Federal Register / Vol. 72, No. 155 / Monday, August 13, 2007 / Proposed Rules 45201 

SUMMARY: EPA proposes to approve the 

State Implementation Plan (SIP) 

revision submitted by the 

Commonwealth of Virginia for the 

purpose of establishing a variance for 

the International Paper, Franklin Paper 

Mill facility located in Franklin, 

Virginia. The variance provides 

regulatory relief from compliance with 

state regulations governing new source 

review for the implementation of the 

International Paper, Franklin Paper Mill 

innovation project. In lieu of 

compliance with these regulatory 

requirements, the variance requires the 

facility to comply with site-wide 

emission caps. In the Final Rules 

section of this Federal Register, EPA is 

approving the Commonwealth’s SIP 

submittal as a direct final rule without 

prior proposal because the Agency 

views this as a noncontroversial 

submittal and anticipates no adverse 

comments. A detailed rationale for the 

approval is set forth in the direct final 

rule. If no adverse comments are 

received in response to this action, no 

further activity is contemplated. If EPA 

receives adverse comments, the direct 

final rule will be withdrawn and all 

public comments received will be 

addressed in a subsequent final rule 

based on this proposed rule. EPA will 

not institute a second comment period. 

Any parties interested in commenting 

on this action should do so at this time. 

DATES: Comments must be received in 

writing by September 12, 2007. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA–

R03–OAR–2006–0060 by one of the 

following methods: 

A. http://www.regulations.gov. Follow 

the on-line instructions for submitting 

comments. 

B. E-mail: campbell.dave@epa.gov. 

C. Mail: EPA–R03–OAR–2006–0060, 

David Campbell, Chief, Permits and 

Technical Assessment Branch, Mailcode 

3AP11, U.S. Environmental Protection 

Agency, Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103. 

D. Hand Delivery: At the previouslylisted EPA Region III address. Such 

deliveries are only accepted during the 

Docket’s normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R03–OAR–2006–

0060. EPA’s policy is that all comments 

received will be included in the public 

docket without change, and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an anonymous access system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket: All documents in the 

electronic docket are listed in the 

http://www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

i.e., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically in http:// 

www.regulations.gov or in hard copy 

during normal business hours at the Air 

Protection Division, U.S. Environmental 

Protection Agency, Region III, 1650 

Arch Street, Philadelphia, Pennsylvania 

19103. Copies of the State submittal are 

available at the Virginia Department of 

Environmental Quality, 629 East Main 

Street, Richmond, Virginia, 23219. 

FOR FURTHER INFORMATION CONTACT: 

Sharon McCauley, (215) 814–3376, or by 

e-mail at mccauley.sharon@epa.gov. 

SUPPLEMENTARY INFORMATION: For 

further information, please see the 

information provided in the direct final 

action, with the same title, that is 

located in the Rules and Regulations 

section of this Federal Register 

publication. Please note that if EPA 

receives adverse comment on an 

amendment, paragraph, or section of 

this rule and if that provision may be 

severed from the remainder of the rule, 

EPA may adopt as final those provisions 

of the rule that are not subject of an 

adverse comment. 

Dated: July 31, 2007. 

William T. Wisniewski, 

Acting Regional Administrator, Region III. 

[FR Doc. E7–15585 Filed 8–10–07; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

42 CFR Parts 440 and 441 

[CMS 2261–P] 

RIN 0938–A081 

Medicaid Program; Coverage for 

Rehabilitative Services 

AGENCY: Centers for Medicare & 

Medicaid Services (CMS), HHS. 

ACTION: Proposed rule. 

SUMMARY: This proposed rule would 

amend the definition of Medicaid 

rehabilitative services in order to 

provide for important beneficiary 

protections such as a person-centered 

written rehabilitation plan and 

maintenance of case records. The 

proposed rule would also ensure the 

fiscal integrity of claimed Medicaid 

expenditures by clarifying the service 

definition and providing that Medicaid 

rehabilitative services must be 

coordinated with but do not include 

services furnished by other programs 

that are focused on social or educational 

development goals and available as part 

of other services or programs. These 

services and programs include, but are 

not limited to, foster care, child welfare, 

education, child care, prevocational and 

vocational services, housing, parole and 

probation, juvenile justice, public 

guardianship, and any other nonMedicaid services from Federal, State, 

or local programs. 

DATES: To be assured consideration, 

comments must be received at one of 

the addresses provided below, no later 

than 5 p.m. on October 12, 2007. 

ADDRESSES: In commenting, please refer 

to file code CMS–2261–P. Because of 

staff and resource limitations, we cannot 

accept comments by facsimile (FAX) 

transmission. 

You may submit comments in one of 

four ways (no duplicates, please): 

1. Electronically. You may submit 

electronic comments on specific issues 

in this regulation to http:// 

www.cms.hhs.gov/eRulemaking. Click 

on the link ‘‘Submit electronic 


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45202 Federal Register / Vol. 72, No. 155 / Monday, August 13, 2007 / Proposed Rules 

comments on CMS regulations with an 

open comment period.’’ (Attachments 

should be in Microsoft Word, 

WordPerfect, or Excel; however, we 

prefer Microsoft Word.) 

2. By regular mail. You may mail 

written comments (one original and two 

copies) to the following address ONLY: 

Centers for Medicare & Medicaid 

Services, Department of Health and 

Human Services, Attention: CMS–2261–

P, P.O. Box 8018, Baltimore, MD 21244–

8018. 

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 (one 

original and two copies) to the following 

address ONLY: Centers for Medicare & 

Medicaid Services, Department of 

Health and Human Services, Attention: 

CMS–2261–P, Mail Stop C4–26–05, 

7500 Security Boulevard, Baltimore, MD 

21244–1850. 

4. By hand or courier. If you prefer, 

you may deliver (by hand or courier) 

your written comments (one original 

and two copies) before the close of the 

comment period to one of the following 

addresses. If you intend to deliver your 

comments to the Baltimore address, 

please call telephone number (410) 786–

3685 in advance to schedule your 

arrival with one of our staff members. 

Room 445–G, Hubert H. Humphrey 

Building, 200 Independence Avenue, 

SW., Washington, DC 20201; or 

7500 Security Boulevard, Baltimore, MD 

21244–1850. 

(Because access to the interior of the 

HHH Building is not readily available to 

persons without Federal Government 

identification, commenters are 

encouraged to leave their comments in 

the CMS drop slots located in the main 

lobby of the building. A stamp-in clock 

is available for persons wishing to retain 

a proof of filing by stamping in and 

retaining an extra copy of the comments 

being filed.) 

Comments mailed to the addresses 

indicated as appropriate for hand or 

courier delivery may be delayed and 

received after the comment period. 

Submission of comments on 

paperwork requirements. You may 

submit comments on this document’s 

paperwork requirements by mailing 

your comments to the addresses 

provided at the end of the ‘‘Collection 

of Information Requirements’’ section in 

this document. 

For information on viewing public 

comments, see the beginning of the 

SUPPLEMENTARY INFORMATION section. 

FOR FURTHER INFORMATION CONTACT: 

Maria Reed, (410) 786–2255 or Shawn 

Terrell, (410) 786–0672. 

SUPPLEMENTARY INFORMATION: 

Submitting Comments: We welcome 

comments from the public on all issues 

set forth in this rule to assist us in fully 

considering issues and developing 

policies. You can assist us by 

referencing the file code CMS–2261–P 

and the specific ‘‘issue identifier’’ that 

precedes the section on which you 

choose to comment. 

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 (for example, 

names, addresses, social security 

numbers, and medical diagnoses) or 

confidential business information 

(including proprietary information) that 

is included in a comment. We post all 

comments received before the close of 

the comment period on the following 

Web site as soon as possible after they 

have been received: http:// 

www.cms.hhs.gov/eRulemaking. Click 

on the link ‘‘Electronic Comments on 

CMS Regulations’’ on that Web site to 

view public comments. 

Comments received timely will also 

be available for public inspection as 

they are received, generally beginning 

approximately 3 weeks after publication 

of a document, at the headquarters of 

the Centers for Medicare & Medicaid 

Services, 7500 Security Boulevard, 

Baltimore, Maryland 21244, Monday 

through Friday of each week from 8:30 

a.m. to 4 p.m. To schedule an 

appointment to view public comments, 

phone 1–800–743–3951. 

I. Background 

A. Overview 

Section 1905(a)(13) of the Social 

Security Act (the Act) includes 

rehabilitative services as an optional 

Medicaid State plan benefit. Current 

Medicaid regulations at 42 CFR 

440.130(d) provide a broad definition of 

rehabilitative services. Rehabilitative 

services are defined as ‘‘any medical or 

remedial services recommended by a 

physician or other licensed practitioner 

of the healing arts, within the scope of 

his or her practice under State law, for 

maximum reduction of physical or 

mental disability and restoration of a 

recipient to his best possible functional 

level.’’ The broad general language in 

this regulatory definition has afforded 

States considerable flexibility under 

their State plans to meet the needs of 

their State’s Medicaid population. 

Over the years the scope of services 

States have provided under the 

rehabilitation benefit has expanded 

from physical rehabilitative services to 

also include mental health and 

substance abuse treatment rehabilitative 

services. For example, services currently 

provided by States under the 

rehabilitative benefit include services 

aimed at improving physical 

disabilities, including physical, 

occupational, and speech therapies; 

mental health services, such as 

individual and group therapy, 

psychosocial therapy services; and 

services for substance-related disorders 

(for example, substance use disorders 

and substance induced disorders). 

These Medicaid services may be 

delivered through various models of 

care and in a variety of settings. 

The broad language of the current 

statutory and regulatory definition has, 

however, had some unintended 

consequences. It has also led to some 

confusion over whether otherwise 

applicable statutory or regulatory 

provider standards would apply under 

the rehabilitative services benefit. 

As the number of States providing 

rehabilitative services has increased, 

some States have viewed the 

rehabilitation benefit as a ‘‘catch-all’’

category to cover services included in 

other Federal, State and local programs. 

For example, it appears some States 

have used Medicaid to fund services 

that are included in the provision of 

foster care and in the Individuals with 

Disabilities Education Improvement Act 

(IDEA). Our audit reviews have recently 

revealed that Medicaid funds have also 

been used to pay for behavioral 

treatment services in ‘‘wilderness 

camps,’’ juvenile detention, and similar 

facilities where youth are involuntarily 

confined. These facilities are under the 

domain of the juvenile justice or youth 

systems in the State, rather than 

Medicaid, and there is no assurance that 

the claimed services reflect an 

independent evaluation of individual 

rehabilitative needs. 

This proposed regulation is designed 

to clarify the broad general language of 

the current regulation to ensure that 

rehabilitative services are provided in a 

coordinated manner that is in the best 

interest of the individuals, are limited to 

rehabilitative purposes and are 

furnished by qualified providers. This 

proposed regulation would rectify the 

improper reliance on the Medicaid 

rehabilitation benefit for services 

furnished by other programs that are 

focused on social or educational 

development goals in programs other 

than Medicaid. 

This proposed regulation would 

provide guidance to ensure that services 

claimed under the optional Medicaid 

rehabilitative benefit are in fact 

rehabilitative out-patient services, are 

furnished by qualified providers, are 


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provided to Medicaid eligible 

individuals according to a goal-oriented 

rehabilitation plan, and are not for 

services that are included in programs 

with a focus other than that of 

Medicaid. 

B. Habilitation Services 

Section 6411(g) of the Omnibus 

Budget Reconciliation Act of 1989 

(OBRA 89) prohibits us from taking 

adverse action against States with 

approved habilitation provisions 

pending the issuance of a regulation that 

‘‘specifies types of day habilitation 

services that a State may cover under 

paragraphs (9) (clinic services) or (13) 

(rehabilitative services) of section 

1905(a) of the Act on behalf of persons 

with mental retardation or with related 

conditions.’’ We believe that issuance of 

a final rule based on this proposed rule 

will satisfy this condition. We intend to 

work with those States that have 

habilitation programs under the clinic 

services or rehabilitative services 

benefits in their State plans to transition 

to appropriate Medicaid coverage 

authorities, such as section 1915(c) 

waivers or the Home and CommunityBased Services State plan option under 

section 1915 (i) of the Deficit Reduction 

Act (DRA) of 2005 (Pub. L. 107–171), 

enacted on February 8, 2006. 

II. Provisions of the Proposed Rule 

[If you choose to comment on issues 

in this section, please include the 

caption ‘‘PROVISIONS OF THE 

PROPOSED REGULATIONS’’ at the 

beginning of your comments.] 

A. Definitions 

In 440.130(d)(1), we propose to define 

the terms used in this rule, as listed 

below: 

• Recommended by a physician or 

other licensed practitioner of the 

healing arts. 

• Other licensed practitioner of the 

healing arts. 

• Qualified providers of rehabilitative 

services. 

• Under the direction of. 

• Written rehabilitation plan. 

• Restorative services. 

• Medical services. 

• Remedial services. 

In § 440.130(d)(1)(iii), we would 

define ‘‘qualified providers of 

rehabilitative services’’ to require that 

individuals providing rehabilitative 

services meet the provider qualification 

requirements applicable to the same 

service when it is furnished under other 

benefit categories. Further, the provider 

qualifications must be set forth in the 

Medicaid State plan. These 

qualifications may include education, 

work experience, training, credentialing, 

supervision and licensing, that are 

applied uniformly. Provider 

qualifications must be reasonable given 

the nature of the service provided and 

the population being served. We require 

uniform application of these 

qualifications to ensure the individual 

free choice of qualified providers, 

consistent with section 1902(a)(23) of 

the Act. 

Under this proposed definition, if 

specific provider qualifications are set 

forth elsewhere in subpart A of part 440, 

those provider qualifications take 

precedence when those services are 

provided under the rehabilitation 

option. Thus, if a State chooses to 

provide the various therapies discussed 

at § 440.110 (physical therapy, 

occupational therapy, speech, language 

and hearing services) under 

§ 440.130(d), the requirements of 

§ 440.110 applicable to those services 

would apply. For example, speech 

therapy is addressed in regulation at 

§ 440.110(c) with specific provider 

requirements for speech pathologists 

and audiologists that must be met. If a 

State offers speech therapy as a 

rehabilitative service, the specific 

provider requirements at § 440.110(c) 

must be met. It should be noted that the 

definition of Occupational Therapy in 

§ 440.110 is not correct insofar as the 

following—Occupational Therapists 

must be certified through the National 

Board of Certification for Occupational 

Therapy, not the American 

Occupational Therapy Association. 

We are proposing a definition of the 

term ‘‘under the direction of’’ because it 

is a key issue in the provision of therapy 

services through the rehabilitative 

services benefit. Therapy services may 

be furnished by or ‘‘under the direction 

of’’ a qualified provider under the 

provisions of § 440.110. We are 

proposing to clarify that the term means 

that the therapist providing direction is 

supervising the individual’s care which, 

at a minimum, includes seeing the 

individual initially, prescribing the type 

of care to be provided, reviewing the 

need for continued services throughout 

treatment, assuming professional 

responsibility for services provided, and 

ensuring that all services are medically 

necessary. The term ‘‘under the 

direction of’’ requires each of these 

elements; in particular, professional 

responsibility requires face-to-face 

contact by the therapist at least at the 

beginning of treatment and periodically 

thereafter. Note that this definition 

applies specifically to providers of 

physical therapy, occupational therapy, 

and services for individuals with 

speech, hearing and language disorders. 

This language is not meant to exclude 

appropriate supervision arrangements 

for other rehabilitative services. 

B. Scope of Services 

Consistent with the provision of 

section 1905(a)(13) of the Act, we have 

retained the current definition of 

rehabilitative services in § 440.130(d)(2) 

as including ‘‘medical or remedial 

services recommended by a physician or 

other licensed practitioner of the 

healing arts, within the scope of his 

practice under State law, for maximum 

reduction of physical or mental 

disability and restoration of a recipient 

to his best possible functional level.’’

We would, however, clarify that 

rehabilitative services do not include 

room and board in an institution, 

consistent with the longstanding CMS 

interpretation that section 1905(a) of the 

Act has specifically identified 

circumstances in which Medicaid 

would pay for coverage of room and 

board in an inpatient setting. This 

interpretation was upheld in Texas v. 

U.S. Dep’t Health and Human Servs., 61 

F.3d 438 (5th Cir. 1995). 

C. Written Rehabilitation Plan 

We propose to add a new 

requirement, at § 440.130(d)(3), that 

covered rehabilitative services for each 

individual must be identified under a 

written rehabilitation plan. This 

rehabilitation plan would ensure that 

the services are designed and 

coordinated to lead to the goals set forth 

in statute and regulation (maximum 

reduction of physical or mental 

disability and restoration to the best 

possible functional level). It would 

ensure transparency of coverage and 

medical necessity determinations, so 

that the beneficiary, and family or other 

responsible individuals, would have a 

clear understanding of the services that 

are being made available to the 

beneficiary. In all situations, the 

ultimate goal is to reduce the duration 

and intensity of medical care to the least 

intrusive level possible which sustains 

health. The Medicaid goal is to deliver 

and pay for the clinically-appropriate, 

Medicaid-covered services that would 

contribute to the treatment goal. It is our 

expectation that, for persons with 

mental illnesses and substance-related 

disorders, the rehabilitation plan would 

include recovery goals. The 

rehabilitation plan would establish a 

basis for evaluating the effectiveness of 

the care offered in meeting the stated 

goals. It would provide for a process to 

involve the beneficiary, and family or 

other responsible individuals, in the 

overall management of rehabilitative 

care. The rehabilitation plan would also 


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document that the services have been 

determined to be rehabilitative services 

consistent with the regulatory 

definition, and will have a timeline, 

based on the individual’s assessed 

needs and anticipated progress, for 

reevaluation of the plan, not longer than 

one year. It is our expectation that the 

reevaluation of the plan would involve 

the beneficiary, family, or other 

responsible individuals and would 

include a review of whether the goals 

set forth in the plan are being met and 

whether each of the services described 

in the plan has contributed to meeting 

the stated goals. If it is determined that 

there has been no measurable reduction 

of disability and restoration of 

functional level, any new plan would 

need to pursue a different rehabilitation 

strategy including revision of the 

rehabilitative goals, services and/or 

methods. It is important to note that this 

benefit is not a custodial care benefit for 

individuals with chronic conditions but 

should result in a change in status. The 

rehabilitation plan should identify the 

rehabilitation objectives that would be 

achieved under the plan in terms of 

measurable reductions in a diagnosed 

physical or mental disability and in 

terms of restored functional abilities. 

We recognize, however, that 

rehabilitation goals are often contingent 

on the individual’s maintenance of a 

current level of functioning. In these 

instances, services that provide 

assistance in maintaining functioning 

may be considered rehabilitative only 

when necessary to help an individual 

achieve a rehabilitation goal as defined 

in the rehabilitation plan. Services 

provided primarily in order to maintain 

a level of functioning in the absence of 

a rehabilitation goal are not 

rehabilitation services. 

It is our further expectation that the 

rehabilitation plan be reasonable and 

based on the individual’s diagnosed 

condition(s) and on the standards of 

practice for provisions of rehabilitative 

services to an individual with the 

individual’s condition(s). The 

rehabilitation plan is not intended to 

limit or restrict the State’s ability to 

require prior authorization for services. 

The proposed requirements state that 

the written rehabilitation plan must: 

• Be based on a comprehensive 

assessment of an individual’s 

rehabilitation needs including diagnoses 

and presence of a functional impairment 

in daily living; 

• Be developed by qualified 

provider(s) working within the State 

scope of practice acts with input from 

the individual, individual’s family, the 

individual’s authorized health care 

decision maker and/or persons of the 

individual’s choosing; 

• Ensure the active participation of 

the individual, individual’s family, the 

individual’s authorized health care 

decision maker and/or persons of the 

individual’s choosing in the 

development, review and modification 

of these goals and services; 

• Specify the individual’s 

rehabilitation goals to be achieved, 

including recovery goals for persons 

with mental health and/or substance 

related disorders; 

• Specify the physical impairment, 

mental health and/or substance related 

disorder that is being addressed; 

• Identify the medical and remedial 

services intended to reduce the 

identified physical impairment, mental 

health and/or substance related 

disorder; 

• Identify the methods that would be 

used to deliver services; 

• Specify the anticipated outcomes; 

• Indicate the frequency, amount and 

duration of the services; 

• Be signed by the individual 

responsible for developing the 

rehabilitation plan; 

• Indicate the anticipated provider(s) 

of the service(s) and the extent to which 

the services may be available from 

alternate provider(s) of the same service; 

• Specify a timeline for reevaluation 

of the plan, based on the individual’s 

assessed needs and anticipated progress, 

but not longer than one year; 

• Document that the individual or 

representative participated in the 

development of the plan, signed the 

plan, and received a copy of the 

rehabilitation plan; and 

• Document that the services have 

been determined to be rehabilitative 

services consistent with the regulatory 

definition. 

We believe that a written 

rehabilitation plan would ensure that 

services are provided within the scope 

of the rehabilitative services and would 

increase the likelihood that an 

individual’s disability would be 

reduced and functional level restored. 

In order to determine whether a specific 

service is a covered rehabilitative 

benefit, it is helpful to scrutinize the 

purpose of the service as defined in the 

care plan. 

For example, an activity that may 

appear to be a recreational activity may 

be rehabilitative if it is furnished with 

a focus on medical or remedial 

outcomes to address a particular 

impairment and functional loss. Such 

an activity, if provided by a Medicaid 

qualified provider, could address a 

physical or mental impairment that 

would help to increase motor skills in 

an individual who has suffered a stroke, 

or help to restore social functioning and 

personal interaction skills for a person 

with a mental illness. 

We are proposing to require in 

§ 440.130(d)(3)(iii) that the written 

rehabilitation plan include the active 

participation of the individual (or the 

individual’s authorized health care 

decision maker) in the development, 

review, and reevaluation of the 

rehabilitation goals and services. We 

recommend the use of a person-centered 

planning process. Since the 

rehabilitation plan identifies recoveryoriented goals, the individual must be at 

the center of the planning process. 

D. Impairments to be Addressed 

We propose in § 440.130(d)(4) that 

rehabilitative services include services 

provided to an eligible individual to 

address the individual’s physical needs, 

mental health needs, and/or substancerelated disorder treatment needs. 

Because rehabilitative services are an 

optional service for adults, a State has 

flexibility to determine whether 

rehabilitative services would be limited 

to certain rehabilitative services (for 

example, only physical rehabilitative 

services) or will include rehabilitative 

treatment for mental health or 

substance-related disorders as well. 

Provision of rehabilitative services to 

individuals with mental health or 

substance-related disorders is consistent 

with the recommendations of the New 

Freedom Commission on Mental Health. 

The Commission challenged States, 

among others, to expand access to 

quality mental health care and noted 

that States are at the very center of 

mental health system transformation. 

Thus, while States are not required to 

provide rehabilitative services for 

treatment of mental health and 

substance-related disorders, they are 

encouraged to do so. The Commission 

noted in its report that, ‘‘[m]ore 

individuals would recover from even 

the most serious mental illnesses and 

emotional disturbances if they had 

earlier access in their communities to 

treatment and supports that are 

evidence-based and tailored to their 

needs.’’

Under existing provisions at 

§ 440.230(a), States are required to 

provide in the State plan a detailed 

description of the services to be 

provided. In reviewing a State plan 

amendment that proposes rehabilitative 

services, we would consider whether 

the proposed services are consistent 

with the requirements in § 440.130(d) 

and section 1905(a)(13) of the Act. We 

would also consider whether the 

proposed scope of rehabilitative services 


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is ‘‘sufficient in amount, duration and 

scope to reasonably achieve its 

purpose’’ as required at § 440.230(b). 

For that analysis, we will review 

whether any assistive devices, supplies, 

and equipment necessary to the 

provision of those services are covered 

either under the rehabilitative services 

benefit or elsewhere under the plan. 

E. Settings 

In § 440.130(d)(5), consistent with the 

provisions of section 1905(a)(13) of the 

Act, we propose that rehabilitative 

services may be provided in a facility, 

home, or other setting. For example, 

rehabilitative services may be furnished 

in freestanding outpatient clinics and to 

supplement services otherwise available 

as an integral part of the services of 

facilities such as schools, community 

mental health centers, or substance 

abuse treatment centers. Other settings 

may include the office of qualified 

independent practitioners, mobile crisis 

vehicles, and appropriate community 

settings. The State has the authority to 

determine in which settings a particular 

service may be provided. While services 

may be provided in a variety of settings, 

the rehabilitative services benefit is not 

an inpatient benefit. Rehabilitative 

services do not include room and board 

in an institutional, community or home 

setting. 

F. Requirements and Limitations for 

Rehabilitative Services 

1. Requirements for Rehabilitative 

Services 

In § 441.45(a), we set forth the 

assurances required in a State plan 

amendment that provides for 

rehabilitative services in this proposed 

rule. In § 441.45(b) we set forth the 

expenditures for which Federal 

financial participation (FFP) would not 

be available. 

As with most Medicaid services, 

rehabilitative services are subject to the 

requirements of section 1902(a) of the 

Act. These include statewideness at 

section 1902(a)(1) of the Act, 

comparability at section 1902(a)(10)(B), 

and freedom of choice of qualified 

providers at section 1902(a)(23) of the 

Act. Accordingly, at § 441.45(a)(1), we 

propose to require that States comport 

with the listed requirements. 

At § 441.45(a)(2), we propose to 

require that the State ensure that 

rehabilitative services claimed for 

Medicaid payment are only those 

provided for the maximum reduction of 

physical or mental disability and 

restoration of the individual to the best 

possible functional level. 

In § 441.45(a)(3) and (a)(4), we 

propose to require that providers of the 

rehabilitative services maintain case 

records that contain a copy of the 

rehabilitation plan. We also propose to 

require that the provider document the 

following for all individuals receiving 

rehabilitative services: 

• The name of the individual; 

• The date of the rehabilitative 

service or services provided; 

• The nature, content, and units of 

rehabilitative services provided; and 

• The progress made toward 

functional improvement and attainment 

of the individual’s goals. 

We believe this information is 

necessary to establish an audit trail for 

rehabilitative services provided, and to 

establish whether or not the services 

have achieved the maximum reduction 

of physical or mental disability, and to 

restore the individual to his or her best 

possible functional level. 

A State that opts to provide 

rehabilitative services must do so by 

amending its State plan in accordance 

with proposed § 441.45(a)(5). The 

amendment must (1) describe the 

rehabilitative services proposed to be 

furnished, (2) specify the provider type 

and provider qualifications that are 

reasonably related to each of the 

rehabilitative services, and (3) specify 

the methodology under which 

rehabilitation providers would be paid. 

2. Limitations for Rehabilitative 

Services 

In § 441.45(b)(1) through (b)(8) we set 

forth limitations on coverage of 

rehabilitative services in this proposed 

rule. 

We propose in § 441.45(b)(1) that 

coverage of rehabilitative services 

would not include services that are 

furnished through a non-medical 

program as either a benefit or 

administrative activity, including 

programs other than Medicaid, such as 

foster care, child welfare, education, 

child care, vocational and prevocational 

training, housing, parole and probation, 

juvenile justice, or public guardianship. 

We also propose in § 441.45(b)(1) that 

coverage of rehabilitative services 

would not include services that are 

intrinsic elements of programs other 

than Medicaid. 

It should be noted however, that 

enrollment in these non-medical 

programs does not affect eligibility for 

Title XIX services. Rehabilitation 

services may be covered by Medicaid if 

they are not the responsibility of other 

programs and if all applicable 

requirements of the Medicaid program 

are met. Medicaid rehabilitative services 

must be coordinated with, but do not 

include, services furnished by other 

programs that are focused on social or 

educational development goals and are 

available as part of other services or 

programs. Further, Medicaid 

rehabilitation services must be available 

for all participants based on an 

identified medical need and otherwise 

would have been provided to the 

individual outside of the foster care, 

juvenile justice, parole and probation 

systems and other non-Medicaid 

systems. Individuals must have free 

choice of providers and all willing and 

qualified providers must be permitted to 

enroll in Medicaid. 

For instance, therapeutic foster care is 

a model of care, not a medically 

necessary service defined under Title 

XIX of the Act. States have used it as an 

umbrella to package an array of services, 

some of which may be medically 

necessary services, some of which are 

not. In order for a service to be 

reimbursable by Medicaid, states must 

specifically define all of the services 

that are to be provided, provider 

qualifications, and payment 

methodology. It is important to note that 

provider qualifications for those who 

furnish care to children in foster care 

must be the same as provider 

qualifications for those who furnish the 

same care to children not in foster care. 

Examples of therapeutic foster care 

components that would not be Medicaid 

coverable services include provider 

recruitment, foster parent training and 

other such services that are the 

responsibility of the foster care system. 

In § 441.45(b)(2), we propose to 

exclude FFP for expenditures for 

habilitation services including those 

provided to individuals with mental 

retardation or ‘‘related conditions’’ as 

defined in the State Medicaid Manual 

§ 4398. Physical impairments and 

mental health and/or substance related 

disorder are not considered ‘‘related 

conditions’’ and are therefore medical 

conditions for which rehabilitation 

services may be appropriately provided. 

As a matter of general usage in the 

medical community, there is a 

distinction between the terms 

‘‘habilitation’’ and ‘‘rehabilitation.’’

Rehabilitation refers to measures used to 

restore individuals to their best 

functional levels. The emphasis in 

covering rehabilitation services is the 

restoration of a functional ability. 

Individuals receiving rehabilitation 

services must have had the capability to 

perform an activity in the past rather 

than to actually have performed the 

activity. For example, a person may not 

have needed to drive a car in the past, 

but may have had the capability to do 

so prior to having the disability. 


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Habilitation typically refers to services 

that are for the purpose of helping 

persons acquire new functional abilities. 

Current Medicaid policy explicitly 

covers habilitation services in two ways: 

(1) When provided in an intermediate 

care facility for persons with mental 

retardation (ICF/MR); or (2) when 

covered under sections 1915(c), (d), or 

(i) of the Act as a home and communitybased service. Habilitation services may 

also be provided under some 1905(a) 

service authorities such as Physician 

services defined at 42 CFR 440.50, 

Therapy services defined at 42 CFR 

440.110 (such as, Physical Therapy, 

Occupational Therapy, and Speech/ 

Language/Audiology Therapy), and 

Medical or other remedial care provided 

by licensed practitioners, defined at 42 

CFR 440.60. Habilitative services can 

also be provided under the 1915(i) State 

Plan Home and Community Based 

Services pursuant to the Deficit 

Reduction Act of 2005. In the late 1980s, 

the Congress responded to State 

concerns about disallowances for 

habilitation services provided under the 

State’s rehabilitative services benefit by 

passing section 6411(g) of the OBRA 89. 

This provision prohibited us from 

taking adverse actions against States 

with approved habilitation provisions 

pending the issuance of a regulation that 

‘‘specifies types of day habilitation 

services that a State may cover under 

paragraphs (9) [clinic services] or (13) 

[rehabilitative services] of section 

1905(a) of the Act on behalf of persons 

with mental retardation or with related 

conditions.’’ Accordingly, this 

regulation would specify that all such 

habilitation services would not be 

covered under sections 1905(a)(9) or 

1905(a)(13) of the Act. If this regulation 

is issued in final form, the protections 

provided to certain States by section 

6411(g) of OBRA 89 for day habilitation 

services will no longer be in force. We 

intend to provide for a delayed 

compliance date so that States will have 

a transition period of the lesser of 2 

years or 1 year after the close of the first 

regular session of the State legislature 

that begins after this regulation becomes 

final before we will take enforcement 

action. This transition period will 

permit States an opportunity to transfer 

coverage of habilitation services from 

the rehabilitation option into another 

appropriate Medicaid authority. We are 

available to States as needed for 

technical assistance during this 

transition period. 

In § 441.45(b)(3), we propose to 

provide that rehabilitative services 

would not include recreational and 

social activities that are not specifically 

focused on the improvement of physical 

or mental health impairment and 

achievement of a specific rehabilitative 

goal specified in the rehabilitation plan, 

and provided by a Medicaid qualified 

provider recognized under State law. 

We would also specify in this provision 

that rehabilitative services would not 

include personal care services; 

transportation; vocational and 

prevocational services; or patient 

education not related to the 

improvement of physical or mental 

health impairment and achievement of 

a specific rehabilitative goal specified in 

the rehabilitation plan. The first two of 

these services may be otherwise covered 

under the State plan. But these services 

are not primarily focused on 

rehabilitation, and thus do not meet the 

definition of medical or remedial 

services for rehabilitative purposes that 

would be contained in § 440.130(d)(1). 

It is possible that some recreational or 

social activities are reimbursable as 

rehabilitative services if they are 

provided for the purpose allowed under 

the benefit and meet all the 

requirements governing rehabilitative 

services. For example, in one instance 

the activity of throwing a ball to an 

individual and having her/him throw it 

back, may be a recreational activity. In 

another instance, the activity may be 

part of a program of physical therapy 

that is provided by, or under the 

direction of, a qualified therapist for the 

purpose of restoring motor skills and 

balance in an individual who has 

suffered a stroke. Likewise, for an 

individual suffering from mental illness, 

what may appear to be a social activity 

may in fact be addressing the 

rehabilitation goal of social skills 

development as identified in the 

rehabilitation plan. The service would 

need to be specifically related to an 

identified rehabilitative goal as 

documented in the rehabilitation plan 

with specific time-limited treatment 

goals and outcomes. The rehabilitative 

service would further need to be 

provided by a qualified provider, be 

documented in the case record, and 

meet all requirements of this proposed 

regulation. 

When personal care services are 

provided during the course of the 

provision of a rehabilitative service, 

they are an incidental activity and 

separate payment may not be made for 

the performance of the incidental 

activity. For example, an individual 

recovering from the effects of a stroke 

may receive occupational therapy 

services from a qualified occupational 

therapy provider under the 

rehabilitation option to regain the 

capacity to feed himself or herself. If 

during the course of those services the 

individual’s clothing becomes soiled 

and the therapist assists the individual 

with changing his or her clothing, no 

separate payment may be made for 

assisting the individual with dressing 

under the rehabilitation option. 

However, FFP may be available for 

optional State plan personal care 

services under § 440.167 if provided by 

an enrolled, qualified personal care 

services provider. 

Similarly, transportation is not within 

the scope of the definition of 

rehabilitative services proposed by this 

regulation since the transportation 

service itself does not result in the 

maximum reduction of a physical or 

mental disability and restoration of the 

individual to the best possible 

functional level. However, 

transportation is a Medicaid covered 

service and may be billed separately as 

a medical assistance service under 

§ 440.170, if provided by an enrolled, 

qualified provider, or may be provided 

under the Medicaid program as an 

administrative activity necessary for the 

proper and efficient administration of 

the State’s Medicaid program. 

Generally, vocational services are 

those that teach specific skills required 

by an individual to perform tasks 

associated with performing a job. 

Prevocational services address 

underlying habilitative goals that are 

associated with performing 

compensated work. To the extent that 

the primary purpose of these services is 

to help individuals acquire a specific 

job skill, and are not provided for the 

purpose of reducing disability and 

restoring a person to a previous 

functional level, they would not be 

construed as covered rehabilitative 

services. For example, teaching an 

individual to cook a meal to train for a 

job as a chef would not be covered, 

whereas, teaching an individual to cook 

in order to re-establish the use of her or 

his hands or to restore living skills may 

be coverable. While it may be possible 

for Medicaid to cover prevocational 

services when provided under the 

section 1915(c) of the Act, home and 

community based services waiver 

programs, funding for vocational 

services rests with other, non-Medicaid 

Federal and State funding sources. 

Similarly, the purpose of patient 

education is one important determinant 

to whether the activity is a rehabilitative 

activity covered under § 440.130(d). 

While taking classes in an academic 

setting may increase an individual’s 

integration into the community and 

enable the individual to learn social 

skills, the primary purpose of this 

activity is academic enhancement. 


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Thus, patient education in an academic 

setting is not covered under the 

Medicaid rehabilitation option. On the 

other hand, some patient education 

directed towards a specific 

rehabilitative therapy service may be 

provided for the purpose of equipping 

the individual with specific skills that 

will decrease disability and restore the 

individual to a previous functioning 

level. For example, an individual with 

a mental disorder that manifests with 

behavioral difficulties may need anger 

management training to restore his or 

her ability to interact appropriately with 

others. These services may be covered 

under the rehabilitation option if all of 

the requirements of this regulation are 

met. 

In § 441.45(b)(4), we propose to 

exclude payment for services, including 

services that are rehabilitative services 

that are provided to inmates living in 

the secure custody of law enforcement 

and residing in a public institution. An 

individual is considered to be living in 

secure custody if serving time for a 

criminal offense in, or confined 

involuntarily to, State or Federal 

prisons, local jails, detention facilities, 

or other penal facilities. A facility is a 

public institution when it is under the 

responsibility of a governmental unit or 

over which a governmental unit 

exercises administrative control. 

Rehabilitative services could be 

reimbursed on behalf of Medicaideligible individuals paroled, on 

probation, on home release, in foster 

care, in a group home, or other 

community placement, that are not part 

of the public institution system, when 

the services are identified due to a 

medical condition targeted under the 

State’s Plan, are not used in the 

administration of other non-medical 

programs. 

We also propose to exclude payment 

for services that are provided to 

residents of an institution for mental 

disease (IMD), including residents of a 

community residential treatment facility 

of over 16 beds, that is primarily 

engaged in providing diagnosis, 

treatment, or care of persons with 

mental illness, and that does not meet 

the requirements at § 440.160. It appears 

that in the past, certain States may have 

provided services under the 

rehabilitation option to these 

individuals. Our proposed exclusion of 

FFP for rehabilitative services provided 

to these populations is consistent with 

the statutory requirements in paragraphs 

(A) and (B) following section 

1905(a)(28) of the Act. The statute 

indicates that ‘‘except as otherwise 

provided in paragraph (16), such term 

[medical assistance] does not include—

(A) Any such payments with respect to 

care or services for any individual who 

is an inmate of a public institution; or 

(B) any such payments with respect to 

care or services for any individual who 

has not attained 65 years and who is a 

patient in an IMD.’’ Section 1905(a)(16) 

of the Act defines as ‘‘medical 

assistance’’ ‘‘* * * inpatient psychiatric 

hospital services for individuals under 

age 21 * * *’’. The Secretary has 

defined the term ‘‘inpatient psychiatric 

hospital services for individuals under 

age 21’’ in regulations at § 440.160 to 

include ‘‘a psychiatric facility which is 

accredited by the Joint Commission on 

Accreditation of Healthcare 

Organizations, the Council on 

Accreditation of Services for Families 

and Children, the Commission on 

Accreditation of Rehabilitation 

Facilities, or by any other accrediting 

organization, with comparable 

standards, that is recognized by the 

State.’’ Thus, the term ‘‘inpatient 

psychiatric hospital services for 

individuals under age 21’’ includes 

services furnished in accredited 

children’s psychiatric residential 

treatment facilities that are not 

hospitals. The rehabilitative services 

that are provided by the psychiatric 

hospital or accredited psychiatric 

residential treatment facility (PRTF) 

providing inpatient psychiatric services 

for individuals under age 21 to its 

residents would be reimbursed under 

the benefit for inpatient psychiatric 

services for individuals under age 21 

(often referred to as the ‘‘psych under 

21’’ benefit), rather than under the 

rehabilitative services benefit. 

In § 441.45(b)(6), we propose to 

exclude expenditures for room and 

board from payment under the 

rehabilitative services option. While 

rehabilitative services may be furnished 

in a residential setting that is not an 

IMD, the benefit provided by section 

1905(a)(13) of the Act is primarily 

intended for community based services. 

Thus, when rehabilitative services are 

provided in a residential setting, such as 

in a residential substance abuse 

treatment facility of less than 17 beds, 

delivered by qualified providers, only 

the costs of the specific rehabilitative 

services will be covered. 

In § 441.45(b)(7), we propose to 

preclude payment for services furnished 

for the rehabilitation of an individual 

who is not Medicaid eligible. This 

provision reinforces basic program 

requirements found in section 1905(a) of 

the Act that require medical assistance 

to be furnished only to eligible 

individuals. An ‘‘eligible individual’’ is 

a person who is eligible for Medicaid 

and requires rehabilitative services as 

defined in the Medicaid State plan at 

the time the services are furnished. 

The provision of rehabilitative 

services to non-Medicaid eligible 

individuals cannot be covered if it 

relates directly to the non-eligible 

individual’s care and treatment. 

However, effective rehabilitation of 

eligible individuals may require some 

contact with non-eligible individuals. 

For instance, in developing the 

rehabilitation plan for a child with a 

mental illness, it may be appropriate to 

include the child’s parents, who are not 

eligible for Medicaid, in the process. In 

addition, counseling sessions for the 

treatment of the child might include the 

parents and other non-eligible family 

members. In all cases, in order for a 

service to be a Medicaid coverable 

service, it must be provided to, or 

directed exclusively toward, the 

treatment of the Medicaid eligible 

individual. 

Thus, contacts with family members 

for the purpose of treating the Medicaid 

eligible individual may be covered by 

Medicaid. If these other family members 

or other individuals also are Medicaid 

eligible and in need of the services 

covered under the State’s rehabilitation 

plan, Medicaid could pay for the 

services furnished to them. 

In § 441.45(b)(8), we propose that FFP 

would only be available for claims for 

services provided to a specific 

individual that are documented in an 

individual’s case record. 

We will work with States to 

implement this rule in a timely fashion 

using existing monitoring and 

compliance authority. 

III. Collection of Information 

Requirements 

Under the Paperwork Reduction Act 

of 1995, we are required to provide 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. In order to fairly evaluate 

whether an information collection 

should be approved by OMB, section 

3506(c)(2)(A) of the Paperwork 

Reduction Act of 1995 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 estimate of the 

information collection burden. 

• The quality, utility, and clarity of 

the information to be collected. 

• Recommendations to minimize the 

information collection burden on the 

affected public, including automated 

collection techniques. 


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We are soliciting public comment on 

each of these issues for the following 

sections of this document that contain 

information collection requirements: 

Section 440.130 Diagnostic, 

Screening, Preventative, and 

Rehabilitative Services 

This section outlines the scope of 

service for rehabilitative services 

provided by States. The services 

discussed in this section must be 

provided under a written rehabilitation 

plan as defined in § 440.130(d)(1)(v). 

Specifically, § 440.130(d)(3) states that 

the written rehabilitation plan must 

meet the following requirements: 

(i) Be based on a comprehensive 

assessment of an individual’s 

rehabilitation needs including diagnoses 

and presence of a functional impairment 

in daily living. 

(ii) Be developed by a qualified 

provider(s) working within the State 

scope of practice act with input from the 

individual, individual’s family, the 

individual’s authorized health care 

decision maker and/or persons of the 

individual’s choosing. 

(iii) Ensure the active participation of 

the individual, individual’s family, the 

individual’s authorized health care 

decision maker and/or persons of the 

individual’s choosing in the 

development, review, and modification 

of these goals and services. 

(iv) Specify the individual’s 

rehabilitation goals to be achieved 

including recovery goals for persons 

with mental illnesses or substance 

related disorders. 

(v) Specify the physical impairment, 

mental health and/or substance related 

disorder that is being addressed. 

(vi) Identify the medical and remedial 

services intended to reduce the 

identified physical impairment, mental 

health and/or substance related 

disorder. 

(vii) Identify the methods that will be 

used to deliver services. 

(viii)Specify the anticipated 

outcomes. 

(ix) Indicate the frequency and 

duration of the services. 

(x) Be signed by the individual 

responsible for developing the 

rehabilitation plan. 

(xi) Indicate the anticipated 

provider(s) of the service(s) and the 

extent to which the services may be 

available from alternate provider(s) of 

the same service. 

(xii) Specify a timeline for 

reevaluation of the plan, based on the 

individual’s assessed needs and 

anticipated progress, but not longer than 

one year. 

(xiii) Be reevaluated with the 

involvement of the beneficiary, family 

or other responsible individuals. 

(xiv) Be reevaluated including a 

review of whether the goals set forth in 

the plan are being met and whether each 

of the services described in the plan has 

contributed to meeting the stated goals. 

If it is determined that there has been no 

measurable reduction of disability and 

restoration of functional level, any new 

plan would need to pursue a different 

rehabilitation strategy including 

revision of the rehabilitative goals, 

services and/or methods. 

(xv) Document that the individual or 

representative participated in the 

development of the plan, signed the 

plan, and received a copy of the 

rehabilitation plan. 

(xvi) Document that the services have 

been determined to be rehabilitative 

services consistent with the regulatory 

definition. 

The burden associated with the 

requirements in this section is the time 

and effort put forth by the provider to 

gather the information and develop a 

specific written rehabilitation plan. 

While these requirements are subject to 

the PRA, we believe they meet the 

exemption requirements for the PRA 

found at 5 CFR 1320.3(b)(2), and as 

such, the burden associated with these 

requirements is exempt. 

Section 441.45 Rehabilitative Services 

Section 441.45(a)(3) requires that 

providers maintain case records that 

contain a copy of the rehabilitation plan 

for all individuals. 

The burden associated with these 

requirements is the time and effort put 

forth by the provider to maintain the 

case records. While these requirements 

are subject to the PRA, we believe they 

meet the exemption requirements for 

the PRA found at 5 CFR 1320.3(b)(2), 

and as such, the burden associated with 

these requirements is exempt. 

If you comment on these information 

collection and recordkeeping 

requirements, please mail copies 

directly to the following: 

Centers for Medicare & Medicaid 

Services, Office of Strategic 

Operations and Regulatory Affairs, 

Regulations Development Group, 

Attn: Melissa Musotto [CMS–2261–P], 

Room C4–26–05, 7500 Security 

Boulevard, Baltimore, MD 21244–

1850; and 

Office of Information and Regulatory 

Affairs, Office of Management and 

Budget, Room 10235, New Executive 

Office Building, Washington, DC 

20503, Attn: Katherine Astrich, CMS 

Desk Officer, [CMS–1321–P], 

katherine_astrich@omb.eop.gov. Fax 

(202) 395–6974. 

IV. 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 will consider all 

comments we receive by the date and 

time specified in the DATES section of 

this preamble, and, when we proceed 

with a final document, we will respond 

to the comments in that document. 

V. Regulatory Impact Analysis 

A. Overall Impact 

We have examined the impacts of this 

rule as required by Executive Order 

12866 (September 1993, Regulatory 

Planning and Review), the Regulatory 

Flexibility Act (RFA) (September 19, 

1980, Pub. L. 96–354), section 1102(b) of 

the Social Security Act, the Unfunded 

Mandates Reform Act of 1995 (Pub. L. 

104–4), and Executive Order 13132. 

Executive Order 12866 (as amended 

by Executive Order 13258, which 

merely reassigns responsibility of 

duties) directs 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). A regulatory impact analysis 

(RIA) must be prepared for major rules 

with economically significant effects 

($100 million or more in any 1 year). 

This is a major rule because of the size 

of the anticipated reduction in Federal 

financial participation that is estimated 

to have an economically significant 

effect of more than $100 million in each 

of the Federal fiscal years 2008 through 

2012. 

The RFA requires agencies to analyze 

options for regulatory relief of small 

businesses. For purposes of the RFA, 

small entities include small businesses, 

nonprofit organizations, and small 

governmental jurisdictions. Most 

hospitals and most other providers and 

suppliers are small entities, either by 

nonprofit status or by having revenues 

of $6.5 million to $31.5 million in any 

1 year. The Secretary certifies that this 

major rule would not have a direct 

impact on providers of rehabilitative 

services that furnish services pursuant 

to section 1905(a)(13) of the Act. The 

rule would directly affect states and we 

do not know nor can we predict the 

manner in which states would adjust or 

respond to the provisions of this rule. 

CMS is unable to determine the 


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percentage of providers of rehabilitative 

services that are considered small 

businesses according to the Small 

Business Administration’s size 

standards with total revenues of $6.5 

million to $31.5 million or less in any 

1 year. Individuals and States are not 

included in the definition of a small 

entity. 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 

(proposed documents) 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 for 

Medicaid payment regulations and has 

fewer than 100 beds. The Secretary 

certifies that this major rule would not 

have a direct impact on small rural 

hospitals. The rule would directly affect 

states and we do not know nor can we 

predict the manner in which states 

would adjust or respond to the 

provisions of this rule. 

Section 202 of the Unfunded 

Mandates Reform Act (UMRA) of 1995 

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. That threshold 

level is currently approximately $120 

million. Since this rule would not 

mandate spending in any 1 year of $120 

million or more, the requirements of the 

UMRA are not applicable. 

Executive Order 13132 establishes 

certain requirements that an agency 

must meet when it promulgates a 

proposed rule (and subsequent final 

rule) that imposes substantial direct 

requirement costs on State and local 

governments, preempts State law, or 

otherwise has Federalism implications. 

Since this rule would not impose any 

costs on State or local governments, 

preempt State law, or otherwise have 

Federalism implications, the 

requirements of E.O. 13132 are not 

applicable. 

B. Anticipated Effects 

FFP will be available for rehabilitative 

services for treatment of physical, 

mental health, or substance-related 

disorder rehabilitation treatment if the 

State elects to provide those services 

through the approved State plan. 

Individuals retain the right to select 

among qualified providers of 

rehabilitative services. However, 

because FFP will be excluded for 

rehabilitative services that are included 

in other Federal, State and local 

programs, it is estimated that Federal 

Medicaid spending on rehabilitative 

services would be reduced by 

approximately $180 million in FY 2008 

and would be reduced by $2.2 billion 

between FY 2008 and FY 2012. This 

reduction in spending is expected to 

occur because FFP for rehabilitative 

services would no longer be paid to 

inappropriate other third parties or 

other Federal, State, or local programs. 

The estimated impact on Federal 

Medicaid spending was calculated 

starting with an estimate of 

rehabilitative service spending that may 

be subject to this rule. This estimate was 

developed after consulting with several 

experts, as data for rehabilitative 

services, particularly as it would apply 

to this rule, is limited. Given this 

estimate, the actuaries discounted this 

amount to account for four factors: (1) 

The ability of CMS to effectively 

identify the rehabilitative services 

spending that would be subject to this 

proposal; (2) the effectiveness of CMS’s 

efforts to implement this rule and the 

potential that some identified 

rehabilitative services spending may 

still be permissible under the rule; (3) 

the change in States’ plans that may 

regain some of the lost Federal funding; 

and (4) the length of time for CMS to 

fully implement the rule and review all 

States’ plans. 

The actual impact to the Federal 

Medicaid program may be different than 

the estimate to the extent that the 

estimate of the amount of rehabilitative 

services spending subject to this rule is 

different than the actual amount and to 

the extent that the effectiveness of the 

rule is greater than or less than 

assumed. Because a comprehensive 

review of these rehabilitative services 

had not been conducted at the time of 

this estimate and because we do not 

routinely collect data on spending for 

rehabilitative services, particularly as it 

relates to this rule, there is a 

significantly wide range of possible 

impacts. 

Thus, we are unable to determine 

what fiscal impact the publication of 

this rule would have on consumers, 

individual industries, Federal, State, or 

local government agencies or geographic 

regions under Executive Order 12866. 

We invite public comment on the 

potential impact of the rule. 

C. Alternatives Considered 

This proposed rule would amend the 

definition of rehabilitative services to 

provide for important individual 

protections and to clarify that Medicaid 

rehabilitative services must be 

coordinated with but do not include 

services furnished by other programs 

that are focused on social or educational 

development goals and available as part 

of other services or programs. We 

believe this proposed rule is the best 

approach to clarifying the covered 

rehabilitative services, and also because 

all stakeholders will have the 

opportunity to comment on the 

proposed rule. These comments will 

then be considered before the final 

document is published. 

In considering regulatory options, we 

considered requiring States to license all 

providers as an alternative to only 

requiring that providers to be qualified 

as defined by the State. However we 

believe that giving States the flexibility 

to determine how providers are 

credentialed allows for necessary 

flexibility to States to consider a wide 

range of provider types necessary to 

cover a variety of rehabilitation services. 

We believe this flexibility will result in 

decreases in administrative and service 

costs. 

We also considered restricting the 

rule to only include participant 

protections but not explicitly 

prohibiting FFP for services that are 

intrinsic elements of other nonMedicaid programs. Had we not 

prohibited FFP for services that are 

intrinsic elements of other programs, 

States would continue to provide nonMedicaid services to participants, the 

result would have been a less efficient 

use of Medicaid funding because 

increased Medicaid spending would not 

result in any increase in services to 

beneficiaries. Instead, increased 

Medicaid funding would have simply 

replaced other sources of funding. 

D. Accounting Statement and Table 

As required by OMB Circular A–4 

(available at http:// 

www.whitehouse.gov/omb/circulars/ 

a004/a-4.pdf), in the table below, we 

have prepared an accounting statement 

showing the classification of the savings 

associated with the provisions of this 

proposed rule. This table provides our 

best estimate of the savings to the 

Federal Government as a result of the 

changes presented in this proposed rule 

that Federal Medicaid spending on 

rehabilitative services would be reduced 

by approximately $180 million in FY 

2008 and would be reduced by $2.24 

billion between FY 2008 and FY 2012. 

All savings are classified as transfers 

from the Federal Government to State 

Government. These transfers represent a 

reduction in the federal share of 

Medicaid spending once the rule goes 

into effect, as it would limit States from 

claiming Medicaid reimbursement for 


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rehabilitation services that could be 

covered through other programs. 

ACCOUNTING STATEMENT: CLASSIFICATION OF ESTIMATED SAVINGS, FROM FY 2008 TO FY 2012 

[In millions] 

Category Primary estimates Year dollar Units discount 

rate 

Period covered 

Federal Annualized Monetized ($millions/year) ............................................... 443.4 2008 7% 2008–2012 

........................ ........................ ........................ ........................

441.6 2008 3% 2008–2012 

........................ ........................ ........................ ........................

448 2008 0% 2008–2012 

From Whom to Whom? ................................................................................... Federal Government to State Government 

Column 1: Category—Contains the 

description of the different impacts of 

the rule; it could include monetized, 

quantitative but not monetized, or 

qualitative but not quantitative or 

monetized impacts; it also may contain 

unit of measurement (such as, dollars). 

In this case, the only impact is the 

Federal annualized monetized impact of 

the rule. 

Column 2: Primary Estimate—

Contains the quantitative or qualitative 

impact of the rule for the respective 

category of impact. Monetized amounts 

are generally shown in real dollar terms. 

In this case, the federalized annualized 

monetized primary estimate represents 

the equivalent amount that, if paid 

(saved) each year over the period 

covered, would result in the same net 

present value of the stream of costs 

(savings) estimated over the period 

covered. 

Column 3: Year Dollar—Contains the 

year to which dollars are normalized; 

that is, the first year that dollars are 

discounted in the estimate. 

Column 4: Unit Discount Rate—

Contains the discount rate or rates used 

to estimate the annualized monetized 

impacts. In this case, three rates are 

used: 7 percent; 3 percent; 0 percent. 

Column 5: Period Covered—Contains 

the years for which the estimate was 

made. 

Rows: The rows contain the estimates 

associated with each specific impact 

and each discount rate used. 

‘‘From Whom to Whom?’’—In the case 

of a transfer (as opposed to a change in 

aggregate social welfare as described in 

the OMB Circular), this section 

describes the parties involved in the 

transfer of costs. In this case, costs 

previously paid for by the Federal 

Government would be transferred to the 

State Governments. The table may also 

contain minimum and maximum 

estimates and sources cited. In this case, 

there is only a primary estimate and 

there are no additional sources for the 

estimate. 

Estimated Savings—The following 

table shows the discounted costs 

(savings) for each discount rate and for 

each year over the period covered. 

‘‘Total’’ represents the net present value 

of the impact in the year the rule takes 

effect. These numbers represent the 

anticipated annual reduction in Federal 

Medicaid spending under this rule. 

ESTIMATED SAVINGS, FROM FY 2008 TO FY 2012 

[In millions] 

Discount rate 

(percent) 2008 2009 2010 2011 2012 Total 

0 ............................................................... 180 360 520 570 610 2,288 

3 ............................................................... 175 339 476 506 526 2,069 

7 ............................................................... 168 314 424 435 435 1,822 

E. Conclusion 

For these reasons, we are not 

preparing analyses for either the RFA or 

section 1102(b) of the Act because a 

comprehensive review of these 

rehabilitative services had not been 

conducted at the time of this estimate 

and because we do not routinely collect 

data on spending for rehabilitative 

services. Accordingly, there is a 

significantly wide range of possible 

impacts due to this rule. As indicated in 

the Estimated Savings table above, we 

project an estimated savings of $180 

million in FY 2008, $360 million in FY 

2009, $520 million in FY 2010, $570 

million in FY 2011, and $610 million in 

FY 2012. This reflects a total estimated 

savings of $2.240 billion dollars for FY 

2008 through FY 2012. We invite public 

comment on the potential impact of this 

rule. 

In accordance with the provisions of 

Executive Order 12866, this regulation 

was reviewed by the Office of 

Management and Budget. 

List of Subjects 

42 CFR Part 440 

Grant programs—health, Medicaid. 

42 CFR Part 441 

Family planning, Grant programs—

health, Infants and children, Medicaid, 

Penalties, Prescription drugs, Reporting 

and recordkeeping requirements. 

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 440—SERVICES: GENERAL 

PROVISIONS 

1. The authority citation for part 440 

continues to read as follows: 

Authority: Sec. 1102 of the Social Security 

Act (42 U.S.C. 1302). 

2. Section 440.130 is amended by 

revising paragraph (d) to read as 

follows: 

§ 440.130 Diagnostic, screening, 

preventative, and rehabilitative 

services. 

* * * * * 


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(d) Rehabilitative Services—(1) 

Definitions. For purposes of this 

subpart, the following definitions apply: 

(i) Recommended by a physician or 

other licensed practitioner of the 

healing arts means that a physician or 

other licensed practitioner of the 

healing arts, based on a comprehensive 

assessment of the individual, has—

(A) Determined that receipt of 

rehabilitative services would result in 

reduction of the individual’s physical or 

mental disability and restoration to the 

best possible functional level of the 

individual; and 

(B) Recommended the rehabilitative 

services to achieve specific 

individualized goals. 

(ii) Other licensed practitioner of the 

healing arts means any health 

practitioner or practitioner of the 

healing arts who is licensed in the State 

to diagnose and treat individuals with 

the physical or mental disability or 

functional limitations at issue, and 

operating within the scope of practice 

defined in State law. 

(iii) Qualified providers of 

rehabilitative services means 

individuals who meet any applicable 

provider qualifications under Federal 

law that would be applicable to the 

same service when it is furnished under 

other Medicaid benefit categories, 

qualifications under applicable State 

scope of practice laws, and any 

additional qualifications set forth in the 

Medicaid State plan. These 

qualifications may include minimum 

age requirements, education, work 

experience, training, credentialing, 

supervision and licensing requirements 

that are applied uniformly. Provider 

qualifications must be documented in 

the State plan and be reasonable given 

the nature of the service provided and 

the population served. Individuals must 

have free choice of providers and all 

willing and qualified providers must be 

permitted to enroll in Medicaid. 

(iv) Under the direction of means that 

for physical therapy, occupational 

therapy, and services for individuals 

with speech, hearing and language 

disorders (see § 440.110, ‘‘Inpatient 

hospital services, other than services in 

an institution for mental diseases’’) the 

Medicaid qualified therapist providing 

direction is a licensed practitioner of the 

healing arts qualified under State law to 

diagnose and treat individuals with the 

disability or functional limitations at 

issue, is working within the scope of 

practice defined in State law and is 

supervising each individual’s care. The 

supervision must include, at a 

minimum, face-to-face contact with the 

individual initially and periodically as 

needed, prescribing the services to be 

provided, and reviewing the need for 

continued services throughout the 

course of treatment. The qualified 

therapist must also assume professional 

responsibility for the services provided 

and ensure that the services are 

medically necessary. Therapists must 

spend as much time as necessary 

directly supervising services to ensure 

beneficiaries are receiving services in a 

safe and efficient manner in accordance 

with accepted standards of practice. 

Moreover, documentation must be kept 

supporting the supervision of services 

and ongoing involvement in the 

treatment. Note that this definition 

applies specifically to providers of 

physical therapy, occupational therapy, 

and services for individuals with 

speech, hearing and language disorders. 

This language is not meant to exclude 

appropriate supervision arrangements 

for other rehabilitative services. 

(v) Rehabilitation plan means a 

written plan that specifies the physical 

impairment, mental health and/or 

substance related disorder to be 

addressed, the individualized 

rehabilitation goals and the medical and 

remedial services to achieve those goals. 

The plan is developed by a qualified 

provider(s) working within the State 

scope of practice act, with input from 

the individual, individual’s family, the 

individual’s authorized decision maker 

and/or of the individual’s choosing and 

also ensures the active participation of 

the individual, individual’s family, 

individual’s authorized decision maker 

and/or of the individual’s choosing in 

the development, review, and 

modification of the goals and services. 

The plan must document that the 

services have been determined to be 

rehabilitative services consistent with 

the regulatory definition. The plan must 

have a timeline, based on the 

individual’s assessed needs and 

anticipated progress, for reevaluation of 

the plan, not longer than one year. The 

plan must be reasonable and based on 

the individual’s condition(s) and on 

general standards of practice for 

provision of rehabilitative services to an 

individual with the individual’s 

condition(s). 

(vi) Restorative services means 

services that are provided to an 

individual who has had a functional 

loss and has a specific rehabilitative 

goal toward regaining that function. The 

emphasis in covering rehabilitation 

services is on the ability to perform a 

function rather than to actually have 

performed the function in the past. For 

example, a person may not have needed 

to take public transportation in the past, 

but may have had the ability to do so 

prior to having the disability. 

Rehabilitation goals are often contingent 

on the individual’s maintenance of a 

current level of functioning. In these 

instances services that provide 

assistance in maintaining functioning 

may be considered rehabilitative only 

when necessary to help an individual 

achieve a rehabilitation goal defined in 

the rehabilitation plan. Services 

provided primarily in order to maintain 

a level of functioning in the absence of 

a rehabilitation goal are not within the 

scope of rehabilitation services. 

(vii) Medical services means services 

specified in the rehabilitation plan that 

are required for the diagnosis, treatment, 

or care of a physical or mental disorder 

and are recommended by a physician or 

other licensed practitioner of the 

healing arts within the scope of his or 

her practice under State law. Medical 

services may include physical therapy, 

occupational therapy, speech therapy, 

and mental health and substance-related 

disorder rehabilitative services. 

(viii) Remedial services means 

services that are intended to correct a 

physical or mental disorder and are 

necessary to achieve a specific 

rehabilitative goal specified in the 

individual’s rehabilitation plan. 

(2) Scope of services. Except as 

otherwise provided under this subpart, 

rehabilitative services include medical 

or remedial services recommended by a 

physician or other licensed practitioner 

of the healing arts, within the scope of 

his practice under State law, for 

maximum reduction of physical or 

mental disability and restoration of a 

individual to the best possible 

functional level. Rehabilitative services 

may include assistive devices, medical 

equipment and supplies, not otherwise 

covered under the plan, which are 

determined necessary to the 

achievement of the individual’s 

rehabilitation goals. Rehabilitative 

services do not include room and board 

in an institution or community setting. 

(3) Written rehabilitation plan. The 

written rehabilitation plan shall be 

reasonable and based on the 

individual’s condition(s) and on the 

standards of practice for provision of 

rehabilitative services to an individual 

with the individual’s condition(s). In 

addition, the written rehabilitation plan 

must meet the following requirements: 

(i) Be based on a comprehensive 

assessment of an individual’s 

rehabilitation needs including diagnoses 

and presence of a functional impairment 

in daily living. 

(ii) Be developed by a qualified 

provider(s) working within the State 

scope of practice act with input from the 

individual, individual’s family, the 

individual’s authorized health care 


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decision maker and/or persons of the 

individual’s choosing. 

(iii) Follow guidance obtained 

through the active participation of the 

individual, and/or persons of the 

individual’s choosing (which may 

include the individual’s family and the 

individual’s authorized health care 

decision maker), in the development, 

review, and modification of plan goals 

and services. 

(iv) Specify the individual’s 

rehabilitation goals to be achieved, 

including recovery goals for persons 

with mental health and/or substance 

related disorders. 

(v) Specify the physical impairment, 

mental health and/or substance related 

disorder that is being addressed. 

(vi) Identify the medical and remedial 

services intended to reduce the 

identified physical impairment, mental 

health and/or substance related 

disorder. 

(vii) Identify the methods that will be 

used to deliver services. 

(viii) Specify the anticipated 

outcomes. 

(ix) Indicate the frequency, amount 

and duration of the services. 

(x) Be signed by the individual 

responsible for developing the 

rehabilitation plan. 

(xi) Indicate the anticipated 

provider(s) of the service(s) and the 

extent to which the services may be 

available from alternate provider(s) of 

the same service. 

(xii) Specify a timeline for 

reevaluation of the plan, based on the 

individual’s assessed needs and 

anticipated progress, but not longer than 

one year. 

(xiii) Be reevaluated with the 

involvement of the individual, family or 

other responsible individuals. 

(xiv) Be reevaluated including a 

review of whether the goals set forth in 

the plan are being met and whether each 

of the services described in the plan has 

contributed to meeting the stated goals. 

If it is determined that there has been no 

measurable reduction of disability and 

restoration of functional level, any new 

plan would need to pursue a different 

rehabilitation strategy including 

revision of the rehabilitative goals, 

services and/or methods. 

(xv) Document that the individual or 

representative participated in the 

development of the plan, signed the 

plan, and received a copy of the 

rehabilitation plan. 

(xvi) Document that the services have 

been determined to be rehabilitative 

services consistent with the regulatory 

definition. 

(xvii) Include the individual’s 

relevant history, current medical 

findings, contraindications and identify 

the individual’s care coordination 

needs, if any, as needed to achieve the 

rehabilitation goals. 

(4) Impairments to be addressed. For 

purposes of this section, rehabilitative 

services include services provided to 

the Medicaid eligible individual to 

address the individual’s physical 

impairments, mental health 

impairments, and/or substance-related 

disorder treatment needs. 

(5) Settings. Rehabilitative services 

may be provided in a facility, home, or 

other setting. 

PART 441—SERVICES: 

REQUIREMENTS AND LIMITS 

APPLICABLE TO SPECIFIC SERVICES 

1. The authority citation for part 441 

continues to read as follows: 

Authority: Sec. 1102 of the Social Security 

Act (42 U.S.C. 1302). 

Subpart A—General Provisions 

2. A new § 441.45 is added to subpart 

A to read as follows: 

§ 441.45 Rehabilitative services. 

(a) If a State covers rehabilitative 

services, as defined in § 440.130(d) of 

this chapter, the State must meet the 

following requirements: 

(1) Ensure that services are provided 

in accordance with § 431.50, § 431.51, 

§ 440.230, and § 440.240 of this chapter. 

(2) Ensure that rehabilitative services 

are limited to services furnished for the 

maximum reduction of physical or 

mental disability and restoration of the 

individual to their best possible 

functional level. 

(3) Require that providers maintain 

case records that contain a copy of the 

rehabilitation plan for all individuals. 

(4) For all individuals receiving 

rehabilitative services, require that 

providers maintain case records that 

include the following: 

(i) A copy of the rehabilitative plan. 

(ii) The name of the individual. 

(iii) The date of the rehabilitative 

services provided. 

(iv) The nature, content, and units of 

the rehabilitative services. 

(v) The progress made toward 

functional improvement and attainment 

of the individual’s goals as identified in 

the rehabilitation plan and case record. 

(5) Ensure the State plan for 

rehabilitative services includes the 

following requirements: 

(i) Describes the rehabilitative 

services furnished. 

(ii) Specifies provider qualifications 

that are reasonably related to the 

rehabilitative services proposed to be 

furnished. 

(iii) Specifies the methodology under 

which rehabilitation providers are paid. 

(b) Rehabilitation does not include, 

and FFP is not available in expenditures 

for, services defined in § 440.130(d) of 

this chapter if the following conditions 

exist: 

(1) The services are furnished through 

a non-medical program as either a 

benefit or administrative activity, 

including services that are intrinsic 

elements of programs other than 

Medicaid, such as foster care, child 

welfare, education, child care, 

vocational and prevocational training, 

housing, parole and probation, juvenile 

justice, or public guardianship. 

Examples of services that are intrinsic 

elements of other programs and that 

would not be paid under Medicaid 

include, but are not limited to, the 

following: 

(i) Therapeutic foster care services 

furnished by foster care providers to 

children, except for medically necessary 

rehabilitation services for an eligible 

child that are clearly distinct from 

packaged therapeutic foster care 

services and that are provided by 

qualified Medicaid providers. 

(ii) Packaged services furnished by 

foster care or child care institutions for 

a foster child except for medically 

necessary rehabilitation services for an 

eligible child that are clearly distinct 

from packaged therapeutic foster care 

services and that are provided by 

qualified Medicaid providers. 

(iii) Adoption services, family 

preservation, and family reunification 

services furnished by public or private 

social services agencies. 

(iv) Routine supervision and nonmedical support services provided by 

teacher aides in school settings 

(sometimes referred to as ‘‘classroom 

aides’’ and ‘‘recess aides’’). 

(2) Habilitation services, including 

services for which FFP was formerly 

permitted under the Omnibus Budget 

Reconciliation Act of 1989. Habilitation 

services include ‘‘services provided to 

individuals’’ with mental retardation or 

related conditions. (Most physical 

impairments, and mental health and/or 

substance related disorders, are not 

included in the scope of related 

conditions, so rehabilitation services 

may be appropriately provided.) 

(3) Recreational or social activities 

that are not focused on rehabilitation 

and not provided by a Medicaid 

qualified provider; personal care 

services; transportation; vocational and 

prevocational services; or patient 

education not related to reduction of 

physical or mental disability and the 

restoration of an individual to his or her 

best possible functional level. 


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(4) Services that are provided to 

inmates living in the secure custody of 

law enforcement and residing in a 

public institution. An individual is 

considered to be living in secure 

custody if serving time for a criminal 

offence in, or confined involuntarily to, 

public institutions such as State or 

Federal prisons, local jails, detention 

facilities, or other penal facilities. A 

facility is a public institution when it is 

under the responsibility of a 

governmental unit; or over which a 

governmental unit exercises 

administrative control. Rehabilitative 

services could be reimbursed on behalf 

of Medicaid-eligible individuals 

paroled, on probation, on home release, 

in foster care, in a group home, or other 

community placement, that are not part 

of the public institution system, when 

the services are identified due to a 

medical condition targeted under the 

State’s Plan, are not used in the 

administration of other non-medical 

programs. 

(5) Services provided to residents of 

an institution for mental disease (IMD) 

who are under the age of 65, including 

residents of community residential 

treatment facilities with more than 16 

beds that do not meet the requirements 

at § 440.160 of this chapter. 

(6) Room and board. 

(7) Services furnished for the 

treatment of an individual who is not 

Medicaid eligible. 

(8) Services that are not provided to 

a specific individual as documented in 

an individual’s case record. 

(Catalog of Federal Domestic Assistance 

Program No. 93.778, Medical Assistance 

Program) 

Dated: March 22, 2007. 

Leslie V. Norwalk, 

Acting Administrator, Centers for Medicare 

& Medicaid Services. 

Approved: July 12, 2007. 

Michael O. Leavitt, 

Secretary. 

[FR Doc. 07–3925 Filed 8–8–07; 4:00 pm] 

BILLING CODE 4120–01–P 

DEPARTMENT OF THE INTERIOR 

National Park Service 

43 CFR Part 10 

Consultation and Dialogue On 

Regulations Regarding The 

Disposition Of Unclaimed Native 

American Human Remains, Funerary 

Objects, Sacred Objects, Or Objects Of 

Cultural Patrimony Excavated Or 

Discovered On Federal Or Tribal Lands 

After November 16, 1990, Pursuant To 

Provisions Of The Native American 

Graves Protection And Repatriation 

Act (NAGPRA) 

AGENCY: National Park Service, Interior. 

ACTION: Notice of consultation. 

SUMMARY: This notice of consultation 

announces three consultation meetings 

and a facilitated dialogue session 

(recommended by the Review 

Committee) that will be held to obtain 

additional oral and written 

recommendations on regulations to be 

drafted regarding the disposition of 

unclaimed Native American human 

remains, funerary objects, sacred 

objects, or objects of cultural patrimony 

that are excavated or discovered on 

Federal or tribal lands after November 

16, 1990. Previous consultation 

meetings were held November, 2005, 

and April, 2007. 

DATES: 

The four consultation/dialogue 

sessions are scheduled for October 14–

16, 2007: 

1. Tribal consultation: October 14, 

2007, 8:30 a.m. to 10:30 a.m., Chaparral 

Suites Resort, 5001 North Scottsdale 

Rd., Scottsdale, AZ 85250. Authorized 

representatives of Indian tribes and 

Native Hawaiian organizations and 

traditional Native American religious 

leaders are invited to participate in this 

meeting. Tribal representatives wishing 

to make a public presentation at this 

session should submit a request to do so 

by October 8, 2007, including evidence 

that you are authorized to speak on 

behalf of an Indian tribe or Native 

Hawaiian organization. 

2. Museum consultation: October 14, 

2007, 10:45 a.m. to 12:45 p.m., 

Chaparral Suites Resort, 5001 North 

Scottsdale Rd., Scottsdale, AZ 85250. 

Authorized representatives of museums 

and national museum and scientific 

organizations are invited to participate 

in this meeting. Representatives wishing 

to make a public presentation at this 

session should submit a request to do so 

by October 8, 2007, including evidence 

that you are authorized to speak on 

behalf of a museum or national museum 

or scientific organization. 

3. Museum-Tribal Dialogue: October 

14, 2007, 2:30 p.m. to 5:00 p.m., 

Chaparral Suites Resort, 5001 North 

Scottsdale Rd., Scottsdale, AZ 85250. 

This facilitated discussion, 

recommended by the Review 

Committee, will provide the authorized 

representatives of Indian tribes, Native 

Hawaiian organizations, museums, and 

national museum and scientific 

organizations with a forum to identify 

points of agreement regarding the 

disposition of unclaimed Native 

American human remains, funerary 

objects, sacred objects, or objects of 

cultural patrimony. The results of the 

museum-tribal dialogue will be reported 

to the Review Committee at its October 

15–16, 2007, meeting. 

4. Review Committee consultation: 

October 15–16, 2007, 8:30 a.m. to 5:00 

p.m., Heard Museum, 2301 North 

Central Ave., Phoenix, AZ 85004. Time 

will be scheduled during the Review 

Committee meeting for members of the 

public to provide oral and written 

recommendations. Members of the 

public wishing to make a public 

presentation at the Review Committee 

meeting should submit a request to do 

so by October 8, 2007. 

Requests to make presentations or 

participate at any of the sessions should 

be faxed to (202) 371–5197 by October 

8, 2007. Written comments should be 

postmarked or faxed to Sherry Hutt as 

indicated under ADDRESSES no later 

than December 1, 2007. 

ADDRESSES: Written comments and 

requests for public presentations may be 

mailed to Sherry Hutt, Manager, 

National NAGPRA Program, National 

Park Service, 1849 C Street NW, 

Washington, DC 20240. Comments may 

also be faxed to Sherry Hutt at (202) 

371–5197. 

Before including your address, phone 

number, e-mail address, or other 

personal identifying information in your 

comment, you should be aware that 

your entire comment - including your 

personal identifying information - may 

be made publicly available at any time. 

While you can ask us in your comment 

to withhold your personal identifying 

information from public review, we 

cannot guarantee that we will be able to 

do so. 

The consultation/dialogue sessions 

with Indian tribes, Native Hawaiian 

organizations, traditional Native 

American religious leaders, museums 

and national museum and scientific 

organizations on October 14, 2007 will 

be held at Chaparral Suites Resort, 5001 

North Scottsdale Rd., Scottsdale, AZ 


sroberts on PROD1PC70 with PROPOSALS