Federal Register / Vol. 75, No. 43 / Friday, March 5, 2010 / Notices 10289 

comprising high affinity 

oligonucleotides, assays for selecting 

test compounds, and related kits. 

Inventors: Alan R. Rein et al. (NCI). 

Patent Status: U.S. Patent No. 

6,316,190 issued 13 Nov 2001 (HHS 

Reference No. E–107–1996/0–US–06). 

Licensing Status: Available for 

licensing. 

Licensing Contact: Sally Hu, PhD; 

301–435–5606; hus@mail.nih.gov. 

Dated: March 1, 2010. 

Richard U. Rodriguez, 

Director, Division of Technology Development 

and Transfer, Office of Technology Transfer, 

National Institutes of Health. 

[FR Doc. 2010–4757 Filed 3–4–10; 8:45 am] 

BILLING CODE 4140–01–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

Notice of Opportunity for a Hearing on 

Compliance of Missouri State Plan 

Provisions Concerning Payments for 

Home Health Services With Title XIX 

(Medicaid) of the Social Security Act 

AGENCY: Centers for Medicare & 

Medicaid Services (CMS), HHS. 

ACTION: Notice of Opportunity for a 

Hearing; Compliance of Missouri 

Medicaid State Plan Home Health 

Benefit. 

SUMMARY: This notice announces the 

opportunity for an administrative 

hearing to be held no later than 60 days 

following publication in the Federal 

Register at the CMS Kansas City 

Regional Office, 601 E. 12th Street, 

Kansas City, Missouri 64106, to 

consider whether Missouri State plan 

provisions concerning payments for 

home health services comply with the 

requirements of the Social Security Act 

as discussed in the February 26, 2010 

letter sent to the State and published 

herein. 

Closing Date: Requests to participate 

in the hearing as a party must be 

received by the presiding officer by 

April 5, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Benjamin R. Cohen, Presiding Officer, 

CMS, 2520 Lord Baltimore Drive, Suite 

L, Baltimore, Maryland 21244, 

Telephone: (410) 786–3169. 

SUPPLEMENTARY INFORMATION: This 

notice announces the opportunity for an 

administrative hearing concerning the 

finding of the Administrator of the 

Centers for Medicare & Medicaid 

Services (CMS) that the approved State 

plan under title XIX (Medicaid) of the 

Social Security Act (the Act) for the 

State of Missouri is not in compliance 

with the provisions of sections 1902(a) 

of the Act and the proposed 

withholding of Federal financial 

participation for a portion of Missouri’s 

expenditures for home health services. 

In particular, CMS has found that the 

State plan does not provide for home 

health services for Medicaid 

beneficiaries who are not ‘‘confined to 

the home.’’ As a result of this 

‘‘homebound’’ requirement, certain 

Medicaid beneficiaries are not receiving 

the full benefit package required under 

the Act and applicable regulations. 

Consequently, Federal payments for a 

portion of the Federal funding for home 

health services will be withheld, subject 

to the opportunity for a hearing 

described below. This notice is being 

provided pursuant to the requirements 

of section 1904 of the Act, as 

implemented at 42 CFR 430.35 and 42 

CFR part 430, subpart D. 

Section 1902(a)(10)(D) requires that 

State plans provide for the coverage of 

home health services for any individual 

who, under the State plan, is entitled to 

nursing facility services. Nursing facility 

services are a required service for 

categorically needy populations under 

section 1902(a)(10)(A), as defined in 

section 1905(a)(4)(A). Under CMS 

regulations, a service included as a 

covered benefit under a State plan must 

be ‘‘sufficient in amount, duration and 

scope to reasonably achieve its purpose’’ 

(42 CFR 440.230(b)) and, for required 

services, cannot be denied or reduced to 

an eligible beneficiary ‘‘solely because of 

the diagnosis, type of illness, or 

condition’’ (42 CFR 440.230(c)). It is not 

consistent with these requirements to 

deny home health services to eligible 

individuals who need such services on 

the basis that they are not ‘‘homebound.’’ 

The CMS provided interpretive 

guidance indicating that these statutory 

requirements preclude denial of home 

health services to eligible individuals 

because they are not ‘‘homebound.’’ On 

July 25, 2000, CMS, then the Health 

Care Financing Administration, issued 

Olmstead Update #3 which clarified 

that the Medicare rule for home health 

services requiring an individual to be 

‘‘homebound’’ did not apply to the 

receipt of Medicaid home health 

services. Specifically, Olmstead Update 

#3 states that the ‘‘homebound’’ 

requirement violates Federal regulatory 

requirements at 42 CFR section 

440.230(c) and section 440.240(b). 

The ‘‘homebound’’ requirement in 

Missouri was raised during the review 

of Missouri State plan amendment 

(SPA) 05–09. At that time, Missouri 

chose to withdraw the page containing 

the ‘‘homebound’’ language but did not 

reverse the policy. Since that time, there 

have been numerous discussions 

between CMS and Missouri regarding 

this issue. On October 30, 2009, CMS 

provided Missouri with notice of the 

preliminary determination that it 

appeared to be out of compliance with 

Federal Medicaid requirements. In 

addition, CMS requested that Missouri 

submit a SPA to remove the 

‘‘homebound’’ requirement. 

In its response dated December 31, 

2009, Missouri indicated that it was 

operating under its approved State plan 

and that the requirements of Missouri’s 

home health program are the same as 

those of the Federal Medicare program. 

The State did not submit a SPA. CMS 

believes that Missouri has had 

numerous opportunities to come into 

compliance with Federal requirements. 

The notice to Missouri, dated 

February 26, 2010, containing the 

details concerning the compliance issue, 

the proposed withhold, and the 

opportunity for an administrative 

hearing reads as follows: 

CERTIFIED MAIL—RETURN RECEIPT 

REQUESTED 

Mr. Ronald J. Levy, Director, 

Department of Social Services, 

Broadway State Office Building, 

Jefferson City, MO 65102. 

Dear Mr. Levy: This letter provides 

notice that the Centers for Medicare & 

Medicaid Services (CMS) has found that 

Missouri is not providing all Medicaid 

beneficiaries with home health benefits 

that are required under title XIX of the 

Social Security Act (the Act) and that 

until this deficiency is corrected (by 

making home health services available 

to all beneficiaries entitled to such 

services), a portion of the Federal 

funding for home health services will be 

withheld, subject to the opportunity for 

a hearing. The details of the finding, 

proposed withholding, and opportunity 

for a hearing are described in detail 

below. 

Specifically, CMS has found that the 

approved Missouri State plan under title 

XIX (Medicaid) of the Act is not in 

compliance with the provisions of 

section 1902(a) of the Act with respect 

to the home health benefit. In particular, 

CMS has found that the State plan does 

not provide for home health services for 

Medicaid beneficiaries who are not 

‘‘confined to the home.’’ As a result of 

this ‘‘homebound’’ requirement, certain 

Medicaid beneficiaries are not receiving 

the full benefit package required under 

section 1902(a)(10) of the Act, which in 

subparagraph (D) provides for the 

inclusion of home health services in the 

standard Medicaid benefit package. 


erowe on DSK5CLS3C1PROD with NOTICES
10290 Federal Register / Vol. 75, No. 43 / Friday, March 5, 2010 / Notices 

Moreover, the ‘‘homebound’’ 

requirement does not comply with 

section 1902(a)(10)(B) of the Act, which 

requires that State plans provide a 

comparable amount, duration, and 

scope of benefits to all individuals 

eligible for the standard Medicaid 

benefit package, and within each 

optional group of individuals eligible 

for benefits based on medical need. 

The basic framework of Medicaid 

coverage of home health services is set 

forth in the Federal statute and 

regulations. Section 1902(a)(10)(D) of 

the Act requires that State plans provide 

for the coverage of the home health 

services benefit, set forth in section 

1905(a)(7) of the Act, for any individual 

who, under the State plan, is entitled to 

nursing facility services. Pursuant to 

section 1902(a)(10) of the Act, the 

nursing facility service benefit described 

at section 1905(a)(4)(A) of the Act is a 

required benefit that must be included 

in the standard Medicaid benefit 

package for categorically needy 

populations described in section 

1902(a)(10)(A) of the Act. Section 

1902(a)(10)(B) of the Act sets forth the 

benefit comparability principle, that the 

amount, duration, and scope of medical 

assistance benefits for all categorically 

needy individuals described in section 

1902(a)(10)(A) of the Act must be equal. 

Under CMS regulations implementing 

the benefit package requirements at 

sections 1902(a)(10) and 1905(a) of the 

Act that are described above, home 

health services are included as a 

mandatory benefit for the categorically 

needy under 42 CFR 440.210(a)(1). 

Moreover, a service included as a 

covered benefit under a State plan must 

be ‘‘sufficient in amount, duration, and 

scope to reasonably achieve its purpose’’ 

(42 CFR 440.230(b)) and, for required 

services, cannot be denied or reduced to 

an eligible beneficiary ‘‘solely because of 

the diagnosis, type of illness, or 

condition’’ (42 CFR 440.230(c)). It is not 

consistent with these requirements to 

deny home health services to eligible 

individuals who need such services 

based on a ‘‘homebound’’ requirement. 

The State has had clear notice that a 

‘‘homebound’’ requirement is 

inconsistent with the Medicaid statute. 

In response to the June 22, 1999, 

Supreme Court decision in the case of 

Olmstead v. L.C. & E.W., which 

reinforced the Americans with 

Disabilities Act by affirming the right of 

individuals with disabilities to live in 

their communities, CMS, then the 

Health Care Financing Administration 

(HCFA), issued a series of State 

Medicaid Director letters to clarify 

Medicaid policy on issues impacted by 

the Olmstead decision. On July 25, 

2000, HCFA issued Olmstead Update #3 

which clarified that the Medicare rule 

for home health services requiring an 

individual to be ‘‘homebound’’ did not 

apply to the receipt of Medicaid home 

health services. Olmstead Update #3 

specifically stated that the ‘‘homebound’’ 

requirement violates Federal regulatory 

requirements at 42 CFR section 

440.230(c) and section 440.240(b). 

The CMS notified the State in a 

request for additional information on 

proposed State plan amendment (SPA) 

05–09 that the State needed to change 

its ‘‘homebound’’ requirement to comply 

with Federal requirements. At that time, 

Missouri withdrew the SPA page that 

raised this issue but did not reverse its 

policy in order to comply with Federal 

requirements. Subsequently, CMS has 

raised the issue with the State in 

numerous conversations and again in a 

letter dated October 30, 2009. Your 

letter of December 31, 2009, indicated 

that the State did not intend to make the 

required changes. 

For all of these reasons, and in light 

of the need to protect beneficiaries by 

ensuring that they receive all the 

services to which they are required, I am 

taking this compliance action to 

withhold a portion of the Federal 

financial participation in State 

expenditures for home health services, 

subject to the opportunity for a hearing 

described below, until such time as I am 

satisfied that the State is complying 

with the Federal requirements discussed 

above. The withholding will initially be 

10 percent of the Federal share of the 

State’s quarterly claim for home health 

services as reported on Line 12 of your 

Form CMS–64. The withholding 

percentage will then increase 5 

percentage points each quarter (i.e., 

15%, 20%, etc.) that the State remains 

out of compliance, up to a maximum 

withholding percentage of 100 percent. 

The withholding will end when a SPA 

bringing the State into compliance is 

approved by CMS. 

The State has 30 days from the date 

of this letter either to submit a plan for 

how the State will come into 

compliance or to request a hearing. As 

specified in the accompanying Federal 

Register notice we are providing an 

opportunity for an administrative 

hearing to ensure that you have an 

opportunity for a hearing prior to this 

determination becoming final. However, 

it is up to the State as to whether you 

choose to go forward with this hearing. 

If you choose to proceed with a hearing, 

you must submit a request within 30 

days of the date of this letter. If a request 

for a hearing is timely submitted, the 

hearing will be convened by the Hearing 

Officer designated below on [no later 

than 60 days after the date of the 

Federal Register notice], or a later date 

by agreement of the parties and the 

Hearing Officer, at the CMS Regional 

Office in Kansas City, Missouri in 

accordance with the procedures set 

forth in Federal regulations at 42 CFR 

Part 430, Subpart D. The overall issue in 

any such appeal will be whether the 

Missouri homebound requirement is 

consistent with Federal requirements. 

Any request for such a hearing should 

be sent to the designated hearing officer. 

The Hearing Officer also should be 

notified if you request a hearing but 

cannot meet the timeframe expressed in 

this notice. Your Hearing Officer is: 

Benjamin R. Cohen, Hearing Officer, 

Centers for Medicare & Medicaid 

Services, 2520 Lord Baltimore Drive, 

Suite L, Baltimore, MD 21244. 

If you choose not to request a hearing, 

and plan to come into compliance, 

please submit within 30 days of the date 

of this letter an explanation of how you 

plan to come into compliance with 

Federal requirements and the timeframe 

for doing so. We are available to provide 

further information or assistance on the 

steps necessary to bring the State into 

compliance. 

Should you not come into compliance 

and not request a hearing within 30 

days, a notice of withholding will be 

sent to you and the withholding of 

Federal funds will begin as described 

above. 

If you have any questions or wish to 

discuss this determination further, 

please contact: Mr. James G. Scott, 

Associate Regional Administrator, 

Division of Medicaid and Children’s 

Health Operations, CMS Kansas City 

Regional Office, 601 E. 12th Street, 

Kansas City, MO 64106. 

Sincerely, 

Charlene Frizzera, 

Acting Administrator. 

(Catalog of Federal Domestic Assistance 

Program No. 13.714, Medicaid Assistance 

Program.) 

Dated: February 26, 2010. 

Charlene Frizzera, 

Acting Administrator, Centers for Medicare 

& Medicaid Services. 

[FR Doc. 2010–4671 Filed 3–4–10; 8:45 am] 

BILLING CODE 4120–01–P 


erowe on DSK5CLS3C1PROD with NOTICES