32252 Federal Register / Vol. 83, No. 134 / Thursday, July 12, 2018 / Proposed Rules 

J. National Technology Transfer and 

Advancement Act 

Section 12 of the National Technology 

Transfer and Advancement Act of 1995 

requires federal agencies to evaluate 

existing technical standards when 

developing a new regulation. The 

proposed rule does not involve 

technical standards. 

K. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

This proposed rule maintains the 

legal status quo. The agencies therefore 

believe that this action does not have 

disproportionately high and adverse 

human health or environmental effects 

on minority, low-income populations, 

and/or indigenous peoples, as specified 

in Executive Order 12898 (59 FR 7629, 

Feb. 16, 1994). 

List of Subjects 

33 CFR Part 328 

Environmental protection, 

Administrative practice and procedure, 

Navigation (water), Water pollution 

control, Waterways. 

40 CFR Part 110 

Environmental protection, Oil 

pollution, Reporting and recordkeeping 

requirements. 

40 CFR Part 112 

Environmental protection, Oil 

pollution, Penalties, Reporting and 

recordkeeping requirements. 

40 CFR Part 116 

Environmental protection, Hazardous 

substances, Reporting and 

recordkeeping requirements, Water 

pollution control. 

40 CFR Part 117 

Environmental protection, Hazardous 

substances, Penalties, Reporting and 

recordkeeping requirements, Water 

pollution control. 

40 CFR Part 122 

Environmental protection, 

Administrative practice and procedure, 

Confidential business information, 

Hazardous substances, Reporting and 

recordkeeping requirements, Water 

pollution control. 

40 CFR Part 230 

Environmental protection, Water 

pollution control. 

40 CFR Part 232 

Environmental protection, 

Intergovernmental relations, Water 

pollution control. 

40 CFR Part 300 

Environmental protection, Air 

pollution control, Chemicals, Hazardous 

substances, Hazardous waste, 

Intergovernmental relations, Natural 

resources, Occupational safety and 

health, Oil pollution, Penalties, 

Reporting and recordkeeping 

requirements, Superfund, Water 

pollution control, Water supply. 

40 CFR Part 302 

Environmental protection, Air 

pollution control, Chemicals, Hazardous 

substances, Hazardous waste, 

Intergovernmental relations, Natural 

resources, Reporting and recordkeeping 

requirements, Superfund, Water 

pollution control, Water supply. 

40 CFR Part 401 

Environmental protection, Waste 

treatment and disposal, Water pollution 

control. 

■ For the reasons stated herein, the 

agencies propose to amend 33 CFR part 

328 and 40 CFR parts 110, 112, 116, 

117, 122, 230, 232, 300, 302, and 401 of 

the Code of Federal Regulations to 

repeal the amendments that were 

promulgated in the 2015 Rule and 

reestablish the regulatory text that was 

in place immediately prior to 

promulgation of the 2015 Rule. 

Dated: June 29, 2018. 

E. Scott Pruitt, 

Administrator, Environmental Protection 

Agency. 

Dated: June 29, 2018. 

R.D. James, 

Assistant Secretary of the Army (Civil Works). 

[FR Doc. 2018–14679 Filed 7–11–18; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

42 CFR Part 447 

[CMS–2413–P] 

RIN 0938–AT61 

Medicaid Program; Reassignment of 

Medicaid Provider Claims 

AGENCIES: Centers for Medicare & 

Medicaid Services, Department of 

Health and Human Services. 

ACTION: Proposed rule. 

SUMMARY: This proposed rule would 

remove the regulatory text that allows a 

state to make payments to third parties 

on behalf of an individual provider for 

benefits such as health insurance, skills 

training, and other benefits customary 

for employees. We are concerned that 

these provisions are overbroad, and 

insufficiently linked to the exceptions 

expressly permitted by the statute. As 

we noted in our prior rulemaking, 

section 1902(a)(32) of the Act provides 

for a number of exceptions to the direct 

payment requirement, but it does not 

authorize the agency to create new 

exceptions. 

DATES: To be assured consideration, 

comments must be received at one of 

the addresses provided below, no later 

than 5 p.m. on August 13, 2018. 

ADDRESSES: In commenting, please refer 

to file code CMS–2413–P. Because of 

staff and resource limitations, we cannot 

accept comments by facsimile (FAX) 

transmission. 

Comments, including mass comment 

submissions, must be submitted in one 

of the following three ways (please 

choose only one of the ways listed): 

1. Electronically. You may submit 

electronic comments on this regulation 

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

the ‘‘Submit a comment’’ instructions. 

2. By regular mail. You may mail 

written comments to the following 

address ONLY: Centers for Medicare & 

Medicaid Services, Department of 

Health and Human Services, Attention: 

CMS–2413–P, P.O. Box 8016, Baltimore, 

MD 21244–8016. 

Please allow sufficient time for mailed 

comments to be received before the 

close of the comment period. 

3. By express or overnight mail. You 

may send written comments to the 

following address ONLY: Centers for 

Medicare & Medicaid Services, 

Department of Health and Human 

Services, Attention: CMS–2413–P, Mail 

Stop C4–26–05, 7500 Security 

Boulevard, Baltimore, MD 21244–1850. 

FOR FURTHER INFORMATION CONTACT: 

Christopher Thompson, (410) 786–4044. 

SUPPLEMENTARY INFORMATION: Inspection 

of Public Comments: All comments 

received before the close of the 

comment period are available for 

viewing by the public, including any 

personally identifiable or confidential 

business information that is included in 

a comment. We post all comments 

received before the close of the 

comment period on the following 

website as soon as possible after they 

have been received: http://

www.regulations.gov. Follow the search 

instructions on that website to view 

public comments. 

I. Background 

The Medicaid program was 

established by the Congress in 1965 to 


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provide health care services for lowincome and disabled beneficiaries. 

Section 1902(a)(32) of the Social 

Security Act (the Act) requires direct 

payment to providers who render 

services to Medicaid beneficiaries. It 

states that no payment under the plan 

for care and services provided to an 

individual shall be made to anyone 

other than such individual or the person 

or institution providing such care or 

service, under an assignment or power 

of attorney or otherwise. 

We codified § 447.10 implementing 

section 1902(a)(32) of the Act in the 

‘‘Payment for Services’’ final rule 

published on September 29, 1978 (43 FR 

45253). The statute provides several 

specific exceptions to the general 

principle of requiring that direct 

payment be made to the individual 

provider. The regulations implementing 

section 1902(a)(32) of the Act have 

generally tracked the plain statutory 

language and required direct payments 

absent a statutory exception. 

In 2012, we proposed a new 

regulatory exception in the ‘‘Provider 

Payment Reassignment, and Setting 

Requirements for Community First 

Choice’’ proposed rule published on 

May 3, 2012 (77 FR 26361, 26406) for 

‘‘a class of practitioners for which the 

Medicaid program is the primary source 

of service revenue’’ such as home health 

care providers. We recognized in the 

preamble to the proposed rule that 

section 1902(a)(32) of the Act does not 

authorize additional exceptions to the 

direct payment requirement (See 77 FR 

26382). 

We received a total of 7 comments on 

the proposed regulatory exception, all 

generally supportive of the proposed 

rule. This provision was finalized in the 

‘‘Provider Payment Reassignment, and 

Home and Community-Based Setting 

Requirements for Community First 

Choice and Home and CommunityBased Services (HCBS) Waivers’’ final 

rule published on January 16, 2014 (79 

FR 2947, 3001) and authorized a state to 

make payments to third parties on 

behalf of the individual provider ‘‘for 

benefits such as health insurance, skills 

training, and other benefits customary 

for employees.’’ 

We are concerned that § 447.10(g)(4) 

is overbroad, and insufficiently linked 

to the exceptions expressly permitted by 

the statute. As we noted in our prior 

rulemaking, section 1902(a)(32) of the 

Act provides for a number of exceptions 

to the direct payment requirement, but 

it does not authorize the agency to 

create new exceptions. Therefore, the 

regulatory provision grants permissions 

that Congress has foreclosed, so we are 

proposing to remove the regulatory 

exception at § 447.10(g)(4). 

II. Provisions of the Proposed 

Regulations 

This proposal would remove 

§ 447.10(g)(4), but leave in place the 

other provisions in § 447.10 including 

the exceptions at § 447.10(e), (f) and 

(g)(1) through (3). We seek comments 

regarding how we might provide further 

clarification on the types of payment 

arrangements that would be permissible 

assignments of Medicaid payments, 

such as arrangements where a state 

government withholds payments under 

a valid assignment. Specifically, we 

invite comments with examples of 

payment withholding arrangements 

between states and providers that we 

should address. 

With regard to section 1915(c), 

1915(i), 1915(j), and 1915(k) authority, 

this proposed rule will not impact a 

state’s ability to perform Financial 

Management Services (FMS) or secure 

FMS through a vendor arrangement. 

However, we also request comments on 

whether and how the proposed removal 

of § 447.10(g)(4) would impact selfdirected service models, where the 

Medicaid beneficiary takes 

responsibility for retaining and 

managing his or her own services, and, 

in some cases, may be performing 

payroll and other employer-related 

duties. We are especially interested in 

comments that describe the additional 

flexibilities needed to support 

beneficiaries opting for self-directed 

service models, which may ensure 

stable, high-quality care for those 

beneficiaries. 

III. Collection of Information 

Requirements 

To the extent a state changes its 

payment as a result of this rule, the state 

would be required to notify entities of 

the pending change in payment and 

update its payment system. We believe 

the associated burden is exempt from 

the Paperwork Reduction Act (PRA) in 

accordance with 5 CFR 1320.3(b)(2). We 

believe that the time, effort, and 

financial resources necessary to comply 

with the aforementioned requirement 

would be incurred by the state during 

the normal course of their activities and, 

therefore, should be considered usual 

and customary business practices. 

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. Regulatory Impact Analysis 

A. Statement of Need 

We are concerned that § 447.10(g)(4) 

is overbroad, and insufficiently linked 

to the exceptions expressly permitted by 

the statute. Therefore, the regulatory 

provision grants permissions that 

Congress has foreclosed. As we noted in 

our prior rulemaking published on 

January 16, 2014 (79 FR 2947, 3001), 

section 1902(a)(32) of the Act provides 

for a number of exceptions to the direct 

payment requirement, but the language 

does not explicitly authorize the agency 

to create new exceptions. Therefore, we 

are proposing to remove the regulatory 

exception at § 447.10(g)(4). To the extent 

a state increased reimbursement levels 

to reassign portions of a provider’s 

reimbursement to a third party, 

implementation of this rule may affect 

the rates that are set by the state in the 

future. 

B. Overall Impact 

We have examined the impacts of this 

proposed rule as required by Executive 

Order 12866 on Regulatory Planning 

and Review (September 30, 1993), 

Executive Order 13563 on Improving 

Regulation and Regulatory Review 

(January 18, 2011), the Regulatory 

Flexibility Act (RFA) (September 19, 

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

the Act, section 202 of the Unfunded 

Mandates Reform Act of 1995 (March 

22, 1995; Pub. L. 104–4), Executive 

Order 13132 on Federalism (August 4, 

1999), and the Congressional Review 

Act (5 U.S.C. 804(2)). 

Executive Orders 12866 and 13563 

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). Section 3(f) of Executive Order 

12866 defines a ‘‘significant regulatory 

action’’ as an action that is likely to 

result in a rule that may: (1) Have an 

annual effect on the economy of $100 

million or more in any 1 year, or 

adversely and materially affecting a 

sector of the economy, productivity, 

competition, jobs, the environment, 

public health or safety, or state, local or 

tribal governments or communities (also 

referred to as ‘‘economically 

significant’’); (2) create a serious 


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32254 Federal Register / Vol. 83, No. 134 / Thursday, July 12, 2018 / Proposed Rules 

1 Dues payments potentially associated with 

policies of the type being proposed for revision 

have been reported to be $8 million in Pennsylvania 

and $10 million in Illinois (https://

www.fairnesscenter.org/cases/detail/protecting-thevulnerable and https://

www.washingtonexaminer.com/illinois-politiciansforced-home-care-workers-into-union-that-donatesheavily-to-them/article/2547368). The total 

population is approximately 26 million in these two 

states and 102 million across the states that have 

been reported by the State Policy Network to have 

relevant third-party payment policies (California, 

Connecticut, Illinois, Maryland, Massachusetts, 

Minnesota, Missouri, New Jersey, Oregon, Vermont 

and Washington) (https://www2.census.gov/ 

programs-surveys/popest/tables/2010-2017/state/ 

totals/nst-est2017-01.xlsx and https://spn.org/duesskimming-faqs/). Factoring the $18 million (= $8 

million + $10 million) proportionately by 

population yields a nationwide total of 

approximately $71 million in union dues payments 

potentially affected by this proposed rule. This 

transfer estimate could be over- or understated if 

other states pay home care workers different 

average wages than Pennsylvania and Illinois, if 

dues payments are collected at different rates, or if 

participation in Medicaid home care programs is 

not proportionate to total population. 

inconsistency or otherwise interfering 

with an action taken or planned by 

another agency; (3) materially alter the 

budgetary impacts of entitlement grants, 

user fees, or loan programs or the rights 

and obligations of recipients thereof; or 

(4) raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the Executive Order. 

A regulatory impact analysis (RIA) 

must be prepared for major rules with 

economically significant effects ($100 

million or more in any 1 year). We 

estimate that this proposed rule could 

be ‘‘economically significant’’ as it may 

have an annual effect on the economy 

in excess of the $100 million threshold 

of Executive Order 12866, and hence 

that this proposed rule is also a major 

rule under the Congressional Review 

Act. However there is considerable 

uncertainty around this estimate and the 

Department invites public comments to 

help refine this analysis. 

As discussed above, in the ‘‘Provider 

Payment Reassignment, and Home and 

Community-Based Setting Requirements 

for Community First Choice and Home 

and Community-Based Services (HCBS) 

Waivers’’ final rule published on 

January 16, 2014 (79 FR 2947, 3001), we 

authorized a state to make payments to 

third parties on behalf of the individual 

provider ‘‘for benefits such as health 

insurance, skills training, and other 

benefits customary for employees.’’ We 

lack information with which to quantify 

the potential impacts of this policy on 

these types of payments as the 

Department does not formally track the 

amount of reimbursement that is being 

reassigned to third parties by states. To 

offer one example, one such potential 

impact of the proposed rulemaking 

would be that states stop reassigning 

homecare workers’ dues to unions. We 

estimate that unions may currently 

collect as much as $71 million from 

such assignments.1 While we have not 

similarly quantified the amount of other 

authorized reassignments, such as 

health insurance, skills training, or 

other benefits, we believe that the 

amount of payments made to third 

parties on behalf of individual providers 

for the variety of benefits within the 

scope of this rulemaking is likely in 

excess of $100 million. We seek 

comment on this estimate, and 

particularly on the type and amount of 

payments currently being reassigned 

under the exceptions in § 447.10(g). 

The potential direct financial impact 

to providers of this policy change could 

be affected by many factors, such as the 

nature and amounts of the types of 

payments currently being reassigned 

and decisions made by homecare 

providers after a final policy takes effect 

about whether or not to resume 

payments to third parties for these types 

of benefits. The Department is unable to 

quantify these direct financial impacts 

in the absence of specific information 

about the types and amount of payments 

being reassigned. Even where it may be 

possible to derive such estimates, such 

as with the example of union dues, the 

Department lacks information to reliably 

estimate the proportion of homecare 

providers likely to stop making 

payments versus those likely to 

continue making payments through 

alternative means. We request 

comments on the factors that might 

influence the direct financial impacts to 

providers and recipients of 

reassignments of this policy change for 

the varied types and amount of 

payments currently being reassigned 

under the exceptions in § 447.10(g). 

Although states will no longer be able 

to withhold portions of a provider’s 

payment, states may elect to maintain 

the same level of payment, thus 

affording the provider the opportunity 

to purchase the items that were 

previously funded through the 

reassignment of reimbursement. 

Conversely, states may elect to decrease 

payment levels because rescission of 

§ 447.10(g)(4) will limit their ability to 

reassign payment to third parties. In 

other words, states may have previously 

factored their ability to reassign 

provider payments into their payment 

rates and might choose to revise their 

rates in response to this regulatory 

change. We request comments, 

particularly from states, on potential 

state behavior under the proposed 

policy. 

If a state elected to maintain the same 

level of payment, and if homecare 

providers opt to continue all voluntary 

payments presently being reassigned, 

then the rule may have no impacts. 

However, if a state elected to reduce 

payment levels and/or if homecare 

providers opt to discontinue all 

voluntary payments, then the impacts of 

the rule may be close to the full amount 

of current reassignments, thus making 

the rule economically significant. 

While it is difficult for us to conduct 

a detailed quantitative analysis given 

this considerable uncertainty and lack 

of data, we believe that without this 

proposed rulemaking, states may apply 

the exceptions at § 447.10(g) in ways 

that do not comport with section 

1902(a)(32) of the Act and we welcome 

comment with regard to the quantitative 

impact of the elimination of states’ 

ability to reassign Medicaid payment for 

items such as health insurance, skills 

training and other benefits customary 

for employees. We also seek comments 

identifying impacts to states and the 

federal government as a result of this 

proposed rule, including on the 

assumption that the time, effort and 

financial resources necessary to comply 

with the proposed requirement would 

be incurred by states during the normal 

course of their activities and, therefore, 

does not impose incremental costs. 

C. Anticipated Effects 

The RFA requires agencies to analyze 

options for regulatory relief 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 $7.5 million to $38.5 

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, and the Secretary proposes 

to certify, 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 an RIA if a rule 

may have a significant impact on the 

operations of a substantial number of 

small rural hospitals. This analysis must 

conform to the provisions of section 603 

of the RFA. For purposes of section 

1102(b) of the Act, we define a small 

rural hospital as a hospital that is 

located outside of a Metropolitan 

Statistical Area for Medicare payment 


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Federal Register / Vol. 83, No. 134 / Thursday, July 12, 2018 / Proposed Rules 32255 

regulations and has fewer than 100 

beds. We are not preparing an analysis 

for section 1102(b) of the Act because 

we have determined, and the Secretary 

proposes to certify, 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 Unfunded 

Mandates Reform Act of 1995 also 

requires that agencies assess anticipated 

costs and benefits before issuing any 

rule whose mandates require spending 

in any 1 year of $100 million in 1995 

dollars, updated annually for inflation. 

In 2018, that threshold is approximately 

$150 million. This rule will have no 

consequential effect on state, local, or 

tribal governments or on the private 

sector. 

Executive Order 13132 establishes 

certain requirements that an agency 

must meet when it promulgates a 

proposed rule (and subsequent final 

rule) that imposes substantial direct 

requirement costs on state and local 

governments, preempts state law, or 

otherwise has Federalism implications. 

Since this regulation does not impose 

any costs on state or local governments, 

the requirements of Executive Order 

13132 are not applicable. 

D. Alternatives Considered 

We considered issuing guidance to 

require states to formally document 

consent to reassign portions of a 

provider’s payment. We also considered 

limiting the items for which provider 

reassignment could be made. However, 

we are concerned that § 447.10(g)(4)) is 

overbroad, and insufficiently linked to 

the exceptions expressly permitted by 

the statute. Therefore, we believe 

removing the regulatory exception is the 

best course of action. 

E. Accounting Statement 

As required by OMB Circular A–4 

under Executive Order 12866 (available 

at https://www.whitehouse.gov/sites/ 

whitehouse.gov/files/omb/circulars/A4/ 

a-4.pdf) in Table 1, we have prepared an 

accounting statement showing the 

classification of transfers associated 

with the provisions in this proposed 

rule. The accounting statement is based 

on estimates provided in this regulatory 

impact analysis and omits categories of 

impacts for which partial quantification 

has not been possible. 

TABLE 1—ACCOUNTING STATEMENT

Category Low estimate High estimate 

Units 

Year dollars Discount rate 

(%) 

Period 

covered 

Transfers: 

Annualized Monetized $ millions/year .......................... 0 $71 2017 3 2019 

0 71 2017 7 2019 

From whom to whom? .................................................. From third parties to home health providers. 

F. Regulatory Reform Analysis Under 

E.O. 13771 

Executive Order 13771, entitled 

‘‘Reducing Regulation and Controlling 

Regulatory Costs,’’ was issued on 

January 30, 2017 and requires that the 

costs associated with significant new 

regulations ‘‘shall, to the extent 

permitted by law, be offset by the 

elimination of existing costs associated 

with at least two prior regulations.’’ 

This proposed rule is not expected to be 

subject to the requirements of E.O. 

13771 because this proposed rule is 

expected to result in no more than de 

minimis costs. 

G. Conclusion 

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 447 

Accounting, Administrative practice 

and procedure, Drugs, Grant programs— 

health, Health facilities, Health 

professions, Medicaid, Reporting and 

recordkeeping requirements, Rural 

areas. 

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 447—PAYMENTS FOR 

SERVICES 

■ 1. The authority citation for part 447 

continues to read as follows: 

Authority: Sec. 1102 of the Social Security 

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

§ 447.10 [Amended] 

■ 2. Section 447.10 is amended by 

removing paragraph (g)(4). 

Dated: May 3, 2018. 

Seema Verma, 

Administrator, Centers for Medicare & 

Medicaid Services. 

Dated: May 7, 2018. 

Alex M. Azar II, 

Secretary, Department of Health and Human 

Services. 

[FR Doc. 2018–14786 Filed 7–10–18; 11:15 am] 

BILLING CODE 4120–01–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 73 

[MB Docket No. 18–184; FCC 18–69] 

New FM Radio Broadcast Class C4 and 

To Modify the Requirements for 

Designating Short-Spaced 

Assignments 

AGENCY: Federal Communications 

Commission. 

ACTION: Notice of inquiry. 

SUMMARY: In this document, the 

Commission adopted a Notice of Inquiry 

(NOI), based on a petition for 

rulemaking filed by SSR 

Communications, Inc., in which the 

Commission sought comment on a 

proposal to create a new class of FM 

radio stations, Class C4, and to establish 

a procedure for designating certain FM 

stations. 

DATES: Comments may be filed on or 

before August 13, 2018 and reply 

comments may be filed on or before 

September 10, 2018. 

ADDRESSES: You may submit comments, 

identified by MB Docket No. 18–184, by 

any of the following methods: 

• Federal Communications 

Commission’s Website: http:// 


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