[Federal Register Volume 74, Number 178 (Wednesday, September 16, 2009)]
[Proposed Rules]
[Pages 47517-47536]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-22162]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Part 457

[CMS-2291-P]
RIN 0938-AP53


Children's Health Insurance Program (CHIP); Allotment Methodology 
and States' Fiscal Year 2009 CHIP Allotments

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

ACTION: Proposed rule.

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SUMMARY: This proposed rule describes the implementation of certain 
funding provisions under title XXI of the Social Security Act (the 
Act), the Children's Health Insurance Program (CHIP), as amended by the 
Children's Health Insurance Program Reauthorization Act of 2009 
(CHIPRA), by the Medicare, Medicaid, and SCHIP Extension Act of 2007 
(MMSEA), and by other related CHIP legislation. Specifically, this 
proposed rule addresses methodologies and procedures for determining 
States' FY 2009 through FY 2013 allotments and payments in accordance 
with sections 2104 and 2105 of the Act, as amended by CHIPRA.

DATES: To be assured consideration, comments must be received at one of 
the addresses provided below, no later than 5 p.m. eastern standard 
time (e.s.t.) on November 16, 2009.

ADDRESSES: In commenting, please refer to file code CMS-2291-P. Because 
of staff and resource limitations, we cannot accept comments by 
facsimile (FAX) transmission.

[[Page 47518]]

    You may submit comments in one of four ways (please choose only one 
of the ways listed):
    1. Electronically. You may submit electronic comments on this 
regulation to http://www.regulations.gov. Follow the instructions under 
the ``More Search Options'' tab.
    2. By regular mail. You may mail written comments to the following 
address ONLY:

Centers for Medicare & Medicaid Services, Department of Health and 
Human Services, Attention: CMS-2291-P, P.O. Box 8010, Baltimore, MD 
21244-8010.

    Please allow sufficient time for mailed comments to be received 
before the close of the comment period.
    3. By express or overnight mail. You may send written comments to 
the following address ONLY:

Centers for Medicare & Medicaid Services, Department of Health and 
Human Services, Attention: CMS-2291-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 before the close of the comment period 
to either of the following addresses:
    a. For delivery in Washington, DC--

Centers for Medicare & Medicaid Services, Department of Health and 
Human Services, Room 445-G, Hubert H. Humphrey Building, 200 
Independence Avenue, SW., Washington, DC 20201.

    (Because access to the interior of the Hubert H. Humphrey 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.)
    b. For delivery in Baltimore, MD--

Centers for Medicare & Medicaid Services, Department of Health and 
Human Services, 7500 Security Boulevard, Baltimore, MD 21244-1850.

    If you intend to deliver your comments to the Baltimore address, 
please call telephone number (410) 786-7195 in advance to schedule your 
arrival with one of our staff members.
    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 following the 
instructions 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: Richard Strauss, (410) 786-2019.

SUPPLEMENTARY INFORMATION:
    Inspection of Public Comments: All comments received before the 
close of the comment period are available for viewing by the public, 
including any personally identifiable or confidential business 
information that is included in a comment. We post all comments 
received before the close of the comment period on the following Web 
site as soon as possible after they have been received: http://www.regulations.gov. Follow the search instructions 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. Availability and Redistribution of Children's Health Insurance 
Program (CHIP) Fiscal Year Allotments Prior to CHIPRA

    Title XXI of the Social Security Act (the Act) sets forth the 
Children's Health Insurance Program (CHIP) to enable States, the 
District of Columbia, and specified Commonwealths and Territories to 
initiate and expand health insurance coverage to uninsured, low-income 
children. The 50 States, the District of Columbia, and the 
Commonwealths and Territories may implement the CHIP through a separate 
child health program under title XXI of the Act, an expanded Medicaid 
program under title XIX of the Act, or a combination of both.
    Federal funds appropriated for title XXI are limited, and the law 
specifies a formula and methodology to divide the total annual 
appropriation into individual allotments available for each State, the 
District of Columbia, and each U.S. Territory and Commonwealth with an 
approved child health plan.
    Section 2104(b) of the Act requires States, the District of 
Columbia, and U.S. Territories and Commonwealths to have an approved 
child health plan for the fiscal year in order for the Secretary to 
provide an allotment for that fiscal year.
    Before the enactment of the Children's Health Insurance Program 
Reauthorization Act of 2009 (CHIPRA, Pub. L. 111-3, enacted on February 
4, 2009), section 2104(e) of the Act specified that in general the CHIP 
allotments for a Federal fiscal year were available for payment to 
States for their expenditures under an approved State child health plan 
for an initial 3-fiscal year period of availability, including the 
fiscal year for which the allotment was provided.
    In general, before the enactment of CHIPRA, section 2104(f) of the 
Act specified that the amounts of States' allotments which were not 
expended during the initial 3-year period of availability were to be 
redistributed to those States that had fully spent these fiscal year 
allotments during this period of availability in accordance with an 
appropriate procedure determined by the Secretary. Furthermore, section 
2104(e) of the Act specified that the amounts of the redistributed 
allotments continued to be available for expenditure by the States 
receiving these redistributions to the end of the fiscal year in which 
these funds were redistributed.

B. Funding of CHIP Allotments Before the Enactment of CHIPRA

    Section 4901 of the Balanced Budget Act of 1997 (BBA, Pub. L. 105-
33, enacted on August 5, 1997) established title XXI of the Social 
Security Act (the Act). In conjunction with further amendments of title 
XXI of the Act described later, appropriations for CHIP were made 
available to provide allotments to States for their CHIPs and related 
Medicaid program expenditures through March 31, 2009. With the 
enactment of the CHIPRA, title XXI was amended to provide funding for 
the CHIP through FY 2013.
    Under the initial BBA, sections 2104(a)(1) through (10) of the Act 
appropriated funding for States' CHIPs for each fiscal year over a ten 
fiscal year period from 1998 through 2007. The funding for each fiscal 
year varied from $4.295 billion for FY 1998 up to $5.0 billion for FY 
2007. Furthermore, under section 2104(c)(4) of the Act, additional 
appropriations were provided for each of fiscal years 1999 through 2007 
to provide additional allotment amounts

[[Page 47519]]

particularly for the Commonwealths and Territories.

C. Enactment of Continuing Appropriations and Medicare, Medicaid, and 
SCHIP Extension Act of 2007

    Continuing appropriation legislation (Pub. L. 110-92 enacted on 
September 29, 2007), contained provisions to extend funding under the 
CHIP through November 16, 2007. In particular, section 136(a) of Public 
Law 110-92 appropriated $5 billion for the purposes of providing FY 
2008 allotments to the 50 States, the District of Columbia, and the 
Commonwealths and Territories. Additionally, $40 million was 
appropriated by this section to provide additional allotments to the 
Commonwealths and Territories in FY 2008.
    Section 136(b) of Public Law 110-92 provided that the FY 2008 
allotments be determined in accordance with the same methodology as 
previous CHIP fiscal year allotments were determined. Section 136(c) of 
Public Law 110-92 amended the CHIP statute to add a new section 2104(i) 
of the Act to provide for the redistribution in FY 2008 of the 
unexpended FY 2005 allotments remaining at the end of FY 2007 to those 
50 States or the District of Columbia that had estimated shortfalls in 
FY 2008. Finally, section 106 of Public Law 110-92 provided that the FY 
2008 allotment funds were only available for States' CHIP expenditures 
for assistance provided through November 16, 2007.
    Subsequent to the enactment of Public Law 110-92, further 
continuing appropriation legislation was enacted which extended the 
dates through which the FY 2008 allotment funds were available as 
provided in section 106 of Public Law 110-92; in particular, Public Law 
110-116 (enacted on November 13, 2007), Public Law 110-137 (enacted on 
December 14, 2007), and Public Law 110-149 (enacted on December 21, 
2007) extended the dates to December 14, 2007, December 21, 2007, and 
December 31, 2007, respectively.
    Section 201 of the Medicare, Medicaid, and SCHIP Extension Act of 
2007 (MMSEA, Pub. L. 110-173, enacted on December 29, 2007) amended 
section 2104(a) of the CHIP statute to explicitly provide funding for 
CHIP allotments in the amount of $5 billion for each of FYs 2008 and 
2009 for the 50 States and the District of Columbia and the 
Commonwealths and Territories, and for $40 million for the 
Commonwealths and Territories for each of FY 2008 and FY 2009. These 
allotments would be determined in accordance with the existing 
methodology in CHIP statute for fiscal years before FY 2008. The 
funding provided for FY 2008 under the continuing appropriation 
legislation discussed above and enacted before MMSEA would no longer be 
available (and thus expenditures for FY 2008 would be paid from the 
allotments as provided under MMSEA). MMSEA provided that the FY 2008 
and FY 2009 allotment funds were only available for States' 
expenditures through March 31, 2009.
    Section 201 of MMSEA amended the CHIP statute to add section 
2104(j) of the Act which appropriated $1.6 billion for the purpose of 
providing additional allotments to eliminate States' CHIP shortfalls in 
FY 2008.
    The provisions of MMSEA were implemented and described in the 
Federal Register dated May 23, 2008 (30112, Vol. 73, No. 101).

D. Enactment of CHIPRA

    Section 101 of the CHIPRA amended section 2104(a) of the Act to 
appropriate funding for each fiscal year FY 2009 through FY 2012, and 
for two semi-annual periods in FY 2013, October 1, 2012 through March 
31, 2013 and April 1, 2013 through September 30, 2013, for the purpose 
of providing allotments to States for each of those fiscal years or 
fiscal year periods. Furthermore, section 108 of CHIPRA provided 
additional funding for State allotments for the period October 1, 2012 
through March 31, 2013 (the first half of FY 2013). Finally, section 
3(c) of CHIPRA provides for the coordination of funding for the CHIP in 
FY 2009 as previously provided under section 201 of MMSEA.
    In particular, section 3(c) of CHIPRA requires the Federal 
government to rescind any of the following previously appropriated 
amounts that were not allotted or obligated before April 1, 2009:
    <bullet> Section 2104(a)(11) of the Act for purposes of providing 
State CHIP allotments for FY 2009 for States' expenditures through 
March 31, 2009.
    <bullet> Section 2104(k) of the Act for purposes of the 
redistribution of unexpended FY 2006 allotments in FY 2009 to address 
States' funding shortfalls in FY 2009.
    <bullet> Section 2104(l) of the Act for purposes of providing 
additional allotments for States' expenditures in FY 2009 to fund 
States' shortfalls for their expenditures through March 31, 2009.
    Furthermore, any amounts provided for FY 2009 CHIP allotments under 
section 2104(a)(12) as appropriated through the amendments made by 
CHIPRA must be reduced by the amounts that were obligated before April 
1, 2009 under sections 2104(a)(11), 2104(k), or 2104(l) of the Act, as 
amended by section 201 of MMSEA (which refer to States' FY 2009 CHIP 
allotments, amounts of unexpended FY 2006 allotments redistributed in 
FY 2009, and the amounts of additional FY 2009 allotments to address 
States' CHIP funding shortfalls through March 31, 2009, respectively).
    The rescission of these unobligated amounts as well as the 
reduction in the FY 2009 allotment for the amounts that were obligated 
before April 1, 2009 ensure that States do not receive FY 2009 
allotments as determined under the CHIPRA in excess of the total amount 
provided under section 2104(a)(12) of the Act for FY 2009, as amended 
by CHIPRA.

E. Expenditures, Authority for Qualifying States To Use Available CHIP 
Allotments for Medicaid Expenditures

    Under section 2105(a)(1)(A) through (D) and (a)(2) of the Act, and 
before enactment of Public Law 108-74 (Extension of Availability of 
CHIP Allotment Act, enacted on August 15, 2003), only Federal payments 
for the following Medicaid and CHIP expenditures were applied against 
States' available CHIP allotments: (1) Medical assistance provided 
under title XIX (Medicaid) to targeted low-income children in a CHIP-
related Medicaid expansion, for which the CHIP enhanced Federal medical 
assistance percentage (CHIP EFMAP) rate is available; (2) medical 
assistance provided on behalf of a child during a period of presumptive 
eligibility under section 1920A of the Act (these funds are matched at 
the regular Medicaid Federal medical assistance percentage (FMAP) 
rate); (3) child health assistance to targeted low-income children that 
meets minimum benefit requirements under CHIP; and (4) certain other 
types of expenditures in CHIP that are subject to the 10-percent limit 
on non-primary expenditures (including other child health assistance 
for targeted low-income children, health services initiatives, 
outreach, and administrative costs).
    Section 1(b) of Public Law 108-74, as amended by Public Law 108-127 
(Social Security Act, Technical corrections, enacted November 17, 
2003), added new section 2105(g) to the Act under which certain 
``qualifying States'' that met prescribed criteria could elect to use 
up to 20 percent of any of the States' available CHIP allotments for FY 
1998,

[[Page 47520]]

1999, 2000, or 2001 to increase the FMAP rate for certain regular 
Medicaid expenditures to the EFMAP rate available under CHIP. These 
expenditures were for children under 19 years of age whose family 
income exceeds 150 percent of the Federal poverty line and who are 
eligible under the States' Medicaid program. As described in the 
Federal Register published on July 23, 2004 (69 FR 44013), if a 
qualified State submitted both 20 percent allowance expenditures and 
other ``regular'' CHIP expenditures at the same time in a quarter, the 
20 percent allowance expenditures would be applied first against the 
available fiscal year reallotments. However, the 20 percent allowance 
expenditures could be applied only against the specified fiscal year 
allotment funds (upon which the 20 percent allowances were based) and 
which would remain available. Under section 2104(g)(1)(B)(iii) of the 
Act, the amounts of States' FY 2001 reallotments would only be 
available through the end of FY 2005; therefore, the FY 2001 20 percent 
allowances for the qualifying States are only available through the end 
of FY 2005.
    Section 6103 of the Deficit Reduction Act of 2005 (Pub. L. 109-171, 
enacted on February 8, 2006) amended section 2105(g) of the Act to 
provide for continued authority for qualifying States to use a portion 
of their available FY 2004 and FY 2005 CHIP allotments for payments to 
supplement the Medicaid FMAP that result in total Federal participation 
at the EFMAP rate (as determined under section 2105(b) of the Act) for 
certain expenditures made under the Medicaid program.
    Section 201(b) of the National Institutes of Health Reform Act of 
2006 and section 201(b) of MMSEA amended section 2105(g) of the Act to 
provide for continued authority for such payments to qualifying States 
for FYs 2006 through 2009.
    Finally, section 107 of CHIPRA amended title XXI of the Act to add 
a new paragraph (4) of section 2105(g) of the Act; under this new 
provision, qualifying states at their option may use up to their entire 
fiscal year allotments for each of fiscal years 2009 through 2013, to 
the extent such allotments remain available to the State under the Act, 
in an amount equal to the additional amount that would have been paid 
to the State if the EFMAP as determined under section 2104(b) of the 
Act was substituted for the FMAP defined in section 1905(b) of the Act. 
The CHIPRA amendments to the qualifying State provision provide that 
the indicated amounts of such allotments are available for certain 
expenditures of the qualifying States as described in section 
2105(g)(4)(B) of the Act, as amended by CHIPRA. In particular, these 
are expenditures made by such States on or after February 5, 2009 for 
children whose family income equals or exceeds 133 percent of the 
Federal poverty line but does not exceed the Medicaid applicable income 
level. As indicated above, this is a change from what was in effect 
previously; that is, before CHIPRA, the income level was 150 percent of 
the Federal poverty line.

II. Provisions of This Proposed Rule

    For the reasons described in section I of this preamble, the 
purpose of this proposed rule would:
    <bullet> Set forth the methodology and procedures for determining 
the CHIP allotments for FY 2009 through FY 2013 for the 50 States and 
the District of Columbia, and the U.S. Commonwealths and Territories as 
provided under section 2104(m) of the Act.
    <bullet> Describe the methodology and process used to coordinate 
the funding provided previously to States under MMSEA, as described in 
the May 23, 2008 Federal Register (page 30112, Vol. 73, No. 101), under 
the provisions of section 2104(a)(11) of the Act related to States' FY 
2009 allotments provided to States before CHIPRA, section 2104(k) of 
the Act related to the redistribution of States' unexpended FY 2006 
allotments to address States' shortfalls in FY 2009, and section 
2104(l) of the Act related to funding States' shortfalls in FY 2009 for 
their expenditures through March 31, 2009.
    <bullet> Set forth the FY 2009 allotments as determined in 
accordance with such methodologies and procedures.
    <bullet> Describe the implementation of the continued authority 
under section 2104(g)(4) of the Act as amended by CHIPRA for 
``qualifying States'' to elect to receive their available CHIP 
allotments for FY 2009 through FY 2013 CHIP as increased Federal 
matching funds for certain expenditures in their Medicaid programs.
    <bullet> Describe the retrospective adjustment for the FY 2008 
shortfall funding as provided under section 2104(j) of the Act.
    To incorporate the policies and implement the statutory provisions 
as described above, we are proposing the following revisions:
    <bullet> In 42 CFR Sec.  457.600(a), we are proposing to remove the 
date ``2007'' and add in its place ``2013'' of this regulation.
    <bullet> In Sec.  457.608, we are proposing to revise the heading 
``Process and calculation of State allotments for a fiscal year'' to 
read ``Process and calculation of State allotments prior to FY 2009'' 
of this regulation.
    <bullet> In part 457 subpart F, we are proposing to add Sec.  
457.609, ``Process and calculation of State allotments for a fiscal 
year after FY 2008'', which would implement the new funding amounts 
available for States' CHIP allotments for FY 2009 through FY 2013.
    <bullet> In Sec.  457.610, we are proposing to revise the heading 
``Period of availability for State allotments for a fiscal year'' to 
read ``Period of availability for State allotments prior to FY 2009'' 
of this regulation. In the first line of the paragraph for this 
section, we are also proposing to remove the words ``for a fiscal 
year'' and add in its place ``prior to FY 2009'' of this regulation.
    <bullet> In part 457 subpart F, we are proposing to add Sec.  
457.611, ``Period of availability for State allotments for a fiscal 
year after FY 2008'', which would reflect the 3 fiscal year and 2 
fiscal year periods of availability, as applicable to fiscal years 
before FY 2009 and effective for FY 2009 and subsequent fiscal years, 
respectively.

A. Methodology and Procedures for Determining the CHIP Allotments for 
FY 2009 Through FY 2013 for the 50 States and the District of Columbia, 
and the U.S. Commonwealths and Territories

1. Reauthorization Funding for the CHIP
    Section 101 of CHIPRA provides the reauthorization funding for 
providing States' allotments for FY 2009 through FY 2013. In 
particular, section 101 of CHIPRA amended section 2104(a) of the Act to 
revise paragraph (11) for FY 2008, and adds new paragraphs (12) through 
(16) to provide appropriations for FY 2009 through FY 2013, 
respectively. In particular, under the amendments made by CHIPRA the 
appropriated amounts available for allotments for these fiscal years, 
respectively are: $10,562,000,000 for FY 2009 (before CHIPRA the amount 
for FY 2009 was $5,000,000,000); $12,520,000,000 for FY 2010; 
$13,459,000,000 for FY 2011; $14,982,000,000 for FY 2012, and 
$2,850,000,000 for each of the first and second half of FY 2013. Also, 
section 108 of CHIPRA provided for a one-time appropriation of 
$11,706,000,000 for allotments for the first half of FY 2013. 
Therefore, the total appropriation for providing allotments during FY 
2013 is $17,406,000,000.
2. Methodology for Determining State's Fiscal Year Allotments
    a. CHIPRA provision of 2009. Section 102 of CHIPRA adds a new 
section 2104(m) of the Act which sets forth the

[[Page 47521]]

methodology for determining States' CHIP allotments for each of FY 2009 
through FY 2013. In general, the States' fiscal year allotments are 
provided from the appropriation for the respective fiscal year 
allotment, subject to a proration adjustment, described in section 
II.A.2.g. of this proposed rule.
    b. FY 2009 Allotments. The FY 2009 allotments for the 50 States and 
the District of Columbia, and the Commonwealths and Territories, are 
provided from the FY 2009 appropriation of $10,562,000,000, and are 
subject to a proration adjustment described in II.A.2.g. of this 
proposed rule, if necessary. The FY 2009 CHIP allotments for the 50 
States and the District of Columbia are determined under a different 
methodology than is used for the determining the FY 2009 allotments for 
the Commonwealths and Territories.
    The FY 2009 allotment for the 50 States and the District of 
Columbia is determined as 110 percent of the highest of the following 
three amounts:
    <bullet> The total Federal payments to the State from the States' 
available CHIP allotments in FY 2008 as reported by the State and 
certified to the Secretary through the November 2008 submission of the 
quarterly expenditure reports, Forms CMS-21 and CMS-64, multiplied by 
the allotment increase factor described in section II. A. 2.h. of this 
proposed rule;
    <bullet> The amount allotted to the State for FY 2008, multiplied 
by the allotment increase factor described in section II.A.2.h. of this 
proposed rule.
    <bullet> The projected total Federal payments to the State under 
title XXI of the Act for FY 2009, determined based on the February 
submission of projections of expenditures as certified by the State to 
CMS no later than March 31, 2009. These projections may include certain 
amounts of Medicaid expenditures for certain ``qualifying states'' 
described in section 2105(g) of the Act.
    With respect to the last item related to projected total Federal 
payments for FY 2009 under title XXI, section 107 of CHIPRA added a new 
paragraph section 2105(g)(4) of the Act to allow States to use up to 
100 percent of their FY 2009 allotments for these expenditures. This 
provision is further described in section II.E. of this proposed rule.
    The FY 2009 allotment for the Commonwealths and Territories is 
determined as the highest amount of the Federal payments made to the 
Commonwealth or Territory under title XXI of the Act in any of the 
fiscal years for the period of FY 1999 through FY 2008, multiplied by 
the allotment increase factor described in section II.A.2.h. of this 
proposed rule, plus an additional amount. The additional amount is 
equal to $40,000,000, as appropriated under section 2104(c)(4)(B) of 
the Act, multiplied by the following percentage provided under section 
2104(c)(2) of the Act for the indicated jurisdiction: 91.6 percent for 
Puerto Rico; 3.5 percent for Guam; 2.6 percent for the Virgin Islands; 
1.2 percent for American Samoa; and 1.1 percent for the Northern 
Mariana Islands.
    c. FY 2010 Allotments. The FY 2010 allotments for the 50 States and 
the District of Columbia, and the Commonwealths and Territories, are 
provided from the FY 2010 appropriation of $12,520,000,000, and are 
subject to a proration adjustment if necessary, described in section 
II.A.2.g. of this proposed rule. Under the CHIPRA, the FY 2010 
allotment for each State will be determined by multiplying the 
allotment increase factor for FY 2010 for the State, by the sum of: The 
State's FY 2009 allotment; the amount of the final FY 2006 
redistributed allotments paid to the State as determined under section 
2104(k) of the Act, and subject to any final retrospective adjustment 
to such amount determined under section 2104(k)(5) of the Act; the 
amount of the final additional FY 2009 allotments paid to the State as 
determined under section 2104(l) of the Act, and subject to any final 
retrospective adjustment to such amount determined under section 
2104(l)(5) of the Act; and the amount of any contingency fund payment 
made to the State for FY 2010, as determined under section 2104(n) of 
the Act.
    For the 50 States and the District of Columbia, under section 
2104(m)(6) of the Act, the FY 2010 allotment may include additional 
amounts in situations where such States have submitted an expansion 
allotment adjustment request before August 31, 2009.
    For the Commonwealths and Territories, in accounting for the 
amounts of the FY 2009 allotments for purposes of determining the FY 
2010 allotments, the component of the FY 2009 allotment for such 
jurisdictions relating to the additional $40 million referenced in 
section 2104(c)(4) of the Act, is not included. This is because section 
2104(m)(2)(A)(i)(I) of the Act, as amended by CHIPRA, references the FY 
2009 allotment as determined in section 2104(m)(1) of the Act; that 
section in turn provides for determining the FY 2009 allotments from 
the amounts appropriated in section 2104(a)(12) of the Act. That is, 
such section 2104(m)(1) of the Act does not include the additional $40 
million which is separately appropriated and available only for the 
jurisdictions in determining their FY 2009 allotments. Therefore, the 
component of the jurisdictions' FY 2009 allotment related to the 
additional $40 million would not be included in determining the amount 
of the jurisdictions' FY 2010 allotments.
    d. FY 2011 Allotments. The FY 2011 allotments for the 50 States and 
the District of Columbia, and the Commonwealths and Territories, are 
provided from the FY 2011 appropriation ($13,459,000,000). The amounts 
of these allotments are subject to a proration adjustment described in 
section II.A.2.g of this proposed rule, if necessary. Section 
2104(m)(2)(A)(ii) of the CHIPRA amendments refers to a ``rebasing'' 
process for determining the FY 2011 allotments; this requirement means 
that the States' payments rather than their allotments for FY 2010 must 
be considered in calculating the FY 2011 allotments. In particular the 
FY 2011 allotments are determined by multiplying the increase factor 
for FY 2011 by the sum of: Any Federal payments made from the States' 
available allotments in FY 2010; any amounts provided as redistributed 
allotments in FY 2010 to the State; and any Federal payments 
attributable to any contingency fund payments made to the State for FY 
2010 determined under Section 2104(n) of the Act.
    e. FY 2012 Allotments. The FY 2012 allotments for the 50 States and 
the District of Columbia, and the Commonwealths and Territories, are 
provided from the FY 2012 appropriation of $14,982,000,000, and are 
subject to a proration adjustment described in II.A.2.g.of this 
proposed rule, if necessary. Under the CHIPRA, the FY 2012 allotment 
for each State will be determined by multiplying the allotment increase 
factor for FY 2012 for the State, by the sum of: the State's FY 2011 
allotment and any contingency fund payment made to the State for FY 
2011, as determined under section 2104(n) of the Act.
    For the 50 States and the District of Columbia, under section 
2104(m)(6) of the Act, the FY 2012 allotment may include additional 
amounts in situations where such States have submitted an expansion 
allotment adjustment request before August 31, 2011.
    f. FY 2013 Allotments. The FY 2013 allotments for the 50 States and 
the District of Columbia, and the Commonwealths and Territories, are 
comprised of two components related to the first half of FY 2013 (that 
is, the

[[Page 47522]]

period of October 1, 2012 through March 31, 2013) and second half of FY 
2013 (that is, April 1, 2012 through September 30, 2013). The FY 2013 
allotments for the first and second half of FY 2013 are subject to a 
proration adjustment described in section II.A.2.g of this proposed 
rule, as applicable.
    The allotments for the first half of FY 2013 are provided from a 
total available appropriation of $14,556,000,000, comprised of 
$2,850,000,000 appropriated under section 2104(a)(16)(A) of the Act, 
and $11,706,000,000 appropriated under section 108 of CHIPRA. The 
allotments for the first half of FY 2013 is equal to the ``first half 
ratio'' multiplied by: the allotment increase factor for FY 2013 
multiplied by the sum of: any Federal payments made from the States' 
available allotments in FY 2012; any amounts provided as redistributed 
allotments in FY 2012 to the State; and any Federal payments 
attributable to any contingency fund payments made to the State for FY 
2012 as determined under Section 2104(n) of the Act. For this purpose, 
the first half ratio is the percentage determined by dividing 
$14,556,000,000 (calculated as the sum of $2,850,000,000 (the 
appropriation for the first half of FY 2013) and $11,706,000,000 (the 
one-time appropriation for the first half of the FY 2013)) by 
$17,406,000,000 (calculated as $2,850,000,000, the appropriation for 
the second half of FY 2013) plus the $14,556,000,000 amount).
    The allotments for the second half of FY 2013 are provided from a 
total available appropriation of $2,850,000,000, appropriated under 
section 2104(a)(16)(B) of the Act. The allotments for the second half 
of FY 2013 is equal to $2,850,000,000 multiplied by a percentage equal 
to the amount of the allotment for the State for the first half of FY 
2013 divided by the sum of all such first half of FY 2013 allotments 
for all States.
    (g) Proration Rule. Under section 2104(m)(4) of the Act, as amended 
by CHIPRA, if the amount of States' allotments for a fiscal year (as 
determined in accordance with the provisions described of this proposed 
rule, or in the case of FY 2013, the amount of an allotment for each 
half of the fiscal year) exceeds the total appropriations available for 
such periods, the total allotments for each of these periods will be 
reduced on a proportional basis. The total amount available nationally 
for the period is multiplied by a proration percentage determined by 
dividing the amount determined for the period by the sum of such 
amounts.
    h. The allotment increase factor for a fiscal year. Under Section 
2104(m)(5) of the Act, the allotment increase factor for a fiscal year 
is equal to the product of two amounts for the fiscal year: the per 
capita health care growth factor and the Child Population growth 
factor.
    For this purpose, in general, the per capita health care growth 
factor for a fiscal year is equal to 1 plus the percentage increase in 
the projected per capita amount of the National Health Expenditures 
from the calendar year in which the previous fiscal year ends to the 
calendar year in which the fiscal year involved ends, as most recently 
published by CMS before the beginning of the fiscal year involved.
    In general, for the 50 States and the District of Columbia, the 
child population growth factor for a fiscal year is equal to 1 plus the 
percentage increase (if any) in the population of children in the State 
from July 1 in the previous fiscal year to July 1 in the fiscal year 
involved, as determined by CMS based on the most recent published 
estimates of the Census Bureau available before the beginning of the 
fiscal year involved plus 1 percentage point. In the determination of 
the child population growth factor, the CHIP legislation refers to 
``the percentage increase (if any)'' of the population of children in 
the State. In this regard, child population growth factor refers only 
to increases in the population of children. Thus, if there was a 
decrease in the population of children over the indicated period, the 
child population growth factor for such state would be 0.0 percent plus 
one percentage point; that is, negative growth in the children 
population would not result in the growth factor being less than 101 
percent.
    Because of concerns about availability of data to determine the 
child population growth factor for the Commonwealths and the 
Territories, section 2104(m)(1)(B) of the Act explicitly required that 
the term ``United States'' be substituted for the term ``the State''. 
For fiscal years after FY 2009, that exception does not apply, and we 
will determine the child population growth factor for the Commonwealths 
and the Territories, based on the most recent published estimates of 
the Census Bureau. In accordance with section 602(b) of the CHIPRA, 
which added a new section 2109(b)(2)(B) of the Act, we will be working 
with the Secretary of the Commerce Department on appropriate 
adjustments to improve the Current Population Survey (CPS), or develop 
other data, to determine the child population growth factor.
    i. CHIP Fiscal Year Allotment Process. As described above, the 
determination of the allotments for each fiscal year potentially 
involves the collection of relevant data, such as related to the 
allotment increase factor, or the consideration of additional 
information later or after the end of the fiscal year; for example, the 
determination of the FY 2010 and FY 2012 allotments allows States to 
receive increases in their CHIP allotments to reflect the submission of 
certain expansions to their CHIP programs. In that regard, we are 
incorporating into the CHIP regulation a process, under which the 
Secretary may elect to publish preliminary fiscal year allotments. 
Consequently, under this process at the time the updated allotment 
amounts became available the Secretary would publish a final notice. 
For example, under the CHIPRA legislation, in the determination of the 
FY 2010 and FY 2012 allotments, States can amend their CHIP programs to 
provide for expansions; the increase in expenditures for such 
expansions would serve to increase the amount of the State fiscal year 
allotments associated with the year of such expansions. As determined 
by the Secretary, the CHIP allotments for a fiscal year may need to be 
published first as Preliminary Allotments and then later as Final 
Allotments in the Federal Register. The proposed rule provides for the 
potential for a preliminary and final allotment to be determined.

B. Coordination of CHIP Funding for FY 2009

    Before the enactment of CHIPRA, section 2104(a)(11) of the Act, as 
amended by MMSEA, appropriated $5 billion for purposes of providing FY 
2009 allotments for States. Under the CHIP statute as amended by MMSEA 
and before the enactment of CHIPRA, such funds were potentially 
available for allotment and obligation to States for their CHIP related 
expenditures in FY 2009 through March 31, 2009. Furthermore, section 
2104(k) of the Act and section 2104(l) of the Act, as amended by MMSEA, 
provided for redistribution of the unexpended FY 2006 allotments in FY 
2009, and for additional FY 2009 shortfall allotments in FY 2009, 
respectively. However, section 3(c)(1) of CHIPRA provides for a 
rescission of amounts of these funds that were not obligated before 
April 1, 2009. Furthermore, section 3(c)(2) of CHIPRA requires that the 
FY 2009 allotments, as determined under section 2104(m)(1) of the Act 
(as amended by CHIPRA), be reduced by the following amounts that were 
appropriated and obligated before April 1, 2009. Amounts

[[Page 47523]]

appropriated and obligated before April 1, 2009 include the amounts of 
the FY 2009 allotments appropriated under section 2104(a)(11) of the 
Act, as amended by MMSEA and before the enactment of CHIPRA; amounts of 
FY 2006 redistributed allotments, provided under section 2104(k) of the 
Act; and, the amounts of the FY 2009 shortfall allotments, provided 
under section 2104(l) of the Act. This coordination ensures that 
States' FY 2009 CHIP funding does not exceed the final FY 2009 CHIP 
allotments as determined under the CHIPRA.

C. FY 2009 Allotments Determined in Accordance With Such Methodologies 
and Procedures

    In accordance with the methodology described in section II.A. of 
this proposed rule relating to the calculation of the fiscal year CHIP 
allotments, and in section II.B. of this proposed rule relating to the 
coordination of CHIP funding, we have calculated the FY 2009 allotments 
for the States. That calculation is contained in three tables described 
in section III. of this proposed rule; Table 1 provides the calculation 
of the allotment increase factor for FY 2009, Table 2 provides the 
calculation of the FY 2009 allotment, and Table 3 provides the 
coordination of funds in FY 2009.

D. Period of Availability for CHIP Allotments

    Section 105 of CHIPRA amended section 2105(e) of the Act to revise 
the period of availability for expenditure by States of their CHIP 
fiscal year allotments. Before the enactment of CHIPRA, States' CHIP 
fiscal year allotments were available for expenditure by the State for 
3 fiscal years, the fiscal year and the subsequent 2 fiscal years. With 
the enactment of CHIPRA, section 2105(e) of the Act now provides that 
each of the States' fiscal year allotments for FY 1998 through FY 2008, 
are available for the expenditure by the State for 3 fiscal years. 
Finally, section 2104(e) of the Act as amended by CHIPRA now indicates 
that States' fiscal year allotments for FY 2009 and each succeeding 
fiscal year are available for expenditure by the States for 2 fiscal 
years, the current fiscal year and the immediately subsequent fiscal 
year. In this proposed rule, we have amended the CHIP regulations at 
Sec.  457.611 to reflect the 3 fiscal year and 2 fiscal year periods of 
availability, as applicable to fiscal years before FY 2009 and 
effective for FY 2009 and subsequent fiscal years, respectively.

E. Continuing Authority for Qualifying States To Use FY 2009 Through FY 
2013 Allotments for Certain Medicaid Expenditures

    Section 107 of CHIPRA amended the CHIP statute to add a new section 
2105(g)(4) of the Act to allow certain ``qualifying states'' described 
in section 2105(g) of the Act to elect to use up to 100 percent of 
their available CHIP fiscal year allotments for FY 2009 and following 
fiscal years for certain expenditures in Medicaid. Before the enactment 
of CHIPRA, States were only able to use up to 20 percent of their 
available fiscal year CHIP allotments for the applicable Medicaid 
expenditures. With the enactment of CHIPRA, beginning with the FY 2009 
allotment, States can use up to 100 percent of their FY 2009 and 
following fiscal year allotments for the States' qualifying 
expenditures. In that case, only the Federal share portion of the 
expenditures which is above the amount that the State would have 
received under Medicaid would be applied against the CHIP allotment.
    Note, under section 5001 of the American Recovery and Reinvestment 
Act of 2009 (ARRA, Pub. L. 111-5, enacted on February 17, 2009) the 
FMAP under the Medicaid program has been increased during the 9-quarter 
period October 1, 2009 through December 31, 2010. Because of this 
increase, the amount of the Federal share funds that will be applied 
against the CHIP qualifying States' FY 2009 (and following) allotments 
will be reduced. For example, a qualifying State's regular Medicaid 
FMAP rate in FY 2009 is 50 percent, its increased FMAP under ARRA in 
Medicaid is 60.00 percent, and its CHIP EFMAP is 65.00 percent. This 
qualifying State would be able to claim the ``qualifying'' expenditures 
in FY 2009 at the 65.00 percent EFMAP rate in CHIP, and only 5 percent 
of such expenditures would apply against the State's FY 2009 allotment, 
calculated as 65.00 percent (CHIP EFMAP) minus 60.00 percent (increased 
FMAP under ARRA) claimable under the Medicaid program. In the same 
example (and assuming the same FMAP for Medicaid and enhanced FMAP in 
CHIP), after December 31, 2010 15.00 percent of the qualifying 
expenditure in FY 2011 would apply against the State's FY 2011 CHIP 
allotment, calculated as 65.00 percent (CHIP EFMAP) minus 50.00 percent 
(regular FMAP) claimable under the Medicaid program. We have amended 
the CHIP regulations to reflect this provision.

F. Retrospective Adjustment of FY 2008 Shortfall Allotments

    Section 2104(j)(5) of the Act, as amended by MMSEA provides for a 
potential retrospective adjustment with respect to the amounts of 
States' FY 2008 shortfall allotments provided to them in FY 2008 and 
based on expenditure reports for FY 2008 submitted and certified by 
States to CMS no later than November 30, 2008.
    Under section 2104(j)(2) and (3)(A) of the Act, additional FY 2008 
shortfall allotments were made available only to those 50 States and 
the District of Columbia that were initially determined to have a 
shortfall in CHIP funding in FY 2008 based on their FY 2008 expenditure 
projections as submitted and certified by the States by November 30, 
2007. For those States, under section 2104(j)(5) of the Act, the 
retrospective adjustment to the amounts of their additional FY 2008 
shortfall allotments is based on the FY 2008 expenditure projections 
submitted and certified by such States by November 30, 2008.
    Through the end of FY 2008 and based on States' estimated FY 2008 
CHIP expenditures, we had provided approximately $1,201 million in 
total additional FY 2008 shortfall allotments to States to address 
their projected shortfalls in FY 2008. However, based on the States' 
actual FY 2008 expenditures, as submitted through November 30, 2008, 
the final States' shortfalls in FY 2008 were only approximately $995 
million. That is, of those States who overestimated their projected 
shortfalls, final shortfalls for FY 2008 were about $232 million less 
than were previously estimated, and for States that underestimated 
their shortfalls, their actual shortfalls were about $26 million 
higher. Thus, the final net shortfall for States was about $995 million 
($1,201 million minus $232 million plus $26 million). Table 4 in this 
notice presents the final FY 2008 shortfall allotments after applying 
the retrospective adjustment under section 2104(j)(5) of the Act.

G. Retrospective Adjustment of FY 2009 Shortfall Allotments

    Section 2104(l)(5) of the Act, as amended by MMSEA provides for a 
potential retrospective adjustment with respect to the amounts of 
States' FY 2009 shortfall allotments provided to them in FY 2009 prior 
to April 1, 2009 based on expenditure reports for the first two 
quarters of FY 2009 as submitted and certified by States to CMS no 
later than May 31, 2009.
    Under section 2104(l)(2) and (3)(A) of the Act, additional FY 2009 
shortfall

[[Page 47524]]

allotments were made available to those States that were initially 
determined to have a shortfall in CHIP funding in FY 2009 based on 
their expenditure projections for the first two quarters of FY 2009 as 
submitted and certified by the States by November 30, 2008. For those 
States, under section 2104(l)(5) of the Act, the retrospective 
adjustment to the amounts of their additional FY 2009 shortfall 
allotments is based on the FY 2009 expenditures for the first two 
quarters of FY 2009 as submitted and certified by such States by May 
31, 2009.
    Prior to April 1, 2009, and based on States' estimated FY 2009 CHIP 
expenditures through the end of the second quarter of FY 2009, we had 
provided approximately $267 million in total additional FY 2009 
shortfall allotments to States to address their projected shortfalls in 
FY 2009 through the end of the second quarter FY 2009 in that amount. 
However, based on the States' actual FY 2009 expenditures for the first 
two quarters of FY 2009, as submitted through May 31, 2009, the final 
States' shortfalls in FY 2009 through the second quarter of FY 2009 for 
the shortfall States were only approximately $210 million. That is, for 
the shortfall States initially receiving the additional FY 2009 
shortfall allotments, based on their actual FY 2009 reported 
expenditures for the first two quarters of FY 2009, their final 
shortfalls for the first two quarters of FY 2009 were about $58 million 
less than was previously estimated. Table 5 in this notice presents the 
final FY 2009 shortfall allotments after applying the retrospective 
adjustment under section 2104(l)(5) of the Act. Also, Column D in Table 
3 reflects these final retrospective adjustment FY 2009 shortfall 
allotments.

III. Tables

    Following are the keys and associated tables for the CHIP funding 
provisions as discussed in previous sections:

Table 1--Allotment Increase Factor for 2009
Table 2--FY 2009 Children's Health Insurance Program Allotments under 
the Children's Health Insurance Program Reauthorization Act Of 2009
Table 3--Coordination of CHIP Funding for Fiscal Year 2009
Table 4--Retrospective Adjustment for the FY 2008 Shortfall Funding

A. TABLE 1--ALLOTMENT INCREASE FACTOR FOR 2009

Key to Table 1
Column/Description

    Column A = State. Column A contains the name of the State, District 
of Columbia, U.S. Commonwealth or Territory.
    Column B = PCNHE 2008, PCNHE 2009, PCHCG Factor. Column B contains 
the calculation of the Per Capita Health Care Growth (PCHCG) Factor for 
FY 2009, determined as 1 plus the percentage increase in the Per Capita 
National Health Expenditures (PCNHE) from calendar year 2008 to 
calendar year 2009.
    Columns C through F = Calculation of the Child Population Growth 
Factor (CPGF) for FY 2009:
    Column C = July 1, 2008 Child Population. Column C contains the 
population of children in each State or the United States as of July 1, 
2008, as provided by the most recent published data of the Census 
Bureau before the beginning of FY 2009.
    Column D = July 1, 2009 Child Population. Column D contains the 
population of children in each State or the United States as of July 1, 
2009, as provided by the most recent published data of the Census 
Bureau before the beginning of FY 2009.
    Column E = Percent Increase 2008-2009. Column E contains the 
percentage increase, if any, of the population of children in each 
State, or the United States, from July 1, 2008 to July 1, 2009, 
calculated as the difference between the number in Column D minus the 
number in Column C divided by the number in Column C.
    Column F = Child Population Growth Factor. Column F contains the 
CPGF for the 50 States and the District of Columbia, determined as the 
1.01 plus the percent in Column E for the State. For the Commonwealths 
and Territories the CPGF is determined as 1.01 plus the percentage in 
Column E for the United States.
    Column G = FY 2009 Allotment Increase Factor. Column G contains the 
FY 2009 Allotment Increase Factor, calculated as the PCHCG factor in 
Column B multiplied by the CPGF percent in Column F.

[[Page 47525]]

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B. Table 2--FY 2009 Children's Health Insurance Program Allotments 
Under the Children's Health Insurance Program Reauthorization Act of 
2009

Key to Table 2
Column/Description

    Column A = State. Column A contains the name of the State, District 
of Columbia, U.S. Commonwealth or Territory.
    Column B = FY 2008 Total Federal CHIP Payments. Column B contains, 
for the 50 States and the District of Columbia only, the total Federal 
payments applied to the States' available CHIP allotment funds in FY 
2008, based on the States' expenditure reports submitted through 
November 30, 2008. For the Commonwealths and Territories, the entry in 
this Column is ``na.''
    Column C = FY 2008 CHIP Allotments. Column C contains for the 50 
States and the District of Columbia only, the States' final FY 2008 
CHIP Allotments, as published in the May 23, 2008 Federal Register 
(30112, Vol. 73, No. 101). For the Commonwealths and Territories, 
Column C contains the maximum amount of the Federal payments for each 
of the jurisdictions as was applied against the jurisdiction's 
available CHIP funds in each of the fiscal years FY 1999 through 2008.
    Column D = FY 2009 Allotment Increase Factor. Column D contains the 
Allotment Increase Factor for each State as contained in Column G of 
Table 1.
    Column E = FY 2008 Tot. Fed Pmts x Incr. Factor. Column E contains, 
for the 50 States and the District of Columbia only, the product of the 
FY 2008 total Federal CHIP payments in Column B multiplied by the 
amount of the FY 2009 Allotment Increase Factor in Column D. Column E 
contains, for the Territories and Commonwealths, the product of the 
amount in Column C (containing the maximum amount of

[[Page 47526]]

Federal Payments in the FY 1999 through FY 2008) multiplied by the 
amount in Column D (the allotment increase period).
    Column F = FY 2008 Allotments x Incr. Factor. Column F contains, 
for the 50 States and the District of Columbia only, the product of the 
FY 2008 CHIP allotments in Column C multiplied by the amount of the FY 
2009 Allotment Increase Factor in Column D. Column F contains, for each 
of the Commonwealths and Territories, the percentage for each 
jurisdiction, respectively, from section 2104(a)(3) the percent 
allocation.
    Column G = FY 2009 Projected Expenditures. Column G contains, for 
the 50 States and the District of Columbia only; the amounts of each 
State's projected CHIP Federal payments as submitted by the States on 
their February 2009 quarterly expenditure reports no later than March 
31, 2009. Column G contains, for each of the Commonwealths and 
Territories, the portion of the additional $40 million in allotment 
funds available to such jurisdiction for FY 2009, determined as the 
product of the percentage in Column F for the Jurisdiction multiplied 
by $40 million.
    Column H = Maximum of Col. E, F, G. Column H contains, for the 50 
States and the District of Columbia only, the maximum of the amounts in 
Columns E, F, and G.
    Column I = FY 2009 Allotments. Column I contains, for the 50 States 
and the District of Columbia, the FY 2009 CHIP allotment, determined as 
110 percent multiplied by the amount in Column H. Column I contains for 
the Commonwealths and Territories, the FY 2009 CHIP allotment, 
determined as the sum of the amount in Column E and the amount in 
Column G, for each jurisdiction.

[[Page 47527]]

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C. Table 3--Coordination of CHIP Funding for Fiscal Year 2009

    Table 3 contains the amounts of each States' FY 2009 CHIP 
allotment, as contained in Column I on Table 2, reduced by certain 
amounts of CHIP allotment funds already available to the State in FY 
2009, as required under section 3(c) of CHIPRA.
Key to Table 3
Column/Description

    Column A = State. Column A contains the name of the State.
    Column B = FY 2009 Pre-CHIPRA Allotment Grants Issued Before April 
1, 2009. Column B contains the amount if any of the State's FY 2009 
allotment that was actually provided to the State in a grant award from 
such allotment before April 1, 2009, as determined under section 
2104(a) of the Act before the enactment of CHIPRA, as published in the 
Federal Register on May 23, 2008 (30112, Vol. 73, No. 101).
    Column C = FY 2006 Unexpended Allotments Redistributed in FY 2009 
Before April 1, 2009. Column C contains the total amount, if any, that 
the State received from the amounts of States' unexpended FY 2006 
allotments remaining at the end of FY 2008, and redistributed in FY 
2009 before April 1, 2009, determined in accordance with the provisions 
of section 2104(k) of the Act.
    Column D = FY 2009 Shortfall Allotments After Retrospective 
Adjustment. Column D contains the final amount if any, that the State 
received as an additional shortfall allotment for the first two 
quarters of FY 2009, as determined under the retrospective adjustment 
provision of

[[Page 47528]]

section 2104(l)(5) of the Act. Refer to Table 5 for further information 
regarding the determination of the amounts of the FY 2009 shortfall 
allotments under the retrospective adjustment.
    Column E = Total FY 2009 Pre-CHIPRA Allotment Funds. Column E 
contains the total amount if any, that the State received as CHIP 
allotment funds in FY 2009 before April 1, 2009, determined as the sum 
of the amounts, if any, in Columns B, C, and D, for each State.
    Column F = FY 2009 Total Allotments Determined Under CHIPRA. Column 
F contains the total FY 2009 CHIP allotment determined under CHIPRA, as 
contained in Column I in Table 2.
    Column G = FY 2009 Allotments Under CHIPRA Balance Effective April 
1, 2009. Column G contains the balance of the FY 2009 CHIP allotment 
after the reduction by the amounts of the FY 2009 allotment funds 
provided in FY 2009, determined as the amount in Column F minus the 
amount in Column E.
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[[Page 47529]]



D. Table 4--Retrospective Adjustment for the FY 2008 Shortfall 
Allotments

    Table 4 contains the final retrospective adjustment determination 
with respect to the amounts of the additional shortfall allotments 
provided to States to eliminate their CHIP funding shortfalls in FY 
2008, in accordance with the provisions of section 2104(j)(5) of the 
Act. Under section 2104(j)(2) and (3)(A) of the Act, additional FY 2008 
shortfall allotments were made available only to those 50 States and 
the District of Columbia that were determined to have a shortfall in 
CHIP funding in FY 2008 based on their FY 2008 expenditure projections 
as submitted and certified by the States by November 30, 2007. For 
those States, under section 2104(j)(5) of the Act, the retrospective 
adjustment to the amounts of their additional FY 2008 shortfall 
allotments is based on the FY 2008 expenditure projections submitted 
and certified by such States by November 30, 2008.
Key to Table 4
Column/Description

    Column A = State. Column A contains the name of the State.
    Column B = FY 2008 Actual Expenditures 11/30/08. Column B contains 
the total Federal share amount of the CHIP expenditures reported by the 
States for FY 2008, as contained on the States' expenditure reports 
submitted and certified by the States by November 30, 2008.
    Column C = FY 2006 Carryover Allotments into FY 08. Column C 
contains the amounts of the States' unused FY 2006 allotments remaining 
at the end of FY 2007, if any, and carried over into FY 2008.
    Column D = FY 2007 Carryover Allotments into FY 08. Column D 
contains the amounts of the States' unused FY 2007 allotments remaining 
at the end of FY 2007, if any, and carried over into FY 2008.
    Column E = FY 2008 Allotments. Column E contains the amounts of the 
States' FY 2008 allotments, as published in the May 23, 2008 Federal 
Register (30112, Vol. 73, No. 101).
    Column F = FY 2005 Redistribution Based on November 30, 2007 
Estimates. Column F contains the amounts of the FY 2005 redistributed 
allotments issued to the State in FY 2008, if any, as based on the 
States' estimates of CHIP funding needed for FY 2008 submitted and 
certified by the State by November 30, 2007.
    Column G = Total Avail. Allotments in FY 2008. Column G contains 
the total amount of CHIP funds available to the State in FY 2008 
without consideration of the issuance of any additional FY 2008 
shortfall allotments, determined as the sum of the amounts, if any, in 
Columns C, D, E, and F.
    Column H = Retro. Adjusted Shortfall in FY 2008. Column H contains 
the retrospective adjustment amount of States' shortfall in CHIP 
funding for FY 2008. This amount is based on the States' actual FY 2008 
CHIP expenditures as submitted and certified by the State by November 
30, 2008 and the actually available CHIP funds without any additional 
FY 2008 shortfall allotments. The retrospective adjustment is 
applicable only for States that were determined to have a shortfall in 
CHIP funding in FY 2008 based on their FY 2008 expenditure projections 
submitted and certified by November 30, 2007; such States are those 
with an FY 2008 shortfall amount shown in Column I. For such States, 
the amount of the retrospective adjustment shortfall amount in Column H 
is calculated as the difference between the amounts of the States' 
projected Federal share CHIP expenditures for FY 2008 in Column B and 
the amounts of the States' available allotments funds in FY 2008 Column 
G.
    Column I = Total FY 2008 SF Allotment Grants Issued in FY 2008. 
Column I contains the total amounts of the additional FY 2008 shortfall 
allotments actually issued to the State in FY 2008 to address States' 
CHIP funding shortfalls in FY 2008.
    Column J = FY 2008 Excess SF Allotments Provided In FY 2008. Column 
J contains the amounts of the States' excess additional FY 2008 
shortfall allotments provided in FY 2008, as determined under the 
retrospective adjustment provision. For States that received additional 
FY 2008 shortfall allotments, the amounts in Column J represent the 
amount of the FY 2008 shortfall allotments provided in FY 2008 that 
were greater than were needed to address such States' CHIP funding 
shortfalls in FY 2008. The amounts in Column J are calculated as the 
difference between the actual additional FY 2008 shortfall allotments 
in Column I and the amounts of the States' retrospectively adjusted FY 
2008 shortfall in Column H.
    Column K = Additional FY 2008 SF Allotments Needed for FY 2008. 
Column K contains the amounts of the additional FY 2008 shortfall 
allotments needed by FY 2008 shortfall States as determined under the 
retrospective adjustment provision. For States that received such 
shortfall allotments in FY 2008, the amounts in Column K represent the 
amount of the additional FY 2008 shortfall allotments needed in FY 2008 
that were greater than were provided to address such States' CHIP 
funding shortfalls in FY 2008. The amounts in Column K are calculated 
as the difference between the amounts of the States' retrospectively 
adjusted FY 2008 shortfall in Column H and the actual FY 2008 shortfall 
allotments provided to the States in Column I.

[[Page 47530]]

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[[Page 47531]]



E. Table 5--Retrospective Adjustment for the FY 2009 Shortfall Funding

    Table 5 contains the final retrospective adjustment determination 
with respect to the amounts of the additional shortfall allotments 
provided to States to eliminate their CHIP funding shortfalls for the 
first two quarters of FY 2009, in accordance with the provisions of 
section 2104(l)(5) of the Act. Under section 2104(l)(2) and (3)(A) of 
the Act, additional FY 2009 shortfall allotments were initially made 
available only to those States that were projected to have a shortfall 
in CHIP funding for the first two quarters of FY 2009 based on their FY 
2009 expenditure projections as submitted and certified by the States 
by November 30, 2008. For those States, under section 2104(l)(5) of the 
Act, the retrospective adjustment to the amounts of their additional FY 
2009 shortfall allotments are based on the FY 2009 expenditures for the 
first two quarters of FY 2009 as submitted and certified by such States 
by May 31, 2009.
Key to Table 5
Column/Description

    Column A = State. Column A contains the name of the State.
    Column B = FY 09 Actual Expends. Thru 3/31/09 Reported By 5/31/09. 
Column B contains the total Federal share amount of the CHIP 
expenditures reported by the States for the first two quarters of FY 
2009 (the period ending March 31, 2009), as contained on the States' 
expenditure reports submitted and certified by the States by May 31, 
2009.
    Column C = FY 07 Carryover Allotments into FY 09. Column C contains 
the amounts of the States' unused FY 2007 allotments remaining at the 
end of FY 2008, if any, and carried over into FY 2009.
    Column D = FY 08 Carryover Allotments into FY 09. Column D contains 
the amounts of the States' unused FY 2008 allotments remaining at the 
end of FY 2008, if any, and carried over into FY 2009.
    Column E = FY 09 Pre-CHIPRA Allot. Grants. Column E contains the 
amounts of the States' FY 2009 allotment grants as issued to States 
prior to April 1, 2009 from the FY 2009 allotments as determined under 
the CHIP statute in effect prior to the enactment of CHIPRA, as 
published in the May 23, 2008 Federal Register (30112, Vol. 73, No. 
101).
    Column F = FY 2006 Redistribution Based on 11/30/08 Estimates. 
Column F contains the amounts of the FY 2006 redistributed allotments 
issued to the State in FY 2009, if any, as based on the States' 
estimates of CHIP funding needed for FY 2009 submitted and certified by 
the State by November 30, 2008.
    Column G = Total Avail. Allotments in FY 2009. Column G contains 
the total amount of CHIP funds available to the State in FY 2009 
without consideration of the issuance of any additional FY 2009 
shortfall allotments, determined as the sum of the amounts, if any, in 
Columns C, D, E, and F.
    Column H = Retro. Adjusted Shortfall FY 2009 Thru 3/31/09. Column H 
contains the retrospective adjustment amount of States' shortfalls in 
CHIP funding through the end of March 31, 2009, based on the States' 
actual FY 2009 CHIP expenditures for the first two quarters of FY 2009 
as submitted and certified by the State by May 31, 2009 and the 
actually available CHIP funds not including any additional FY 2009 
shortfall allotments. The amount of the retrospective adjustment 
shortfall amount in Column H is calculated as the difference between 
the amounts of the States' projected Federal share CHIP expenditures 
for the first two quarters of FY 2009 in Column B and the amounts of 
the States' available allotments funds in FY 2009 Column G.
    Column I = Total FY 2009 SF Allotments Issued in FY 2009. Column I 
contains the total amounts of the additional FY 2009 shortfall 
allotments actually issued to the State in the first two quarters of FY 
2009 prior to April 1, 2009 to address States' CHIP funding shortfalls 
for the first two quarters of FY 2009.
    Column J = FY 2009 Excess SF Allotments Provided In FY 2009. Column 
J contains the amounts of the States' excess additional FY 2009 
shortfall allotments provided in FY 2009, as determined under the 
retrospective adjustment provision. For States that received additional 
FY 2009 shortfall allotments, the amounts in Column J represent the 
amount of the FY 2009 shortfall allotments provided in FY 2009 that 
were greater than were needed to address such States' CHIP funding 
shortfalls in FY 2009. The amounts in Column J are calculated as the 
difference between the actual additional FY 2009 shortfall allotments 
in Column I and the amounts of the States' retrospectively adjusted FY 
2009 shortfall in Column H.

[[Page 47532]]

[GRAPHIC] [TIFF OMITTED] TP16SE09.004


[[Page 47533]]



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 subsequent document, we will respond to the 
comments in the preamble to that document.

V. Collection of Information Requirements

    This document does not impose any information collection and 
recordkeeping requirements. Consequently, it need not be reviewed by 
the Office of Management and Budget under the authority of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 35).

VI. Regulatory Impact Analysis

    We have examined the impacts of this rule as required by Executive 
Order 12866 on Regulatory Planning and Review (September 30, 1993), the 
Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), 
section 1102(b) of the Social Security Act, section 202 of the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4), Executive Order 13132 on 
Federalism (August 4, 1999), and the Congressional Review Act (5 U.S.C. 
804(2)).
    Executive Order 12866 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). We have 
determined that this proposed rule is economically significant, since 
it provides the methodologies under which State allotments for FY 2009 
through FY 2013 were calculated and will be in the future. In 
particular, this rule implements the CHIP statute as amended by CHIPRA, 
under which approximately up to $44 billion in additional Federal funds 
may be made available for fiscal years FY 2009 through FY 2013 in 
addition to the amount of funds previously appropriated for States' 
CHIPs in accordance with the methodology established in the CHIP 
statute. This proposed rule also includes the actual State fiscal year 
CHIP allotments for FY 2009 determined in accordance with the 
methodology set out in this proposed rule. The methodologies for 
determining the States' CHIP allotments was established in accordance 
with the methodologies specified in statute and does not put forward 
any discretionary administrative policies for determining such 
allotments. Therefore, we have determined that there are no policy 
options that require an analysis beyond that which is presented in 
section II of this proposed rule.
    The RFA requires agencies to analyze options for regulatory relief 
of small businesses, if a rule has a significant economic impact on a 
substantial number of small entities. 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 less than $7 million to $34.5 million in any 1 year. 
Individuals and States are not included in the definition of a small 
entity. We are not preparing an analysis for the RFA because we have 
determined that this proposed rule would not have a significant 
economic impact on a substantial number of small entities.
    In addition, section 1102(b) of the Act requires us to prepare a 
regulatory impact analysis if a rule may have a significant impact on 
the operations of a substantial number of small rural hospitals. This 
analysis must conform to the provisions of section 603 of the RFA. For 
purposes of section 1102(b) of the Act, we define a small rural 
hospital as a hospital that is located outside of a Core-Based 
Statistical Area and has fewer than 100 beds. We are not preparing an 
analysis for section 1102(b) of the Act because we have determined that 
this proposed rule would not have a significant impact on the 
operations of a substantial number of small rural hospitals.
    Section 202 of the UMRA also requires that agencies assess 
anticipated costs and benefits before issuing any rule whose mandates 
require spending in any 1 year of $100 million in 1995 dollars, updated 
annually for inflation. That threshold level is currently approximately 
$133 million. This proposed rule would not create an unfunded mandate 
on States, tribal, or local governments in the aggregate, or by the 
private sector in the amount of $133 million in any one year. 
Therefore, we are not required to perform an assessment of the costs 
and benefits of this rule.
    Executive Order 13132 establishes certain requirements that an 
agency must meet when it publishes 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. We have determined that this proposed rule would not 
significantly affect States' rights, roles, and responsibilities.
    Low-income children would benefit from payments under this program 
through increased opportunities for health insurance coverage. We 
believe this proposed rule would have an overall positive impact by 
informing States, the District of Columbia, and Commonwealths and 
Territories of the extent to which they are permitted to expend funds 
under their child health plans using the additional funds provided by 
the FY 2009 allotment amounts.
    Accounting Statement: As required by OMB Circular A-4 (available at 
http://www.whitehouse.gov/omb/circulars/a004/a-4.pdf), in Table 6, we 
have prepared an accounting statement showing the classification of the 
expenditures associated with the provisions of this rule. This table 
provides our best impact estimate of the rule, as it implements the 
CHIP statute as amended by CHIPRA, under which approximately up to $44 
billion in additional Federal funds may be made available for fiscal 
years FY 2009 through FY 2013, in addition to the amount of funds 
previously appropriated for States' CHIPs. All expenditures are 
classified as transfers from the Federal Government to States.

[[Page 47534]]

[GRAPHIC] [TIFF OMITTED] TP16SE09.005

    In accordance with the provisions of Executive Order 12866, this 
proposed rule was reviewed by the Office of Management and Budget.

List of Subjects in 42 CFR Part 457

    Administrative practice and procedure, Grant programs--health, 
Health insurance, Reporting and recordkeeping requirements.

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

PART 457--ALLOTMENTS AND GRANTS TO STATES

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

    Authority:  Section 1102 of the Social Security Act (42 U.S.C. 
1302).

Subpart F--Payments to States


Sec.  457.600  [Amended]

    2. Amend Sec.  457.600(a) by removing the date ``2007'' and adding 
in its place ``2013''.


Sec.  457.608  [Amended]

    3. Amend the section heading in Sec.  457.608 by removing the words 
``for a fiscal year'' and adding in its place ``prior to FY 2009''.
    4. Add a new Sec.  457.609 to subpart F to read as follows:


Sec.  457.609  Process and calculation of State allotments for a fiscal 
year after FY 2008.

    (a) General. For each of the 50 States and the District of Columbia 
and for each Commonwealth and Territory with an approved State child 
health plan, the State allotments for FY 2009 through FY 2013 are 
determined by CMS as described in paragraphs (b) through (g) of this 
section. Unless otherwise indicated in this section, the reference to 
``State'' refers to the 50 States and the District of Columbia and the 
Commonwealths and Territories (American Samoa, Guam, the Northern 
Mariana Islands, Puerto Rico, and the Virgin Islands).
    (b) Amounts available for allotment. The total amounts available 
for allotment for each fiscal year are as follows:
    (1) FY 2009, $10,562,000,000.
    (2) FY 2010, $12,520,000,000.
    (3) FY 2011, $13,459,000,000.
    (4) FY 2012, $14,982,000,000.
    (5) FY 2013, for the period beginning October 1, 2012 and ending 
March 31, 2013, the following amounts are as follows:
    (i) $2,850,000,000.
    (ii) $11,706,000,000.
    (6) FY 2013, for the period beginning April 1, 2013 and ending on 
September 30, 2013, $2,850,000,000.
    (c) Determination of a State allotment for FY 2009. (1) For the 50 
States and the District of Columbia. From the amount in paragraph 
(b)(1) of this section as appropriated for the fiscal year under 
section 2104(a) of the Act, subject to paragraph (e) of this section 
related to proration, and paragraph (b)(3) of this section relating to 
coordination of funding, the allotment for FY 2009 is equal to 110 
percent of the highest of the following amounts for each State and the 
District of Columbia:
    (i) The total Federal payments to the State under title XXI of the 
Act for FY 2008 as reported by the State and certified to the Secretary 
through the November 2008 submission of the quarterly expenditure 
reports, Forms CMS-21 and CMS-64, multiplied by the allotment increase 
factor determined under paragraph (f) of this section.
    (ii) The amount allotted to the State for FY 2008, multiplied by 
the allotment increase factor determined under paragraph (f) of this 
section.
    (iii) The projected total Federal payments to the State under title 
XXI of the Act for FY 2009, subject to paragraph (c)(1)(iv) of this 
section, as determined based on the February 2009 projections certified 
by the State to CMS by no later than March 31, 2009.
    (iv) In the case of a State described in section 2105(g) of the Act 
and electing the option under paragraph (4) of such section, for 
purposes of the projections described in paragraph (c)(1)(iii) of this 
section, such projections would include an amount equal to the 
difference between the following amounts:
    (A) The amount of Federal payments for the expenditures described 
in section 2104(g)(4)(B) of the Act made after February 4, 2009 that 
would have been paid to the State if claimed at the enhanced Federal 
medical assistance percentage determined under section 2105(b) of the 
Act.
    (B) The amount of Federal payments for the expenditures described 
in section 2104(g)(4)(B) of the Act made after February 4, 2009 that 
would have been paid to the State if claimed at the Federal medical 
assistance percentage defined in section 1905(b) of the Act; during the 
recession adjustment period described in section 5001(h) of the 
American Recovery and Reinvestment Act of 2009 (ARRA), the Federal 
medical assistance percentage is as determined for the State under 
section 5001 of ARRA.
    (2) For the Commonwealths or Territories.
    (i) From the amount in paragraph (b)(1) of this section, as 
appropriated for the FY 2009 under section 2104(a) of the

[[Page 47535]]

Act, subject to paragraph (e) of this section related to proration, and 
paragraph (c)(3) of this section relating to coordination of funding, 
an amount equal to the highest amount of Federal payments made to the 
Commonwealth or Territory under title XXI of the Social Security Act 
for any fiscal year occurring during the period for FY 1999 through FY 
2008, multiplied by the allotment increase factor determined under 
paragraph (f) of this section, plus the additional amount for the 
fiscal year specified in paragraph (c)(2)(ii) of this section
    (ii) Additional Amounts for FY 2009. From the amount appropriated 
for the fiscal year under section 2104(c)(4)(B) of the Act, the 
additional amount for each Commonwealth or Territory is equal to 
$40,000,000 multiplied by the following percentage as specified in 
section 2104(c)(2) of the Act:
    (A) For Puerto Rico, 91.6 percent.
    (B) For Guam, 3.5 percent.
    (C) For the Virgin Islands, 2.6 percent.
    (D) For American Samoa, 1.2 percent.
    (E) For the Northern Mariana Islands, 1.1 percent.
    (3) Coordination of CHIP Funding for FY 2009. The amount of the 
CHIP allotment for FY 2009 available for payment for a States' 
expenditures may be reduced by the amounts appropriated and obligated 
before April 1, 2009 for States' FY 2009 allotments, FY 2006 allotments 
redistributed to the State in FY 2009 determined under section 2104(k) 
of the Act, and the amounts of additional FY 2009 shortfall allotments 
determined under section 2104(l) of the Act.
    (d) Determination of a State allotment for FY 2010 through FY 2013. 
(1) General. Subject to the provisions of paragraph (e) of this section 
relating to proration and paragraph (g) of the section relating to 
increases in a fiscal year allotment for approved program expansions, 
the State allotments for FY 2010 through FY 2013 are determined as 
follows.
    (2) Determination of a State Allotment for FY 2010. (i) For the 50 
States and the District of Columbia, and for the Commonwealths and 
Territories subject to paragraph (d)(2)(ii) of this section, the State 
allotment for FY 2010 is equal to the product of the following:
    (A) The sum of:
    (1) The State Allotment for FY 2009, as determined under paragraph 
(c) of the section.
    (2) The amount of any Federal payments made as redistributions of 
unexpended FY 2006 allotments under section 2104(k) of the Act.
    (3) The amount of any Federal payments made as additional FY 2009 
allotments under section 2104(l) of the Act.
    (4) The amount of any Federal payments made as contingency fund 
payments for FY 2009 under section 2104(n) of the Act.
    (B) The State allotment increase factor for FY 2010 as determined 
under paragraph (f) of the section.
    (ii) In determining the amount of the FY 2010 allotment for each 
Commonwealth and Territory, for purposes of determining the amount of 
the FY 2009 allotment under paragraph (d)(2)(i)(A)(1) of this section, 
the amount of such FY 2009 allotment will not include the additional 
amount determined under paragraph (c)(2)(ii).
    (3) Determination of a State Allotment for FY 2011. For the 50 
States and the District of Columbia, and the Commonwealths and 
Territories, the State allotment for FY 2011 is equal to the product 
of:
    (i) The amount of Federal payments attributable and countable 
toward the available State allotments in FY 2010, including--
    (A) Any amount redistributed to the State in FY 2010, and
    (B) Any Federal payments made as contingency fund payments for FY 
2010 under section 2104(n) of the Act.
    (ii) The State allotment increase factor for FY 2011 as determined 
under paragraph (f) of the section.
    (4) Determination of a State Allotment for FY 2012. For the 50 
States and the District of Columbia, and the Commonwealths and 
Territories, the State allotment for FY 2012 is equal to the product 
of:
    (i) The sum of:
    (A) The State Allotment for FY 2011, as determined under paragraph 
(d)(3) of this section.
    (B) The amount of any Federal payments made as contingency fund 
payments for FY 2011 under section 2104(n) of the Act.
    (ii) The State allotment increase factor for FY 2012 as determined 
under paragraph (f) of this section.
    (5) Determination of a State Allotment for FY 2013.
    (i) General. There are two State allotments for FY 2013; one for 
the period beginning October 1, 2012 and ending March 31, 2013 and the 
second beginning April 1, 2013 and ending September 30, 2013. These 
State allotments are determined for each of the 50 States and the 
District of Columbia, and the Commonwealths and Territories.
    (ii) The State allotment for FY 2013 for the period October 1, 2012 
and ending March 31, 2013 is determined as the product of the 
following:
    (A) The first half ratio determined as the amount in paragraph 
(d)(5)(A)(1) of this section divided by the amount in paragraph 
(d)(5)(A)(2) of this section.
    (1) $14,556,000,000 (calculated as the sum of the two amounts in 
paragraph (b)(5) of this section, $2,850,000,000 (appropriated in 
section 2104(a)(16)(A) of the Act) and $11,706,000,000 (appropriated in 
section 108 of Public Law 111-3)).
    (2) $17,406,000,000, determined as the sum of the amount determined 
under paragraph (d)(5)(A)(1) of this section, $14,556,000,000, and 
$2,850,000,000, the amount in paragraph (b)(6) of this section, as 
appropriated in section 2104(a)(16)(B) of the Act.
    (B) The product of:
    (1) The amount of Federal payments attributable and countable 
toward the total amount of available State allotments in FY 2012, 
including--
    (i) Any amount redistributed to the State in FY 2012; and
    (ii) Any Federal payments made as contingency fund payments for FY 
2012 under section 2104(n) of the Act.
    (2) The State allotment increase factor for FY 2013 as determined 
under paragraph (f) of this section.
    (iii) The State allotment for FY 2013 for the period April 1, 2013 
and ending September 31, 2013 is determined as the product of the 
following:
    (A) $2,850,000,000, the amount in paragraph (b)(6) of this section, 
as appropriated in section 2104(a)(16)(B) of the Act; and
    (B) The ratio determined as the amount in paragraph 
(d)(5)(iii)(B)(1) of this section divided by the amount in paragraph 
(d)(5)(iii)(B)(2) of this section.
    (1) The amount of the State allotment determined under paragraph 
(d)(5)(ii) of this section.
    (2) The total of all the State allotments determined under 
paragraph (d)(5)(ii) of this section.
    (e) Proration. (1) If for a fiscal year the sum of the State 
allotments for the 50 States and the District of Columbia, and the 
State allotments for the Commonwealths and Territories (not including 
the additional amount for FY 2009 determined under paragraph (c)(2)(ii) 
of this section), exceeds the total amount available for allotment for 
the fiscal year under paragraph (b) of this section, the amount of the 
allotment for each of the 50 States and the District of Columbia, and 
for each of the Commonwealths and Territories (not including the 
additional amount for FY 2009 determined under paragraph (c)(2)(ii) of 
this section) will be reduced on a proportional basis as indicated in 
paragraph (e)(2) of this section.

[[Page 47536]]

    (2) The amount of the allotment for each of the 50 States and the 
District of Columbia, and for each of the Commonwealths and Territories 
(not including the additional amount for FY 2009 determined under 
paragraph (c)(2)(ii) of this section) is equal to the product of:
    (i) The percentage determined by dividing the amount in paragraph 
(e)(2)(i)(A) by the amount in paragraph (e)(2)(i)(B) of this section.
    (A) The amount of the State allotment for each of the 50 States and 
the District of Columbia, and for each of the Commonwealths and 
Territories (not including the additional amount for FY 2009 determined 
under paragraph (c)(2)(ii) of this section).
    (B) The sum of the amounts for each of the 50 States and the 
District of Columbia, and the Commonwealths and Territories in 
paragraph (e)(2)(i) of this section.
    (ii) The total amount available for allotment for the fiscal year 
under paragraph (b) of this section
    (f) Allotment increase factor. The allotment increase factor for a 
fiscal year is equal to the product of the following:
    (1) Per capita health care growth factor. The per capita health 
care growth factor for a fiscal year is equal to 1 plus the percentage 
increase in the projected per capita amount of the National Health 
Expenditures from the calendar year in which the previous fiscal year 
ends to the calendar year in which the fiscal year involved ends, as 
most recently published by CMS before the beginning of the fiscal year 
involved.
    (2) Child Population Growth Factor. The child population growth 
factor for a fiscal year is equal to 1 plus the percentage increase (if 
any) in the population of children in the State from July 1 in the 
previous fiscal year to July 1 in the fiscal year involved, as 
determined by CMS based on the most recent published estimates of the 
Census Bureau available before the beginning of the fiscal year 
involved plus 1 percentage point. For purposes of determining the Child 
Population Growth Factor for FY 2009 for the Commonwealths and 
Territories only, in applying the previous sentence, ``United States'' 
is substituted for ``the State''.
    (g) Increase in State allotment for the 50 States and the District 
of Columbia for FY 2010 through FY 2013 to account for approved program 
expansions. In the case of the 50 States and the District of Columbia, 
the State allotment for FY 2010 through FY 2013, as determined in 
accordance with the provisions of this section, may be increased under 
the following conditions and amounts:
    (1) The State has submitted to the Secretary, and has approved by 
the Secretary a State plan amendment or waiver request relating to an 
expansion of eligibility for children or benefits under title XXI of 
the Act that becomes effective for a fiscal year (beginning with FY 
2010 and ending with FY 2013); and
    (2) The State has submitted to the Secretary, before the August 31 
preceding the beginning of the fiscal year, a request for an expansion 
allotment adjustment under this paragraph for such fiscal year that 
specifies--
    (i) The additional expenditures that are attributable to the 
eligibility or benefit expansion provided under the amendment or waiver 
described in paragraph (g)(1) of this section, as certified by the 
State and submitted to the Secretary by not later than August 31 
preceding the beginning of the fiscal year; and
    (ii) The extent to which such additional expenditures are projected 
to exceed the allotment of the State or District for the year.
    (3) Subject to paragraph (e) of this section relating to proration, 
the amount of the allotment of the State or District under this 
subsection for such fiscal year shall be increased by the excess amount 
described in paragraph (g)(2)(i). A State or District may only obtain 
an increase under paragraph (g)(2)(ii) of this section for an allotment 
for FY 2010 or FY 2012.
    (h) CHIP Fiscal Year Allotment Process. As determined by the 
Secretary, the CHIP allotments for a fiscal year may be published as 
Preliminary Allotments or Final Allotments in the Federal Register.


Sec.  457.610  [Amended]

    5. Amend the section heading for Sec.  457.610 by--
    A. Amending the section heading by removing the words ``for a 
fiscal year'' and adding in its place ``prior to FY 2009''.
    B. Removing the words ``for a fiscal year'' and add in its place 
add ``prior to FY 2009''in the first line of the paragraph.
    6. Add a new Sec.  457.611 to subpart F to read as follows:


Sec.  457.611  Period of availability for State allotments for a fiscal 
year after FY 2008.

    The amount of a final allotment for a fiscal year after FY 2008, as 
determined under Sec.  457.609 and reduced to reflect certain Medicaid 
expenditures in accordance with Sec.  457.616, remains available until 
expended for Federal payments based on expenditures claimed during a 2-
year period of availability, beginning with the fiscal year of the 
final allotment and ending with the end of the succeeding fiscal year 
following the fiscal year.


    Authority: (Section 1102 of the Social Security Act (42 U.S.C. 
1302)

(Catalog of Federal Domestic Assistance Program No. 93.778, Medical 
Assistance Program)

(Catalog of Federal Domestic Assistance Program No. 93.767, State 
Children's Health Insurance Program))

    Dated: June 19, 2009.
Charlene Frizzera,
Acting Administrator, Centers for Medicare & Medicaid Services.
    Approved: July 29, 2009.
Kathleen Sebelius,
Secretary.
[FR Doc. E9-22162 Filed 9-15-09; 8:45 am]
BILLING CODE 4120-01-P