19856 Federal Register / Vol. 60, No. 77 / Friday, April 21, 1995 / Rules and Regulations

Rating

(2) Modified radical mastectomy means removal of

the entire breast and axillary lymph nodes (in continuity with the breast).

Pectoral muscles are left

intact.

(3) Simple (or total) mastectomy means removal

of all of the breast tissue,

nipple, and a small portion of the overlying skin,

but lymph nodes and

muscles are left intact.

(4) Wide local excision (including partial mastectomy, lumpectomy,

tylectomy,

segmentectomy, and

quadrantectomy) means

removal of a portion of

the breast tissue.

7627 Malignant neoplasms of gynecological system or breast .......... 100

Note: A rating of 100 percent

shall continue beyond the

cessation of any surgical, Xray, antineoplastic chemotherapy or other therapeutic

procedure. Six months after

discontinuance of such treatment, the appropriate disability rating shall be determined

by mandatory VA examination. Any change in evaluation based upon that or any

subsequent examination shall

be subject to the provisions of

§ 3.105(e) of this chapter. If

there has been no local recurrence or metastasis, rate

on residuals.

7628 Benign neoplasms of the

gynecological system or breast.

Rate according to impairment in

function of the urinary or gynecological systems, or skin.

7629 Endometriosis:

Lesions involving bowel or bladder confirmed by

laparoscopy, pelvic pain or

heavy or irregular bleeding

not controlled by treatment,

and bowel or bladder symptoms ....................................... 50

Pelvic pain or heavy or irregular

bleeding not controlled by

treatment ................................ 30

Pelvic pain or heavy or irregular

bleeding requiring continuous

treatment for control .............. 10

Note: Diagnosis of

endometriosis must be substantiated by laparoscopy.

1 Review for entitlement to special monthly

compensation under § 3.350 of this chapter.

[FR Doc. 95–9714 Filed 4–20–95; 8:45 am]

BILLING CODE 8320–01–P

DEPARTMENT OF HEALTH AND

HUMAN SERVICES

Health Care Financing Administration

42 CFR Parts 440 and 441

[MB–41–F]

RIN 0938–AF12

Medicaid Program; Required Coverage

of Nurse Practitioner Services

AGENCY: Health Care Financing

Administration (HCFA), HHS.

ACTION: Final rule.

SUMMARY: This final rule stipulates the

requirements for coverage of and

payment for pediatric and family nurse

practitioner services under the Medicaid

program. The coverage of these

additional services under the Medicaid

program increases the availability and

accessibility of medical care for

specified Medicaid recipients.

This final rule adds to the Medicaid

regulations provisions of sections

1902(a)(10)(A) and 1905(a)(21) of the

Social Security Act, as amended by

section 6405 of the Omnibus Budget

Reconciliation Act of 1989.

EFFECTIVE DATE: These regulations are

effective May 22, 1995.

FOR FURTHER INFORMATION CONTACT:

Robert Wardwell, (410) 966–5659.

SUPPLEMENTARY INFORMATION:

I. General Background

Title XIX of the Social Security Act

(the Act) authorizes States to establish

Medicaid programs to provide medical

assistance to needy individuals. Section

1902(a)(10) of the Act describes the two

broad classifications of most individuals

to whom medical assistance may be

provided: The categorically needy

(section 1902(a)(10)(A)) and the

medically needy (section

1902(a)(10)(C)). Section 1905 of the Act

defines medical assistance for purposes

of the Medicaid program and specifies

the services that constitute medical

assistance.

Section 6405 of the Omnibus Budget

Reconciliation Act of 1989 (OBRA ’89),

Public Law 101–239, enacted on

December 19, 1989, redesignated section

1905(a)(21) as section 1905(a)(22) and

added a new section 1905(a)(21) to the

Act to include services furnished by

certified pediatric nurse practitioners

(CPNPs) and by certified family nurse

practitioners (CFNPs) in the definition

of ‘‘medical assistance.’’ Section

1905(a)(21) describes the added services

as those that a nurse practitioner is

legally authorized to perform under

State law, whether or not the nurse

practitioner is under the supervision of,

or associated with, a physician or other

health care provider.

In addition, section 6405 of OBRA ’89

amended section 1902(a)(10)(A) to

include the nurse practitioner services

listed in section 1905(a)(21) of the Act

as services that must be made available

to categorically needy recipients. Nurse

practitioner services can be provided to

medically needy recipients at the option

of the State Medicaid agency.

Program instructions to help States

implement the provisions of section

6405 of OBRA ’89 were initially

published in the State Medicaid

Manual, Part 4, Services, in August 1990

(Transmittal Number 48). As a result,

since July 1, 1990, States have been

required to provide for direct payment

to nurse practitioners for their services

if the services are not billed by an

employing provider (for example, a

hospital clinic). These instructions

included an administratively imposed

requirement that CPNPs and CFNPs

must be certified by national accrediting

bodies.

II. Notice of Proposed Rulemaking

On December 23, 1991, we published

in the Federal Register (56 FR 66392) a

proposed rule to include in the

Medicaid regulations coverage of and

payment for services furnished by

CPNPs and CFNPs, as provided by

section 6405 of OBRA ’89.

The proposed rule included revisions

to 42 CFR parts 440 and 441 to define

nurse practitioner services for purposes

of this benefit, to set out the

requirements for CPNPs and CFNPs, and

to describe the permissible methods of

payment for services. Under proposed

§ 440.166(a), we defined nurse

practitioner services as services

furnished within the scope of practice

authorized by State law or regulations,

by a practitioner who meets the

requirements for a CPNP or a CFNP,

regardless of whether the nurse

practitioner is under the supervision of,

or associated with, a physician or other

health care provider.

In § 440.166(b), we proposed that a

CPNP must—

• Be a registered professional nurse;

• Be currently licensed to practice in

the State as a registered professional

nurse;

• Meet the State requirements for

qualification of pediatric nurse

practitioners or nurse practitioners in

the State in which he or she furnishes

the services; and

• Be currently engaged in a pediatric

nurse practice within the scope of

applicable State law.
Federal Register / Vol. 60, No. 77 / Friday, April 21, 1995 / Rules and Regulations 19857

We proposed in § 440.166(c) that a

CFNP must—

• Be a registered professional nurse;

• Be currently licensed to practice in

the State as a registered professional

nurse;

• Meet the State requirements for

qualification of family nurse

practitioners or nurse practitioners in

the State in which he or she furnishes

the services; and

• Be currently engaged in a family

nurse practice within the scope of

applicable State law.

We did not include in the proposed

regulations the national certification

requirement for CPNPs and CFNPs that

we issued in the State Medicaid

Manual, Part 4, Services, in August

1990. We eliminated this requirement to

allow States the opportunity to use

criteria other than national certification

to qualify individuals as nurse

practitioners in specialties.

In § 440.166(d), we proposed to

require State Medicaid agencies to pay

nurse practitioners directly under an

independent provider agreement with

the State Medicaid agency or, at the

option of the nurse practitioner, through

an employing provider. We proposed a

new § 441.22(c) to require that State

plans provide nurse practitioners with

these payment options.

We proposed to revise § 440.210 and

to add a new § 441.22(a) to require that

nurse practitioner services described in

§ 440.166 be furnished to categorically

needy recipients. We also proposed a

new § 441.22(b) to require that a State

plan specify whether the State is

electing the option to furnish nurse

practitioner services to the medically

needy.

We proposed a new § 440.225 to

specify that any service not required to

be provided either to the categorically

needy or to the medically needy may be

furnished under a State plan at the

State’s option.

We also proposed some technical

changes.

III. Summary of Public Comments on

the Proposed Rule and Departmental

Responses

We received 28 timely pieces of

correspondence that commented on the

December 23, 1991, proposed rule. The

comments came from State Medicaid

agencies, medical centers, hospitals,

consultant groups, nurse practitioners

and associations of nurse practitioners,

nurses, and medical directors. A

summary of these public comments and

our responses follow.

A. Requirements for CPNPs and CFNPs

Comment: Several commenters

addressed our omission of the

requirement that we had included in the

State Medicaid Manual stipulating that

CPNPs or CFNPs be certified by one of

two specific national accrediting

organizations. Two commenters

indicated that we should have included

the requirement in the proposed

regulations, stating that the omission

will result in less consistent quality of

care and a less credible national

standard. Three commenters supported

our decision to omit the requirement,

stressing the importance of allowing

States flexibility to base qualifications

on existing State certification

mechanisms. These commenters

stressed that this flexibility will result

in additional qualified nurse

practitioners.

Response: We intentionally did not

incorporate the requirement included in

the manual instructions that nurse

practitioners be certified by national

accrediting organizations into the

proposed regulations. We omitted this

requirement to avoid excluding from

coverage nurse practitioners in several

States that have detailed requirements

for nurse practitioners that do not

include use of national certification.

This exclusion would be contrary to the

statute’s intent to provide maximum

access to nurse practitioner services.

Consequently, we are not making any

change to the proposed § 440.166 to

include the requirement that CPNPs or

CFNPs be certified by national

accrediting organizations. In the final

rule, we are allowing States to

determine their own requirements for

pediatric and family nurse practitioners.

In this way, by State law, a State can

establish its own standards for these

nurse practitioner specialties. For

example, a State may specify its own

requirements for training of pediatric or

family nurse practitioners or, if it

chooses, a State may require that nurse

practitioners be certified by a national

certification board.

Comment: Two commenters requested

that we change the provision in the

proposed rule that CPNPs and CFNPs

must ‘‘meet the State requirements for

qualification of pediatric or family nurse

practitioners or nurse practitioners’’ to

CPNPs and CFNPs must ‘‘meet the State

requirements for nurses in advanced

practice or nurse practitioners.’’ The

commenters pointed out that, in many

States, State laws do not name nurse

practitioners according to specialty; that

is, pediatric or family practice, and

instead refer to ‘‘nurses in advanced

practice.’’ In addition, both commenters

suggested that we require the nurses to

be certified by a national certification

board in pediatrics or family practice.

One of these commenters also suggested

that we define nurses in advanced

practice as those who are authorized

under State law to furnish those services

stipulated by the State Board of Nursing

and that we leave the definition of

pediatric and family practice up to the

State.

Response: The language used in the

proposed rule provides parameters for

practitioners in States that do not have

specific requirements for pediatric or

family nurse practitioners. In these

States, the practitioner must have a

pediatric nurse practice limited to

providing primary health care to

persons less than 21 years of age, or a

family nurse practice limited to

providing primary health care to

individuals and families.

We did not intend to exclude from

participation pediatric nurse

practitioners or family nurse

practitioners in any State where State

law does not specifically name nurse

practitioners according to specialty. We

agree with commenters that those States

that do not specifically define the

specialties may instead define nurses in

‘‘advanced practice’’ or ‘‘nurse

practitioners.’’ Generally this means that

the nurse has met advanced practice

requirements beyond the 2 to 4 years of

basic nursing education required of all

registered nurses. In these States,

therefore, registered nurses must meet

the State requirements for nurses in

‘‘advance practice’’ or general nurse

practitioners and must have a pediatric

nurse practice limited to providing

primary health care to persons less than

21 years of age, or a family nurse

practice limited to providing primary

health care to individuals and families.

We have, therefore, revised § 440.166

(b)(2) and (c)(2) and included reference

to nurses in advanced practice. Nurses

in advanced practice or general nurse

practitioners who wish to have their

services covered under this benefit must

be practicing as pediatric or family

nurse practitioners within broad Federal

definitions established in these

regulations.

We encourage States to establish

requirements for pediatric and family

nurse practitioners and to define the

scope of their practices. A State may

require that nurse practitioners be

certified by a national certification

board as a pediatric or family nurse

practitioner, or a State, itself, may

define the scope of services that

constitute pediatric or family nurse

practitioner services. The Federal

definitions will apply in those States
19858 Federal Register / Vol. 60, No. 77 / Friday, April 21, 1995 / Rules and Regulations

that have not established their own

definitions.

Comment: One commenter disagreed

with the requirement that CPNPs and

CFNPs be currently engaged in a

pediatric or family nurse practice,

contending that this requirement could

bar access to services; for example, by

excluding new practitioners.

Response: We agree that the

requirements that all nurse practitioners

meet the State requirements for

pediatric and family nurse practitioners

and be currently engaged in a pediatric

or family nurse practice could reduce

the provider base of nurse practitioners.

Consequently, we have revised the final

regulations at § 440.166 (b) and (c) to

require that licensed registered nurses

in States that have specific requirements

for pediatric and family nurse

practitioners will need only to meet

those State requirements. In States that

do not have specific requirements for

pediatric or family nurse practitioners,

nurses in advanced practice and nurse

practitioners may qualify by being

engaged in a pediatric or family nurse

practice within the scope of the Federal

definitions. Thus, being currently

engaged in a pediatric or family nurse

practice will be one way that an

individual can qualify as a provider of

these services, but it will not be the only

way an individual can qualify.

Comment: One commenter requested

that we specify that the State

requirements that CPNPs and CFNPs

must meet are State requirements ‘‘as

specified by the State Board of

Nursing’’, since, according to this

commenter, it is the State entity that

interprets laws and regulations on the

scope of practice for nurses. This

commenter also suggested that the

nurses in advanced practice be defined

as those who are authorized under State

law to furnish those services stipulated

by the State Board of Nursing, and leave

the definition of pediatric and family

practice up to the States.

Response: While a State Board of

Nursing may be the State entity legally

responsible for defining the scope of

practice for nurse practitioners in most

States, we believe it is not feasible to

specify the particular State

governmental entity in Federal

regulations, since the requirements in

the regulations must apply to all States.

Comment: A large number of

commenters requested that nurse

practitioners with distinct specialties be

included in coverage under this

regulation. Four commenters supported

the inclusion of nurse practitioners who

specialize in providing family planning,

gynecological, and prenatal care

services, including obstetricsgynecology nurse practitioners,

reproductive health nurse practitioners,

and women’s health nurse practitioners.

Four commenters requested the

inclusion of adult nurse practitioners—

pointing out that these practitioners

often provide access to care for

adolescents and economically

disadvantaged adults. Three

commenters recommended covering the

services of geriatric nurse practitioners.

Four commenters noted that the

inclusion of psychiatric clinical nurse

specialists would provide important

services for the mentally ill, reduce

inappropriate care, and be unlikely to

increase costs. One commenter asked for

a clarification on whether other groups

of nurse practitioners are included.

Response: Under the final regulations

(§ 440.166 (b)(1) and (c)(1)), States will

be able to define the scope of pediatric

and family nurse practitioner services.

The final rule specifies only that in

States that have not established

requirements for pediatric or family

nurse practitioners or defined the scope

of their practice, (1) pediatric nurse

practitioners have a practice limited to

providing primary health care to

persons less than 21 years of age, and

(2) family nurse practitioners have a

practice limited to providing primary

health care to individuals and families.

These Federal definitions will apply

only in States that have not established

their own requirements or definitions.

In these States, the State will decide if

the practitioner’s specialty fits within

the broad Federal definitions and apply

the regulations accordingly. The

services performed by many of the

specific nurse practitioners cited by the

commenters may be covered under the

nurse practitioner benefit if they fall

under the broad Federal definition.

Many of these specific nurse

practitioner services could also be

covered, at a State’s option, under the

Medicaid benefit of medical or other

remedial care provided by licensed

practitioners as specified in § 440.60.

Comment: One commenter requested

that the requirements for family nurse

practitioners who provide services to

nursing facility residents include

geriatric and drug therapy training.

Response: While we do not challenge

the value of such training for CFNPs, we

believe it is inappropriate for these

regulations to specify requirements at

this level of detail. A State may choose

to address the need for this specific

training in the requirements it

establishes for certification of CFNPs.

B. Classification of Nurse Practitioner

Services

Comment: One commenter opposed

any provision of services in nursing

facilities that are not under the direction

of a physician, and raised concerns

about nurse practitioners practicing

independently in those settings.

Another commenter asked for

clarification on whether direct payment

to nurse practitioners can be offered in

any setting.

Response: These concerns raise some

very complex Medicaid coverage issues.

To help clarify the payment process for

nurse practitioners, we are starting this

response with some general information

on how all Medicaid services are paid.

We are following this with some more

specific information on nurse

practitioner services.

Generally, Medicaid services are

classified by categories. Each separate

category may have specific Federal

requirements relating to supervision or

location of services. Some services, such

as inpatient hospital, nursing facility,

and clinic services, are described in

terms of their setting. Other services,

such as rehabilitation or physical

therapy, are described by the type of

service being furnished. Finally, some

services, such as nurse practitioner and

physician services, are described in

terms of the individual providing

services. Each category is separate and

has a distinct set of requirements.

While we view each category of

services as separate, some services,

including nurse practitioner services,

can be classified in more than one

category. However, the specific

circumstances under which a service is

provided will determine which category

the provider should use when

submitting a claim. It is possible that a

specific claim could meet the

requirements under one category and

not another even though, as a general

rule, the service could be submitted

under either category.

When a provider submits a claim for

payment, the provider must identify the

service by using a procedure code. The

claim is reviewed to assure that it meets

the requirements for payment. This

review is based on the information

provided on the claim submission.

Therefore, any service that is submitted

for Medicaid payment must meet the

requirements of the procedure code that

the provider designates on a claim for

payment. Consequently, the provider

must use care when submitting a claim

to avoid having the claim rejected

because it does not meet the

requirements of the designated category.

The claim must meet those
Federal Register / Vol. 60, No. 77 / Friday, April 21, 1995 / Rules and Regulations 19859

requirements to be eligible for payment;

otherwise, it will be rejected. (A rejected

claim could be resubmitted under the

proper category.)

The category of nurse practitioner

services has certain similarities to

physician services that should help

clarify how nurse practitioner services

are classified under Medicaid.

First, like physician services, nurse

practitioner services are limited in

scope only through State licensure or

scope of practice laws.

Second, at the Federal level, there are

no restrictions on where either

physician or nurse practitioner services

are furnished.

Third, the Medicaid statute does not

dictate that a physician who practices in

a hospital or clinic must receive

payment through the hospital or clinic.

This same type of flexibility extends to

nurse practitioners.

Fourth, while services provided by

physicians or nurse practitioners can

each be classified in its distinct

category, both services can also be billed

in other categories such as outpatient

hospital and clinic services.

As an example of how the billing

category governs the classification of

nurse practitioner services, we can

compare two methods of billing for

nurse practitioner services performed in

a clinic setting. If the clinic bills the

program for the nurse practitioner

services, the services will be considered

to be clinic services and all Federal

requirements relating to clinics must be

met. That is, the service provided by a

nurse practitioner in the clinic setting

must be provided under the overall

direction of a physician. If, instead, a

nurse practitioner bills for the services

as nurse practitioner services (which

happen to be furnished in a clinic

setting), supervision is irrelevant.

Generally, to be acceptable for direct

payment, billing for nurse practitioner

services provided in any setting must be

submitted under the category of nurse

practitioner services. A nurse

practitioner furnishing services in a

hospital or clinic should not bill

Medicaid for direct payment under the

categories of hospital or clinic services

because the nurse practitioner would

not be able to meet the criteria for

payment under these categories, for

example, the conditions of participation

applicable to hospitals.

The issue of the setting of the services

also has an impact on both the

supervision of services and the billing

for services. If a nurse practitioner

furnishes services in a hospital or a

clinic and bills Medicaid independently

under the Medicaid service category of

nurse practitioner services, the issue of

supervision is generally irrelevant for

purposes of Medicaid coverage. The

issue of supervision is more complex for

nurse practitioner services performed in

nursing facilities and rural health

clinics. However, for reasons discussed

below, we will also allow direct billing

for nurse practitioner services

performed in these latter settings.

As mentioned by a commenter,

section 1919(b)(6) of the Act requires

that the health care of every resident of

a nursing facility be provided under the

supervision of a physician (or at State

option, under the supervision of an

nurse practitioner who is not an

employee of the facility but is working

in collaboration with a physician).

When providing services in a nursing

facility, a nurse practitioner must either

be under the supervision of, or have an

association with, a physician.

Services furnished in rural health

clinics, as defined at section 1905(1) of

the Act (which refers to section 1861(aa)

of the Act), similarly require

supervision of a nurse practitioner by a

physician.

Because supervision is required under

sections 1919(b)(6) and 1905(1), these

sections appear to prohibit any nurse

practitioner that works in a nursing

facility or rural health clinic from

directly billing Medicaid for services.

We believe it would be contrary to the

Congressional intent of section

1905(a)(2) of the Act to prohibit a nurse

practitioner working in either of these

settings from billing for direct payment

for nurse practitioner services.

Consequently, we are allowing a nurse

practitioner to bill directly for nurse

practitioner services furnished in a

nursing facility or rural health clinic

even though the services must be

furnished under the supervision of, or

in association with, a physician.

Because nurse practitioner services

can now be billed either directly or

indirectly, we recognize that there is

some potential for duplicate billing.

However, we anticipate that nurse

practitioners will enter into billing

agreements with other health care

providers, for example, clinics. We

expect that these agreements will

specify which entity will bill the

Medicaid program for the services and

how a nurse practitioner will be paid—

either directly by the Medicaid program

or indirectly through the other health

care provider. In addition, the

respective provider agreements with a

State Medicaid agency may also include

provisions which ensure that duplicate

payments are not made. The State,

however, may not require a nurse

practitioner to be associated with or bill

through another health care provider.

C. Physician Referral and Supervision

Issues

Comment: One commenter requested

that HCFA amend the regulation

regarding long-term care facilities

(§ 483.40) to allow a physician to

delegate tasks to a nurse practitioner

only if the nurse practitioner is not an

employee of the facility.

Response: This suggested revision has

already been published under § 483.40

(56 FR 48875, September 26, 1991)

effective April 1, 1992.

Comment: One commenter requested

that we amend the regulation at

§ 440.110 that requires that physical

therapy and occupational therapy be

prescribed by a physician, and that

speech, hearing, and language services

be referred by a physician. The

commenter pointed out that the

proposed rule defines nurse practitioner

services as services that the CPNP or

CFNP is legally authorized to perform

under State law, and that, in the

commenter’s State, nurse practitioners

are legally authorized to order these

therapy services for recipients. The

commenter stated that an amendment

that allowed nurse practitioners to

prescribe or refer patients for these

therapy services would further the

statutory intent of ensuring that

Medicaid payment is available for these

services. The commenter noted that

Federal regulations for a number of

other services allow the services to be

recommended by a physician or other

licensed practitioner.

Response: We agree that the

regulation, as written, requiring

physician prescription or referral for the

therapy services creates a barrier to

allowing nurse practitioners to provide

services that they are authorized to

provide under State law in some States.

This was not our intent. Consequently,

we are expanding § 440.110 to permit a

licensed practitioner of the healing arts,

within the scope of his or her practice

under State law, to prescribe or refer

these therapy services for recipients.

This revision enables nurse

practitioners to refer recipients to

physical therapy, occupational therapy,

speech services and language services

when allowed under State law.

D. Payment Options for Nurse

Practitioner Services

Comment: One State agency disagreed

with the proposed rule that requires

States to permit nurse practitioners to be

paid through employing providers. This

State pays nurse practitioners directly

through independent provider

agreements. The commenter contended

that this method allows the State to
19860 Federal Register / Vol. 60, No. 77 / Friday, April 21, 1995 / Rules and Regulations

avoid duplicate billing and verify

licensing requirements. The commenter

asserted that the change will create

claims, reporting, and systems

problems.

Response: The intent of the statute

clearly is to provide maximum access to

certain nurse practitioner services by

providing alternative modes of payment.

Payment for such services may be made

either directly to a nurse practitioner or

indirectly through an employing

provider. Direct payment may be made

to a nurse practitioner who is a

participating Medicaid provider without

regard to whether he or she practices

independently or works under the

supervision of, or in association with,

health care providers. Indirect payment

may be made when a nurse practitioner

is paid through an employing provider

and does not bill Medicaid. For

example, if the nurse practitioner is an

employee of a hospital or a clinic, the

hospital or clinic may pay the nurse

practitioner and bill Medicaid for

hospital or clinic services. The State

will need to establish administrative

arrangements to avoid duplicate

payments. While we realize that this

places some administrative burden on

States, we believe it is clearly the intent

of the statute to allow nurse

practitioners to participate in the

Medicaid program and bill for services

when appropriate (that is, if the services

are not paid by an employing provider

such as a hospital or clinic).

Comment: In one State, according to

a commenter, nurse practitioners are

limited by State law to providing

routine nursing care. The commenter

opposed the direct payment to a nurse

practitioner for these services, and

questioned whether the regulation

intends to mandate direct payment to a

nurse practitioner who provides this

limited scope of services. The

commenter indicated a willingness to

propose a change in State law to allow

nurse practitioners to provide advanced

services, but must first determine the

services that the nurse practitioners

could perform that would qualify for

payment.

Response: The statute states that the

nurse practitioner services that are to be

covered are those which a nurse

practitioner is legally authorized to

perform under State law. We believe the

statute does not give us authority to

override State nurse practice rules.

Hence, any service that a nurse

practitioner is authorized to perform

under State law, such as the routine

nursing care the commenter described,

must be covered as nurse practitioner

services. As the commenter pointed out,

States can choose to expand or restrict

the services that nurse practitioners are

legally authorized to perform in the

State by changing State laws or

regulations defining nurse practitioner

services.

Comment: Two commenters

recommended changes that would

clarify that States are required to allow

a nurse practitioner to be paid either

through an employing provider or

through an independent provider

agreement, whether or not the nurse

practitioner is under the supervision of,

or associated with, a physician or other

health care provider. One commenter

asked that we clarify the language in

§ 440.166(d) that the Medicaid agency

‘‘may pay’’ for nurse practitioner

services, and the other commenter

suggested that we clarify the wording in

§ 441.22(c).

Response: The intent of the

regulations on payment is to emphasize

that States are required to allow a nurse

practitioner the option of being paid

either through an independent provider

agreement as a Medicaid participating

provider or through an employing

provider when the employing provider

bills Medicaid. We have clarified

§ 441.22(c) to explain a nurse

practitioner may be paid through either

method whether he or she is under the

supervision of, or associated with, a

physician or other health care provider.

E. Other Issues

Comment: One commenter disagrees

with the decision to make nurse

practitioner services optional for the

medically needy. The commenter

pointed out that nurse midwife services

are mandated for the medically needy

under the section of the regulations that

describes the required services for the

medically needy (§ 440.220), and stated

that the Congress intended to include

nurse practitioner services in this

section.

Response: We do not agree that the

Congress intended to mandate nurse

practitioner services for the medically

needy. Moreover, § 440.220 simply

reiterates the options in the statute and

does not mandate nurse midwife

services for the medically needy. Under

section 1902(a)(10)(C) (iii) and (iv) of

the Act, if a State chooses to provide

services to any medically needy group

in institutions for mental diseases or

intermediate care facilities for the

mentally retarded, or both, the State

must include for all medically needy

groups at least the services listed in

section 1905(a) (1) through (5) and (17)

(nurse midwife services) or any seven

services under section 1905(a) (1)

through (21). A State may choose to not

cover nurse midwife services for the

medically needy by choosing seven

other services. We have retained the

proposed § 440.225 to clarify that any

service that is not mandated for the

categorically needy or medically needy

may be furnished under a State plan at

the State’s option.

IV. Provisions of the Final Rule

We are adopting the proposed

regulations as final regulations with the

following revisions:

• We have revised § 440.110 to

include provisions that allow a licensed

practitioner of the healing arts, within

the scope of his or her practice under

State law, to prescribe physical and

occupational therapy services for

recipients and to refer recipients for

other therapy services.

• We have revised the proposed

§ 440.166(a) to describe nurse

practitioner services as services that are

furnished by a registered professional

nurse who meets a State’s advanced

educational and clinical practice

requirements, if any, beyond the 2 to 4

years of basic nursing education

required of all registered nurses.

• We have revised the proposed

§ 440.166 (b) and (c) to include the

requirements that nurses in advanced

practice must meet to qualify as CFNPs

and CPNPs. Licensed registered nurses

in States that have specific requirements

for pediatric and family nurse

practitioners will need only to meet

those State requirements. In States that

do not have specific requirements for

pediatric or family nurse practitioners,

nurses in advanced practice and general

nurse practitioners may qualify by being

engaged in a pediatric or family nurse

practice within the scope of the State’s

definitions or within Federal

definitions.

• We have revised the proposed

§ 441.22(c) to clarify that a nurse

practitioner has the option of being paid

either through an independent provider

agreement or through an employing

provider regardless of whether he or she

is under the supervision of, or

associated with, a physician or other

health care provider.

V. Regulatory Impact Statement

We generally prepare a regulatory

impact analysis that is consistent with

the Regulatory Flexibility Act (RFA) (5

U.S.C. 601 through 612), unless the

Secretary certifies that a final regulation

will not have a significant economic

impact on a substantial number of small

entities. For purposes of RFA,

physicians and all nurse practitioners

who work on a consulting basis or who

are self-employed are considered to be

small entities.
Federal Register / Vol. 60, No. 77 / Friday, April 21, 1995 / Rules and Regulations 19861

Also, section 1102(b) of the Act

requires the Secretary to prepare a

regulatory impact analysis if a final rule

may have an 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. For purposes of section

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

rural hospital as a hospital that is

located outside a Metropolitan

Statistical Area and that has fewer than

50 beds.

This final rule adopts the December

23, 1991, proposed rule with

modifications, based on comments

submitted by the public. A summary of

the public comments and the

departmental responses are included in

part II above. In the proposal, we

included an impact analysis (57 FR

66394) that indicated that the impact

was negligible. None of the responses to

our request for public comment

addressed our proposed impact

analysis. In addition, we believe that

none of the changes incorporated into

the final rule require any revision to our

statement in the proposal that the

impact was negligible. Consequently,

we continue to believe that the impact

of this final rule is negligible. We are,

therefore, not preparing a regulatory

impact analysis for this final rule.

We have determined, and the

Secretary certifies, that these final

regulations will not have significant

economic impact on a substantial

number of small entities and will 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

effects on small rural hospitals.

In accordance with the provisions of

Executive Order 12866, this final

regulation was reviewed by the Office of

Management and Budget.

VI. Paperwork Burden

Section 441.22 of this final rule

contains information collection

requirements that are subject to Office of

Management and Budget (OMB)

approval under the Paperwork

Reduction Act of 1980 (44 U.S.C.

Chapter 35). Under these final

regulations, a State will be required to

specify in its State Medicaid plan that

it provides nurse practitioner services to

the categorically needy. A State must

also specify whether or not it furnishes

nurse practitioner services to the

medically needy. In addition, a State

must provide that services furnished by

a nurse practitioner, regardless of

whether the nurse practitioner is under

the supervision of, or associated with, a

physician or other health care provider,

may be paid by the State Medicaid

agency through an independent

provider agreement between the State

and the nurse practitioner; or be paid

through the employing provider. The

public reporting burden for this

collection of information is estimated to

be a half hour per response. A notice

will be published in the Federal

Register when OMB approval is

received.

List of Subjects

42 CFR Part 440

Grant programs—health, Medicaid.

42 CFR Part 441

Family planning, Grant programs—

health, Infants and children, Medicaid,

Penalties, Prescription drugs, Reporting

and recordkeeping requirements.

42 CFR Chapter IV is amended as

follows:

PART 440—SERVICES: GENERAL

PROVISIONS

A. Part 440 is amended as follows:

1. The authority citation for part 440

continues to read as follows:

Authority: Sec. 1102 of the Social Security

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

2. In § 440.110, paragraphs (a)(1),

(b)(1), and (c)(1), are revised to read as

follows:

§ 440.110 Physical therapy, occupational

therapy, and services for individuals with

speech, hearing, and language disorders.

(a) Physical therapy. (1) Physical

therapy means services prescribed by a

physician or other licensed practitioner

of the healing arts within the scope of

his or her practice under State law and

provided to a recipient by or under the

direction of a qualified physical

therapist. It includes any necessary

supplies and equipment.

* * * * *

(b) Occupational therapy. (1)

Occupational therapy means services

prescribed by a physician or other

licensed practitioner of the healing arts

within the scope of his or her practice

under State law and provided to a

recipient by or under the direction of a

qualified occupational therapist. It

includes any necessary supplies and

equipment.

* * * * *

(c) Services for individuals with

speech, hearing, and language

disorders. (1) Services for individuals

with speech, hearing, and language

disorders means diagnostic, screening,

preventive, or corrective services

provided by or under the direction of a

speech pathologist or audiologist, for

which a patient is referred by a

physician or other licensed practitioner

of the healing arts within the scope of

his or her practice under State law. It

includes any necessary supplies and

equipment.

* * * * *

3. A new § 440.166 is added to read

as follows:

§ 440.166 Nurse practitioner services.

(a) Definition of nurse practitioner

services. Nurse practitioner services

means services that are furnished by a

registered professional nurse who meets

a State’s advanced educational and

clinical practice requirements, if any,

beyond the 2 to 4 years of basic nursing

education required of all registered

nurses.

(b) Requirements for certified

pediatric nurse practitioner. The

practitioner must be a registered

professional nurse who meets the

requirements specified in either

paragraphs (b)(1) or (b)(2) of this

section.

(1) If the State specifies qualifications

for pediatric nurse practitioners, the

practitioner must—

(i) Be currently licensed to practice in

the State as a registered professional

nurse; and

(ii) Meet the State requirements for

qualification of pediatric nurse

practitioners in the State in which he or

she furnishes the services.

(2) If the State does not specify, by

specialty, qualifications for pediatric

nurse practitioners, but the State does

define qualifications for nurses in

advanced practice or general nurse

practitioners, the practitioner must—

(i) Meet qualifications for nurses in

advanced practice or general nurse

practitioners as defined by the State;

and

(ii) Have a pediatric nurse practice

limited to providing primary health care

to persons less than 21 years of age.

(c) Requirements for certified family

nurse practitioner. The practitioner

must be a registered professional nurse

who meets the requirements specified in

either paragraph (c)(1) or (c)(2) of this

section.

(1) If the State specifies qualifications

for family nurse practitioners, the

practitioner must—

(i) Be currently licensed to practice in

the State as a registered professional

nurse; and

(ii) Meet the State requirements for

qualification of family nurse

practitioners in the State in which he or

she furnishes the services.

(2) If the State does not specify, by

specialty, qualifications for family nurse
19862 Federal Register / Vol. 60, No. 77 / Friday, April 21, 1995 / Rules and Regulations

practitioners, but the State does define

qualifications for nurses in advanced

practice or general nurse practitioners,

the practitioner must—

(i) Meet qualifications for nurses in

advanced practice or general nurse

practitioners as defined by the State;

and

(ii) Have a family nurse practice

limited to providing primary health care

to individuals and families.

(d) Payment for nurse practitioner

services. The Medicaid agency must

reimburse nurse practitioners for their

services in accordance with § 441.22(c)

of this subchapter.

4. In § 440.210, the introductory text

of paragraph (a) and paragraph (a)(1) are

revised to read as follows:

§ 440.210 Required services for the

categorically needy.

(a) A State plan must specify that, at

a minimum, categorically needy

recipients are furnished the following

services:

(1) The services defined in §§ 440.10

through 440.50, 440.70, and (to the

extent nurse-midwives and nurse

practitioners are authorized to practice

under State law or regulation) the

services defined in §§ 440.165 and

440.166, respectively.

* * * * *

5. A new § 440.225 is added to read

as follows:

§ 440.225 Optional services.

Any of the services defined in subpart

A of this part that are not required

under §§ 440.210 and 440.220 may be

furnished under the State plan at the

State’s option.

B. Part 441 is amended as follows:

PART 441—SERVICES:

REQUIREMENTS AND LIMITS

APPLICABLE TO SPECIFIC SERVICES

1. The authority citation for part 441

continues to read as follows:

Authority: Sec. 1102 of the Social Security

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

2. Section 441.10 is revised to read as

follows:

§ 441.10 Basis.

This subpart is based on the following

sections of the Act which state

requirements and limits on the services

specified or provide Secretarial

authority to prescribe regulations

relating to services:

(a) Section 1102 for end-stage renal

disease (§ 441.40).

(b) Section 1138(b) for organ

procurement organization services

(§ 441.13(c)).

(c) Sections 1902(a)(10)(A) and

1905(a)(21) for nurse practitioner

services (§ 441.22).

(d) Sections 1902(a)(10)(D) and

1905(a)(7) for home health services

(§ 441.15).

(e) Section 1903(i)(1) for organ

transplant procedures (§ 441.35).

(f) Section 1903(i)(5) for certain

prescribed drugs (§ 441.25).

(g) Section 1903(i)(6) for prohibition

(except in emergency situations) of FFP

in expenditures for inpatient hospital

tests that are not ordered by the

attending physician or other licensed

practitioner (§ 441.12).

(h) Section 1905(a)(4)(C) for family

planning (§ 441.20).

(i) Sections 1905 (a)(12) and (e) for

optometric services (§ 441.30).

(j) Section 1905(a)(17) for nursemidwife services (§ 441.21).

(k) Section 1905(a) (following (a)(24))

for prohibition of FFP in expenditures

for certain services (§ 441.13).

3. A new § 441.22 is added to read as

follows:

§ 441.22 Nurse practitioner services.

With respect to nurse practitioner

services that meet the definition of

§ 440.166(a) and the requirements of

either § 440.166(b) or § 440.166(c), the

State plan must meet the following

requirements:

(a) Provide that nurse practitioner

services are furnished to the

categorically needy.

(b) Specify whether those services are

furnished to the medically needy.

(c) Provide that services furnished by

a nurse practitioner, regardless of

whether the nurse practitioner is under

the supervision of, or associated with, a

physician or other health care provider,

may—

(1) Be reimbursed by the State

Medicaid agency through an

independent provider agreement

between the State and the nurse

practitioner; or

(2) Be paid through the employing

provider.

(Catalog of Federal Domestic Assistance

Program No. 93.778, Medical Assistance

Program)

Dated: August 30, 1994.

Bruce C. Vladeck,

Administrator, Health Care Financing

Administration.

Dated: January 24, 1995.

Donna E. Shalala,

Secretary.

[FR Doc. 95–9954 Filed 4–20–95; 8:45 am]

BILLING CODE 4120–01–P

Administration for Children and

Families

45 CFR Part 212

RIN 0970–AB45

Assistance for United States Citizens

Returned From Foreign Countries

AGENCY: Administration for Children

and Families, HHS, Office of Refugee

Resettlement.

ACTION: Final rule.

SUMMARY: This rule amends the

regulations for the U.S. Repatriate

Program. Under the U.S. Repatriate

Program, State agencies provide

assistance to groups of United States

citizens who are returned from foreign

countries to the United States by the

Department of State due to war, threat

of war, civil disorder, or natural

disaster. This rule requires such

agencies to request and obtain advance

approval from the Administration for

Children and Families (ACF) to incur

expenses for developing and preparing

to implement repatriation plans for

groups of eligible persons. This rule is

necessary in order for ACF to provide

appropriate oversight of the limited

funding available for such activities.

EFFECTIVE DATE: This rule is effective

May 22, 1995.

FOR FURTHER INFORMATION CONTACT:

David B. Smith, Director, Division of

State Legalization and Repatriation,

Office of Refugee Resettlement,

Administration for Children and

Families, 370 L’Enfant Promenade, SW.,

6th floor, Washington, DC 20447.

Telephone: 202–401–9255.

SUPPLEMENTARY INFORMATION:

Background

The U.S. Repatriate Program is

authorized by Section 1113 of the Social

Security Act and is responsive to

Executive Order 12656 regarding

services provided to repatriated U.S.

citizens. The program provides

temporary assistance through State

agencies to needy U.S. citizens and their

dependents who are returned to the

United States by the Department of State

for reasons of destitution, illness, war,

threat of war, invasion, civil unrest, or

natural disaster in a foreign country.

Under current law and regulations,

assistance provided through the

program to repatriates must be repaid to

the United States Government unless

the Administration for Children and

Families specifically waives this

requirement.