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[Federal Register Volume 76, Number 143 (Tuesday, July 26, 2011)]
[Notices]
[Pages 44591-44592]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-18831]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES (HHS)

Centers for Medicare & Medicaid Services

Notice of Hearing: Reconsideration of Disapproval of Indiana 
State Plan Amendments (SPA) 11-011

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

ACTION: Notice of hearing.

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SUMMARY: This notice announces an administrative hearing to be held on 
September 13, 2011, at the CMS Chicago Regional Office, 233 N. Michigan 
Avenue, Suite 600, Chicago, IL 60601, to reconsider CMS' decision to 
disapprove Indiana SPA 11-011.

DATES: Closing Date: Requests to participate in the hearing as a party 
must be received by the presiding officer by August 10, 2011.

FOR FURTHER INFORMATION CONTACT: Benjamin Cohen, Presiding Officer CMS, 
2520 Lord Baltimore Drive, Suite L, Baltimore, Maryland 21244, 
Telephone: (410) 786-3169.

SUPPLEMENTARY INFORMATION: This notice announces an administrative 
hearing to reconsider CMS' decision to disapprove Indiana SPA 11-011, 
which

[[Page 44592]]

was submitted on May 15, 2011, and disapproved on June 1, 2011. The SPA 
proposed to prohibit the State Medicaid agency from entering into a 
contract or grant with providers that perform abortions or maintain or 
operate facilities where abortions are performed, except for hospitals 
or ambulatory surgical centers.
    CMS based the disapproval on a determination that SPA 11-011 would 
not comply with the requirements of section 1902(a)(23) of the Social 
Security Act (the Act). Whether SPA 11-011 complies with section 
1902(a)(23) of the Act is the only issue in this reconsideration. 
Section 1902(a)(23) of the Act provides that beneficiaries may obtain 
covered services from any qualified provider that undertakes to provide 
such services. Contrary to that requirement, this SPA would eliminate 
the ability of Medicaid beneficiaries to receive services from specific 
providers for reasons unrelated to their qualifications to provide such 
services. It is not consistent with section 1902(a)(23) for Medicaid 
programs to exclude qualified health care providers from providing 
services that are funded under the program because of a provider's 
scope of practice. Such a restriction would have a particular effect on 
beneficiaries' ability to access family planning providers. It is 
important to note that access to family planning providers is an 
important statutory priority, as evidenced by the additional 
protections for beneficiary choice of family planning providers under 
section 1902(a)(23)(B) of the Act for managed care enrollees. It is 
also important to note that neither SPA 11-011 nor the disapproval 
affect the applicable restrictions on Federal funding of abortion 
services.
    Section 1116 of the Act and Federal regulations at 42 CFR part 430, 
establish Department procedures that provide an administrative hearing 
for reconsideration of a disapproval of a State plan or plan amendment. 
CMS is required to publish a copy of the notice to a State Medicaid 
agency that informs the agency of the time and place of the hearing, 
and the issues to be considered. If we subsequently notify the agency 
of additional issues that will be considered at the hearing, we will 
also publish that notice.
    Any individual or group that wants to participate in the hearing as 
a party must petition the presiding officer within 15 days after 
publication of this notice, in accordance with the requirements 
contained at 42 CFR 430.76(b)(2). Any interested person or organization 
that wants to participate as amicus curiae must petition the presiding 
officer before the hearing begins in accordance with the requirements 
contained at 42 CFR 430.76(c). If the hearing is later rescheduled, the 
presiding officer will notify all participants.
    The notice to Indiana announcing an administrative hearing to 
reconsider the disapproval of its SPA reads as follows:

Ms. Patricia Casanova,
Director, MS 07, 402 W. Washington Street, Room W382, Indianapolis, 
IND 46204-2739.

    Dear Ms.Casanova:
    I am responding to your request for reconsideration of the 
decision to disapprove the Indiana State Plan Amendment (SPA) 11-011 
which was submitted on May 15, 2011, and disapproved on June 1, 
2011. The SPA proposed to prohibit the State Medicaid agency from 
entering into a contract or grant with providers that perform 
abortions or maintain or operate facilities where abortions are 
performed, except for hospitals or ambulatory surgical centers.
    Whether SPA 11-011 complies with section 1902(a)(23) of the Act 
is the only issue in this reconsideration.
    Section 1902(a)(23) of the Act provides that beneficiaries may 
obtain covered services from any qualified provider that undertakes 
to provide such services. Contrary to that requirement, this SPA 
would eliminate the ability of Medicaid beneficiaries to receive 
services from specific providers for reasons unrelated to their 
qualifications to provide such services. It is not consistent with 
section 1902(a)(23) for Medicaid programs to exclude qualified 
health care providers from providing services that are funded under 
the program because of a provider's scope of practice. Such a 
restriction would have a particular effect on beneficiaries' ability 
to access family planning providers. It is important to note that 
access to family planning providers is an important statutory 
priority, as evidenced by the additional protections for beneficiary 
choice of family planning providers under section 1902(a)(23)(B) of 
the Act for managed care enrollees. It is also important to note 
that neither SPA 11-011 nor the disapproval affect the applicable 
restrictions on Federal funding of abortion services.
    I am scheduling a hearing on your request for reconsideration to 
be held on September 13, 2011, at the CMS Chicago Regional Office, 
233 N. Michigan Avenue, Suite 600, Chicago, IL 60601, in order to 
reconsider the decision to disapprove SPA 11-011.
    If this date is not acceptable, we would be glad to set another 
date that is mutually agreeable to the parties. The hearing will be 
governed by the procedures prescribed by Federal regulations at 42 
CFR Part 430.
    I am designating Mr. Benjamin Cohen as the presiding officer. If 
these arrangements present any problems, please contact the 
presiding officer at (410) 786-3169. In order to facilitate any 
communication which may be necessary between the parties to the 
hearing, please notify the presiding officer to indicate 
acceptability of the hearing date that has been scheduled and 
provide names of the individuals who will represent the State at the 
hearing. As you requested, I will also provide this response to 
Indiana Solicitor General Thomas M. Fisher.
     Sincerely,
Donald M. Berwick, M.D.

    Section 1116 of the Social Security Act (42 U.S.C. 1316; 42 CFR 
430.18).

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

    Dated: July 20, 2011.
Donald M. Berwick,
Administrator, Centers for Medicare & Medicaid Services.
[FR Doc. 2011-18831 Filed 7-25-11; 8:45 am]
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