1682 Federal Register / Vol. 62, No. 8 / Monday, January 13, 1997 / Rules and Regulations

BAT EFFLUENT LIMITATIONS—Continued

Stream Pollutant parameter BAT effluent limitations

Produced Sand ..................................................................... .................................... No discharge.

Deck Drainage ...................................................................... Free Oil 3 ................... No discharge.

Domestic Waste .................................................................... Foam ......................... No discharge.

1BAT limitations for dewatering effluent are applicable prospectively, BAT limitations in this rule are not applicable to discharges of dewatering

effluent from reserve pits which as of the effective date of this rule no longer receive drilling fluids and drill cuttings. Limitations on such discharges shall be determined by the NPDES permit issuing authority. 2As determined by the static sheen test (see appendix 1 to 40 CFR Part 435, subpart A).

3As determined by the presence of a film or sheen upon or a discoloration of the surface of the receiving water (visual sheen).

4As determined by the toxicity test (see appendix 2 of 40 CFR Part 435, subpart A).

§ 435.44 [Amended]

17. On page 66128, § 435.44 includes

a table of BCT effluent limitations.

Footnote 4 on that table should be

removed.

18., 19., 20., 21., 22., 23., 24. and 25.

On page 66129, § 435.45 includes a table

of NSPS effluent limitations. The table

is corrected to read as follows:

§ 435.45 Standards of performance for

new sources (NSPS).

* * * * *

NSPS EFFLUENT LIMITATIONS

Stream Pollutant parameter NSPS effluent limitations

Produced Water:

(A) All coastal areas except Cook Inlet ......................... .................................... No discharge.

(B) Cook Inlet ................................................................ Oil & Grease ............. The maximum for any one day shall not exceed 42 mg/l,

and the 30-day average shall not exceed 29 mg/l.

Drilling Fluids, Drill Cuttings, and Dewatering Effluent: 1

(A) All coastal areas except Cook Inlet ......................... .................................... No discharge.

(B) Cook Inlet ................................................................ Free Oil 2 ................... No discharge.

Diesel Oil ................... No discharge.

Mercury ..................... 1 mg/kg dry weight maximum in the stock barite.

Cadmium ................... 3 mg/kg dry weight maximum in the stock barite.

Toxicity ...................... Minimum 96-hour LC50 of the SPP shall be 3 percent by

volume.4

Well Treatment, Workover and Completion Fluids:

(A) All coastal areas except Cook Inlet ......................... .................................... No discharge.

(B) Cook Inlet ................................................................ Oil & Grease ............. The maximum for any one day shall not exceed 42 mg/l,

and the 30-day average shall not exceed 29 mg/l.

Produced Sand ..................................................................... .................................... No discharge.

Deck Drainage ...................................................................... Free Oil 3 ................... No discharge.

Sanitary Waste

Sanitary M10 ................................................................. Residual Chlorine ...... Minimum of 1 mg/l and maintained as close to this concentration as possible.

Sanitary M9IM ............................................................... Floating Solids ........... No discharge.

Domestic Waste .................................................................... Floating Solids, Garbage and Foam.No discharge of floating solids or garbage or foam.

1 NSPS limitations for dewatering effluent are applicable prospectively. NSPS limitations in this rule are not applicable to discharges of

dewatering effluent from reserve pits which as of the effective date of this rule no longer receive drilling fluids and drill cuttings. Limitations on

such discharges shall be determined by the NPDES permit issuing authority. 2As determined by the static sheen test (see appendix 1 to 40 CFR Part 435, subpart A).

3As determined by the presence of a film or sheen upon or a discoloration of the surface of the receiving water (visual sheen).

4As determined by the toxicity test (see appendix 2 of 40 CFR Part 435, subpart A).

§ 435.10 [Corrected]

26. On page 66129, the section under

subpart G currently reads § 435.10. The

section number is corrected to read

‘‘§ 435.70’’.

[FR Doc. 97–413 Filed 1–10–97; 8:45 am]

BILLING CODE 6560–50–P

DEPARTMENT OF HEALTH AND

HUMAN SERVICES

Health Care Financing Administration

42 CFR Part 435

[MB–105–FC]

Medicaid Program; Redeterminations

of Medicaid Eligibility Due to Welfare

Reform

AGENCY: Health Care Financing

Administration (HCFA), HHS.

ACTION: Final rule with comment period.

SUMMARY: The Personal Responsibility

and Work Opportunity Reconciliation

Act of 1996 and the Contract with

America Advancement Act of 1996

created changes in Federal law affecting

the eligibility of large numbers of

Medicaid recipients. These changes

include revisions to the definition of

disability for children and to the

eligibility requirements of non-U.S.

citizens and individuals receiving

disability cash assistance based on a

finding of alcoholism and drug

addiction.

This final rule with comment period

protects Federal financial participation
Federal Register / Vol. 62, No. 8 / Monday, January 13, 1997 / Rules and Regulations 1683

(FFP) in State Medicaid expenditures

for States with unusual volumes of

eligibility redeterminations caused by

these recent changes in the law. We are

making changes to the regulations to

provide for additional time for States to

process these redeterminations and

provide services pending the

redeterminations.

DATES: Effective date. These regulations

are effective on January 13, 1997.

Comments. Written comments will be

considered if we receive them at the

appropriate address, as provided below,

no later than 5:00 p.m. on March 14,

1997.

ADDRESSES: Mail written comments (one

original and three copies) to the

following address: Health Care

Financing Administration, Department

of Health and Human Services,

Attention: MB–105–FC, P.O. Box 7517,

Baltimore, Maryland 21207–0517.

If you prefer, you may deliver your

written comments (one original and

three copies) to one of the following

addresses:

Room 309–G, Hubert H. Humphrey

Building, 200 Independence Avenue,

SW., Washington, DC 20201, or

Room C5–09–26, Central Building, 7500

Security Boulevard, Baltimore,

Maryland 21244–1850

Office of Information and Regulatory

Affairs.

Because of staffing and resource

limitations, we cannot accept comments

by facsimile (FAX) transmission. In

commenting, please refer to file code

MB–105–FC. Comments received timely

will be available for public inspection as

they are received, generally beginning

approximately 3 weeks after publication

of a document, in Room 309–G of the

Department’s offices at 200

Independence Avenue, SW.,

Washington, DC, on Monday through

Friday of each week from 8:30 a.m. to

5 p.m. (Phone: (202) 690–7890).

FOR FURTHER INFORMATION CONTACT: Bob

Tomlinson, (410) 786–4463.

SUPPLEMENTARY INFORMATION:

I. Background

Two recent laws have brought about

major changes in the cash assistance

programs under title IV–A (Aid to

Families with Dependent Children

(AFDC)) and title XVI (Supplemental

Security Income (SSI)) of the Social

Security Act, with substantial

implications for Medicaid eligibility.

These two laws are: the Personal

Responsibility and Work Opportunity

Reconciliation Act of 1996 (Public Law

104–193), enacted on August 22, 1996,

and the Contract with America

Advancement Act of 1996 (Public Law

104–121), enacted on March 29, 1996.

These laws have affected the eligibility

of individuals receiving cash payments

by replacing the Aid to Families with

Dependent Children (AFDC) program

with a block grant to States for

Temporary Assistance for Needy

Families (TANF) and eliminated the

automatic linkage between cash

assistance to families and children and

Medicaid. It replaced the automatic link

with special Medicaid eligibility rules

primarily based on whether the

individuals would have received AFDC

benefits under the program in effect on

July 16, 1996. These laws also affected

the eligibility of children who are

receiving disability benefits under SSI,

individuals receiving SSI disability

benefits based on a finding of

alcoholism and drug addiction, and

non-U.S. citizens.

In most States, individuals who are

eligible for AFDC or SSI are (or were)

also automatically eligible for Medicaid.

These legislative changes will result in

a large number of individuals losing

cash assistance eligibility and therefore

Medicaid. Under existing regulations at

42 CFR 435.916 and 435.1003, States are

required to perform a redetermination of

Medicaid eligibility in any case in

which an individual loses eligibility

based on receipt of cash assistance and

that termination affects the individual’s

eligibility for Medicaid.

The legislative changes have created a

substantial new workload for States in

the administration of their programs.

We estimate that States will have to

perform redeterminations on

approximately 1.6 million individuals,

most of which must occur by July 1,

1997. Considering this volume of

redeterminations, we believe that our

existing regulations do not allow

sufficient time for States to comply with

the requirements without risking loss of

FFP in their administrative

expenditures. Our existing regulations

at § 435.916 require that States must

‘‘redetermine the eligibility of Medicaid

recipients, with respect to

circumstances that may change, at least

every 12 months * * * .’’ The

regulations also require the State to

promptly redetermine eligibility when

the State agency receives information

about changes in a recipient’s

circumstances that may affect the

recipient’s eligibility; and, at the

appropriate time, when the agency has

information about anticipated changed

in a recipient’s circumstances, such as

the loss of SSI payments because the

individual has been found ineligible for

SSI. This requirement also applies when

changes in Federal or State law occur

affecting the Medicaid eligibility of

individuals or groups. Regulations at

§ 435.1003 provide that, with respect to

individuals who had been eligible for

SSI, FFP is available until the end of the

month if the SSI termination notice is

received from SSA by the 10th of the

month; and until the end of the

following month if the SSA notice is

received after the 10th of the month.

Both regulations require that States

determine or redetermine eligibility

promptly.

States are required to redetermine the

Medicaid eligibility of any recipient

who loses eligibility based on receipt of

cash assistance. The redetermination

must examine whether or not the

individual would be Medicaid eligible

on any other available basis under the

State’s approved plan. For example, a

person who loses SSI may still be

eligible for Medicaid as medically

needy, optional categorically needy, or

even based on receipt of cash assistance

under title IV–A. This policy derives in

part from the court decisions in Stenson

v. Blum, 476 F.Supp., 1331 (S.D.N.Y.

1979) aff’d without opinion, 628 F.2d

1345 (2d Cir. 1980) and Massachusetts

Association of Older Americans v.

Sharp (700 F.2d 749 (1st Cir. 1983). In

these cases, the courts ruled that before

a State may terminate an individual’s

Medicaid eligibility, it must redetermine

the individual’s Medicaid eligibility on

any other available basis under the

State’s approved plan.

Section 435.1003 allows States a

limited period of time to perform

redeterminations of individuals who

have been determined ineligible for SSI

in order to be eligible for FFP. The time

allowed varies between 20 and 45 days

based on the date of receipt of

information from SSA about the

individual’s SSI eligibility.

States have expressed concerns

regarding the time required to perform

these redeterminations, and thus the

implications for potential loss of FFP,

given the current regulatory constraints

and the complexity of Medicaid

eligibility determination and

redetermination processes. In situations

such as those created by these recent

laws, in which States have large

redetermination workloads and short

timeframes for adjusting the eligibility

of affected beneficiaries, they believe

that more time is needed. States and

HCFA are concerned that retaining the

existing time constraints would not

allow sufficient time to process such a

volume adequately, and would result in

sharply increased appeals workloads,

and the concomitant delays and expense

attendant on such appeals. In some

cases, it possibly may result in the
1684 Federal Register / Vol. 62, No. 8 / Monday, January 13, 1997 / Rules and Regulations

inappropriate loss of Medicaid

eligibility and potential harm to the

health of recipients. We believe that this

approach may also shift the burden of

finding a basis for eligibility to the

recipient, who may be the least

knowledgeable in this area.

II. Provisions of the Final Rule With

Comment Period

Under current rules, when changes in

Federal law cause a significant change

in eligibility for Medicaid and a

consequent increase in the eligibility

determination/redetermination

workload, two equally undesirable

results may occur. In an effort to comply

with the regulations, States may make

inadequate or cursory redeterminations

that, in some cases, may result in

inappropriate termination of Medicaid

eligibility. The affected recipients may

be denied medical care or become

impoverished attempting to pay for care

they do receive. In the alternative, the

State may take longer than permitted to

make the redetermination and thus risk

denial of FFP. In either case, the State

risks loss of FFP or incurs increased

administrative costs coping with

appeals or increased application

workloads, while the individual is

unnecessarily deprived of the means to

pay for needed medical care with

attendant adverse consequences.

To promote the proper and efficient

administration of the Medicaid program,

we believe that when there is a change

in Federal law that significantly affects

Medicaid eligibility, the Secretary

should be able to grant States additional

time to redetermine eligibility without

risk of loss of FFP and to assure that

redeterminations are not performed

hastily. We believe the Secretary is best

able to determine when additional time

and FFP should be granted, because the

granting of additional time is intended

to be used only when Federal law makes

significant changes in Medicaid

eligibility requiring voluminous

redeterminations of eligibility.

Therefore, we have determined that

when changes in Federal law cause

sharp increases in State eligibility

redetermination workloads, the

Secretary should have the flexibility to

authorize additional time during which

FFP would be available. Such flexibility

assures that FFP will be available to

meet the redetermination workload

while assuring that the time and FFP

available are directly proportional to the

expected volume of redeterminations

arising from the particular legislation.

A grant of additional time would be

made only in exceptional

circumstances, such as the passage of

recent Public Laws 104–193 and 104–

121. This legislation requires a

significant volume of redeterminations,

estimated at upwards of 1.6 million,

most of which must be performed

within the next 9 months. It is for this

reason that we are providing in this

notice that States may take up to 120

days to process all redeterminations of

Medicaid eligibility governed by 42 CFR

§ 435.1003 through the end of calendar

year 1997 unless the Secretary further

extends the waiver.

The issue of whether more time

should be routinely available to States

for completing redeterminations will

likely be dealt with in a separate

regulation at a future date. We are not

addressing that issue in this regulation

because we do not believe it is an

appropriate subject for an emergency

regulation.

We considered providing a fixed but

longer period of time than that currently

provided in § 435.1003. However, such

a fixed period would not address the

type of extraordinary circumstance,

such as welfare reform, which

necessitates the changes we are making

in this final rule with comment period.

An alternative approach to providing

more time, consistent with the theme

that a uniform time for redeterminations

be used, would be to provide 60 days to

redetermine Medicaid eligibility for

anyone losing SSI or cash assistance

under title IV–A, or in cases where there

is a change in circumstances of the

recipient. This alternative would

include an escape clause similar to one

already in existence in § 435.911, which

permits States to take longer to make

eligibility determinations than the

generally specified time period, when

extraordinary circumstances prevent

adherence to the time standards. Such

an escape clause would permit States to

take longer when a change in Federal

law necessitates large numbers of

redeterminations without risking loss of

FFP. We did not adopt this option

because of concerns that such an openended redetermination period would

require substantially more monitoring

by the Federal Government and

recordkeeping by States to ensure that

when a State uses the escape clause, the

use is justified and the period of time

for which it is used is reasonable.

We are adding a new paragraph (c) to

§435.1003 to provide that when a

change in Federal law affects the

eligibility of large numbers of Medicaid

recipients, the Secretary may waive the

otherwise applicable FFP requirements

and redetermination time limits. This is

done to make FFP available for a

reasonable period of time, designated by

the Secretary, while States redetermine

the eligibility of Medicaid recipients.

These recipients may otherwise lose

Medicaid eligibility, possibly due to loss

of SSI eligibility, because of a change in

Federal law. In such situations, the

States are given a reasonable period of

time, designated by the Secretary, to do

the redetermination.

III. Waiver of Proposed Rule and 30-

Day Delay in the Effective Date

We ordinarily publish a notice of

proposed rulemaking in the Federal

Register for a substantive rule to

provide a period for public comment.

However, we may waive that procedure

if we find good cause that notice and

comment are impractical, unnecessary,

or contrary to the public interest. In

addition we also normally provide a

delay of 30 days in the effective date.

However, if adherence to this procedure

would be impractical, unnecessary, or

contrary to public interest, we may

waive the delay in the effective date.

We are adopting this regulation as a

final with comment period without

publication of a notice of proposed rule

making because of the urgent need to

provide the States with FFP in their

Medicaid expenditures for additional

time for completing the massive number

of redeterminations caused by the recent

statutory changes. This need is critical

because States must begin

redetermining eligibility for large

numbers of individuals who may lose

Medicaid or SSI beginning January 1,

1997. Publication of a proposed rule

with a 60-day comment period prior to

publication of a final rule would cost

valuable time in processing the

mandated redeterminations, and would

leave large numbers of beneficiaries

without Medicaid or SSI beginning

January 1, 1997. Thus, we believe that

it is contrary to the public interest to

delay implementation of the statutory

provisions until the process of

publishing both proposed and final

rules can be completed. Therefore, we

find good cause to waive proposed

rulemaking and to issue these

regulations as final.

Also, because States must begin such

redeterminations as of January 1, 1997,

we are not making the effective date of

the regulation the usual 30 days after

publication. Instead, we will make the

regulation effective on the date of

publication. For the reasons discussed

above, we find good cause to waive the

usual 30-day delay so that the

provisions may take effect upon

publication of this final rule with

comment period.

Although we are publishing this as a

final rule, we are providing a 60-day

period for public comment. Because of

the large number of items of
Federal Register / Vol. 62, No. 8 / Monday, January 13, 1997 / Rules and Regulations 1685

correspondence we normally receive

concerning regulations, we are not able

to acknowledge or respond to the

comments individually. However, if we

decide that changes are necessary as a

result of our consideration of timely

comments, we will issue a final rule and

respond to the comments in the

preamble of that rule.

IV. Regulatory Impact Statement

For final rules with comment period,

we generally prepare a regulatory

flexibility analysis that is consistent

with the Regulatory Flexibility Act

(RFA) (5 U.S.C. 601 through 612), unless

we certify that a final rule will not have

a significant economic impact on a

substantial number of small entities. For

purposes of a RFA, individuals and

States are not considered to be small

entities.

In addition, section 1102(b) of the

Social Security Act requires us to

prepare a regulatory impact analysis for

any final rule that may have a

significant impact on the operations of

a substantial number of small rural

hospitals. Such an analysis must

conform to the provisions of section 604

of the RFA. With the exception of

hospitals located in certain rural

counties adjacent to urban areas, 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 and has

fewer than 50 beds.

We estimate that the costs of

performing the redeterminations arising

from recent Federal laws will be

substantial. We expect that nearly

1,600,000 individuals will have their

eligibility redetermined. Of this number,

most are SSI-eligible individuals, and of

these, 500,000 involve redetermination

of disability. We estimate that the cost

to the Medicaid program, emanating

from Public Laws 104–193 and 104–121,

of allowing a longer period of time to

make eligibility redeterminations on

those individuals who may lose benefits

to be approximately $50 million

(Federal share) in FY 1998. This is

estimated on the basis of the

redeterminations occurring within one

year of implementation of this rule and

requiring an approximate extra 75 days

to complete.

Because these final regulations affect

only States and individuals, which are

not defined as small entities, we have

determined, and we certify, that this

rule will not have a significant

economic impact under the threshold

criteria of the RFA. Further, we certify,

for the same reasons, that this final rule

does not have a significant impact on

the operations of a substantial number

of small rural hospitals. Therefore, we

have not prepared a regulatory

flexibility analysis or an analysis of the

effects of this rule on small rural

hospitals.

In accordance with the provisions of

Executive Order 12866, this regulation

was reviewed by the Office of

Management and Budget.

V. Collection of Information

Requirements

This rule does not impose any new

information collection or recordkeeping

requirements that are subject to review

by the Office of Management and

Budget under the Paperwork Reduction

Act of 1995 (44 U.S.C. 3501 et seq.) The

existing collection requirements under

§ 435.1003 are currently approved under

OMB approval number 0938–0247

through May 31, 1997.

Redetermination of eligibility is

currently required for all individuals

whose eligibility is affected either by

change in law or change in individual

circumstances. The passage of Public

Laws 104–193 and 104–121 requires

that SSA redetermine the SSI eligibility

of large numbers of recipients. Once

SSA issues redetermination notices to

the affected individuals, States must

redetermine Medicaid eligibility of

these individuals. Regulations at

§ 435.1003 require that such

redeterminations be performed

promptly. These new rules will not

change the redetermination requirement

and the associated paperwork needed to

perform a redetermination. However,

because of the change in Federal law,

there will be a substantial increase in

the volume of redeterminations States

will have to make. These regulations are

designed to relieve the States of the

pressures and costs of these

redeterminations by providing both

more time and FFP to conduct the

redeterminations and to provide FFP in

Medicaid expenditures while the

redeterminations are pending.

We estimate that each

redetermination will involve

approximately 18 hours.

List of Subjects in 42 CFR Part 435

Aid to Families with Dependent

Children, Grant programs—health,

Medicaid, Reporting and recordkeeping

requirements, Supplemental Security

Income (SSI), Wages.

42 CFR Part 435 is amended as

follows:

PART 435—ELIGIBILITY IN THE

STATES, DISTRICT OF COLUMBIA,

THE NORTHERN MARIANA ISLANDS,

AND AMERICAN SAMOA

1. The authority citation for part 435

continues to read as follows:

Authority: Section 1102 of the Social

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

2. In § 435.1003, the title is revised,

and a new paragraph (c) is added to read

as follows:

§ 435.1003 FFP for redeterminations.

* * * * *

(c) When a change in Federal law

affects the eligibility of substantial

numbers of Medicaid recipients, the

Secretary may waive the otherwise

applicable FFP requirements and

redetermination time limits of this

section, in order to provide a reasonable

time to complete such redeterminations.

The Secretary will designate an

additional amount of time beyond that

allowed under paragraphs (a) and (b) of

this section, within which FFP will be

available, to perform large numbers of

redeterminations arising from a change

in Federal law.

(Catalog of Federal Domestic Assistance

Program No. 93.778, Medical Assistance

Program)

Dated: December 10, 1996.

Bruce C. Vladeck,

Administrator, Health Care Financing

Administration.

Dated: December 20, 1996.

Donna E. Shalala,

Secretary.

[FR Doc. 97–673 Filed 1–10–97; 8:45 am]

BILLING CODE 4120–01–P

FEDERAL EMERGENCY

MANAGEMENT AGENCY

44 CFR Part 64

[Docket No. FEMA–7655]

List of Communities Eligible for the

Sale of Flood Insurance

AGENCY: Federal Emergency

Management Agency (FEMA).

ACTION: Final rule.

SUMMARY: This rule identifies

communities participating in the

National Flood Insurance Program

(NFIP). These communities have

applied to the program and have agreed

to enact certain floodplain management

measures. The communities’

participation in the program authorizes

the sale of flood insurance to owners of

property located in the communities

listed.