to specifiy that § 447.206 applies only to payments made to providers that are state government providers or Non-state government providers, as defined in proposed § 447.286, where such payments to such providers are funded by a CPE, as specified in § 433.51(b)(3), as proposed by this rule. Further, we are proposing in § 447.206(b)(1) that CPE-funded payments made to state government providers or non-state government providers would be limited to reimbursement not in excess of the provider's actual, incurred cost of providing covered services to Medicaid beneficiaries using reasonable cost allocation methods as specified in 45 CFR part 75 and 2 CFR part 200, or, as applicable, to Medicare cost principles specified in 42 CFR part 413.

In the case of CPEs, states allow providers that are state or local government entities to expend funds in order to provide services to Medicaid beneficiaries. These providers document that the monies were spent furnishing covered services to Medicaid beneficiaries and certify their expenditures to the state. Without any funds actually changing hands between the state or local government entity that is the provider, and the Medicaid agency (such as via an IGT), and without the state appropriating associated funds directly to the Medicaid agency, the state uses the amount of the CPE as non-federal share to claim FFP.

To document the expenditure, we are proposing to add new § 447.206(b), which would define general rules for these CPE cost protocols. We are proposing to codify our practice of relying upon the cost allocation principles in federal regulations in 45 CFR part 75, 2 CFR part 200, and, as applicable, Medicare cost principles specified in part 413, as the methods and principles to identify Medicaid program expenditures eligible to support a CPE. First, we propose that Medicaid payments funded by a CPE would be limited to reimbursement not in excess of the provider's actual, incurred cost of providing covered services to Medicaid beneficiaries using reasonable methods of identifying and allocating costs to Medicaid, as stated above. We recommend that states use the Medicare cost reports as the basis for determining Medicaid cost where available for an applicable service (for example, Medicare 2552-10 Hospital Cost Report or the Medicare 2540-10 Skilled Nursing Facility Cost Report). However, since a number of states already have developed and currently use a state-developed cost report that is based on the Medicare cost report, meaning that the state cost report uses data taken from the calculations in the Medicare cost report, we are not requiring that states only use the Medicare cost report as we do not desire to increase state burden in this area.

Section 447.206(b)(2), as proposed, would provide that the state must establish and implement documentation and audit protocols, which must include an annual cost report to be submitted by the state government provider or non-state government provider to the state agency that documents the provider's costs incurred in furnishing services to Medicaid beneficiaries during the provider's fiscal year. Section 447.206(b)(3) would provide that only the certified amount of the expenditure may be claimed for FFP. The claimed amount is limited because the CPE must only represent amounts that were spent providing the Medicaid services, as authorized by sections 1903(a)(1) and (w)(6)(A) of the Act, which authorize federal matching funds for state Medicaid expenditures and allows funds certified by units of government within a state as the non-federal share of expenditures, respectively.

Proposed § 447.206(b)(4) would require the certifying entity of the CPE to receive and retain the full FFP associated with the Medicaid payment, consistent with the cost identification protocols in the Medicaid state plan and in accordance with proposed § 447.207. We are proposing to require that certifying entities receive and retain the FFP a state claims from CMS to prevent inappropriate recycling of federal funds and any other potential redirection of federal funds that would be prohibited under the statute. In recent years, we have found that states have been drawing down FFP to match CPEs, retaining the federal share and using these federal funds as the non-federal share for other Medicaid payments. This practice is not consistent with the existing § 433.51(c), which generally prohibits the use of federal funds to match other federal funds. When a state makes a claim for FFP on a medical assistance expenditure, that claim for the FFP is singularly for that medical assistance expenditure and a recognition of the state and federal partnership of the Medicaid program. To claim and receive FFP for an expenditure, and to reuse that FFP to claim additional federal matching funds or to otherwise redirect the FFP to pay costs unrelated to the expenditure for which the FFP was claimed results, in effect, in the federal government alone funding the full Medicaid payment to the provider that originally certified the CPE, or, viewed another way, covering costs ineligible for FFP. Such a result is not consistent with sections 1902(a)(2), 1902(a)(4), and 1903 of the Act.

Proposed § 447.206(c) would specify other criteria for states when a CPE is used to fund a Medicaid payment. Under paragraph (c)(1), the state would be required to implement processes by which all claims for medical assistance would be processed through the MMIS in a manner that identifies the specific Medicaid services provided to specific enrollees. Paragraph (c)(2) would provide that the state is required to utilize most recently filed cost reports as specified in proposed paragraph (b)(2) to develop interim payments rates, which may be trended by an applicable health care-related index. Interim rates are rates that reflect the provider's expected cost of providing services throughout the year. Requiring states to establish interim rates ensures that providers would receive payments throughout the year, calculated to closely reflect the provider's expenditures in furnishing services to Medicaid beneficiaries. This would provide cash flow to support the provider's ongoing operations, and, with the interim rates based on the provider's most recent filed cost reports (trended forward by an applicable health care-related index, at state option), would potentially minimize reconciliation payments to providers (in the case of underpayment) or collections from providers (in the case of overpayments) at the end the year during the reconciliation process. The term “health care-related index” means a trend factor which would project increases or decreases in expected costs, so as to minimize potential over- or under-payments to the provider certifying the CPE. One such index is the CMS Market Basket, which we publish for purposes related to the Medicare program. However, states could also propose to use an alternative health-care related index, provided the state demonstrates that the alternative is likely to reliably project increases or decreases in providers' costs of furnishing covered services to Medicaid beneficiaries in the upcoming year. In reviewing a state-proposed health-care related index, we would require the state to identify the index in the state plan and provide a justification for the use of this index rather than other national indices, such as the CMS Market Basket.

We propose that reconciliations would be performed by reconciling payments made during the year based on the interim Medicaid payment rates, to the provider's filed cost report for the state plan rate year in which interim payments were made. Section 455.301 defines the state plan rate year as the 12-month period defined by a state's approved Medicaid state plan in which the state estimates eligible uncompensated care costs and determines corresponding DSH payments, as well as all other Medicaid payment rates. The period usually corresponds with the state's fiscal year or the federal fiscal year but can correspond to any 12-month period defined by the state as the Medicaid state plan rate year (73 FR 77951). Proposed paragraph (c)(3) would require that final settlement be performed annually by reconciling any interim payments to the finalized cost report for the state plan rate year in which any interim payment rates were made. Final settlement would be required to be made no more than 24 months from the relevant cost report year end, except under circumstances identified in 45 CFR 95.19. The 24-month period was chosen to comply with the generally applicable 2-year time limit for claiming payment for expenditures in 45 CFR 95.7.

During the reconciliation and final settlement process, we expect that the state would receive the provider's cost report and review the reported expenditures via a desk review process. As part of the desk review, the state would gather, organize, and analyze the provider's cost report, including by comparing current period expenditures to prior period expenditures to identify audit risks. During the desk review, we expect that the state may request explanations of or adjustments to the reported cost based upon generally accepted accounting principles (GAAP). Upon finalization of the desk review, the state would notify the provider of the final determination of total cost. Once the state has made a final determination of the provider's final cost, if the provider's actual total cost is not equal to the sum of its interim rate payments for the period, one of two actions may occur. If the provider has been underpaid, meaning the total interim rate payments were less than the total calculated cost amount, the state may draw down and pay to the provider FFP associated with the total computable expenditure certified by the provider as a prior period adjustment to the CMS 64, equal to the difference between the total interim payments and total cost. In the event the provider was overpaid, meaning the interim rate payments exceeded the provider's total cost, the state would calculate the overpayment, which would be equal to the difference between the total interim payments and the provider's total cost, and return the federal share of that amount to CMS as a prior period adjustment under part 433 subpart F. In the event of an overpayment, the state is obligated to return the FFP whether or not the state seeks a return of payment from the provider as articulated in § 433.316. All of these steps would establish an auditable basis for the state's claims for FFP associated with the CPEs, as contemplated under section 1902(a)(42)(A) of the Act, which requires that the state plan must provide that the records of any entity participating in the plan and providing services reimbursable on a cost-related basis will be audited as the Secretary determines to be necessary to insure that proper payments are made under the plan.

Proposed § 447.206(d) would specify requirements for the state plan when the state proposes to use a CPE to fund a Medicaid payment. We propose that, if CPEs are used as a source of non-federal share under the state plan, the state plan would be required to specify cost protocols in the service payment methodology applicable to the certifying provider, such protocols would be required to meet all of the following criteria: (1) Identify allowable cost using either a Medicare cost report, or a state-developed Medicaid cost report prepared in accordance with the cost principles in 45 CFR part 75 and 2 CFR part 200; (2) define an interim rate methodology that would be used to pay a provider on an interim basis; (3) describe an attestation process by which the certifying entity would attest that the costs are accurate and consistent with 45 CFR part 75 and 2 CFR part 200; (4) include, as necessary, a list of the covered Medicaid services being furnished by each provider certifying a CPE; and (5) define a reconciliation and settlement process consistent with proposed § 447.206(c)(3) and (4). Regarding the inclusion in paragraph (d)(4) of a list of the covered Medicaid services being furnished by each provider, CMS is referring to instances where the services included in a cost report either extend across multiple Medicaid benefit categories or do not encompass all services within a benefit category. In such circumstances, we believe that this information is necessary to determine the services for which FFP is available. For example, in a setting where some but not all services within a Medicaid benefit category are furnished, such as a residential rehabilitation hospital that does not furnish all inpatient hospital services, the state would be required to document the services for which the state will be claiming FFP with respect to the provider. In most settings where the provider certifies a CPE, this step is not necessary, since the services furnished by the provider certifying the CPE will be coextensive with a Medicaid benefit category (for example, the “inpatient hospital services” Medicaid benefit category typically is coextensive with the services furnished by an inpatient hospital that might certify a CPE).

We are soliciting comment on our overall proposal, including the proposed cost reporting and process requirements, state plan requirements, and whether to require the use of the Medicare cost report where one exists for an applicable service for which the provider certifies a CPE. We believe requiring the use of a Medicare cost report where one exists for CPE protocols would allow for a consistent application of allowable cost principles, however, Medicare cost reports only exist for a relatively small number of services that states may cover in their Medicaid programs and requiring the use of Medicare cost reports would remove some state flexibility in determining the appropriate cost reporting mechanism for providers certifying CPEs in the state's Medicaid program.

12. Retention of Payments (§ 447.207)

In § 447.207, we propose to require that payment methodologies must permit the provider to receive and retain the full amount of the total computable payment for services furnished under the approved state plan (or the approved provisions of a waiver or demonstration, if applicable). This provision is intended to implement sections 1902(a)(4) and (a)(32) of the Act. These provisions respectively require that the state plan for medical assistance provide such methods of administration as are found by the Secretary to be necessary for the proper and efficient operation of the plan, and generally provide that no payment under the plan for any care or service provided to an individual shall be made to anyone other than such individual or the person or institution providing such care or service, under an assignment or power of attorney or otherwise, unless certain enumerated exceptions apply as described in more detail below. Payment arrangements that comply with an exception in section 1902(a)(32) of the Act and the implementing regulation in § 447.10 would not be deemed out of compliance with this proposed provision.

The Secretary would determine compliance with this provision by examining any associated transactions that are related to the provider's total computable Medicaid payment to ensure that the state's claimed expenditure, which serves as the basis for FFP, is consistent with the state's net expenditure, and that the full amount of the non-federal share of the payment has been satisfied. The term “state's net expenditure” in this section means a state's Medicaid expenditure, less any returned funds or contributions from the provider to the state, related to the Medicaid payment. This view of a return of any portion of a Medicaid payment is consistent with the treatment of provider-related donations in § 433.54, particularly paragraph (e) of that section which states CMS will deduct the amount of an impermissible provider-related donation from a state's medical assistance expenditures before calculating FFP (73 FR 9698). Consideration for the state's net expenditure would include a review of potential “hold harmless” arrangements as described in § 433.54(c), which provides that an impermissible hold harmless practice exists if the Medicaid payment is positively correlated to a donation, varies based only on the amount of a donation (including if payment is conditioned upon the receipt of a donation), or directly or indirectly guarantees to return any portion of a donation to the donating provider (or other party responsible for the donation), which implements section 1903(w)(2)(B) of the Act. We have noted circumstances in some states where participation in a Medicaid supplemental payment under the state plan is conditioned upon the state receiving a portion of that payment back, whether as a direct payment from the provider or netted from payments to the provider where the state retains a portion of the provider's payment before sending the remaining payment to the provider.

We anticipate that “associated transactions” may include, but would not necessarily be limited to, the payment of an administrative fee to the state as a fee for processing provider payments or IGTs. For example, in some states, we have found that the Medicaid agency has charged a percentage administrative fee for each Medicaid claim that was processed. Essentially, the state was charging providers for submitting claims to the Medicaid program, and since the administrative charge was based on claims volume and amount of Medicaid payment, this practice amounted to a tax on Medicaid claims for services. States are already able to, and often do, claim administrative match for Medicaid claims processing costs; states should be using the appropriate mechanisms for claiming where authority exists and not unnecessarily shifting costs to the Medicaid providers. We propose that in no event could administrative fees be calculated based on the amount a provider receives through Medicaid payments or amounts a unit of government contributes through an IGT as funds for the state share of Medicaid payments. Structuring an administrative fee in this way would be tantamount to a Medicaid-only provider tax, which is not allowable under § 433.55, and would be expressly prohibited under the proposed § 447.207(a). Conversely, if a state charged a flat fee for claims processing that did not vary based on the volume of claims or amount of Medicaid payments processed, the payment of such a fee would not be considered an associated transaction. Likewise, the use of Medicaid revenues to fund payments that are normal operating expenses of conducting business, such as payments related to taxes (including permissible health-care-related taxes), fees, or business relationships with governments unrelated to Medicaid in which there is no connection to Medicaid payment would not be considered an associated transaction.

We are soliciting comment on all of § 447.207, including comments on the types of transactions that we propose would and would not be considered “associated transactions” for the purpose of this section.

13. State Plan Requirements (§ 447.252)

We are proposing to add paragraphs (d) and (e) to § 447.252 regarding state plan requirements for payments for inpatient hospital and long-term care facility services, to implement new approval requirements for state plans and any SPAs proposing to make supplemental payments to providers of these services and to define a transition period for currently authorized supplemental payments to begin to meet the proposed new requirements. In § 447.302, we propose similar requirements for supplemental payments proposed for outpatient hospital services, as described in more detail below. We are proposing to limit approval for any Medicaid supplemental payments to a period of not more than 3 years, and to require states to monitor a supplemental payment program during the term of its approval to ensure that the supplemental payment remains consistent with section 1902(a)(30)(A) of the Act. As discussed in this section and other sections of this preamble, the proposed revisions to §§ 447.252, 447.288(b), and 447.302 include considerable data reporting requirements which would implement section 1902(a)(6) of the Act which provide that the state agency will make such reports, in such form and containing such information, as the Secretary may from time to time require, and comply with such provisions as the Secretary may from time to time find necessary to assure the correctness and verification of such reports. We believe the robust payment data we propose to require is necessary to ensure the proper and efficient administration of the plan; to ensure that payments are consistent with efficiency, economy, and quality of care; and otherwise to assist us in appropriately overseeing the Medicaid program.

Specifically, we propose in § 447.252(d) that CMS may approve a supplemental payment, as defined in § 447.286, provided for under the state plan or a SPA for a period not to exceed 3 years. A state whose supplemental payment approval period has expired or is expiring may request a SPA to renew the supplemental payment for a subsequent period not to exceed 3 years, consistent with the requirements of § 447.252. A time-limited supplemental payment allows CMS and the state an opportunity to revisit state plan supplemental payments to ensure that they remain consistent with efficiency, economy, and quality of care, as required under section 1902(a)(30)(A) of the Act. Over the years, CMS and various oversight bodies conducting financial management reviews and audits have identified areas where unchecked supplemental payments have resulted in payments that appeared to be excessive, and CMS had little recourse to take action. Such audits and financial reviews conducted by CMS or other oversight agencies could take years and require a large number of state and federal resources to complete, and ultimately resolve. As noted earlier in this preamble, in 2015, the GAO issued a report entitled, “Medicaid: CMS Oversight of Provider Payments Is Hampered by Limited Data and Unclear Policy,” in which it concluded that, “[w]ithout good data on payments to individual providers, a policy and criteria for assessing whether the payments are economical and efficient, and a process for reviewing such payments, the federal government could be paying states hundreds of millions, or billions, more than what is appropriate.” ^[9] As a result, the GAO has recommended that, to better ensure the fiscal integrity of the program, we should establish financial reporting at a provider-specific level and clarify permissible methods for calculating Medicaid supplemental payment amounts. Based on this and other oversight entity recommendations, and CMS' experience administering the Medicaid program at the federal level, we believe that the time-limited approval of supplemental payments is necessary for the proper and efficient administration of state Medicaid plans to ensure the continuing consistency of supplemental payments with applicable statutory requirements and generally to ensure appropriate oversight.

We are not proposing to limit the number of times a state may request, and receive approval for renewal of, a supplemental payment program, provided that each request meets all applicable requirements. We propose that a state plan or SPA that would provide for a supplemental payment would be required to include: (1) An explanation of how the state plan or SPA will result in payments that are consistent with section 1902(a)(30)(A) of the Act, including that provision's standards with respect to efficiency, economy, quality of care, and access, along with the stated purpose and intended effects of the supplemental payment, for example, with respect to the Medicaid program, providers, and beneficiaries; (2) the criteria to determine which providers are eligible to receive the supplemental payment; (3) a comprehensive description of the methodology used to calculate the amount of, and distribute, the supplemental payment to each eligible provider, including specified content; (4) the duration of the supplemental payment authority (not to exceed 3 years); (5) a monitoring plan to ensure that the supplemental payment remains consistent with the requirements of section 1902(a)(30)(A) of the Act and to enable evaluation of the effects of the supplemental payment on the Medicaid program, for example, with respect to providers and beneficiaries; and (6) for a SPA proposing to renew a supplemental payment for a subsequent approval period, an evaluation of the impacts on the Medicaid program during the current or most recent prior approval period, for example, with respect to providers and beneficiaries, and including an analysis of the impact of the supplemental payment on compliance with section 1902(a)(30)(A) of the Act. For the state's comprehensive description of the methodology used to calculate the amount of, and distribute, the supplemental payment to each eligible provider as required under item (3), we would require the state to provide all of the following: (i) The amount of the supplemental payment made to each eligible provider, if known, or, if the total amount is distributed using a formula based on data from one or more fiscal years, the total amount of the supplemental payments for the fiscal year or years available to all providers eligible to receive a supplemental payment; (ii) if applicable, the specific criteria with respect to Medicaid service, utilization, or cost data from the proposed state plan rate year to be used as the basis for calculations regarding the amount and/or distribution of the supplemental payment; (iii) the timing of the supplemental payment to each eligible provider; (iv) an assurance that the total Medicaid payment to an inpatient hospital provider, including the supplemental payment, will not exceed the upper limits specified in § 447.271; and (v) if not already submitted, an UPL demonstration as required by § 447.272 and described in proposed § 447.288.

We already request the information specified in items (1) through (3), above, from states when a state makes a state plan submission that includes a supplemental payment. Currently, we request this information either informally, by seeking assurances from the state in connection with the request for a SPA, or more formally, by requesting changes to the language of the proposed SPA itself. These requirements also are consistent with § 430.10, which requires a state plan to be a comprehensive written statement which serves as the basis for FFP; as such, we are proposing to specify in regulation the essential elements of a comprehensive written methodology for a Medicaid supplemental payment. Consistent with longstanding policy, for a state plan to be comprehensive, it must include the detailed methodologies by which the state makes payments, such that we and the state have the information necessary to determine which providers qualify for a payment, the amount of each provider's payment, and the manner in which payments are distributed to the qualifying providers.

While items (1) through (3), above, would codify our current practice in the regulation, items (4) through (6) would be new requirements. Item (4) would require the state to identify an expiration date, or sunset date, for the supplemental payment, not to exceed a duration of 3 years. A 3-year approval period would also be consistent with our general approach with respect to demonstration projects under section 1115 of the Act, which often are approved for 3-year periods to allow for adequate time for the implementation and testing, supported by ongoing monitoring, and which culminate in an evaluation of the effects of the demonstration. Each time a state submits a SPA to renew a supplemental payment, the state would be able to request a new approval period of up to 3 years. The state could submit a SPA for CMS consideration to renew a supplemental payment at any point during the 3-year approval period, according to the state's chosen timeframe, which the state should determine to allow sufficient time for our review and approval. We considered using a tiered approval time period, such as an initial approval period of up to 5 years followed by renewal periods of up to 3 years, but decided not to propose this policy due to the increased burden that it could cause.

We have found that supplemental payments that are established under the state plan and not reviewed for a long period of time may result in issues of compliance with applicable statutory and regulatory requirements that do not promptly come to our, or the state's, attention. For example, as discussed elsewhere in this preamble, particularly with respect to proposed § 447.288, the issue of fluidity of provider ownership can result in issues involving UPL supplemental payments, and where payments are made improperly, can require extensive federal and state resources to resolve. In the example discussed in connection with proposed § 447.288, the qualifying criteria for providers made all “non-state government owned or operated” facilities eligible for supplemental payments up to the UPL for those providers. A few years after this supplemental payment structure was approved, the state was approached by providers who wanted to change their ownership or operational categorization to meet the “non-state government” criteria, apparently so that they could qualify for the UPL supplemental payments under the state plan. The state allowed the providers to make the change without prior CMS review or approval, and subsequently began making UPL supplemental payments to the newly recategorized providers. Upon review of the supplemental payment program in question, CMS found that none of the asserted changes in ownership or operations supported the providers' recategorization, and that the providers therefore were ineligible for the UPL supplemental payments the state had been making. In this example, the state was also using funds impermissibly transferred from private entities, which the state characterized as IGTs as a result of the asserted recategorization of the provider as non-state government-owned or operated. To resolve the identified issue, CMS had to undergo a thorough financial management review, which involved numerous CMS staff reviewing financial statements, provider payments, provider records, and interviewing numerous state and provider staff members to determine the provider's eligibility for the payment under the approved state plan. CMS formally issued the financial management review in November 2015 for claims for services provided in state FYs 2010 and 2011, and ultimately issued a disallowance in September 2018. If CMS had the ability routinely to re-review state supplemental payment programs, we would not have approved the expansion of this payment to non-qualifying providers under the plan because the private providers were also funding the non-federal share of a Medicaid payment, which is unallowable under the statute. Because of situations like this and related concerns, we believe it is necessary for the proper and efficient administration of state Medicaid plans to require that supplemental payment programs be submitted for CMS review and approval at least every 3 years, to ensure they are and remain consistent with the efficiency, economy, and quality requirements under section 1902(a)(30)(A) of the Act and the parameters concerning permissible sources of non-federal share under section 1903(w) of the Act.

In our experience, a number of states that seem to effectively use supplemental payments re-submit their supplemental payment programs to CMS on an annual basis, as the pools funded by the supplemental payments are annually re-authorized by the state legislature. Such supplemental payment programs would not be impacted by the proposed 3-year limit. States submitting annual updates to supplemental payment programs, like other states with supplemental payment programs, would however newly be required to comply with the other proposed requirements, including items (5) and (6), discussed above. Proposed § 447.252(d)(5) and (6) concern monitoring and evaluation requirements to assess the effects of the state's supplemental payment program. Specifically, paragraph (d)(5) would require the state to submit a monitoring plan to ensure the supplemental payment remains consistent with the requirements of section 1902(a)(30)(A) of the Act and to enable evaluation of the supplemental payment's effects on the Medicaid program, for example, with respect to providers and beneficiaries. For a SPA proposing to renew a supplemental payment for a subsequent approval period, paragraph (d)(6) would require the state to submit such an evaluation and to include an analysis of the impact of the supplemental payment on the state's compliance with section 1902(a)(30)(A) of the Act. For example, a state could seek a 3-year approval period for a supplemental payment to increase payments to rural hospitals, with the goal of increasing beneficiary access to services provided by rural hospitals. Over the next 3 years, the state would monitor the effects of the program, to determine whether the supplemental payment is meeting its goals and remains consistent with applicable requirements. At the end of the 3-year period, if the state wished to renew the supplemental payment, it would submit its evaluation and analysis with its renewal request to us, which would inform our determination of whether payments under a renewed supplemental payment program would be consistent with applicable requirements, including those in section 1902(a)(30)(A) of the Act. We anticipate that there may be cases in which the state's evaluation of a supplemental payment program's effectiveness in meeting its stated goals requires more time to evaluate; in such cases, provided we are able to determine that the supplemental payment meets all applicable statutory and regulatory requirements, we would anticipate approving the renewal. Notably, even for a state requesting to renew a supplemental payment program with no changes, we would require the state to submit the evaluation and analysis required under proposed § 447.252(d)(6) as part of our review of the supplemental payment for consistency with applicable statutory and regulatory requirements.

Finally, in considering the 3-year approval period for supplemental payments, we developed a transition plan to provide states with an adequate opportunity to come into compliance with the proposed requirements. To accomplish the policy objectives described above, we believe we must begin to apply the proposed policies to current state plan provisions that authorize supplemental payments that are approved as of the effective date of the final rule. It is no less necessary to ensure the proper and efficient administration of the state plan and ensure that applicable requirements continue to be met, to rigorously evaluate currently existing supplemental payment programs, as it is to do so for new supplemental payment programs that may be approved prospectively. Accordingly, in proposed § 447.252(e), for state plan provisions approved 3 or more years prior to the effective date of the final rule, we propose that the state plan authority would expire 2 calendar years following the effective date of the final rule. For state plan provisions approved less than 3 years prior to the effective date of the final rule, we propose that the state plan authority would expire 3 years following the effective date of the final rule. We believe this is a generous timeline for transitioning to the proposed 3-year time limit for supplemental payments under the state plan. This timeline provides states with currently approved supplemental payment programs with at least 2 years, and as many as 3 years, before a state wishing to continue the supplemental payment program would need to seek renewal or a new approval.

We are soliciting comment on this entire section, including the proposed state plan elements for supplemental payments and the proposed provisions that would place a limited approval timeframe on state's proposed supplemental payments. For the timeframes, we are seeking input on both the length of 3-year approval period and the length of the proposed transition period for currently approved supplemental payments. We considered proposing a 5-year compliance transition period instead of the proposed 3-year compliance transition period in § 447.252(e). This would have extended the amount of time states would have to bring existing, approved supplemental payment methodologies into compliance with the provisions of the proposed rule in §§ 447.252 and 447.302, but determined that the shortened timeframe would be easier to administer as many states already submit annual supplemental payment proposals. We decided to propose a 3-year transition period to account for states where changes may require legislative action as some legislatures meet on a biennial basis and such a timeframe would provide an opportunity for all legilslatures to address existing supplemental payment programs. We are requesting comment on whether or not to pursue this or a lengthier transition and approval/renewal timeline for supplemental payments.

14. Inpatient Services: Application of UPLs (§ 447.272)

To promote improved oversight of Medicaid program FFS expenditures for services subject to the UPL, we are proposing changes to § 447.272. Many of the proposed changes to § 447.272 would formally codify our current policy in regulation text, while others are newly proposed standards. We have long relied upon the UPL requirements in § 447.272, and the related review of total inpatient hospital Medicaid payments in relation to a provider's cost or a reasonable estimate of what Medicare payment amounts would have been, as implementing section 1902(a)(30)(A) of the Act, which requires that states assure that payments are consistent with efficiency, economy, and quality of care. As stated earlier in the preamble, the aggregate application of these UPLs has preserved state flexibility for setting provider-specific payments while creating an overall payment ceiling as a mechanism for determining economy and efficiency of payment for services, consistent with section 1902(a)(30)(A) of the Act.

We are proposing to amend paragraph (a) to revise the current ownership groups (state government-owned or operated, non-state government owned or operated, and privately-owned and operated facilities) used to establish the UPL. We propose to replace these provider designations with “state government providers,” “non-state government providers,” and “private providers.” We propose to codify the substantive definitions of these provider designations in proposed § 447.286. As discussed below, we would define “state government provider” to refer to a health care provider as defined in § 433.52, including those defined in § 447.251, that is a unit of state government or state university teaching hospital. In determining whether a provider is a unit of state government, we would consider the totality of the circumstances, including but not limited to specific considerations identified in proposed § 447.286. Similarly, we would define “non-state government provider” to refer to a health care provider as defined in § 433.52, including those defined in § 447.251, that is a unit of local government in a state, including a city, county, special purpose district, or other governmental unit in the state that is not the state, which has access to and exercises administrative control over state funds appropriated to it by the legislature and/or local tax revenue, including the ability to expend such appropriated or tax revenue funds. In determining whether a provider is non-state government provider, we would consider the totality of the circumstances, including but not limited to specific considerations identified in proposed § 447.286. We would define a “private provider” to mean a health care provider as defined in § 433.52, including those defined in § 447.251, that is not a state government provider or a non-state government provider.

The proposed changes in provider designations would reinforce the relationship between a provider's designation and its ability (or inability) to provide the source of non-federal share for Medicaid payments. Under the current system of categorization by ownership or operational interests, there can be ambiguity with respect to the appropriate category for a provider when certain responsibilities of ownership or operation are divided between more than one entity. For example, there is currently the possibility that a private nursing facility could transfer the deed to its real property to the county government, but the private entity would continue to administer all functions of the provider as though it were the actual owner, leaving the county government as the owner only in name but not any function. For the provider to make an IGT, the private entity would give funds to the county government, such as through a lease payment for the real property, to be used as the source of the non-federal share of Medicaid payments that the state could then make back to the provider in the form of supplemental payments. This effective self-funding of the non-federal share of the supplemental payments by the provider would not have been possible if the provider were categorized as privately owned and operated, since it would have been unable to make the IGT to support the supplemental payments back to it. In this situation, we view this transferred amount (for example, the lease payment) as an impermissible source of the non-federal share, since the funds used to support the IGT are not obtained from state or local tax revenue and, as discussed elsewhere in this preamble, would constitute a non-bona fide provider-related donation.

Through the state plan review process and our review of UPL demonstrations, we have observed that some states have re-categorized a number of providers from privately-owned or operated facilities to a governmentally owned or operated designation, either state government-owned or operated facilities or non-state government-owned or operated facilities. In some instances, the change in ownership category appears to be only a device to permit the state to make supplemental payments to a provider and demonstrate compliance with the UPL, rather than reflective of an actual change in the provider's true ownership or operational interests, in view of the apparent continuity of the provider's business structure and activities. We believe this shift in designation has facilitated higher supplemental payments to certain providers, without the state incurring additional cost to fund the non-federal share of payment where the private operator passes funds to the new governmental owner and those funds are either used: (1) To make an IGT or (2) supplant funds that are otherwise used to make an IGT to the state in order to make a supplemental payment targeted toward the private entity. We are concerned that this type of arrangement is not consistent with the basic construct of the Medicaid program as a cooperative federal-state partnership where each party shares in the cost of providing medical assistance to beneficiaries.

We propose to amend § 447.272(b) by clarifying that the UPL refers to a reasonable estimate of the amount that would be paid for the services furnished by the group of facilities under Medicare payment principles in 42 CFR, chapter IV, subchapter B; or allowed costs established in accordance with Medicaid cost principles as specified in 45 CFR part 75 and 2 CFR part 200, or, as applicable, Medicare cost principles specified in part 413. The specific data sources, methodology parameters, and acceptable UPL demonstration methodologies are specified in proposed § 447.288(b).

The existing regulations simply state that the UPL refers to a reasonable estimate of the amount that would be paid for the services furnished by the group of facilities under Medicare payment principles in subchapter B of this chapter, pursuant to which we have defined UPLs as a payment limit set at the aggregate amount that Medicare would have paid for the same Medicaid services, using either a Medicare payment methodology or Medicare cost principles. These two methods are employed because these are the two methods that Medicare has historically used to pay for services as authorized in chapter 42, subchapter B. In establishing these UPL methodologies, we have required that states set the UPL using the Medicare equivalent payment or cost amount, then compare the aggregate Medicaid payments for the defined period to the UPL. For purposes of this proposed rule and to be consistent with prior regulatory action, the term “Medicare equivalent” means the Medicare equivalent to the Medicaid payment, data, or services. For example, the Medicare equivalent payment means the amount that would be paid for Medicaid services furnished by the group of providers if those services were provided to Medicare beneficiaries and paid under Medicare payment principles. We are proposing to codify our existing policy related to the use of the two methods of demonstrating the Medicaid UPL, by using the Medicare equivalent payment amount or cost amount, and the process for establishing and demonstrating compliance with the UPL in § 477.288(b) of this proposed rule.

We considered proposing to define specific methods by which states would be required to demonstrate compliance with the UPL in each of §§ 447.272 and 447.321, but determined that the proposed § 447.288 would allow us to define necessary data elements, parameters, and methodologies for demonstrating compliance with UPLs in one location, for purposes of both the inpatient and outpatient UPLs under §§ 447.272 and 447.321, respectively. To summarize briefly, proposed § 447.288 describes the data sources, data parameters, and methodologies that must be considered and used in demonstrating compliance with the UPL. It describes the appropriate Medicare data and the creation of ratios using either cost or payment data calculations, the Medicaid charge data to be multiplied by a ratio either of Medicare costs-to-charges or of Medicare payments-to-charges to calculate the UPL amount, any associated considerations (such as inflation adjustments, utilization adjustments, or other cost adjustments), and the Medicaid payment data. For a detailed discussion of these proposed UPL requirements, please refer to the discussion below related to § 447.288.

We invite comment on all proposed new provisions and proposed amendments in this section.

15. Basis and Purpose (§ 447.284)

We are proposing to add subpart D to part 447 to implement sections 1902(a)(6) and (a)(30)(A) of the Act, which require, respectively, that a state plan for medical assistance must provide that the state agency will make such reports, in such form and containing such information, as the Secretary may from time to time require, and comply with such provisions as the Secretary may from time to time find necessary to assure the correctness and verification of such reports, and to assure that payments are consistent with efficiency, economy, and quality of care. As discussed in detail above and in subsequent sections below, this information would improve the transparency of Medicaid payments and provide us with more information to understand the basis of Medicaid supplemental payments at the individual provider level in a manner consistent with the recommendations of the oversight bodies as mentioned elsewhere in this preamble. Moreover, this information would be used in concert with annual UPL demonstrations and state expenditure data to improve our oversight of state expenditures and FFP. Accordingly, we are proposing to require states to submit quarterly and annual reports which detail the total provider payments, including base and supplemental payments, authorized under the state plan and demonstration authority. We are also proposing that the states submit an additional annual report disclosing the amount of provider contributions provided to the state to support the non-federal share of the Medicaid payments along with the total payments received by the contributing providers. The provider contributions include all provider taxes, IGTs, CPEs, and any provider-related donations as described in part 433, subpart B. This new subpart would provide definitions for terms critical to the requirements for supplemental payment programs, including with respect to UPL demonstrations (§ 447.286), establish new data submission requirements for supplemental payments under the state plan (§ 447.288), and specify the consequences that would apply when a state fails to report required information (§ 447.290). We believe these proposed provisions are necessary to ensure the proper and efficient administration of state Medicaid plans with respect to supplemental payment programs, and generally to better enable us to perform our oversight function with respect to the Medicaid program.

We have a long history of establishing data reporting requirements for states. For financial data reports such as the UPL data demonstrations, we have long relied upon the current language in §§ 447.272 and 447.321, which we have discussed in subregulatory guidance in the form of SMDLs, particularly SMDL 13-003, to provide additional information regarding required data and the timeline and manner in which such data is to be reported. We have also defined reporting requirements regarding the Medicaid DSH program through regulations in § 447.299. Since codifying the DSH reporting requirements in regulation, we have found that data reporting by states has become far more consistent, and as a result, we have been able to quickly identify areas where DSH payments have been made inappropriately or when the state has made a payment outside of the state plan methodology, and thus we have been able to more efficiently focus our resources to those problematic areas. We have also been able to work with states to update state plan language so that the distribution methodology for their DSH payments is comprehensively described in the state plan, in accordance with federal requirements. Based in part on this experience with the usefulness of comprehensive data reporting about state payments to providers, we are proposing uniform reporting requirements for additional state Medicaid payments, including supplemental payments made under the UPL. Our expectation is that such reporting would allow CMS to focus our resources to areas where there appear to be issues, either in the payment methodology or the underlying financing, and provide states with technical assistance to the extent that the issues identified may be resolved through strengthening the state plan language so that it accurately and comprehensively describes the state's payment rates and methodologies.

In proposed § 447.284(a), we would specify that proposed new subpart D would set forth additional requirements for supplemental payments made under the state plan, and implement section 1902(a)(6) and (a)(30) of the Act. Section 447.284(b) would provide that the reporting requirements in subpart D are applicable to supplemental payments to which a UPL applies under §§ 447.272 or 447.321.

We are soliciting comments on the statement of basis and purpose as proposed in § 447.284.

16. Definitions (§ 447.286)

We are proposing to add § 447.286 to define the following terms, as they are used in proposed part 447, subpart D: Base payment, Non-state government provider, Private provider, state government provider, and Supplemental payment. Clear definitions of these terms are needed so that states and other stakeholders can have a clear understanding of what is required with respect to the proposed reporting requirements for supplemental payments and UPL demonstrations, and to allow us to clearly track supplemental payments and ensure a consistent reporting and UPL demonstration process.

Specifically, we propose to define the term “base payment” to mean a payment, other than a supplemental payment, made to a provider in accordance with the payment methodology authorized in the state plan or is paid to the provider through its participation with a Medicaid MCO entity under the authority in part 438. Base payments are documented at the beneficiary level in MSIS or T-MSIS and include all payments made to a provider for specific Medicaid services rendered to individual Medicaid beneficiaries, including any payment adjustments, add-ons, or other additional payments received by the provider that can be attributed to a particular service provided to the beneficiary, such as payment adjustments made to account for a higher level of care or complexity of services provided to the beneficiary. We believe that, in defining a base payment to a provider, it is appropriate to start with the most fundamental component of the payment that reimburses the provider for furnishing a specific service to a particular beneficiary. In some cases, the base payment may be the only payment the provider receives. We considered not including payment adjustments, which are payments made to providers based on certain provider-specific criteria, add-on payments, and other per service payments apart from the most basic payment, but we determined that it would be more appropriate to include all payments made to a provider for specific Medicaid services rendered to individual Medicaid beneficiaries in the proposed definition. When states pay providers based on patient acuity, complexity of services, characteristics of the provider, or add-on payments, including but not limited to add-on payments for quality of services, such payments can be directly tied to the provision of a service to an individual Medicaid beneficiary and are available to all providers within the Medicaid benefit category. The base payment, including add-on amounts, includes all payment amounts intended to fully reimburse the provider for furnishing a specific service to a particular beneficiary, whereas supplemental payments are made as a lump sum intended to reimburse for Medicaid services generally, rather than particular services furnished to an individual beneficiary. We are soliciting comment on this proposed definition and on the alternative we considered of not including payment adjustments such as incentive payments and other add-on payments that are paid on a per claim basis.

We propose to define non-state government provider to mean a health care provider, as defined in § 433.52, including those defined in § 447.251, that is a unit of local government in a state, including a city, county, special purpose district, or other governmental unit in the state that is not the state, which has access to and exercises administrative control over state-appropriated funds from the legislature or local tax revenue, including the ability to dispense such funds. We propose to consider the entity's access to and administrative control over state-appropriated funds from the legislature or local tax revenue in this definition to link the provider category to the ability of the provider to supply the non-federal share funds in a manner consistent with section 1903(w)(6)(A) of the Act. We anticipate that questions may arise about whether a provider is a governmental or a private entity, for purposes of this definition. To resolve such questions, we propose that we would consider the totality of the circumstances, including, but not limited to, the identity and character of any entity or entities other than the provider that share responsibilities of ownership or operation of the provider, and including the nature of any relationship among such entities and the relationship between such entity or entities and the provider. In determining whether an entity shares responsibilities of ownership or operation of the provider, our consideration would include, but would not be limited to, whether the entity: (1) Has immediate authority to make decisions regarding the operation of the provider; (2) bears the legal responsibility for risk from losses from operations of the provider; (3) has immediate authority over the disposition of revenue from operations of the provider; (4) has immediate authority with regard to hiring, retention, payment, and dismissal of personnel performing functions related to the operation of the provider; (5) bears legal responsibility for payment of taxes on provider revenues and real property, if any are assessed; or (6) bears the responsibility of paying any medical malpractice premiums or other premiums to insure the real property or other operations, activities, or assets of the provider.

In determining whether a relevant entity (that is, the provider and any entity or entities other than the provider that share responsibilities of ownership or operation of the provider) is a unit of a non-state government, we would consider the character of the entity which would include, but would not be limited to, whether the entity: (1) Is described in its communications to other entities as a unit of non-state government, or otherwise; (2) is characterized as a unit of non-state government by the state solely for the purposes of Medicaid financing and payments, and not for other purposes (for example, taxation); and (3) has access to and exercises administrative control over state funds appropriated to it by the legislature and/or local tax revenue, including the ability to expend such appropriated or tax revenue funds, based on its characterization as a governmental entity.

In recent years, states have proposed a number of SPAs which sought to re-designate the UPL ownership category of a provider and to allow that provider to make an IGT, up to the applicable UPL, to fund the non-federal portion of a new Medicaid supplemental payment. Oftentimes, a hallmark of these proposals has been the sale of some asset of the provider (such as the provider's license or the facility's certification) for some nominal fee, with the private entity (the “seller”) otherwise retaining critical responsibilities of ownership, and with the IGT, in practical reality, coming from the private entity's funds. This approach is inconsistent with the statute and regulations, particularly sections 1902(a)(30)(A) and 1903(w)(6)(A) of the Act and implementing regulations at §§ 433.51, 447.272 and 447.321.

Based on our experience with such SPAs, it appears that some states have sought to manipulate the characterization of providers' ownership to achieve problematic Medicaid financing arrangements. In arrangements we have observed, the operator essentially functioned as the owner and the operator of the facility. Accordingly, we believe a more effective approach to appropriately categorizing providers for purposes of the UPL would be to consider the totality of the circumstances relevant to the character of the provider, rather than attempting to parse more narrowly whether features of particular entities purported to be the provider's owner and/or operator mean that the provider is properly categorized as a unit of non-state government, which our experience has borne out may be more susceptible to manipulation. We understand that the business models of health care providers and their facilities are layered and complex. However, as discussed above, we are troubled by instances we have observed in which some states have attempted to re-characterize facilities as non-state government owned or operated, where such characterization was not supported by the actual structure and operation of the facility, in an ultimate effort to generate more federal Medicaid revenue without corresponding financial participation from the state. We believe such arrangements violate applicable statutes and regulations, are inconsistent with the fiscal integrity of the Medicaid program, and are generally abusive of the federal-state partnership that Congress has prescribed for the Medicaid program.

We propose to define private provider to mean a health care provider as defined in § 433.52, including those defined in § 447.251, that is not a state government provider or a non-state government provider. This is intended to be a catch-all for remaining health care providers in the state, that are not state government providers or non-state government providers, for purposes of this section. We are soliciting comments on this proposed definition of private provider.

We propose to define state government provider to mean a health care provider, as defined in § 433.52, including those defined in § 447.251, that is a unit of state government or a state university teaching hospital. Similar to the proposed definition of non-state government provider, we propose that, in determining whether a provider is a state government provider, we would consider the totality of the circumstances, including, but not limited to, the identity and character of any entity or entities other than the provider that share responsibilities of ownership or operation of the provider, and including the nature of any relationship among such entities and the relationship between such entity or entities and the provider. The factors that we propose to consider, without limitation, include those discussed above regarding the proposed definition of non-state government provider. And similar to that proposed definition, in determining whether a relevant entity is a state government or state university teaching hospital, we propose that our consideration would include, without limitation, the factors discussed above in connection with the proposed definition of non-state government provider.

Regarding the proposed definitions of non-state government provider, private provider, and state government provider, we understand that health care facilities often enter into business relationships with other entities to perform various functions, including, but not limited to, the care of beneficiaries. We recognize, and do not wish to interfere with, legitimate business relationships between providers and other entities, or among such other entities in relation to the provider. In fact, we believe that the current definitions of non-state government-owned or operated, state government-owned or operated, and privately-owned and operated may have inadvertently distorted such relationships by encouraging new or different business relationships between providers and other entities, or among such other entities in relation to a provider, with no useful purpose other than to manipulate Medicaid financing in problematic ways. As such, we are proposing to identify a provider as a non-state government provider or state government provider in consideration of the totality of the circumstances, including, but not limited to, the identity and character of any entity or entities other than the provider that share responsibilities of ownership or operation of the provider, and including the nature of any relationship among such entities and the relationship between such entity or entities and the provider. These proposed definitions are intended to work together with the UPL rules and the provisions governing non-federal share financing and provider-related donations to safeguard the fiscal integrity of the Medicaid program.

We propose to define “supplemental payment” to mean a Medicaid payment to a provider that is in addition to the base payments to the provider, other than DSH payments under part 447, subpart E, made under state plan authority or demonstration authority. Supplemental payments cannot be attributed to a particular provider claim for specific services provided to an individual recipient and are often made to the provider in a lump sum on a monthly, quarterly, or annual basis apart from payments for a provider claim, and therefore, cannot be directly linked to a provider claim for specific services provided to an individual Medicaid beneficiary. In short, supplemental payments are any payments to a provider other than Base payments or DSH payments under part 447, subpart E. Supplemental payments are lump sum payments made to the provider at various intervals depending on the state program, including supplemental payments made through section 1115 demonstrations such as uncompensated care pools and delivery system reform incentive payments (DSRIP). We are not making determinations about those particular intervals at which payments are distributed to providers other than to require that states specify such information as proposed in § 447.252(d) of this proposed rule. We have historically considered DSH payments under part 447, subpart E as being distinct payments authorized separately in the statute in section 1923 of the Act which are separate from Medicaid supplemental payments. The DSH payments serve the specific purpose of taking into account the situation of hospitals that serve a disproportionate number of low-income patients with special needs, including Medicaid beneficiaries and the uninsured. Serving these patients may cause hospitals to incur higher costs, including significant uncompensated care costs for serving low income populations. Supplemental payments and DSH payments are paid under separate authorities in the Act. Supplemental payments are authorized in section 1902(a)(30)(A) of the Act, which requires that the state plan provide methods and procedures to assure that payments are consistent with efficiency, economy, and quality of care and DSH payments are authorized in section 1923 of the Act. Therefore, supplemental payments and DSH payments are not required to be tied to the same statutory purpose.

We are requesting comment on the revisions to § 447.272, including each of the revised provider category definitions included in this section.

17. Reporting Requirements for UPL Demonstrations and Supplemental Payments (§ 447.288)

We are proposing to add § 447.288 to define documentation requirements for UPL demonstrations and for states that make supplemental payments. As noted several times elsewhere in this preamble, the GAO has frequently cited the lack of adequate Medicaid provider payment data as a deficiency that compromises CMS oversight and recommended we take concrete steps to ensure the timely submission of accurate state payment data. In 2015, one GAO report concluded that “[w]ithout good data on payments to individual providers, a policy and criteria for assessing whether the payments are economical and efficient, and a process for reviewing such payments, the federal government could be paying states hundreds of millions, or billions, more than what is appropriate” (U.S. Gov't Accountability Office, GAO-15-322, Medicaid: CMS Oversight of Provider Payments Is Hampered by Limited Data and Unclear Policy, 46 (2015)). Accordingly, this proposals represents an effort to address the concerns raised by GAO and to create a more robust audit trail for state payments to providers to allow for better CMS oversight. We believe that this proposed provision is necessary to ensure the proper and efficient operation of the Medicaid state plan, in a manner that complies with the requirements of sections 1902(a)(4), (a)(6) and (a)(30)(A) of the Act. In new § 447.288(a), we propose that, beginning October 1, of the first year following the year in which the final rule may take effect, and annually thereafter, by October 1 of each year, in accordance with the requirements of § 447.288 and in the manner and format specified by the Secretary, each state would be required to submit a demonstration of compliance with the applicable UPL for each of the following services for which the state makes payment: Inpatient hospital, as specified in § 447.272; outpatient hospital, as specified in § 447.321; nursing facility, as specified in § 447.272; ICF/IID, as specified in § 447.272; and institution for mental diseases (IMD), as specified in § 447.272. The submission of UPLs for these facilities and services is consistent with existing CMS regulations in §§ 447.272 and 447.321, as well as CMS guidance document SMDL #13-003. Under these regulations and policy guidance, states are already providing UPL demonstrations for the above referenced services to demonstrate that payments are consistent with economy, efficiency, and quality of care as required in section 1902(a)(30)(A) of the Act. These demonstrations are submitted annually, or any time a state submits a SPA that proposes to amend the payment rate or methodology for one of the aforementioned facilities or service categories. Of note, as discussed in greater detail below, we are proposing to remove the psychiatric residential treatment facilities (PRTF) and clinic UPLs, which would not be included in the annual reporting requirements.

We are proposing to add § 447.288(b) to define UPL demonstration standards. When demonstrating the UPL, states would be required to use the data sources and adhere to the data standards, and acceptable UPL methodologies specified in this section. We believe that these proposed requirements would assist CMS and states in determining the Medicaid inpatient and outpatient facility payment rates are consistent with economy, efficiency and quality of care under section 1902(a)(30)(A) of the Act.

Over time, we have received numerous requests for feedback on the use of specific data elements and on acceptable UPL methodologies. We are hopeful these proposed provisions, which, except as noted below, would codify current policy, would enhance states' understanding of acceptable UPL demonstration standards, as well as improve the quality of UPL submissions.

We are proposing no longer to require states to submit UPL demonstrations for PRTFs and clinics. PRTFs are facilities subject to the payment limits defined in § 447.325, which states that the state Medicaid agency may pay the customary charges of the provider but must not pay more than the prevailing charges in the locality for comparable services under comparable circumstances. The reason for this proposed change is two-fold. First, the payment limit in § 447.325 limits the state's payment to a provider to the provider's customary charges or, if less, the prevailing charges in the locality for comparable services under comparable circumstances. Providers determine what they will charge for items and services furnished. To pay a provider's charge under the state plan, a state plan could simply provide that its payments will not exceed the provider's customary charge, provided the state plan also describes a comprehensive methodology for ensuring that payments do not exceed the prevailing charges in the locality for comparable services under comparable circumstances. Second, in our experience, states do not make supplemental payments to these facilities, and such provider's base payments are generally equal to the provider's charge. As such, the UPL is less of a calculation, as with other inpatient-type services, and more of a confirmation the state pays no more than the provider's charge under the state plan, which can be accomplished through a review of the state plan. We will continue to review compliance with the § 447.325 through a review of the SPA submissions as has been our historical practice. The removal of the clinic UPL is discussed in more detail below under § 447.321 of this preamble.

In proposed § 447.288(b), we propose to specify detailed UPL demonstration standards for demonstrating that Medicaid FFS payments are made in aggregate amounts that are less than or equal to the aggregate cost or Medicare payment amounts. The purpose of the proposed provisions is to ensure uniform reporting of UPL data and a full picture of Medicaid payments within each provider category for each category of services subject to a UPL in a given year. The proposed provisions are intended to specify that states may not pick-and-choose the most beneficial data for each provider within a provider category, but instead to select a UPL methodology and apply a single methodology to all providers within a UPL provider category and service type.

In proposed paragraph (b)(1), we propose defining the data sources for the UPL calculations, which is the Medicare-equivalent cost and charge data and Medicare-equivalent payment and charge data for purposes of the UPL as our primary data sources for the UPL. As noted elsewhere in this proposed rule, the term “Medicare equivalent” means the Medicare equivalent to the Medicaid data, payment, or services. Therefore, the term Medicare equivalent payment means the amount that would be paid for Medicaid services furnished by the group of providers if those services were provided to Medicare beneficiaries and paid under Medicare payment principles. Likewise, a reference to Medicare equivalent charges in reference to a UPL calculation means the Medicare charges for the same Medicaid services subject to the UPL.

In proposed paragraph (b)(1)(i), we would require that cost and charge data for all providers must be from either Medicare cost reports, or state-developed cost reports using either Medicare cost reporting principles specified in part 413 or the cost allocation requirements specified in 45 CFR part 75, which implements requirements in 2 CFR part 200, as specified in 2 CFR 200.106. Cost and charge data must: Include only data with dates of service that are no more than 2 years prior to the dates of service covered by the UPL demonstration; and represent costs and charges specifically related to the service subject to the UPL demonstration. As such, each UPL must use costs and charges related to the relevant category of Medicaid services listed in paragraph (a) of § 447.288; and include either Medicare costs and Medicare charges, or total provider costs and total charges, in order to develop a cost-to-charge ratio as described in paragraph (b)(3)(i). The selection must be consistently applied for all providers within the provider category subject to the UPL so that all costs and charges for all providers within a provider category are uniform in the UPL demonstration to ensure uniformity in reporting as discussed above. These requirements are consistent with historical practices related to the collection of information for UPLs and were part of the CMS UPL templates submitted to OMB for approval under control number 0938-1148 (CMS-10398 #13 and #24).

At paragraph (b)(1)(ii), we propose to define Medicare payment demonstrations as using Medicare payment and charge data for all providers from either Medicare cost reports, Medicare payment systems for the specific provider type specified in title 42, chapter IV, subchapter B of the CFR, as applicable, or imputed per diem rates based on Medicare provider payments. “Imputed” per diem rates, as discussed in more detail in paragraph (b)(3)(ii)(C), are payments that are calculated by dividing total Medicare payments by Medicare days from the provider census data to calculate an estimated Medicare price per day. The state then is able to multiply this Medicare price per day for each provider by the provider's Medicaid days (also from the provider census), and then sum these products within a service class and provider category to calculate a Medicaid UPL.

The proposed provision goes on to specify that when using Medicare payment and charge data, the data must: Include only data with dates of service that are no more than 2 years prior to the dates of service covered by the UPL demonstration; include only Medicare payments and charges, or Medicare payment and the provider's Medicare census data, specifically related to the service subject to the UPL demonstration; and use either gross Medicare payments and Medicare charges, which includes deductibles and co-insurance but excludes reimbursable bad debt from the Medicare payment, or net Medicare payments and Medicare charges, which excludes deductibles and coinsurance and includes reimbursable bad debt, as reported on a Medicare cost report. The selection of gross or net Medicare payment must be consistent within the ratio for each provider category subject to the UPL. These requirements are consistent with historical practices related to the collection of information for UPLs and were part of the CMS UPL templates submitted to OMB for approval under control number 0938-1148 (CMS-10398 #13 and #24).

For the Medicare payment systems for the specific provider type, we are referring to the prospective payment systems (PPS) in effect for the Medicare program such as the inpatient prospective payment system (IPPS), outpatient prospective payment system (OPPS), skilled nursing facility (SNF) PPS, and any future applicable Medicare PPSs such as the patient driven payment model (PDPM) for SNFs. The requirement that the payment data use data with dates of service that are no more than 2 years prior to the dates of service covered by the UPL demonstration would allow states to use Medicare payment data from a prior period to demonstrate the UPL, particularly in years where Medicare is transitioning to a new payment system. Because states have the flexibility to use data that is no more than 2 years old, states using Medicare payment-based demonstrations would not be required to immediately switch over to using data from a newly implemented Medicare payment system, such as PDPM, to demonstrate compliance with the UPL if the state is not in a position to do so, but would be able to transition to using that system over a 2-year period. There is no requirement in statute or regulations that mandates states use specific Medicare payment systems in Medicaid for provider payments. Since the UPL is an estimate of the amount that Medicare would have paid for the service, we have always offered states some flexibility to determine UPLs using recent data that is no more than 2 years old, which, in years where Medicare has transitioned to a new payment system, means that states could use data from the prior payment system for up to 2 years after the Medicare transition for purposes of the Medicaid UPL compliance demonstration.

In paragraph (b)(1)(iii), we propose to require that the Medicaid charge data used in calculating the UPL must be derived from the state's Medicaid billing system for services provided during the same dates of service as the Medicare cost or Medicare payment data, as defined above. The Medicare cost and charge or payment and charge data, as applicable, is used to create a ratio with the Medicare cost or payment being the numerator and the Medicare charges are the denominator. Once that ratio is created, the Medicaid charges are multiplied by that ratio. This is discussed in more detail below, but the requirement that the time period of the Medicaid charge data be from the same time period of the Medicare-equivalent data, as defined above, is due to the fact that providers determine what they will charge for items and services furnished to patients, which may change from time to time. If the charges are the same for all payers, then a reasonable estimate of the amount that Medicare would pay for the service would require the use of the Medicaid charge data from the same time period as the Medicare data to calculate the UPL. As discussed in connection with paragraph (b)(3)(i), we propose that a cost-based methodology could only be used for services where a provider applies uniform charges to all payers.

At paragraph (b)(1)(iv), we propose to require Medicaid payment data from a state's Medicaid billing system for services provided during the same dates of service as the Medicare cost or Medicare payment data, as specified in paragraph (b)(1)(i) or (ii) of this section, as applicable, or from the most recent state plan rate year for which a full 12 months of data are available. As with the data requirements in paragraphs (b)(1)(i) and (ii), Medicaid payment data must: Include only data with dates of service that are no more than 2 years prior to the dates of service covered by the UPL; include all actual payments, as well as all projected base and supplemental payments, excluding any payments made for services for which Medicaid is not the primary payer, expected to be made during the time period covered by the UPL demonstration to the providers within the provider category, as applicable; and only be trended by an amount equal to the changes in the Medicaid state plan payment for the applicable service. Using either the most recent Medicaid payment data for the time period subject to the UPL or the payment data from the same time period as the Medicaid charge data (meaning also from the same time period as the Medicare data) is up to the state. Under all circumstances, the Medicaid payment data must include all payments made to the providers, including any proposed payments or projected payments that have not yet been made. This way, the UPL will reflect an accurate depiction of the state's Medicaid payments during the period of the UPL demonstration.

In paragraph (b)(2), we propose to require states to apply certain UPL methodology parameters in calculating the UPL. Specifically, the proposed UPL methodology parameters include the following considerations. First, projected changes in utilization must be accounted for and reflected in the demonstration. If no service-specific utilization projections are available, then projections for enrollment must reflect programmatic changes such as reasonable utilization changes due to managed care enrollment projections. For example, a state may be aware that in the upcoming state-fiscal year, there will be a shift to increase beneficiary enrollment in managed care plans. Projected utilization changes to account for such large programmatic shifts may be used instead of individually determined, service-specific utilization changes, such as inpatient hospital utilization, which may result in a percentage increase or decrease in expected utilization for the relevant services undergoing a shift to managed care. Medicare data may also be projected using Medicare trend factors appropriate to the service and demonstration methodology, which are Medicare payment- or cost-based, with such trend factors being uniformly applied to all providers within a provider category. In this way, states can anticipate and project program changes or changes in expected costs or payments in the UPL that may either increase or decrease the UPL or expected Medicaid payments. For example, an appropriate trend factor with respect to inpatient hospital services, outpatient hospital services, and SNFservices could be the CMS Market Basket rate. This proposed change, which represents a departure from current policy, is proposed in paragraph (b)(2)(ii), which would require uniform application of the trending factor within the provider category. Prior to this proposed rule, we had not formally articulated an expectation of uniform trending of data within a provider category and had accepted UPL demonstrations that did not apply trend factors in a uniform manner. CMS could not determine whether the applied inflation adjustments in those UPLs were always appropriate based on our review. This proposed provision is intended to establish the requirements in regulation for uniform inflation adjustments to the UPLs.

Additionally, we propose that when calculating the aggregate UPL using a cost-based demonstration as described in paragraph (b)(3)(i), the state may include the cost of provider assessments (such as health care-related taxes) paid by each provider in the provider category that is reasonably allocated to Medicaid as an adjustment to the UPL, to the extent that such costs were not already included in the cost-based UPL. For example, many states calculate their provider taxes on inpatient services as a per day payment amount or a per discharge payment amount. The state would calculate the portion of such a tax allocable to Medicaid by multiplying the per day or per discharge tax amount by Medicaid days or Medicaid discharges, as applicable, and include the product of that amount in the UPL for each provider in the provider category. When calculating the aggregate UPL using a cost-based demonstration, states may include the Medicaid-allocated cost of health care related taxes as an adjustment to the UPL amount on a per provider basis. The Medicare cost report does not require states to account for expenses related to health care related taxes as an allowable cost, as this reporting is optional. In the Medicaid program, such expenditures may be included as an allowable cost provided that the portion of the cost allocated to Medicaid can be isolated from the aggregate health care related tax payment.

For example, if a provider has 100 total bed days of which 85 were Medicaid bed days and the provider paid $100 in health care related taxes, the provider could account for $85 of the total tax payment. Our current policy permits states to include the cost of Medicaid's portion of health care related taxes as an allowed cost for cost based demonstrations, but not payment based demonstrations; we are proposing to codify that existing policy in regulation because, historically, the Medicaid taxes have not been specifically included in the Medicare cost report calculations. The Medicare 2552 (Hospital Cost Report) now includes an option to include provider taxes paid under the authority in section 1903(w) of the Act. To the extent that such taxes are not included in the cost calculation in the Medicare cost report, those costs should be included in the UPL. If the provider taxes are included in the Medicare cost report, the state should not add these costs back into the UPL calculation, which would result in double-counting the tax payments. Our goal in allowing Medicaid provider tax costs to be added back into the cost-based UPL calculations is to ensure that allowable costs incurred by the providers when furnishing services to Medicaid beneficiaries are applied to the UPL calculations to the extent that they were not already captured in the Medicare cost report data, but we do not want such costs to be duplicated through the UPL and the Medicare cost report. This provision only applies to cost-based UPL demonstrations because cost-based demonstration are reflections of the provider's expenses related to the provision of medical services and such amounts may vary based upon factors including health care related-taxes in the state or other relevant jurisdiction, while payment-based UPL demonstrations reflect only the Medicare payment for services under the specific Medicare payment system, and therefore, only adjustments which affect the overall payment under the Medicare payment system can be factored into the UPL demonstration.

Finally, we propose codifying the current policy that the Medicaid payments, in paragraph (b)(1)(iv), included in the UPL calculation must only include payments made for Medicaid services under the specific Medicaid service type at issue in the UPL. For example, the state must not include payments for services other than inpatient hospital services in the inpatient hospital UPL calculation.

In paragraph (b)(3), we propose acceptable methods of demonstrating the UPL. First, we propose that to make a cost-based demonstration in compliance with an applicable UPL, Medicaid covered charges are multiplied by a cost-to-charge ratio developed for the period covered by the UPL demonstration. The state may use a ratio of Medicare costs to Medicare charges, or total provider costs to total provider charges in developing the cost-to-charge ratio, but the selection must be applied consistently to each provider within a provider type, which references the listing of provider types in paragraph (a) of the section. The product of Medicaid covered charges and the cost-to-charge ratio for each provider is summed to determine the aggregate UPL. The demonstration must show that Medicaid payments will not exceed this aggregate UPL for the demonstration period. As explained in more detail below, this methodology may only be used for services where a provider applies uniform charges to all payers. Reported cost must be appropriately allocated between payers so that only costs properly allocated to Medicaid services are included in the demonstration.

In paragraph (b)(3)(i)(A), we propose that states may make a retrospective, cost-based demonstration showing that aggregate Medicaid payments paid to the providers within the provider category during the prior state plan rate year did not exceed the costs incurred by the providers furnishing Medicaid services within the prior state plan rate year period. The term “retrospective” simply refers to Medicaid payments that have already been paid for the prior state plan rate year that has already ended, and for which the state does not anticate making any new Medicaid payments. Most often these demonstrations come from states where providers are paid using a reconciled cost methodology under the approved Medicaid state plan, in which case the Medicaid provider payments would be equal to those providers' cost of Medicaid services, and the UPL would demonstrate that payments to providers did not exceed their costs.

In paragraph (b)(3)(i)(B), we propose that states may make a prospective, cost-based demonstration showing that prospective Medicaid payments would not exceed the estimated, prospective cost of furnishing the services for the upcoming state plan rate year period. As explained in more detail below, this methodology may only be used for services where a provider applies uniform charges to all payers. The prospective cost demonstration is a common UPL methodology reviewed by CMS and is often used by states to demonstrate that proposed or projected Medicaid payments are less than a provider cost trended forward from a prior period.

In addition to these cost-based demonstrations, we also propose that states could use payment-based demonstrations to show compliance with an applicable UPL, including retrospective and prospective methodologies and including flexibility for the state to determine an imputed Medicare payment rate to apply in either a retrospective or prospective payment-based demonstration. We propose that the payment-based demonstration data sources would be those identified in paragraphs (b)(1)(ii), (iii), and (iv), and the data standards defined in paragraph (b)(2) would apply. States could make a retrospective payment-to-charge UPL demonstration, where Medicaid covered charges are multiplied by a ratio of Medicare payments to Medicare charges developed for the period covered by the UPL demonstration. The product of Medicaid covered charges and the Medicare payment-to-charge ratio for each provider would be summed to determine the aggregate UPL, and the demonstration must show that Medicaid payments did not exceed this aggregate UPL. Alternatively, we propose that states could make a prospective payment-to-charge UPL demonstration, where Medicaid covered charges are multiplied by a ratio of Medicare payments to Medicare charges developed for the period covered by the UPL demonstration. The product of Medicaid covered charges and the Medicare payment-to-charge ratio for each provider would be summed to determine the aggregate UPL. The demonstration must show that proposed Medicaid payments would not exceed this aggregate UPL within the next state plan rate year immediately following the demonstration period. Regardless of whether a state is using a retrospective or prospecftive payment-to-charge demonstration methodology, we propose that states could use an imputed Medicare per diem payment rate determined by dividing total Medicare prospective payments paid to the provider by the provider's total Medicare patient days, which are derived from the provider's Medicare census data. Each provider's imputed Medicare per diem payment rate would be multiplied by the total number of Medicaid patient days for the provider for the period. The products of this operation for each provider are summed to determine the aggregate UPL. The demonstration must show that Medicaid payments are not in excess of the aggregate UPL, calculated on either a retrospective or prospective basis, consistent with the applicable proposed methodology. This imputed Medicare payment rate methodology is commonly used by long-term care facilities in Medicaid, such as SNFs and IMDs, or in states whose Medicaid payments are based upon existing Medicare payment systems. For example, a state which uses the Medicare SNF PPS to demonstrate a SNF UPL would divide total Medicare payments by total Medicare SNF bed days. That product, per facility, would be multiplied by the Medicaid bed days, the aggregate of which would be the aggregate UPL. The Medicaid payments for the same time period must not exceed the aggregate UPL.

It is important to note that any UPL methodology that requires the use of a provider's charges to calculate the UPL may only be used to the extent that the provider applies uniform charges to all payers. This is because when developing a cost to charge ratio or a payment to charge ratio, the initial ratio is multiplied by Medicaid charges to determine the UPL amount. “Charges” are the amount a hospital or provider bills for medical services, and should be the same for all patients regardless of payer. If the charges used in the cost to charge or Medicare payment to charge ratio are not the same as the Medicaid charges, the calculation of the UPL would be either over- or under-stated. We intend the UPL demonstrations to accurately depict the Medicare cost, or what Medicare would have paid, for the same services, and that is diminished when the underlying data is not accurate.

In new § 447.288(c)(1), we propose that, at the time the state submits its quarterly CMS-64 under § 430.30(c), the state would be required to report certain information for each supplemental payment included on the CMS-64. The proposed reporting elements would not be reported on the CMS-64 itself, but would accompany that submission on a separate, supplemental report. We propose to require states to report information sufficient to identify which providers receive which supplemental payments under the state plan and any demonstration authority, and to enable us to ensure that such payments to the providers are consistent with economy, efficiency, and quality of care, as required under section 1902(a)(30)(A) of the Act. These data submission requirements would include provider-level data on base and supplemental payments made under state plan and demonstration authority by service type. This data would also be required to include the following: The SPA transaction number or demonstration authority number which authorizes the supplemental payment; a listing of each provider that received a supplemental payment under state plan and/or demonstration authority, and, for each: The provider's legal name; the primary physical address of the location or facility where services are provided, including street address, city, state, and ZIP code; the National Provider Identifier (NPI); the Medicaid identification number; the employer identification number (EIN); the service type for which the reported payment was made; the provider specialty type (if applicable, for example, critical access hospital (CAH), pediatric hospital, or teaching hospital); the provider category (that is, state government provider, non-state government provider, or private provider); and the specific amount of the supplemental payment paid to each provider, including the total supplemental payment made to the provider authorized under the specified state plan and the total Medicaid supplemental payment made to the provider under the specified demonstration authority, as applicable.

The specific data elements described above are intended to identify the individual providers receiving payments, the authority for the payments, and the sum of all payments received by the individual providers. Information such as the provider's legal name, primary physical location or facility location where services were provided, NPI, Medicaid identification number, and EIN are needed to identify the specific provider accurately. When the regulation refers to the “legal” name, it means the business name of the facility which appears on the provider's license and other legal documentation authorizing the health care operations of the provider. The NPI is required for providers, and EINs are assigned to all businesses by the Internal Revenue Service, and must be on all Health Insurance Portability and Accountability Act (HIPAA) electronic transactions. An NPI is a unique 10-digit number used to identify health care providers. The Medicaid identification number is assigned by the state and is a unique identifier for providers participating in the Medicaid program.

In addition to the provider-identifying information, proposed § 447.288(c)(1) would require the state to report the service type, provider specialty type, and provider category. These data elements are intended to be linked to the payment methodology in the state plan. This information follows how states must describe supplemental payments in the state plan, which is, first, organized by service type, then by provider-specific information, such as specialty type and provider category. If a state establishes a specific methodology or proposes to make a supplemental payment to a specific “type” of hospital using specified criteria, such as a non-state government teaching hospital or CAH, such information must appear in the state plan. As the proposed data elements are aligned with how analogous information is recorded in the state plan, we anticipate that this information will help us ensure that supplemental payments are being made to providers in accordance with the qualifying criteria as established in the state plan. Finally, we propose to require the state to report the specific amount of the supplemental payment made to the provider, including the total supplemental payment amount authorized under the specified state plan, as applicable, and the total supplemental payment amount authorized under the demonstration authority, as applicable.

In § 447.288(c)(2), we propose that not later than 60 days after the end of the state fiscal year, each state must annually report aggregate expenditure data for all data elements included in § 447.288(c)(1) plus the following: The state reporting period (state fiscal year start and end dates); the specific amount of Medicaid payments made to each provider, including, as applicable: The total FFS base payments made to the provider authorized under the state plan, the total Medicaid payments made to the provider under demonstration authority, the total amount received from Medicaid beneficiary cost-sharing requirements, donations, and any other funds received from third parties to support the provision of Medicaid services, the total supplemental payment made to the provider authorized under the specified state plan, the total Medicaid supplemental payment made to the provider under the specified demonstration authority, and an aggregate total of Medicaid payments listed above made to the provider.

Section 447.288(c)(2)(iii) would also require the aggregate reporting of the total DSH payments made to the provider, and the Medicaid units of care furnished by the provider (for example, on a provider-specific basis, total Medicaid discharges, days of care, or any other unit of measurement as specified by the Secretary). This proposed data collection effort is designed to allow us to conduct efficient oversight of all payments made to providers on an annual aggregate basis. The data, as reported, would be used to conduct quarterly and annual reviews of state payments as related to payments reported under UPL demonstrations and under the Medicaid state plan.

In § 447.288(c)(3), we propose that, not later than 60 days after the end of the state fiscal year, each state must annually report aggregate and provider-level information on each provider contributing to the state or any unit of local government any funds that are used as a source of non-federal share for any Medicaid supplemental payment. This proposed data submission requirement would include all of the data elements listed in § 447.288(c)(1) and (2), but would also require information related to financial contributions to the state Medicaid program, specifically including: The total of each health care-related tax collected from the provider by any state authority or unit of local government; the total of any costs certified as a CPE by the provider; the total amount contributed by the provider to the state or a unit of local government in the form of an IGT; the total of provider-related donations made by the provider or entity related to a health care provider, as defined in § 433.52, including in-cash and in-kind donations, to the state or a unit of local government, including state university teaching hospitals; and the total funds contributed by the provider (that is, health care-related taxes, CPEs, IGTs, provider-related donations, and any other funds contributed to the state as the non-federal share of a Medicaid payment). When a provider-related entity is related to more than one entity, the state should report the total amount of the related entity's donation for each associated provider. These proposed data elements are intended to be itemized based on all the various payments to a provider and contributions from the provider, as applicable. For example, if a provider receives base and multiple supplemental payments under various SPA authorities and makes a provider tax contribution and an IGT as a means of funding the non-federal share, the state must list each payment and each provider contribution among the proposed required data reporting elements. If there is more than one payment or more than one type of provider contribution (for example, more than one tax or more than one IGT), the state would be required to itemize each payment and each contribution, as applicable. The purpose of such information from states is to determine the totality of provider payments under the Medicaid program and the extent of provider contributions to the non-federal share of such Medicaid payments under the approved state plan.

We are seeking comment on all aspects of the proposals in this section. We are soliciting comment on the proposed reporting requirements in § 447.288(c), including the specific proposed data elements in § 447.288(c)(1) through (3). In particular, we invite comment on whether any of the proposed data elements are duplicative, and on ways we might be able to obtain this necessary information in a manner that appropriately balances administrative burden on states and on us while generating the most accurate data possible.

18. Failure To Report Required Information (§ 447.290)

To effectively ensure that states comply with applicable federal statutory and regulatory requirements, we must have adequate enforcement mechanisms in place. The remedy for issues related to state compliance with regulations is often the withholding of federal funds to compel compliance with applicable federal requirements. We are proposing to add § 447.290 to specify an appropriate avenue of enforcement in the event that a state does not comply with the proposed data reporting requirements in § 447.288. As discussed above, we believe the proposed information reporting requirement under § 447.288 is necessary for the proper and efficient administration of the state Medicaid plan, especially with respect to the plan's compliance with section 1902(a)(30)(A) of the Act, and would be properly required under section 1902(a)(6) of the Act. Therefore, in proposed § 447.290(a), we propose that the state must maintain the underlying information supporting base and supplemental payments, including the information required to be reported under proposed § 447.288, consistent with the requirements of § 433.32, and must provide such information for federal review upon request to facilitate program reviews or OIG audits conducted under §§ 430.32 and 430.33. In proposed § 447.290(b), we propose that if a state fails to timely, completely and accurately report information required under § 447.288 of this chapter, we may reduce future grant awards through deferral in accordance with § 430.40, by the amount of FFP we estimate is attributable to payments made to the provider or providers as to which the state has not reported properly, until such time as the state complies with the reporting requirements. We propose that we may defer FFP if a state submits the required report but the report fails to comply with applicable requirements. Otherwise allowable FFP for expenditures deferred in accordance with this proposed section would be released when we determine that the state has complied with all reporting requirements under proposed § 447.288. The enforcement mechanism proposed in § 447.290 is similar in structure to the mechanism that applies with respect to the DSH reporting requirements, in § 447.299(e). We are soliciting comments on the enforcement mechanism proposed in § 447.290.

19. Limitations on Aggregate Payments for DSHs Beginning October 1, 1992 (§ 447.297)

Current regulations require CMS to publish the annual DSH allotments in a Federal Register. This process is not only administratively burdensome, but is unnecessary as we routinely notify states directly regarding annual allotment amounts and make such information publicly available. Therefore, we are proposing to eliminate the § 447.297(c) requirement to publish annual DSH allotments in a Federal Register notice and to provide that the Secretary will post preliminary and final national expenditure targets and state DSH allotments in the MBES and at Medicaid.gov (or similar successor system or website). Additionally, we are proposing to remove the date in which final national target and allotments are published from April 1st to as soon as practicable. We are also proposing to remove § 447.297(e), which consists of redundant publication requirements already identified in § 447.297(b), (c), and (d), in its entirety to align with our proposed changes § 447.297(c). We are soliciting comments related to these proposed changes.

20. Reporting Requirements (§ 447.299)

To improve the accuracy of identification of provider overpayments discovered through the DSH audit process, we are proposing in § 447.299 to add an additional reporting requirement for annual DSH audit reporting required by § 447.299 and to provide clarifying guidance on the reporting of overpayments identified by the annual DSH audits required under part 455 subpart D. We are proposing to redesignate § 447.299(c)(21) as paragraph (c)(22) of that section, and to add a proposed new § 447.299(c)(21) to require an additional data element for the required annual DSH audit reporting. This new data element would require auditors to quantify the financial impact of any finding which may affect whether each hospital has received DSH payments for which it is eligible within its hospital-specific DSH limit. If it is not practicable to determine the actual financial impact amount, we propose to require a statement of the estimated financial impact for each audit finding identified in the independent certified audit that is not reflected in the data elements identified in § 447.299(c)(6) through (15). For purposes of this paragraph, audit finding means an issue identified in the independent certified audit required under § 455.304 concerning the methodology for computing the hospital specific DSH limit and/or the DSH payments made to the hospital, including, but not limited to, compliance with the hospital-specific DSH limit as defined in § 447.299(c)(16). Audit findings may be related to missing or improper data, lack of documentation, non-compliance with federal statutes and/or regulations, or other deficiencies identified in the independent certified audit. Actual financial impact means the total amount associated with audit findings calculated using the documentation sources identified in § 455.304(c) of this chapter. Estimated financial impact means the total amount associated with audit findings calculated on the basis of the most reliable available information to quantify the amount of an audit finding in circumstances where complete and accurate information necessary to determine the actual financial impact is not available from the documentation sources identified in § 455.304(c) of this chapter. We understand that due to the complexity of issues that may arise, the actual financial impact may not always be calculable; therefore, we propose that, in the expectedly rare event that the actual financial impact cannot be calculated, an estimated financial impact would be required. The estimated financial impact would use the most reliable available information (for example, related source documentation such as data from state systems, hospitals' audited financial statements, and Medicare cost reports) to quantify an audit finding. We believe this additional data reporting element is necessary to better enable our oversight of the Medicaid DSH program to better ensure compliance with the hospital specific DSH limit in section 1923(g) of the Act. Moreover, we believe this requirement would limit the burden on both states and CMS of performing follow-up reviews or audits and will help ensure appropriate recovery and redistribution, as applicable, of all DSH overpayments.

The addition of § 447.299(f) would clarify reporting requirements of DSH overpayments identified in the audit process in accordance with part 433 subpart F, including specifying that states must return DSH payments in excess of hospital-specific cost limits to the federal government identified through annual DSH audits through quarterly reporting on the Form CMS-64 as a decreasing adjustment, or redistributed by the state to other qualifying hospitals, if redistribution is provided for under the approved state plan. Section 447.299(g) would require states to report overpayment redistribution amounts corresponding with the fiscal year DSH allotment, as applicable and consistent with other federal requirements, on the Form CMS-64 within 2 years from the date of discovery and report such redistributions through quarterly reporting on the Form CMS-64 as an increasing adjustment. We solicit comments on the proposed rule.

21. State Plan Requirements (§ 447.302)

We are proposing to revise § 447.302 by adding proposed new paragraphs (a) through (d), which would establish state plan requirements for payments for outpatient hospital services, to implement new approval requirements for state plans and any SPAs proposing to make supplemental payments to providers of these services and to define a transition period for currently authorized supplemental payments to begin to meet the proposed new requirements. These proposals are similar to those we are making in § 447.252(d) with respect to supplemental payments for inpatient hospital, nursing facility, and ICF/IID services. We are proposing to limit approval for state plan supplemental payments for outpatient hospital services to a period of not more than 3 years, and to require states to monitor a supplemental payment program during the term of its approval to ensure that the supplemental payment remains consistent with section 1902(a)(30)(A) of the Act. As discussed in this section and other sections of this preamble, the proposed revisions to §§ 447.252, 447.288(b) and 447.302 include considerable data reporting requirements which would implement section 1902(a)(6) of the Act, requiring the state agency to make such reports, in such form and containing such information, as the Secretary may from time to time require, and comply with such provisions as the Secretary may from time to time find necessary to assure the correctness and verification of such reports. The submission of more robust payment data would assist us in providing proper oversight of the Medicaid program in determining that state Medicaid payments are made in a manner consistent with federal statute and regulations, including section 1902(a)(30)(A) of the Act and applicable UPL requirements.

Specifically, we are proposing in § 447.302(a) and (b) to codify existing state plan requirements that the plan must provide that the requirements of subpart F are met and that the plan must specify comprehensively the methods and standards used by the agency to set payment rates. We propose in § 447.302(c) that CMS may approve a supplemental payment, as defined in § 447.286, provided for under the state plan or a SPA for a period not to exceed 3 years. A state whose supplemental payment approval period has expired or is expiring may request a SPA to renew the supplemental payment for a subsequent period not to exceed 3 years, consistent with the requirements of § 447.302. A time limited supplemental payment allows CMS and the state an opportunity to revisit state plan supplemental payments to ensure that they remain consistent with efficiency, economy, and quality of care, as required under section 1902(a)(30)(A) of the Act. Over the years, CMS and various oversight bodies conducting financial management reviews and audits have identified areas where unchecked supplemental payments have resulted in payments that appeared to be excessive, and CMS had little recourse to take action. Such audits and financial reviews conducted by CMS or other oversight agencies can take years and require a large number of state and federal resources to complete, and ultimately resolve. As noted earlier in this preamble, in 2015, the GAO issued a report entitled, “Medicaid: CMS Oversight of Provider Payments Is Hampered by Limited Data and Unclear Policy,” in which it concluded that, “[w]ithout good data on payments to individual providers, a policy and criteria for assessing whether the payments are economical and efficient, and a process for reviewing such payments, the federal government could be paying states hundreds of millions, or billions, more than what is appropriate.” ^[10] As a result, the GAO has recommended that, to better ensure the fiscal integrity of the program, we should establish financial reporting at a provider-specific level and clarify permissible methods for calculating Medicaid supplemental payment amounts. Based on this and other oversight entity recommendations, and CMS' experience administering the Medicaid program at the federal level, we believe that the time-limited approval of supplemental payments is necessary for the proper and efficient operation of state Medicaid plans to ensure the continuing consistency of supplemental payments with applicable statutory requirements and generally to ensure appropriate oversight.

We are not proposing to limit the number of times a state may request, and receive approval for renewal of a supplemental payment program, provided that each request meets all applicable requirements. We propose that a state plan or SPA that would provide for a supplemental payment would be required to include: (1) An explanation of how the state plan or SPA will result in payments that are consistent with section 1902(a)(30)(A) of the Act, including that provision's standards with respect to efficiency, economy, quality of care, and access along with the stated purpose and intended effects of the supplemental payment, for example, with respect to the Medicaid program, providers, and beneficiaries; (2) the criteria to determine which providers are eligible to receive the supplemental payment; (3) a comprehensive description of the methodology used to calculate the amount of, and distribute, the supplemental payment to each eligible provider, including specified content; (4) the duration of the supplemental payment authority (not to exceed 3 years); (5) a monitoring plan to ensure that the supplemental payment remains consistent with the requirements of section 1902(a)(30)(A) of the Act and to enable evaluation of the effects of the supplemental payment on the Medicaid program, for example, with respect to providers and beneficiaries; and (6) for a SPA proposing to renew a supplemental payment for a subsequent approval period, an evaluation of the impacts on the Medicaid program during the current or most recent prior approval period, for example, with respect to providers and beneficiaries, and including an analysis of the impact of the supplemental payment on compliance with section 1902(a)(30)(A) of the Act. For the state's comprehensive description of the methodology used to calculate the amount, and distribution, of the supplemental payment to each eligible provider as required under item (3), we would require the state to provide all of the following: (1) The amount of the supplemental payment made to each eligible provider, if known, or, if the total amount is distributed using a formula based on data from one or more fiscal years, the total amount of the supplemental payments for the fiscal year or years available to all providers eligible to receive a supplemental payment; (2) if applicable, the specific criteria with respect to Medicaid service, utilization, or cost data from the proposed state plan rate year to be used as the basis for calculations regarding the amount and/or distribution of the supplemental payment; (3) the timing of the supplemental payment to each eligible provider; (4) an assurance that the total Medicaid payment to other inpatient and outpatient facilities, including the supplemental payment, will not exceed the upper limits specified in § 447.325; and (5) if not already submitted, an UPL demonstration as required by § 447.321 and described in proposed § 447.288.

The justification for including the state plan requirements in § 447.302 are the same as those justifications and explanations included in the discussion with regard to § 447.252. We are proposing to require states to provide information necessary to determine that the supplemental payments proposed in the state plan are, and remain, consistent with the efficiency, economy, and quality requirements under section 1902(a)(30)(A) of the Act and the parameters concerning permissible sources of non-federal share under section 1903(w) of the Act.

Finally, in considering the 3-year approval period for supplemental payments, we developed a transition plan to provide states with an adequate opportunity to come into compliance with the proposed requirements. To accomplish the policy objectives described above, we believe we must begin to apply the proposed policies, if they are finalized, to current state plan provisions that authorize supplemental payments that are approved as of the effective date of the final rule. It is no less necessary to ensure the proper and efficient operation of the state plan and ensure that applicable requirements continue to be met, to rigorously evaluate currently existing supplemental payment programs, as it is to do so for new supplemental payment programs approved prospectively. Accordingly, in proposed § 447.302(d), for state plan provisions approved 3 or more years prior to the effective date of the final rule, we propose that the state plan authority would expire 2 calendar years following the effective date of the final rule. For state plan provisions approved less than 3 years prior to the effective date of the final rule, we propose that the state plan authority would expire 3 years following the effective date of the final rule. We believe this is a generous timeline for transitioning to the proposed 3-year time limit for supplemental payments under the state plan. This timeline provides states with currently approved supplemental payment programs with at least 2, and as many as 3 years before a state wishing to continue the supplemental payment program would need to seek renewal or a new approval.

We are soliciting comment on this entire section, including the proposed state plan elements for supplemental payments, and the proposed approval timeframe for a state's proposed supplemental payments. For the timeframes, we are seeking input on both the 3-year approval period and the proposed transition period for currently approved supplemental payments. We considered proposing a 5-year compliance transition period instead of the proposed 3-year compliance transition period in § 447.302(d). This would have increased the amount of time states would have to bring existing, approved supplemental payment methodologies into compliance with the provisions of the proposed rule in §§ 447.252 and 447.302. We decided to propose a 3-year transition period to account for states where changes may require legislative action as some legislatures meet on a biennial basis and such a timeframe would provide an opportunity for all legilslatures to address existing supplemental payment programs. We are requesting comment on whether or not to pursue this or a lengthier transition and approval timeline for supplemental payments.

22. Outpatient Hospital Services: Application of UPLs (§ 447.321)

To promote improved oversight of Medicaid program FFS expenditures for services subject to the UPL, we are proposing changes to § 447.321. Some of the proposed changes to § 447.321 would formally codify current policy, while others are newly proposed. We solicit comment on all proposed provisions.

CMS has long regarded the UPL requirements in § 447.321 and the review of total outpatient hospital Medicaid payments in relation to a provider's cost or the Medicare payment amounts as implementing section 1902(a)(30)(A) of the Act, which requires that states assure that payments are consistent with efficiency, economy, and quality of care. As stated earlier in the preamble, the aggregate application of these UPLs has preserved state flexibility for setting provider-specific payments while creating an overall payment ceiling as a mechanism for determining economy and efficiency of payment for the services described above, consistent with section 1902(a)(30)(A) of the Act.

We are proposing to change the title of this section to “Outpatient Hospital Services: Application of upper payment limits” to remove clinic services from the UPL requirements in § 447.321. The absence of benefit category in the Medicare program similar to Medicaid “clinic services” has made establishing and verifying compliance with a UPL for clinic services an overly burdensome task. Without equivalent comparison data from Medicare, it is difficult or impossible to establish a reasonable estimate of what Medicare would pay for Medicaid clinic services, which otherwise would supply the UPL for such services under § 447.321. Additionally, most often, clinics are reimbursed according to the practitioner fee schedule in the same manner as other practitioners under the Medicaid state plan. In these circumstances, we have determined that such payments are not subject to the clinic UPL in any event, because these provider payments are made under the relevant practitioner benefit in the Medicaid program, such as physician services or dental services under sections 1905(a)(5) and (a)(10) of the Act, respectively, rather than clinic services under section 1905(a)(9) of the Act. As with all other inpatient and outpatient facility services, state agencies must continue to apply § 447.325 under which the agency may pay the customary charges of the provider but must not pay more than the prevailing charges in the locality for comparable services under comparable circumstances.

We have proposed to revise this regulation in the past through other proposed rules, but were unable to finalize those proposals. Particularly, in 2007 with the proposed rule Medicaid Program; Clarification of Outpatient Clinic and Hospital Facility Services Definition and Upper Payment Limit (72 FR 55166), we proposed several practical options for states to comply with clinic UPL requirements. Namely, these options included paying at the Medicare non-facility Resource-Based Relative Value Units System (RBRVS) FFS rate for practitioner services in a clinic setting, or setting the rates for services provided in the clinic at the Medicaid state plan rate for the same services when provided by a practitioner under the state plan where there was no Medicare comparable rate. The difficulty in applying the proposals in that particular proposed rule, and difficulties setting and establishing compliance with clinic UPLs since, has been related to the subjectivity of establishing appropriate comparison prices for services where there is no Medicare equivalent, or limiting Medicaid providers to cost when Medicare does not collect or mandate clinic cost reports for free-standing clinics, as is done with other inpatient and outpatient facilities. For these reasons, we are proposing to remove clinic services from § 447.321 so the requirements of the outpatient UPL will no longer apply to these providers and we are requesting comment on this proposed change.

Importantly, this proposal does not mean that the requirements of section 1902(a)(30)(A) of the Act do not continue to apply to clinic payments—emphatically, they do. We simply are proposing to no longer use the clinic UPL as the formal metric of compliance with the efficiency, economy, and quality of care requirements under the statute. We will continue to compare the Medicare RBRVS to Medicaid clinic reimbursement rates, where applicable, to inform administrative decisions about the state's payment rates under section 1902(a)(30)(A) of the Act, much like we do with physician reimbursement under the Medicaid state plan. We are soliciting comment on this particular change in the proposed rule.

We are proposing to amend paragraph (a) to revise the current ownership groups (state government-owned or operated, non-state government owned or operated, and privately-owned and operated facilities) used to establish the UPL. We propose to replace these provider designations with “state government providers,” “non-state government providers,” and “private providers.” We propose to codify the substantive definitions of these provider designations in proposed § 447.286. As discussed below, we would define “state government provider” to refer to a health care provider as defined in § 433.52, including those defined in § 447.251, that is a unit of state government or state university teaching hospital; in determining whether a provider is a unit of state government, we would consider the totality of the circumstances, including but not limited to specific considerations identified in proposed § 447.286. Similarly, we would define “non-state government provider” to refer to a health care provider as defined in § 433.52, including those defined in § 447.251, that is a unit of local government in a state, including a city, county, special purpose district, or other governmental unit in the state that is not the state, which has access to and exercises administrative control over state funds appropriated to it by the legislature and/or local tax revenue, including the ability to expend such appropriated or tax revenue funds; in determining whether a provider is non-state government provider, we would consider the totality of the circumstances, including but not limited to specific considerations identified in proposed § 447.286. We would define a “private provider” to mean a health care provider as defined in § 433.52, including those defined in § 447.251, that is not a state government provider or a non-state government provider.

The proposed changes in provider designations would reinforce the relationship between a provider's designation and its ability (or inability) to provide the source of non-federal share for Medicaid payments. Under the current system of categorization by ownership or operational interests, there can be ambiguity with respect to the appropriate category for a provider when certain responsibilities of ownership or operation are divided between more than one entity. For example, there is currently the possibility that a private nursing facility could transfer the deed to its real property to the county government, but the private entity would continue to administer all functions of the provider as though it were the actual owner, leaving the county government as the owner only in name but not any function. For the provider to make an IGT, the private entity would give funds to the county government, such as through a lease payment for the facility real property, to be used as the source of the non-federal share of Medicaid payments that the state could then make back to the provider in the form of supplemental payments. This effective self-funding of the non-federal share of the supplemental payments by the provider would not have been possible if the provider were categorized as privately owned and operated, since it would have been unable to make the IGT to support the supplemental payments back to it. In this situation, we view this transferred amount as an impermissible source of the non-federal share, since the funds used to support the IGT are not obtained from state or local tax revenue and, as discussed elsewhere in this preamble, would constitute a non-bona fide provider-related donation.

Through the state plan review process and our review of UPL demonstrations, we have observed that some states have re-categorized a number of providers from privately-owned or operated facilities to a governmentally owned or operated designation, either state government-owned or operated facilities or non-state government-owned or operated facilities. In some instances, the change in ownership category appears to be both a non-bona fide provider-related donation, as well as a device to permit the state to make supplemental payments to a provider and demonstrate compliance with the UPL, rather than reflective of an actual change in the provider's true ownership or operational interests, in view of the apparent continuity of the provider's business structure and activities. We believe this shift in designation has facilitated higher supplemental payments to certain providers, without the state incurring additional cost to fund the non-federal share of payment where the private operator passes funds to the new governmental owner, which constitutes a non-bona fide provider-related donation, and those funds are either used to make an IGT or supplant funds that are otherwise used to make an IGT to the state to make a supplemental payment targeted toward the private entity. We are concerned that this type of arrangement is not consistent with the basic construct of the Medicaid program as a cooperative federal-state partnership where each party shares in the cost of providing medical assistance to beneficiaries.

Similar to our proposal in § 447.272, we propose to amend § 447.321(b) to clarify that the UPL refers to a reasonable estimate of the amount that would be paid for the services furnished by the group of facilities under Medicare payment principles in 42 CFR chapter IV, subchapter B, or allowed costs established in accordance with the cost principles as specified in 45 CFR part 75 and 2 CFR part 200, or, as applicable, Medicare cost principles specified in 42 CFR part 413. The specific data elements, methodology parameters, and acceptable UPL demonstration methodologies are specified in proposed § 447.288(b).

The existing regulations simply state that the UPL refers to a reasonable estimate of the amount that would be paid for the services furnished by the group of facilities under Medicare payment principles in subchapter B of title 42, chapter IV, of the CFR, which provided CMS with the ability to define UPLs as a payment limit set at the aggregate amount that Medicare would have paid for the same Medicaid services using either a Medicare payment methodology or Medicare cost principles. These two methods are employed because these are the two methods that Medicare has historically used to pay for services as authorized under title 42, chapter IV, subchapter B, of the CFR. In establishing this limit, we have required that states set the UPL using these principles, then compare the aggregate Medicaid payments for the defined period to the UPL, which is the Medicare equivalent payment or cost amount. We are proposing to codify our existing policy related to the use of the two methods of demonstrating the Medicaid UPL, by using the Medicare equivalent payment amount or cost amount, and the process for establishing and demonstrating compliance with the UPL in § 477.288(b) of this proposed rule. As noted elsewhere in this proposed rule, the term “Medicare equivalent” means the Medicare equivalent to the Medicaid data, payment, or services. Therefore, the term Medicare equivalent payment means the amount that would be paid for Medicaid services furnished by the group of providers if those services were provided to Medicare beneficiaries and paid under Medicare payment principles. Likewise, a reference to Medicare equivalent charges in reference to a UPL calculation means the Medicare charges for the same Medicaid services subject to the UPL.

We considered proposing to define specific methods by which states would be required to demonstrate compliance with the UPL in each of §§ 447.272 and 447.321, but determined that the proposed § 447.288 would allow us to define necessary data elements, parameters, and methodologies for demonstrating compliance with UPLs in one location, for purposes of both the inpatient and outpatient UPLs under §§ 447.272 and 447.321, respectively. To summarize briefly, proposed § 447.288 describes the data sources, data parameters, and methodologies that must be considered and used in demonstrating compliance with the UPL. It describes the appropriate Medicare data and the creation of ratios using either cost or payment data calculations, the Medicaid charge data which multiplied by the either a ratio of cost-to-charge (total cost or Medicare cost) or the ratio of Medicare payment-to-charge to calculate the UPL amount and any associated considerations (inflation adjustments, utilization adjustments, or other cost adjustments), and the Medicaid payment data. For a detailed discussion of these proposed UPL requirements, please refer to the discussion above related to § 447.288.

We invite comment on all proposed new and revised provisions in this section.

23. Medicaid Practitioner Supplemental Payments (§ 447.406)

For a number of years, states have been making supplemental payments that are targeted to certain practitioners, such as physicians and other licensed professionals, under the Medicaid state plan. Most commonly, states have targeted supplemental payments to practitioners affiliated with and furnishing services in academic medical centers and safety net hospitals. These payments have used what is commonly described as an ACR calculation. The ACR is a method of calculating an average rate paid by commercial third party payers for specific medical service codes (usually Current Procedural Terminology (CPT) codes) to providers and multiplying that average rate by the Medicaid claims for each code to establish an upper limit for these practitioner supplemental payments.

Predominantly, such ACR payments are funded by IGTs from local government sources or state university teaching hospitals and are generally made without consideration of improvements in access to or quality of care. When payment is made up to the ACR, states submit data to CMS from the top (generally five) commercial payers and provide an explanation of the data that was extracted from providers' accounts receivable systems. The state compares payment by Medicaid for each billing code to the average payment amount allowed by commercial payers for the same services. Data from each of the practitioners, group practices, or hospital-based practitioner groups eligible to receive the supplement payment is included in the submitted ACR calculation. These calculations are usually completed by the provider(s) and sent to CMS by the states through the submission of SPAs. We are proposing to end the practically unrestricted use of ACR supplemental payments based on concerns that the payments are not economic and efficient, consistent with section 1902(a)(30)(A) of the Act, and that they present a clear oversight risk because they are based on proprietary commercial payment data and thus not verifiable or auditable. As discussed in detail below, we are proposing to limit Medicaid practitioner supplemental payments to 50 percent of FFS base payments to the eligible provider for practitioner services, or 75 percent of such payments for services provided within HHS' Health Resources and Services Administration (HRSA)-designated geographic health professional shortage areas (HPSAs) or Medicare-defined rural areas, as specified in 42 CFR 412.64(b), as discussed below.

When ACR-based payments were first approved in 2000, we found that state ACR amounts were between 150 percent and 165 percent of the Medicare rates for the same services. In recent years, however, states have sought to make Medicaid practitioner supplemental payments based on calculations reflecting amounts of approximately 300 percent to 400 percent of the Medicare rate. While these percentage are outliers among states making ACR payments, those amounts were considerably larger than we had otherwise seen. In federal FY 2018, the most recent full fiscal year for which data was reported, states claimed approximately $1.32 billion in (total computable) expenditures for supplemental payments made to physicians and other licensed practitioners. As states and practitioners realized that Medicaid payments could be increased through the use of ACR-based supplemental payment methodologies and with funding from IGTs, states began to explore expanding the ACR-based supplemental payments to other Medicaid participating practitioners.

Although we questioned whether making Medicaid payments at up to 400 percent of Medicare rates was consistent with economy and efficiency as required under section 1902(a)(30)(A) of the Act, we continued to approve ACR methodologies submitted by states consistent with our historic view that such methodologies that relied on commercial data were permissible under the relevant statutory standards, and because we had not established an upper bound for practitioner supplemental payments through rulemaking.

In this rule, except as discussed below, we are proposing to apply the definitions applicable to base and supplemental payments defined under newly proposed § 447.286—Definitions and the proposed new requirements in § 447.302—State plan requirements. By aligning these definitions and requirements, we are ensuring that the terminology for base and supplemental payments for practitioner services is consistent with other service types and that states apply the same comprehensive descriptions and time limits to practitioner supplemental payments as would be applied to other Medicaid service supplemental payments. Further, we are proposing, within § 447.406(c), to limit Medicaid practitioner supplemental payments relative to base payments set under the Medicaid state plan. Notably, lump sum provider quality incentive supplemental payments that are targeted to a subset of providers within the state as part of a state's delivery system reform initiative and paid based on improvements to reported quality measures are included in the definition of “Supplemental payment” under proposed § 447.286, for purposes of newly proposed § 447.406, and therefore, would be subject to the limit proposed in § 447.406. To the extent that value-based payment methodologies that are part of a state's delivery system reform initiative and that are available to all providers under a Medicaid benefit category, including as an alternative to FFS payment rates (for example, bundled payment methodologies, payments for episodes of care, Medicaid shared savings methodologies), and otherwise align with the definition of base payments in § 447.286 (for example, the payment can be attributed to a particular service provided to a Medicaid beneficiary), we propose such payments to be base payments as defined in § 447.286. This consideration is consistent with the proposed definitions of base and supplemental payments and will allow states sufficient flexibility to promote quality improvement which may result in better care and reduced program cost over time.

The proposed new limits would allow states to target supplemental payments to practitioners: (1) Up to 50 percent of the FFS base payments authorized under the state plan for the practitioner services paid to the eligible provider during the period covered by the supplemental payment, or (2) for services provided within HRSA-designated geographic HPSA or Medicare-defined rural areas as defined in § 412.64(b), Medicaid practitioner supplemental payments could be made up to 75 percent of the FFS base payments authorized under the state plan for the practitioner services paid to the eligible provider during the period covered by the supplemental payment. We are proposing to permit additional payment for practitioner services in geopgraphic HPSAs to allow states flexibility to increase payment rates and address professional shortages and access to care concerns in areas where HHS has determined such shortages exist. Likewise, we are proposing to include Medicare-defined rural areas as defined in § 412.64(b) because states have frequently identified rural areas, some of which may not be included in the geographic HPSAs, as having issues related to access to care and we want to provide states with the flexibility to make increased practitioner supplemental payments if the state determines that such increases are needed in those areas as well.

We believe these percentages are appropriate because the ACR data from 2016 and 2017 show that, nationally, among providers receiving an ACR supplemental payment, total supplemental payments equaled approximately 75 percent of the base payment rates in 2016 to approximately 93 percent of the base payment rates in 2017 (total supplemental payment divided by total base payments to qualifying provider) based on data received through the state UPL demonstration submissions. By limiting the total practitioner payment, base and supplemental payment, to 150 percent of the base Medicaid practitioner payment, or 175 percent of the base Medicaid practitioner payment for services provided in a HRSA-designated geographic HPSA or a Medicare-defined rural area, we believe that the proposed policy would not diverge excessively from ACR supplemental payments that we historically have approved. However, under the prior structure, the supplemental payment was not related to the base Medicaid payment and could only be increased based on changes to the commercial payer rates. Therefore, an increase in the base Medicaid payment could not result in an increase in a supplemental payment to eligible providers, as would be possible under our proposal. If a state wants to increase a provider's supplemental payment beyond the maximum amount that would be permissible under the proposed provision, the state could increase Medicaid base payment rates, which could enable the state to pay a further 50 percent (or 75 percent) of the increase in FFS base payments to eligible providers. We believe this approach is, first, consistent with section 1902(a)(30)(A) of the Act, and, second, is sufficiently consistent with the previously approved Medicaid ACRs amounts not to excessively disturb total provider payments being made today under previously approved ACR supplemental payment arrangements.

To provide an example of the application of the proposed Medicaid practitioner supplemental payment limit, assume the state has proposed to make a supplemental payment to a group of practitioners within an area of the state that is not a HRSA-designated geographic HPSA or Medicare-defined rural area. One of the qualifying providers received total Medicaid FFS base payments for practitioner services of $100,000 and the state wishes to make a supplemental payment to that provider. The proposed ceiling methodology results in the following calculation: $100,000 total Medicaid base payments × 0.50 = $50,000, which could allow the state to make a Medicaid practitioner supplemental payment to the provider of up to $50,000, in addition to the Medicaid FFS base payment of $100,000, for a total payment to the provider of up to $150,000. However, if the Medicaid practitioner supplemental payment were made to a provider for services furnished in one of the HRSA-designated geographic HPSAs or a Medicare-defined rural area, the supplemental payment ceiling would be 75 percent of the total base payment amount of $100,000, which would result in the following ceiling calculation: $100,000 total Medicaid base payment × 0.75 = $75,000, which could allow the state to make a Medicaid practitioner supplemental payment of up to $75,000, in addition to the Medicaid FFS base payment of $100,000, for a total payment to the provider of up to $175,000.

In this proposed rule, we propose definitions of the terms “base payment” and “supplemental payment” in § 447.286. Per those proposed definitions, we consider Medicaid practitioner supplemental payments as “supplemental” payments under the proposed definitions. The reason is that the base payments are payments made to a provider for specific services provided to an individual beneficiary. While Medicaid practitioner supplemental payments could be tied to individual services, the calculation of the final payment amount is not dependent upon specific services furnished to any individual beneficiary, or any beneficiary's acuity or complexity of care received, nor is the practitioner supplemental payment made only for complex cases. Base payments for all practitioner services furnished by the eligible provider are supplemented by the supplemental payment, regardless of the level of beneficiary acuity or complexity (as typically would be relevant to payment adjustments or add-ons that would be considered part of the base payment). The eligible provider qualifies for these payments based on state-developed criteria that target certain providers, and the supplemental payments are often paid as lump sum at the end of a quarter or at the end of year.

In proposing these requirements, we are seeking to establish an appropriate and auditable upper bound to better ensure that practitioner payments are consistent with economy and efficiency by ensuring the supplemental payments have a reasonable relationship to the base rate methodologies that have been approved by CMS on the basis of our determination that such base rate methodologies are consistent with statutory requirements. The ACR supplemental payments historically have been established based on the negotiating power of various actors in the private market and without regard to the unique circumstances of the Medicaid program, including statutory requirements to ensure efficiency and economy. That is, higher reported commercial payment rates are a function of practitioners' ability to negotiate higher rates from certain commercial payers, rather than a result of prevailing rates generally paid to practitioners by all commercial payers, or all payers generally, and without any necessary analysis of economy and efficiency.

In contrast, the proposed provisions intend to tie the highest practitioner payments in the state to the lowest (that is, payments to practitioners that are limited to the state plan FFS base payment). States have already determined and declared as part of their rate-setting processes that base payments are consistent with economy and efficiency, quality of care, and access to care requirements, as required under section 1902(a)(30)(A) of the Act. Therefore, we believe that setting the upper limit for targeted practitioner supplemental payments at 50 percent or 75 percent more than the base amounts is reasonably sufficient to allow states with flexibility, when needed, to target payment increases while providing a basis to gauge that payments are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area. State payments must meet both tests of section 1902(a)(30)(A) of the Act in that a base payment may be economic and efficient, but if it is not sufficient to enlist sufficient providers in a particular area of the state, then an increase in payments may be needed to ensure that the rates are sufficient to enlist adequate numbers of providers in the Medicaid program. Further, this proposed policy may encourage states to evaluate whether Medicaid payment rates are generally consistent with section 1902(a)(30)(A) of the Act across all practitioners within a geographic region and evaluate whether rate increases for all practitioners may be necessary to improve access or quality, rather than targeting payments to certain practitioners that may be in a position to provide the non-federal share in exchange for supplemental payments.

Our concerns over the growing scope of practitioner supplemental payments relate to both the payment amounts relative to Medicare rates and the practitioners to which the states are providing the payments, which appears to be largely driven by the source of non-federal share used to fund the payments. As states typically rely on the providers that receive the supplemental payments to fund the non-federal share through IGTs, there is less incentive for the states to properly oversee the payments and ensure that the amounts are economic and efficient. Typically when states use appropriated funds as the source of non-federal share there is a meaningful state interest in ensuring value to maintain state budgets; however, when the non-federal share is provided by the service provider (and returned with matched federal funds through the supplemental payments) there is an inherent incentive to maximize the amount of the payments to providers in the state. In almost all instances, the providers were supplying the state with the non-federal share of the Medicaid physician supplemental payments. Without the supplemental payments, it is likely that the arrangements through which the providers have been transferring the state share to the state Medicaid agency to support current high levels of Medicaid practitioner supplemental payments would cease, and therefore, the net impact on the providers would be far less than the projected amount of decrease in practitioner supplemental payments.

The incentive to maximize federal funds to providers and lack of oversight interest from states is particularly problematic in the case of practitioner supplemental payments because of the data sources used for ACR demonstrations. The data currently used to determine supplemental payment amounts is based entirely on proprietary commercial payment data supplied by the practitioners who themselves stand to benefit from the supplemental payment. In our reviews, we have not been able to verify that the commercial payment data is correct or genuinely representative of rates that the commercial market will bear. We have also found, in several instances, that the data has been manipulated to increase the potential supplemental payments by, for instance, using comparisons to Medicaid rates paid for services within facilities (which are generally lower than office settings) compared to non-facility commercial rates, or by foregoing appropriate adjustments to ensure that the time and associated payments for procedures are equivalent for Medicaid and commercial data. Since the data within the ACR demonstrations are produced by providers (and masked to protect proprietary information), the demonstrations are impossible to validate, difficult to interpret and ultimately may not be auditable in accordance with § 430.33. By setting a limit based on Medicaid-based rates, as proposed under this rule, data is readily available within state and CMS claims systems to validate and audit the supplemental payment amounts.

We recognize that states that are already making ACR-based supplemental payments may need time to come into compliance with the proposed new limits, if they are finalized. For states whose state plans currently provide for Medicaid practitioner supplemental payments, we are proposing in § 447.406(d) to provide a transition period consistent with the one defined in § 447.302(d) for the state to submit a SPA to bring its currently approved Medicaid supplemental practitioner payment program into compliance with the requirements proposed in this section, including the cross-referenced requirements in § 447.302. Specifically, we propose that, for Medicaid practitioner supplemental payments that were approved on or before the effective date of any final rule, the state would be required to submit and obtain CMS approval for a SPA to comply with the requirements of this section in order to continue making such supplemental payments. Otherwise, the authority for state plan provisions that authorize the Medicaid practitioner supplemental payments that are approved as of the effective date of any final rule would be limited according to the timeframe described in § 447.302(d). By the end of the transition period, a state without an approved SPA bringing the Medicaid practitioner supplemental payment program into compliance with the requirements of this section (and, as incorporated by cross reference, of § 447.302) would not be authorized to continue making the supplemental payments. We believe this approach to a transition period would help minimize burden on states, as states with Medicaid practitioner supplemental payment programs would have a generous period of time to bring their state plans into compliance with the proposed new requirements. Additionally, we propose that states would no longer be required to submit annual ACR demonstrations for the annual UPL submission requirements outlined in the SMDL 13-003 for states that make targeted physician supplemental payments for physician services, further reducing the associated state burden. Instead, CMS expects that the state plan would include a comprehensive written statement of the Medicaid FFS base payment and Medicaid practitioner supplemental payment methodologies, in a manner consistent with §§ 447.302, 447.406, and all other applicable requirements.

We are seeking comment on all elements of this proposal, including the level of the proposed ceiling percentages (and whether they should be higher or lower), the option of using the Medicare rural areas and/or HRSA-designated geographic HPSA to target eligible providers for supplemental payments, the language regarding value-based payment methodologies, and whether there would be other appropriate means to give states flexibility to offer special consideration for providers in underserved areas.

24. Definitions (§ 455.301)

We are proposing to revise the definition of the “independent certified audit” to include the requirement for auditors to quantify the financial impact of each audit finding, or caveat, on an individual basis, for each hospital, per the reporting requirement in § 447.299(c)(21) and under section 1923(j)(1)(B) of the Act. Additionally, we propose to include in the definition how a certification of the audit would include a determination of whether or not the state made DSH payments that exceeded any hospital's specific DSH limit in the Medicaid state plan rate year under audit. Specifically, we are proposing to add to annual DSH reporting a requirement for auditors to quantify the financial impact of any finding, including those resulting from incomplete or missing data, which may affect whether each hospital has received DSH payments for which it is eligible within its hospital-specific DSH limit. As previously discussed, based on the audit results we are often unable to determine whether a DSH overpayment to a provider has occurred, the underlying causes of the overpayments, and the amount of the overpayments associated with each cause. This is the result of an auditor including an audit finding indicating that the missing information may have an impact on the calculation of total eligible uncompensated care costs while not making a determination of the actual financial impact of the identified issue. As a result of this lack of quantification of the financial impact of this finding, we are unable to determine whether an overpayment, if any, has resulted from this audit finding. As such, revising the definition is necessary in promoting oversight and integrity of the DSH program and ensuring the audit and report results allow us to calculate accurate hospital-specific limits. We are soliciting comments related to this proposed change.

25. Process and Calculation of State Allotments for Fiscal Year After FY 2008 (§ 457.609)

We are using the opportunity within this regulation to revise the method for notifying states and the public of national CHIP allotments. Section 2104 of the Act provides appropriations for fiscal year CHIP allotments for FYs 1998-2027 as determined under the methodologies provided in sections 2104(b), 2104(c), and 2104(m) of the Act as applicable for payments to states as described in section 2105 of the Act. Section 457.609 describes the process and calculation of state allotments for a fiscal year after FY 2008. Section 457.609(h) provides that CHIP Allotments for a fiscal year may be published as preliminary or final allotments in the Federal Register as determined by the Secretary. We have not published CHIP allotments in the Federal Register since the FY 2013 CHIP allotments. Each year following FY 2013, states have been notified of their CHIP allotments through either email notifications and/or through MBES/CBES. We propose to remove from § 457.609 the reference to our discretionary option to publish in the Federal Register the national CHIP allotment amounts as determined on an annual basis for the fiscal years specified in statute. Instead, we are proposing to post CHIP allotments in the Medicaid and CHIP Budget and Expenditure System (MBES/CBES) and at Medicaid.gov (or similar successor systems or websites) annually. We believe that posting the CHIP allotment amounts at Medicaid.gov and in the MBES/CBES is an efficient way to make the information more easily accessible to interested stakeholders and would be less administratively burdensome for CMS. We are soliciting any comments related to these proposed changes.

III. Response to Comments

Because of the large number of public comments we normally receive on Federal Register documents, we are not able to acknowledge or respond to them individually. We would consider all comments we receive by the date and time specified in the DATES section of this preamble, and, when we proceed with a subsequent document, we would respond to the comments in the preamble to that document.

IV. Collection of Information Requirements

Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.), we are required to publish a 60-day notice in the Federal Register and solicit public comment before a “collection of information” requirement is submitted to the Office of Management and Budget (OMB) for review and approval. For the purposes of the PRA and this section of the preamble, collection of information is defined under 5 CFR 1320.3(c) of the PRA's implementing regulations.

To fairly evaluate whether an information collection should be approved by OMB, PRA section 3506(c)(2)(A) requires that we solicit comment on the following issues:

• The need for the information collection and its usefulness in carrying out the proper functions of our agency.
• The accuracy of our burden estimates.
• The quality, utility, and clarity of the information to be collected.
• Our effort to minimize the information collection burden on the affected public, including the use of automated collection techniques.

We are soliciting public comment on each of the section 3506(c)(2)(A)-required issues for the following information collection requirements (ICRs).

A. Wage Estimates

To derive average costs, we used data from the U.S. Bureau of Labor Statistics' May 2018 National Occupational Employment and Wage Estimates for all salary estimates (http://www.bls.gov/​oes/​current/​oes_​nat.htm). In this regard, Table 1 presents the mean hourly wage, the cost of fringe benefits and overhead (calculated at 100 percent of salary), and the adjusted hourly wage.

As indicated, we are adjusting our employee hourly wage estimates by a factor of 100 percent. This is necessarily a rough adjustment, both because fringe benefits and overhead costs vary significantly from employer to employer, and because methods of estimating these costs vary widely from study to study. Nonetheless, we believe that doubling the hourly wage to estimate total cost is a reasonably accurate estimation method.

B. Proposed Information Collection Requirements (ICRs)

The following regulatory sections of this rule contain proposed collection of information requirements (or “ICRs”) that are subject to OMB approval under the authority of the PRA: §§ 433.72 (Waiver provision applicable to health care related taxes), 447.252 and 447.302 (State plan requirements), 447.288 (Reporting requirements for UPL demonstrations and supplemental payments), and 447.299 (DSH reporting requirements). Our analysis of the proposed requirements and burden follow.

1. ICRs Regarding Tax Waiver Requirements (§ 443.72)

The following proposed changes will be submitted to OMB for approval under control number 0938-0618 (CMS-R-148). Subject to renewal, the control number is currently set to expire on February 28, 2021. It was last approved on February 9, 2018, and remains active.

Section 433.72 of this rule proposes to add a period of validity for tax waivers of the broad-based and/or uniformity requirements, which states that waivers will cease to be effective 3 years from CMS' approval in the case of tax programs commencing on or after the rule's effective date or 3 years from the rule's effective date in the case of waivers approved before the rule's effective date. This change is necessary because the provider data submitted by states to CMS, for use in the statistical tests described at § 433.68, may change over time. As a result, the tax may be generally redistributive as required by statute and regulation when the state requests the waiver, but may subsequently cease to be so. Currently there are approximately 35 states that have broad based or uniformity waivers. We propose to allow states with existing health care-related tax waivers up to 3-years from the effective date of the final rule before they must seek re-approval. This will provide states sufficient time to evaluate and, if necessary, modify existing tax programs.

The ongoing burden associated with the proposed requirements consists of the time it would take each state that has an existing tax waiver to submit an updated version within 3-years after the effective date of the final rule and to update the waiver every 3 years. Of the 35 states with tax waivers, we estimate that there are approximately 60 tax waivers that will have to be renewed every 3 years, or about 20 tax waivers renewed per year by various states (0.4 tax waiver renewals per year per state). Please note that the proposed waiver requirements are minimal, as states are already required to monitor and update their tax waivers to ensure compliance with federal requirements.

We estimate it would take 2 hours at $37.60/hr for a healthcare support worker to prepare and submit an updated tax waiver. In aggregate we estimate an ongoing annual burden of 40 hours (20 tax waiver renewals per year × 2 hr/renewal) at a cost of $1,504 (40 hr × $37.60/hr) or $30 per state ($1,504/51).

2. ICRs Regarding State Plan Requirements (§§ 447.252 and 447.302)

The following proposed changes will be submitted to OMB for approval under control number 0938-0193 (CMS-179). Subject to renewal, the control number is currently set to expire on April 30, 2022. It was last approved on April 9, 2019, and remains active.

The proposed changes to §§ 447.252 and 447.302 would require that states provide additional descriptors for any proposed supplemental payments and would put a 3-year limit on the duration of all prospectively approved supplemental payments, with a transition period for states to seek renewal of currently approved supplemental payments in accordance with the proposed requirements, if the state desires to continue the supplemental payment. States would need to provide the additional descriptors to receive state plan authority to disburse their proposed supplemental payments. Consequently, currently approved supplemental payment-related SPAs would have to be updated by adding the descriptors, as outlined in section II.A.13. of this proposed rule, state plan requirements (§ 447.252), and in § 447.252(d) of the regulatory text. Supplemental payments are presently authorized through the SPA process with CMS.

The ongoing burden associated with the proposed requirements consists of the time it would take each of the 50 state Medicaid programs, the District of Columbia, and the territories Puerto Rico, US Virgin Islands, and Guam (hereinafter, “states”) to specify six (6) descriptors for all applicable SPAs that provide or would provide for a supplemental payment. The territories the Commonwealth of the Northern Mariana Islands (CNMI) and American Samoa have been excluded to the extent that Medicaid services are provided under section 1902(j) waiver. The additional SPA descriptors include: (1) An explanation of how the state plan or SPA will result in payments that are consistent with section 1902(a)(30)(A) of the Act; (2) the criteria to determine which providers are eligible to receive the supplemental payment; (3) a comprehensive description of the methodology used to calculate the amount of, and distribute, the supplemental payment to each eligible provider, including all of the following: The amount of the supplemental payment made to each eligible provider, if known, or, if the total amount is distributed using a formula based on data from one or more fiscal years, the total amount of the supplemental payments for the fiscal year or years available to all providers eligible to receive a supplemental payment, if applicable, the specific criteria with respect to Medicaid service, utilization, or cost data from the proposed SPA year to be used as the basis for calculations regarding the amount and/or distribution of the supplemental payment, the timing of the supplemental payment to each eligible provider, an assurance that the total Medicaid payment to an inpatient hospital provider, including the supplemental payment, will not exceed the upper limits specified in § 447.271, and if not already submitted, a UPL demonstration as required by § 447.272 and described in § 447.288; (4) the duration of the supplemental payment authority (not to exceed 3 years); (5) a monitoring plan to ensure that the supplemental payment remains consistent with the requirements of section 1902(a)(30)(A) of the Act and to enable evaluation of the effects of the supplemental payment on the Medicaid program, for example, with respect to providers and beneficiaries; and (6) for a SPA proposing to renew a supplemental payment for a subsequent approval period, an evaluation of the impacts on the Medicaid program during the current or most recent prior approval period, for example, with respect to providers and beneficiaries, and including an analysis of the impact of the supplemental payment on compliance with section 1902(a)(30)(A) of the Act.

We have attempted to mitigate any new burden by identifying the essential descriptors that are necessary during a SPA review of proposed state supplemental payments. The more information and transparency provided with the SPA to implement new, or renew existing, supplemental payments will reduce the number of questions and requests for additional information from CMS, and therefore, could result in more expedited approval along with increased economy and efficiency of the Medicaid program.

To estimate the overall burden of adding the descriptors to all supplemental payment-related SPAs we considered the total nationwide number of active supplemental payments by states reporting for the current 8 UPL demonstration service types for the period 2015-2017 (3 years) in the proposed 6 UPL service types (see Table 2, line A): (1) Nursing facility; (2) outpatient hospital; (3) inpatient hospital; (4) ICF/IID; (5) IMD; and (6) physician services excluding PRTF and clinic.

As indicated, the total number of states reporting supplemental payment methodologies in the UPL demonstrations in the Medicaid program for the following service types are: 37 for inpatient hospital services (IP); 29 for outpatient facility services (OP); 49 for nursing facility services (NF); 8 for ICF/IIDs (ICF); 0 for IMDs (IMD); and 17 for physician services (Phys). We recognize that there are often more than one supplemental payment SPA per state for each service type, especially for states with more providers and service types like inpatient hospitals and nursing facilities, while IMDs have no supplemental payments, and therefore, no SPAs to renew or submit. To account for this we multiplied the number of states reporting each service type by 2 (approximately 2 SPAs per year for each service type) to estimate the total number of SPAs submitted by the states.

In this regard, the total number of SPAs is estimated to be 280 (Table 2, line B) or 5.19 (line C) per state (280 SPAs/54 states and territories). We estimate that each SPA is renewed every 2.5 years (half of the time required in this proposed rule), for 2.08 (5.19 SPAs per state/1 SPA renewal every 2.5 years) SPA renewals per state per year.

We estimate it would take 30 additional minutes (0.5 hr) at $48.48/hr for a social science research assistant (technical staff) to add all 6 supplemental payment SPA components from §§ 447.252 and 447.302 for each SPA submission, noting that a comprehensive payment methodology is currently required for all SPA submissions. In aggregate, we estimate an annual burden of 56.2 hours (2.08 SPA renewals per state per year × 0.5 hr for additional descriptors × 54 states and territories) at a cost of $2,725 (56.2 hr × $48.48/hr). This estimate factors in the burden associated with supplemental payment SPAs for the 6 service types mentioned above and summarized in Table 2. Per state, we estimate an average annual burden of 1.0 hours (56.2 hr/54 states and territories) at a cost of $50 ($2,725/54 states and territories).

3. ICRs Regarding Reporting for UPL Demonstrations and Supplemental Payments (§ 447.288)

The following proposed changes will be submitted to OMB for approval under control number 0938-1148 (CMS-10398 #13 and #24). Subject to renewal, the control number is currently set to expire on March 31, 2021. It was last approved on March 1, 2018, and remains active.

Section 447.288 of this rule proposes to codify our current policy of requiring states and territories to submit annual UPL demonstrations.

While the territories Puerto Rico, US Virgin Islands, and Guam are included in this estimate, the Commonwealth of the Northern Mariana Islands (CNMI) and American Samoa have been excluded from this estimate because they provide Medicaid services under section 1902(j) waivers. The proposed rule would also add quarterly reporting requirements (§ 447.288(c)(1)) that would provide data on each provider receiving a supplemental payment, the amount of payment(s), and the state plan/demonstration authority authorizing the payment. The proposed rule would also require an aggregate report (§ 447.288(c)(2)) of all providers receiving supplemental payments that totals all of the supplemental payments providers receive during the year plus all Medicaid payments, and Medicaid utilization data. Lastly, the rule would also require a report (§ 447.288(c)(3)) of all of those providers contributing to the state's non-federal share for any supplemental payment, the state plan/demonstration authority authorizing the payment, and the amount of the payment(s).

(1) UPL Demonstrations

The currently approved burden associated with the requirements we are revising and putting into regulation in this proposed rule, consists of the time it would take each of the 56 Medicaid programs (50 states, 5 territories, and the District of Columbia) to submit annual UPL demonstrations and report supplemental payments for: Inpatient hospital; outpatient hospital; nursing facilities; PRTF; clinic services; other inpatient & outpatient facility providers (commonly known as physician services); ICF/IID; and institutions for mental disease (IMD) on the currently approved (hereinafter, “active”) UPL templates that are set out under CMS-10398 #13 and #24.

This proposed rule would reduce burden by eliminating the UPL demonstrations for three service types PRTF, clinic services, and other inpatient & outpatient facility providers (physician services) and by eliminating 2 territories from reporting any of the items required under § 447.288. It also proposes to codify the requirements for states to annually report UPL demonstrations as discussed in SMDL #13-003 (March 18, 2013),^[11] which was associated with OMB approved templates (OMB Control Number 0938-1148) and collection of information requirements approved by OMB under control number 0938-1148 (CMS-10398 #13 and 24).

For CMS-10398 #13 (Medicaid Accountability—Nursing Facility, Outpatient Hospital and Inpatient Hospital Upper Payment Limits) eliminating 2 territories from this reporting would reduce our active burden estimates by −80 hours (40 hr/response × −2 responses) for a burden reduction of $3,057 ([30 hr × −2 responses × $32.44/hr for a data entry keyer] + [9 hr × −2 responses × $48.48/hr for a social science research assistant] + [1 hr × −2 responses × $119.12/hr for a general and operations manager]).

For CMS-10398 #24 (Medicaid Accountability—Upper Payment Limits ICF/IID, Clinic Services, Medicaid Qualified Practitioner Services and Other Inpatient & Outpatient Facility Providers) this would reduce our active burden by −80 hours (40 hr/response × −2 responses) at a cost of −$3,057 ([30 hr × −2 responses × $32.44/hr for a data entry keyer] + [9 hr × −2 responses × $48.48/hr for a social science research assistant] + [1 hr × −2 responses × $119.12/hr for a general and operations manager]).

For CMS-10398 #24 this rule would also reduce our active burden by eliminating 3 of the 5 UPL demonstrations for the service types PRTF, Clinic Services, and Medicaid Qualified Practitioner Services and Other Inpatient & Outpatient Facility Providers (commonly referred to as the physician ACR). This would reduce our active burden estimates by −1,296 hours (8 hr/response × 3 service types × 54 states) for a savings of $49,528 ([18 hr × −54 states × $32.44/hr for a data entry keyer] + [5.4 hr × −54 states × $48.48/hr for a social science research assistant] + [0.6 hr × −54 states × $119.12/hr for a general and operations manager]). This proposed action would thereby eliminate the PRTF, Clinic Services, and Medicaid Qualified Practitioner Services and Other Inpatient & Outpatient Facility Providers (commonly referred to as physician ACR) templates along with the guidance and instruction documents that are associated with the templates.

As indicated, the proposed burden changes will be submitted to OMB for approval under control number 0938-1148 (CMS-10398 #13 and #24). Since the proposed requirements impact two information collection requests (#13 and #24), we estimate a total burden reduction of −1,456 hours (−80 hr −80 hr −1,296 hr) for a savings of $55,642 (−$3,057 −$3,057 −$49,528).

(2) Quarterly Reporting of Expenditures Claimed for Each Supplemental Payment (§ 447.288(c)(1))

In addition to the data already collected in the aggregate for all supplemental payments and required annually for UPL demonstrations under the CMS-10398 #13 and #24, this proposed rule would require that states report information quarterly on expenditures claimed for each supplemental payment made under state plan or demonstration authority including: (1) The SPA transaction number or demonstration authority number which authorizes the payment; (2) a listing of each provider that received a payment under each authority by the specialty type (if applicable, for example, CAH, pediatric hospital, or teaching hospital); (3) the specific amount of the supplemental payment paid to each provider including the total payment made to the provider authorized under the specified state plan; and (4) the total Medicaid payment made to the provider under the specified demonstration authority.

This rule would add quarterly data reported to CMS in the form of 5 new templates mirroring the UPL demonstrations reporting by service type of the provider. For CMS-10398 #13, this would consist of quarterly report templates for: Nursing facilities, outpatient hospitals, and inpatient hospitals. For CMS-10398 #24, quarterly report templates would be added for: ICF/IID and IMD.

The quarterly reports would be required at the time the state submits its quarterly CMS-64 (OMB control number 0938-1265) pursuant to § 430.30(c), consisting of provider level information on all providers receiving supplemental payments, including 11 data elements consisting of 8 demographic elements and 3 elements specific to supplemental payments (see (§ 447.288(c)(1))). The 8 demographic elements of each provider that received a supplemental payment under each authority consist of: (1) The provider's legal name; (2) the physical address of the location or facility where services are provided, including street address, city, state, and ZIP code; (3) the NPI; (4) the Medicaid identification number; (5) the EIN; (6) the service type for which the reported payment was made;(7) the provider specialty type (if applicable, for example, CAH, pediatric hospital, or teaching hospital); and (8) the provider category (that is, state government, non-state government, or private). The 3 supplemental payment elements for payments paid to each provider consist of the specific amount of the supplemental payment made to the provider, including: (1) SPA transaction number or demonstration authority number which authorizes the supplemental payment; (2) the total supplemental payment made to the provider authorized under the specified state plan; (3) the total Medicaid supplemental payment made to the provider under the specified demonstration authority, as applicable.

For the supplemental payment quarterly reports, annually we estimate it will take 20 seconds at $32.44/hr for a data entry keyer to query states' MMIS system and/or copy and paste each data element into the required format for reporting. The initial quarterly report would require the full set of 11 data elements for each provider receiving a supplemental payment with a burden of 449 hours (7,341 providers with supplemental payments × 11 data elements × 1 report/year × 20 seconds/3,600 seconds in an hour) and a cost of $14,566 (449 hr × $32.44/hr).

The three (3) subsequent quarterly reports would only require reporting of the three (3) supplemental payment data elements since the eight (8) demographic data elements would have already been reported in the initial quarterly report. The burden associated with the subsequent reports consists of 367 hours (7,341 providers with supplemental payment × 3 data elements × 3 reports/year × 20 seconds/3,600) at a cost of $11,906 (367 hr × $32.44/hr).

In aggregate, we estimate a burden of 816 hours (449 hr + 367 hr) at a cost of $26,472 ($14,566 + $11,906).

We also expect oversight by social science research assistants and general operations managers for each of the supplemental payment quarterly reports. We estimate it would take 1 hour at $48.48/hr for a social science research assistant and 30 minutes (0.5 hr) for a general operations manager at $119.12/hr to review each of the reports. In this regard we estimate an annual burden of 306 hours ([1 hr × 4 reports × 51 states] + [0.5 hr × 4 reports × 51 states]) at a cost of $22,040 ([1 hr × 4 reports × 51 states × $48.48/hr] + [0.5 hr × 4 reports × 51 states × $119.12/hr]).

Given the aforementioned burden estimates, we estimate a total of 1,140 hours (816 hr + 324 hr) at a cost of $49,797 ($26,460 + $23,337) for all of the information collection requests with quarterly reporting, including all 5 new templates. Per state we estimate 21.1 hours (1,140 hrs/54 states) and $922 (49,797/54 states) for all quarterly reporting.

As indicated, the proposed requirements and burden will be submitted to OMB for approval under control number 0938-1148 (CMS-10398 #13 and #24). Since the proposed requirements would impact two information collection requests (CMS-10398 #13 and #24), the annual quarterly reporting burden for each is broken down here: For CMS-10398 #13 (new quarterly report templates for inpatient hospitals, outpatient hospitals, and nursing facilities) it is 1,108 hours (1,122 hr × 0.97 ^[12] ) at a cost of $48,433 ($49,797 × 0.97); for CMS-10398 #24 (new quarterly report templates for ICF/IID and IMD) the burden is 31.2 hours (1,122 hr × 0.027 ^[13] ) at a cost of $1,363 ($49,797 × 0.027).

(3) Utilization Reporting Template and Guidance Documents (§ 447.288(b)(2))

Annually, the proposed reporting of the specific amount of Medicaid payments made to each provider would include: (1) The total FFS base payments made to the provider authorized under the state plan; (2) the total Medicaid payments made to the provider under demonstration authority; (3) the total payment or funds received from Medicaid beneficiary cost-sharing requirements, donations, and any other funds received from third parties to support the provision of Medicaid services; (4) the total supplemental payment made to the provider authorized under the specified state plan; (5) the total Medicaid supplemental payment made to the provider under the specified demonstration authority, and the total Medicaid payments made to the provider as reported in the above areas; (6) the total DSH payments made to the provider; and (7) the Medicaid units of care (for example, on a provider-specific basis, total Medicaid discharges, days of care, or any other measures as specified by the Secretary).

A utilization report by provider service type would be required annually by states in this proposed rule, which includes all of the providers reported in the Supplemental Payments Reporting Templates (that is, all providers receiving supplemental payments), and reports all base payments, DSH payments, and additional utilization data from those providers. This Utilization Report includes all base payments made to each provider in the state, with the addition of DSH and Medicaid utilization data (23 data elements consisting of 9 demographic elements previously reported in the quarterly reports, 10 new elements specific to supplemental and other payments, and 4 new utilization elements).

The 9 demographic elements, linked to the same 8 elements in the quarterly reports plus 1 element stating the dates of the supplemental payment period, all covering the same providers in each service type, that received a supplemental payment under each authority listed in § 447.288(c)(1) including: (1) The provider's legal name; (2) the physical address of the location or facility where services are provided, including street address, city, state, and ZIP code; (3) the NPI; (4) the Medicaid identification number; (5) the EIN; (6) the service type for which the reported payment was made; (7) the provider specialty type (if applicable, for example, CAH, pediatric hospital, or teaching hospital); (8) the provider category (that is, state government, non-state government, or private); and (9) the state reporting period (state fiscal year start and end dates).

The 14 supplemental payment elements for Medicaid payments made to each provider consist of the following, as applicable: (1) The SPA transaction number or demonstration authority number which authorizes the supplemental payment; The specific amount of Medicaid payments made to each provider, including, as applicable; (2) the total FFS base payments made to the provider authorized under the state plan; (3) the total Medicaid payments made to the provider under demonstration authority; (4) the total payment or funds received from Medicaid beneficiary cost-sharing requirements; (5) the total payment or funds received from Medicaid donations; (6) the total of any other funds received from third parties to support the provision of Medicaid services; (7) the total supplemental payment made to the provider authorized under the specified state plan; (8) the total Medicaid supplemental payment made to the provider under the specified demonstration authority; (9) the total Medicaid payments made to the provider as reported above (summation of 2-8 above); and (10) the total DSH payments made to the provider. The 4 utilization elements are comprised of: Up to four (11. through 14.) Medicaid unit of care metrics (for example, on a provider-specific basis, total Medicaid discharges, days of care, or any other measures as specified by the Secretary).

There are a total of 14 new data elements. The eight demographic elements and the SPA transaction number or demonstration authority number which authorizes the supplemental payment were reported during the previous quarterly CMS-64 reports submitted during the year, and therefore, are not counted in the collection of information here.

For the annual utilization report we estimate it would take 20 seconds at $32.44/hr for a data entry keyer to query states' MMIS system and/or copy and paste each data element into the required format for reporting. The burden associated with preparing and submitting the annual report consists of 571 hours (7,341 providers reported with supplemental payments in the UPL demonstration × 14 new data elements × 1 report/year × 20 seconds/3,600 seconds per hour) at a cost of $18,523 (571 hr × $32.44/hr).

Additionally, we estimate oversight by social science research assistants and general operations managers for the utilization annual report. We estimate it would take 1.5 hours at $48.48/hr for a social science research assistant and 1 hour at $119.12/hr for a general operations manager to review the report. In this regard we estimate an annual burden of 135 hours ([1.5 hr × 1 report × 54 states] + [1 hr × 1 report × 54 states]) at a cost of $10,359 ([1.5 hr × 1 report × 54 states × $48.48/hr] + [1 hr × 1 report × 54 states × $119.12/hr]).

Given the aforementioned burden estimates, we estimate a total of 706 hours (571 hr + 135 hr) at a cost of $28,882 ($18,522 + $10,359) for all information collection for the utilization report. Per state, this amounts to 13.1 hours (706 hrs/54 states) at a cost of $535 ($28,882/54 states).

Since the proposed requirements impact two information collection requests (CMS-10398 #13 and #24), we break down the cost to each, as above. The burden for CMS-10398 #13 is 687 hours (706 hr × 0.97) at a cost of $28,091 ($28,882 × 0.97). For CMS-10398 #24 the burden is 19.3 hours (706 hr × 0.027) at a cost of $791 ($28,882 × 0.027).

(4) Annual Non-Federal Share Reporting (§ 447.288(c)(3))

Section 447.288(c)(3), proposes to require that each state submit an annual report of the aggregate and provider-level information on each provider contributing to the state or any local unit of government any funds that are used as a source of the non-federal share for any Medicaid supplemental payment, including 17 data elements consisting of: 8 new demographic elements; 8 new supplemental and other payment elements; and 1 new summation element.

The 8 demographic elements of each provider that received a non-federal share for any Medicaid supplemental payment under each authority listed in § 447.288(a) include: (1) The service type for which the reported payment was made; (2) the provider specialty type (if applicable, for example, CAH, pediatric hospital, or teaching hospital) (3) the provider's legal name; (4) the physical address of the location or facility where services are provided, including street address, city, state, and ZIP code; (5) the NPI; (6) the Medicaid identification number; (7) the EIN; and (8) the provider category (that is, state government, non-state government, or private).

The 8 supplemental and other payment elements are comprised of: (1) The total FFS base payments made to the provider authorized under the state plan; (2) the total FFS supplemental payments made to the provider authorized under the state plan; (3) the total Medicaid payments made to the provider under demonstration authority; (4) the total DSH payments made to the provider; (5) the total of each health care-related tax collected from the provider by any state authority or local unit of government; (6) the total of any costs certified as a CPE by the provider; (7) the total amount contributed by the provider to the state or a unit of local government entity in the form of an IGT; and (8) the total of provider-related donations made by the provideror by entities related to a health care provider, including in-cash and in-kind donations, to the state or unit of local government, including state university teaching hospitals.

The summation element would require: (1) The total funds contributed by the provider (that is, CPEs, IGTs, provider taxes, donations, and any other funds contributed) as reported under the supplemental and other payment elements.

For the annual non-federal share report we estimate that all providers will contribute to the non-federal share. We believe this to be an overestimate, but this is the only estimate we have at this time using the UPL demonstration data that we have available. We also estimate that it would take 20 seconds at $32.44/hr for a data entry keyer to query states' MMIS system and/or copy and paste each of the 17 data elements into the required format for reporting. The burden associated with preparing and submitting the annual report consists of 2,666 hours (28,232 total providers × 17 data elements × 1 report/year × 20 seconds/3,600 seconds per hour) at a cost of $86,485 (2,666 hr × $32.44/hr).

Additionally, we estimate oversight by social science research assistants and general operations managers for the non-federal share annual report. We estimate it would take 4 hours at $48.48/hr for a social science research assistant and 2 hours at $119.12/hr for a general operations manager to review the report. In this regard we estimate an annual burden of 324 hours ([4 hr × 1 report × 54 states] + [2 hr × 1 report × 54 states]) at a cost of $23,337 ([4 hr × 1 report × 54 states × $48.48/hr] + [2 hr × 1 report × 54 states × $119.12/hr]).

Given the aforementioned burden estimates, we estimate a total of 2,990 hours (2,666 hr + 324 hr) at a cost of $109,833 ($86,497 + $23,337) for all information collection requests for the non-federal share report. Per state, this amounts to 55.4 hours (2,990 hr/54 states) at a cost of $2,034 ($109,833/54 states).

Since the proposed requirements impact two information collection requests (CMS-10398 #13 and #24), the burden for CMS-10398 #13 is 2,617 hours (2,990 hr × 0.875 ^[14] ) at a cost of $94,427 ($109,833 × 0.875). For CMS-10398 #24 the burden is 373.5 hours (2,990 hr × 0.125 ^[15] ) at a cost of $13,717 ($109,833 × 0.13).

4. ICRs Regarding DSH Reporting Requirements (§ 447.299)

The following proposed changes will be submitted to OMB for approval under control number 0938-0746 (CMS-R-266). Subject to renewal, the control number is currently set to expire on April 30, 2022. It was last approved on April 9, 2019, and remains active.

Under § 447.299 this proposed rule would require states to provide an additional data element as part of its annual DSH audit report. This additional element would require a state auditor to quantify the financial impact of any audit finding not captured within any other data element under § 447.299(c), which may affect whether each hospital has received DSH payments for which it is eligible within its hospital-specific DSH limit.

If the auditor is unable to determine the actual financial impact amount of an audit finding, the auditor would be required to provide a statement of the estimated financial impact for each audit finding identified in the independent certified audit.

The proposed additional data element requires auditors to indicate the financial impact of all findings rather than indicating that the financial impact of any finding is unknown. We believe the additional burden associated with the new data element would be minimal given that auditors are already engaged in a focused review of available documentation to quantify the aggregate amounts that comprise each of the existing data elements required under § 447.299(c).

The burden consists of the time it would take each of the states to quantify any audit finding identified during the independent certified audit required under section 1923(j)(2) of the Act. The territories have been excluded from this proposed requirement since they do not receive a DSH allotment under section 1923(f) of the Act.

To estimate the overall burden of adding this new data element to the reporting requirement, we considered the number of annual independent certified audits received by CMS in addition to the number of unquantified audit findings.

This rule would require the submission of data in an electronic spreadsheet format that would take approximately 2 hours, consisting of: 1 hour at $111.14/hr for management and professional staff to review the report and 1 hour at $74.60/hr for a financial specialist to prepare the report. In aggregate we estimate an ongoing annual burden of 102 hours (51 states × 2 hr/response × 1 response/year) at a cost of $9,473 ((51 states × [(1 hr $111.14/hr) + (1 hr × $74.60/hr)] or $186 per state ($9,473/51 states). Additionaly we anticipate that a state auditor would have to spend an additional hour quantifying the financial impact of DSH findings that are classified as unknown. The estimated annual burden would be 1 hour per state (51 states × 1 hour) 51 hours × 75.78/hr for auditors to complete the audit at a cost of $3,865 per year (51 states × 1 hour × $75.78 per hour). The total cost of this proposed rule would be $13,338 ($9,473 + $3,865) and 153 hours or $262 per state and 3 hours per state.

C. Summary of Annual Burden Estimates for Proposed Requirements

Table 3 summarizes the burden for the aforementioned proposed provisions

For all parts of this proposed rule, we estimate there would be a total nationwide burden of 3,637 hours at a cost of $145,221 and an average of 67 hours (3,637 hr/54 states) at a cost of $2,847 per state Medicaid agency per year ($145,221/54 states).

D. Requirements Not Subject to the PRA

The following regulatory sections propose changes to definitions, policy guidance, and clarifications of existing statutes or regulatory provisions. The changes do not have any collection of information implications, and therefore, are not subject to the requirements of the PRA: §§ 430.42 (Disallowance of claims for FFP), 433.51 (State share of financial participation), 433.52 (General definitions), 433.54 (Bona fide donations), 433.55 (Health care-related taxes defined), 433.56 (Classes of health care services and providers defined), 433.68 (Permissible health care-related taxes), 433.72 (Waiver provisions applicable to health care-related taxes), 433.316 (When Discovery of Overpayment occurs and its Significance), 447.201 (State plan requirements), 447.207 (Retention of payments), 447.272 (Inpatient services: Application of UPLs), 447.284 (Basis and purpose), 447.286 (Definitions), 447.290 (Failure to Report Required Information), 447.297 (Limitations on aggregate payments for DSHs beginning October 1, 1992), 447.321 (Outpatient hospital services: Application of UPLs), 455.301 (Definitions), 455.304 (Condition for FFP), and 457.609 (Process and calculation of state allotments for a fiscal year after FY 2008).

E. Submission of PRA-Related Comments

We have submitted a copy of this proposed rule to OMB for its review of the rule's ICRs. The requirements are not effective until they have been approved by OMB.

To obtain copies of the supporting statement and any related forms for the proposed collections discussed above, please visit the CMS website at www.cms.hhs.gov/​PaperworkReductionActof1995, or call the Reports Clearance Office at 410-786-1326.

We invite public comments on these potential ICRs. If you wish to comment, please submit your comments electronically as specified in the DATES and ADDRESSES section of this proposed rule and identify the rule (CMS-2393-P) the ICR's CFR citation, and OMB control number.

V. Regulatory Impact Analysis

A. Statement of Need

This proposed rule would impact states' reporting on payment methods and procedures to assure consistency with efficiency, economy, and quality of care as required by section 1902(a)(30)(A) of the Act. CMS, and other federal oversight entities, have found that current regulations and guidance do not adequately assure that states are complying with the efficiency, economy and quality of care requirements of section 1902(a)(30)(A) of the Act, and this rule is intended to address those deficiencies. We view this proposed rule as one approach to add additional accountability and transparency for Medicaid payments, and to provide CMS with certain information on supplemental payments to Medicaid providers, including supplemental payments approved under either Medicaid state plan or demonstration authority, establish new state plan requirements for amendments proposing supplemental payments, and otherwise ensure the proper and efficient operation of the Medicaid state plan. This proposed rule would address the funding of these supplemental and other Medicaid payments through states' uses of health care-related taxes and bona fide provider-related donations.

Medicaid DSH payments and requirements are addressed in this proposed rule. We propose to add additional specificity to the reporting requirements of the annual DSH audit conducted by an independent auditor to enhance federal oversight of the Medicaid DSH program. Additionally, we seek to improve the accurate identification of and collection efforts related to overpayments identified through the annual DSH independent certified audits by specifying the date of discovery and standards for redistribution of DSH payments made to providers in excess of the hospital-specific limit.

The proposed rule also seeks to alleviate the administrative burden of publishing the annual DSH and CHIP allotments in the Federal Register, of which we simultaneously notify states directly by providing notification through other, more practical means. Finally, we propose changes to the disallowance reconsideration procedures in order to modernize the process by relying on an electronic, rather than a hard-copy paper process.

B. Overall Impact

We have examined the impacts of this proposed rule as required by Executive Order 12866 on Regulatory Planning and Review (September 30, 1993), Executive Order 13563 on Improving Regulation and Regulatory Review (January 18, 2011), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Act, section 202 of the Unfunded Mandates Reform Act of 1995 (March 22, 1995; Pub. L. 104-4), Executive Order 13132 on Federalism (August 4, 1999), and Executive Order 13771 on Reducing Regulation and Controlling Regulatory Costs (January 30, 2017).

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action that is likely to result in a rule: (1) Having an annual effect on the economy of $100 million or more in any 1 year, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local or tribal governments or communities (also referred to as “economically significant”); (2) creating a serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of beneficiaries thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

We estimate these provisions to meet the criteria for economic significance based upon the analysis of certain provisions in the proposed rule, as discussed in more detail below. The proposed reporting requirements largely contain data already available to states in their own fiscal management and claims processing systems, and merely requires states to report the data to us. Additional information on setting goals for supplemental payments and evaluating the positive and negative aspects of these goals over time, while these requirements are consistent and necessary to ensure compliance with section 1902(a)(30)(A) of the Act, which requires payments be consistent with efficiency, economy, and quality of care, they will require state Medicaid programs to develop and consider various compliance options. Moreover, the reporting requirements and supplemental payment evaluations are generally consistent with current state oversight and review activities of each state's Medicaid program, and states have the flexibility within their reviews to use their existing data or build upon that data when reviewing supplemental payments to providers, in order to formulate goals and evaluate the effectiveness of these payments. In fact, the policies in this proposed rule are intended to focus on state efforts in monitoring and overseeing data and methodologies concerning supplemental and other payments as well as sources of non-federal share to enhance states' ability to comply with section 1902(a)(30)(A) of the Act and our ability to ensure such compliance.

C. Anticipated Effects

1. Effects of Reporting Requirements on State Medicaid Programs

For all parts of this proposed rule we estimate there would be a total nationwide burden of 3,637 hours at a cost of $145,221 and an average of 67 hours (3,637 hr/54 states) at a cost of $2,847 per state Medicaid agency per year ($145,221/54 states) per state and District of Columbia Medicaid agency per year (see section IV. of this proposed rule, Collection of Information Requirements, for details on this cost assessment and a breakdown of the burden from the various parts of this proposed rule).

The proposed rule adds several reporting requirements, including: §§ 447.252 and 447.302, which would add goals, evaluations, and 3-year renewable authorizations on any supplemental payment methodology, providing a transition schedule for SPAs to be updated. Section 447.288, would add 4 quarterly reports with data on expenditures claimed for each supplemental payment made under state plan or demonstration authority by provider, and an annual report with 2 sections—one section with a roll up of the quarterly data with added Medicaid utilization measures and one section with information on all providers contributing to the state or any other governmental entity any portion of the non-federal share of the supplemental payment and the total of their contributions.

This regulation codifies states reporting annual UPL demonstrations that CMS discussed in an SMDL issued on March 18, 2013 (SMDL #13-003) regarding annual submission of Medicaid UPLs. In this proposed rule, § 447.288(a) would decrease burden by eliminating the UPL demonstrations for three service types—PRTF, clinic services, and other inpatient & outpatient facility providers (physician services), note that the UPL demonstrations for the territories the Commonwealth of the Northern Mariana Islands (CNMI) and American Samoa are excluded from this estimate because they provide Medicaid services under section 1902(j) waivers. This OMB approved UPL demonstration (OMB Control Number: 0938-1148, CMS-10398 (#13) (#24)) will be updated accordingly.

For § 447.206 on Payments funded by CPEs made to providers that are units of government, states would be required to develop processes that are already used by CMS and routinely asked of states to comply with section 1902(a)(30)(A) of the Act that requires Medicaid state plan methods and procedures relating to the payment for services that are consistent with efficiency, economy, and quality of care. These collections of information are already routinely asked of states under existing OMB control numbers, so no additional burden or economic impact is anticipated.

2. Effects on Small Businesses and Other Providers

This rule establishes requirements that are solely the responsibility of state Medicaid agencies, which are not small entities. Therefore, the Secretary certifies this proposed rule would not, if promulgated, have a significant economic impact on a substantial number of small entities.

3. Effects on the Medicaid Program

The fiscal impact on the Medicaid program from the implementation of the policies in the proposed rule is unknown. The provision that would have the most direct impact on current provider payments is the Medicaid practitioner supplemental payment requirements proposed in § 447.406. To summarize, this provision would limit Medicaid practitioner base plus supplemental payments to 150 percent of the FFS base payments authorized under the state plan for the practitioner services within a defined geographic area that would otherwise be paid to the targeted practitioners, or for services provided within HRSA-designated geographic HPSA or Medicare-defined rural geographical areas, Medicaid practitioner base plus supplemental payments may not exceed 175 percent of the FFS base payments authorized under the state plan for the practitioner services within a defined geographic area that would otherwise be paid to the targeted practitioners.

To analyze the impact of this proposed change, CMS reviewed the 2017 Medicaid physician UPL demonstrations which were submitted by states that make supplemental payments to physicians and other practitioners. In 2017, 21 states made approximately $478 million in physician supplemental payments compared with $512 million in Medicaid FFS base payments to the practitioners eligible to receive the supplemental payments, which equals $990 million in total payments for the qualifying providers that received a supplemental payment. To measure the impact, we would multiply the total Medicaid FFS base payments ($512 million) by 150 percent which would equal $768 million in total Medicaid FFS payments with the net Medicaid physician supplemental payment amount of $256 million. The estimated impact of this proposed provision is a reduction in payments of $222 million in total computable Medicaid reimbursement ($478 million minus $256 million equals $222 million). However, this potential decrease in Medicaid reimbursements could be mitigated if states take action to increase Medicaid provider base payments, which would thereby increase the amount that could be paid out in Medicaid practitioner supplemental payments. Depending on state action in response to this provision, we estimate that the impact on Medicaid reimbursements could range from $0 to $222 million. Similarly, we do not have sufficient data to predict or quantify the impact of the proposed provisions on health-care related taxes, although we would expect that states may modify existing state tax policy or arrangements where those taxes or arrangements would be newly be considered health-care related under the proposed provisions. We invite comments from states, providers, and other stakeholders on the estimates and potential state responses to these provisions. There are some considerations that limit the effect of the proposed change. First, the proposed rule phases out these supplemental payments over a 5 to 7-year period based on when the supplemental payment was last approved. The supplemental payments, as currently approved in the plan, would begin to be incrementally removed from the state plan after the provision is finalized. Second, Medicaid practitioner supplemental payments would only be limited by the amount of the Medicaid FFS base payments. If a state wanted to increase the amount of the supplemental payment, the state would have the option under the proposed rule to increase the base payment that is paid to all providers within a geographic area of the state and thereby also increase what the state could pay in supplemental payments to targeted providers under the state plan. Third, in almost all instances, the providers were supplying the state with the non-federal share of the Medicaid practitioner supplemental payments. Without the supplemental payments, it is likely that the arrangements through which the providers have been transferring the state share to the state Medicaid agency to support current high levels of Medicaid practitioner supplemental payments would cease, and therefore, the net impact on the providers would be far less than the projected amount of decrease in practitioner supplemental payments. Finally, the projected impact does not include any consideration for Medicaid physician base plus supplemental payments that could be paid under the proposal in HRSA-designated geographic HPSA or in Medicare's rural geographic areas up to 175 percent of the Medicaid FFS base payment rate. If any of the providers included in the state's physician UPL demonstrations are in those areas, the net impact of the proposed change would be reduced.

We would also point out that the data obtained from the quarterly and annual reports would support the evaluation of varying payment streams impacting providers' services and quality and would allow for greater oversight on supplemental payments, including payments that could exceed the UPL; DSH payments; and generally provide better fiduciary oversight of the Medicaid program.

D. Alternatives Considered

In developing this proposed rule, the following alternatives were considered:

1. Not Proposing the Rule

We considered not proposing this rule and maintaining the status quo. However, we believe this proposed rule would lead to better accountability and transparency for supplemental payments. We do not currently have the necessary data at the state and provider level to perform adequate analysis and oversight of supplemental payments, and this proposed rule would allow us to do so.

2. Eliminating Supplemental Payments

We considered proposing a rule that would eliminate supplemental payments. However, this option could have been a huge burden on states to revise payment methodologies, cost reports, and fee schedules. Also, this option would have eliminated an important avenue for states potentially to reward providers that show improvement in performance or quality metrics, and to address urgent access problems that may arise. At this time, we believe our concerns about accountability and transparency around supplemental payments may be addressed through the proposed policies and do not require the draconian step of eliminating state flexibility by prohibiting such payments altogether.

3. Requiring Equal Distribution of Supplemental Payments

We considered proposing to require equal distribution of supplemental payments to all providers of the relevant class of services. This option would have eliminated states' ability to target supplemental payments to one or a small number of providers, and thus could have more closely linked supplemental payments to services provided. However, we opted to not propose this provision at this time as this proposal would have increased burden on state Medicaid agencies by requiring revision of payment methodologies and tracking supplemental payments for all providers of services within the relevant class.

4. Requiring DSH-Like Audits of Supplemental Payments

We considered proposing to require independent certified audits of all Medicaid supplemental payments, similar to the audit requirement for all DSH payments. Under this alternative, for states to receive FFP for supplemental payments, an independent certified audit would be required to verify that all supplemental payments were appropriate. However, we decided not to propose this alternative at this time, due to the need for more and better data to understand the complex nature of supplemental payments so that we may better understand the particular audit structure and requirements needed to effectively monitor supplemental payment programs.

5. Mandating a Provider-Specific UPL

We considered proposing a provider-specific UPL for certain services. However, imposing such a provision at this time could have disrupted current public financing methods and would also have imposed a burden on states to revise longstanding payment methodologies.

6. Setting 5-Year Renewable Authorizations for Supplemental Payments and a 5-Year Compliance Transition Period

Another alternative we considered was to propose 5-year renewable authorizations for supplemental payments, instead of the proposed 3-year renewable authorizations. The 5-year renewal period for supplemental payments would have decreased administrative burden on both the states and federal government, as opposed to the 3-year renewal period, as we would expect to see less frequent SPA re-submissions and CMS SPA reviews, respectively; in our judgment, the effort spent on reviewing, evaluating, and working with states to improve supplemental payment SPAs is a worthwhile effort toward the end of more fiscal accountability in the Medicaid program. Also, the 3-year renewal period is consistent with the 3-year approval period for health-care related tax waivers proposed in § 433.72 of this proposed rule.

We also considered proposing a 5-year compliance transition period instead of the proposed 3-year compliance transition period in §§ 447.252(e) and 447.302(d). This would have increased the amount of time states would have to bring existing, approved supplemental payment methodologies into compliance with the provisions of the proposed rule in these two sections. We decided to propose a 3-year transition period to account for states where changes may require legislative action as some legislatures meet on a biennial basis, and therefore, would make compliance with a 3-year transition period compatible. We are requesting comment on whether or not to pursue an expanded transition period of 5 years instead of the proposed 3-year transition period.

7. Setting 5-Year or 1-Year Deadline for Tax Waiver Renewals

We considered proposing 5 years, or 1 year, as the length of the approval period for tax waivers before states would need to submit another request. However, we settled on 3 years because we believe that it would help ensure fiscal accountability and the fiscal integrity of the Medicaid program by ensuring that provider data for the classes to be taxed is up to date, while at the same time avoiding undue regulatory burden on states.

8. Requiring Both the P1/P2 and the B1/B2 Tests for Non-Uniform Health Care-Related Taxes

In evaluating how to eliminate tax structures that are problematic because they place an undue burden on the Medicaid program, we considered requiring the P1/P2 statistical test in § 433.68(e)(1) in addition to the B1/B2 statistical test in § 433.68(e)(2), for states requesting a waiver of the uniformity requirement (whether or not the state is also requesting a waiver of the broad-based requirement). Under this alternative, a state that requests a waiver of the uniformity requirement would need to have its tax pass both the P1/P2 test in addition to the B1/B2 test currently required. We believe that this statistical test could serve as a broad tool to prohibit tax structures that would inappropriately burden the Medicaid program in ways not explicitly prohibited in current regulation. However, we decided against this approach to balance preserving an appropriate degree of flexibility for states in designing tax programs with ensuring that state taxes are not imposed primarily on Medicaid providers and services. We believe that the categorical prohibitions against tax structures that unduly burden Medicaid which we are proposing to add in § 433.68(e)(3) offer sufficient protection to the financial health of the title XIX program.

In addition, we considered proposing a list of acceptable commonalities that states could permissibly use to define taxpayer groups. However, we believe that this could be overly restrictive to states and impede their flexibility to structure their tax programs in ways that suit local circumstances while still complying with all applicable federal requirements. We are soliciting comment on additional prohibitions against unduly burdening the Medicaid program that might also be added to this section to avoid such arrangements.

9. Audit Requirement To Quantify Financial Impact of Audit Findings

We considered proposing to require auditors to clarify the impact of audit findings and caveats within the existing data element report by incorporating finding amounts into existing data elements (for example, Total Medicaid Uncompensated Care). However, this option may not enable auditors to effectively capture financial impacts of specific issues and such finding might not be readily transparent to states, CMS, and hospitals; therefore, we opted to include this as an additional data element on the DSH report.

10. Clarifying the Discovery Date for DSH Overpayments and Redistribution Requirements

We considered proposing to use the date that the auditor submits the independent certified audit to the state as the date of discovery for DSH overpayments identified through the independent certified audit, but ultimately decided to consider the date that a state submits the independent certified audit to CMS as the discovery date. The earlier date would start the clock for state repayment of FFP without regard to possible work that may need to occur between states and auditors to finalize the audit and associated reporting prior to submission to CMS.

11. Technical Changes to Publishing DSH and CHIP Allotments

We considered continuing the requirement to publish the DSH and CHIP allotments in the Federal Register. However, we believe this is unnecessary as states are already informed regarding their annual DSH and CHIP allotments prior to the publication of the Federal Register notice that we now provide and, in our experience, we have not received public comment regarding the notice.

12. Accounting Statement

As required by OMB Circular A-4 (available at http://www.whitehouse.gov/​omb/​circulars_​a004_​a-4), we have prepared an accounting statement in Table 1 showing the classifaction of the transfers associated with the provisions of this proposed rule.

The RFA requires agencies to analyze options for regulatory relief of small entities, if a rule has a significant impact on a substantial number of small entities. The great majority of hospitals and most other health care providers and suppliers are small entities, either by being nonprofit organizations or by meeting the SBA definition of a small business (having revenues of less than $8.0 million to $41.5 million in any one year). Individuals and states are not included in the definition of a small entity. As its measure of significant economic impact on a substantial number of small entities, HHS uses a change in revenue of more than 3 to 5 percent. We do not believe that this threshold will be reached by the provisions in this proposed rule.

In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 603 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a metropolitan statistical area and has fewer than 100 beds. This rule will not have a significant impact on the operations of a substantial number of small rural hospitals.

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2018, that threshold is approximately $150 million. This rule does not contain mandates that will impose spending costs on state, local, or tribal governments in the aggregate, or by the private sector, in excess of the threshold.

Executive Order 13132 establishes certain requirements that an agency must meet when it issues a proposed rule that imposes substantial direct requirement costs on state and local governments, preempts state law, or otherwise has Federalism implications. This rule does not impose substantial direct costs on state or local governments or preempt state law.

Executive Order 13771, titled Reducing Regulation and Controlling Regulatory Costs, was issued on January 30, 2017, requires that the costs associated with significant new regulations “to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations.” This rule, if promulgated, is not expected to be subject to the requirements of E.O. 13771 because it is expected to result in no more than de minimis costs.

E. Conclusion

If the policies in this proposed rule are finalized, states would be required to send us more detailed data on payments, including supplemental and DSH payments, Medicaid utilization data, provider taxes and donations, and CPEs and IGTs; implement new reviews of supplemental payment methodologies and tax waivers and periodically seek authorization for their renewal (if desired by the state); and provide a narrative to be sent in along with supplemental payment SPA submissions on the goals and evaluation of the payments.

In addition, states would also be allowed to tax services of health insurers excluding services of MCOs, as a permitted class without experiencing a reduction in medical assistance expenditures, be prohibited from unduly burdening Medicaid with taxes that are not generally redistributive, and be required to renew tax waivers every 3 years, with updated provider data, or sooner if the state changes the definitions of taxpayer groups or tax rates in a non-uniform manner.

The analysis above, together with the remainder of this preamble, provides a regulatory impact analysis. In accordance with the provisions of Executive Order 12866, this proposed rule was reviewed by the Office of Management and Budget.

List of Subjects

42 CFR Part 430

• Administrative practice and procedure
• Grant programs-health
• Medicaid
• Reporting and recordkeeping requirements

42 CFR Part 433

• Administrative practice and procedure
• Child support
• Claims
• Grant programs—health
• Medicaid
• Reporting and recordkeeping requirements

42 CFR Part 447

• Accounting
• Administrative practice and procedure
• Drugs
• Grant programs-health
• Health facilities
• Health professions
• Medicaid
• Reporting and recordkeeping requirements
• Rural areas

42 CFR Part 455

• Fraud
• Grant programs—health
• Health facilities
• Health professions
• Investigations
• Medicaid
• Reporting and recordkeeping requirements

42 CFR Part 457

• Administrative practice and procedure
• Grant programs—health
• Health insurance
• Reporting and recordkeeping requirements

For the reasons set forth in the preamble, the Centers for Medicare & Medicaid Services proposes to amend 42 CFR chapter IV as set forth below:

PART 430—GRANTS TO STATES FOR MEDICAL ASSISTANCE PROGRAMS

1. The authority citation for part 430 is revised to read as follows:

Authority: 42 U.S.C. 1302.

2. Section 430.42 is amended by revising paragraphs (b)(2)(i)(A) introductory text, (b)(2)(i)(B) and (C), (c)(3), (c)(4)(i), (c)(6), and (d)(1) to read as follows:

PART 433—STATE FISCAL ADMINISTRATION

3. The authority citation for part 433 is revised to read as follows:

Authority: 42 U.S.C. 1302.

4. Section 433.51 is revised to read as follows:

5. Section 433.52 is amended—

a. By adding the definitions of “Medicaid activity”, “Net effect”, “Non-Medicaid activity”, and “Parameters of a tax” in alphabetical order;

b. In the definition of “Provider-related donation” by revising paragraphs (2) and (3) and adding paragraph (4); and

c. By adding the definition of “Taxpayer group” in alphabetical order.

The additions and revision read as follows:

6. Section 433.54 is amended by revising paragraph (c)(3) to read as follows:

7. Section 433.55 is amended by revising paragraph (c) to read as follows:

8. Section 433.56 is amended—

a. In paragraph (a)(18), removing the phrase “services; and” and adding in its place the phrase “services;”;

b. Redesignating paragraph (a)(19) as paragraph (a)(20); and

c. Adding a new paragraph (a)(19).

The addition reads as follows:

9. Section 433.68 is amended by—

a. Revising paragraph (e) introductory text;

b. Adding paragraph (e)(3); and

c. Revising paragraph (f)(3).

The revisions and addition read as follows:

10. Section 433.72 is amended by adding paragraphs (c)(3) and (4) and (d) to read as follows:

11. Section 433.316 is amended by—

a. Redesignating paragraphs (f) through (h) as paragraphs (g) through (i), respectively; and

b. Adding a new paragraph (f).

The addition reads as follows:

PART 447—PAYMENTS FOR SERVICES

12. The authority citation for part 447 is revised to read as follows:

Authority: 42 U.S.C. 1302 and 1396r-8.

13. Section 447.201 is amended by adding paragraph (c) to read as follows:

14. Section 447.206 is added to subpart B to read as follows:

15. Section 447.207 is added to subpart B to read as follows:

16. Section 447.252 is amended by adding paragraphs (d) and (e) to read as follows:

17. Section 447.272 is amended by revising paragraphs (a)(1) through (3) and (b)(1) to read as follows:

18. Subpart D is added to read as follows:

Subpart D—Payments for Services

Subpart D—Payments for Services

19. Section 447.297 is amended—

a. In paragraph (b) by removing the phrase “published by April 1 of each Federal fiscal year,” and adding in its place the phrase “posted as soon as practicable”

b. In paragraph (c) by removing the phrase “publish in the Federal Register” and adding in its place the phrase “post in the Medicaid Budget and Expenditure System and at Medicaid.gov (or similar successor system or website)” and by removing the phrase “publish final State DSH allotments by April 1 of each Federal fiscal year,” and adding in its place the phrase “post final State DSH allotments as soon as practicable in each Federal fiscal year,”

c. In paragraph (d)(1) by removing the phrase “by April 1 of each Federal fiscal year” and adding in its place the phrase “as soon as practicable for each Federal fiscal year” and by removing the phrase “prior to the April 1 publication date” and adding in its place the phrase “prior to the posting date”

20. Section 447.299 is amended by—

a. Redesignating paragraph (c)(21) as paragraph (c)(22)

b. Adding new paragraph (c)(21) and paragraphs (f) and (g).

The additions read as follows:

21. Section 447.302 is revised to read as follows:

22. Section 447.321 is amended by revising the section heading and paragraphs (a) and (b)(1) to read as follows:

23. Section 447.406 is added to read as follows:

PART 455—PROGRAM INTEGRITY: MEDICAID

24. The authority citation for part 455 continues to read as follows:

Authority: 42 U.S.C 1302.

25. Section 455.301 is amended by revising the definition of “Independent certified audit” to read as follows:

PART 457—ALLOTMENTS AND GRANTS TO STATES

26. The authority for part 457 continues to read as follows:

Authority: 42 U.S.C. 1302.

27. Section 457.609 is amended by revising paragraph (h) to read as follows:

Footnotes