51274 Federal Register / Vol. 82, No. 212 / Friday, November 3, 2017 / Notices 

1As noted in the preamble to the final rule with 

comment period implementing the moratorium 

authority (February 2, 2011, CMS–6028–FC (76 FR 

5870), home health agency subunits and branch 

locations are subject to the moratoria to the same 

extent as any other newly enrolling home health 

agency. 

2CMS also concurrently announced a 

demonstration under the authority provided in 

section 402(a)(l)(J) of the Social Security 

Amendments of 1967 (42 U.S.C. 1395b–l(a)(l)(J)) 

that allows for access to care-based exceptions to 

the moratoria in certain limited circumstances after 

a heightened review of that provider has been 

conducted. This demonstration also applies to 

Medicaid and CHIP providers in each state. This 

announcement may be found in the Federal 

Register document issued on August 3, 2016 (81 FR 

51116). 

[FR Doc. 2017–23933 Filed 11–2–17; 8:45 am] 

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DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

[CMS–6077–N] 

Medicare, Medicaid, and Children’s 

Health Insurance Programs: 

Announcement of Decision To Lift the 

Temporary Moratorium on Enrollment 

of Non-Emergency Ground Ambulance 

Suppliers in Texas 

AGENCY: Centers for Medicare & 

Medicaid Services (CMS), HHS. 

ACTION: Lifting of temporary enrollment 

moratorium on non-emergency ground 

ambulance suppliers in Texas. 

SUMMARY: This document announces 

that on September 1, 2017, the statewide 

temporary moratorium on the 

enrollment of new Medicare Part B nonemergency ground ambulance suppliers 

in Texas was lifted. This announcement 

also applies to the temporary 

moratorium on enrollment of nonemergency ground ambulance suppliers 

in Medicaid and the Children’s Health 

Insurance Program in Texas. 

FOR FURTHER INFORMATION CONTACT: Jung 

Kim, (410) 786–9370. News media 

representatives must contact CMS’ 

Public Affairs Office at (202) 690–6145 

or email them at press@cms.hhs.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

A. CMS’ Implementation of Temporary 

Enrollment Moratoria 

The Social Security Act (the Act) 

provides the Secretary with tools and 

resources to combat fraud, waste, and 

abuse in Medicare, Medicaid, and the 

Children’s Health Insurance Program 

(CHIP). In particular, section 1866(j)(7) 

of the Act provides the Secretary with 

authority to impose a temporary 

moratorium on the enrollment of new 

Medicare, Medicaid, or CHIP providers 

and suppliers, including categories of 

providers and suppliers, if the Secretary 

determines such a moratorium is 

necessary to prevent or combat fraud, 

waste, or abuse under these programs. 

Regarding Medicaid, section 1902(kk)(4) 

of the Act requires States to comply 

with any moratorium imposed by the 

Secretary unless the State determines 

that the imposition of such temporary 

moratorium would adversely impact 

Medicaid beneficiaries’ access to care. 

In addition, section 2107(e)(1)(F) of the 

Act provides that the Medicaid 

provisions in 1902(kk) are also 

applicable to CHIP. 

In the February 2, 2011 Federal 

Register (76 FR 5862), CMS published a 

final rule with comment period titled, 

‘‘Medicare, Medicaid, and Children’s 

Health Insurance Programs; Additional 

Screening Requirements, Application 

Fees, Temporary Enrollment Moratoria, 

Payment Suspensions and Compliance 

Plans for Providers and Suppliers,’’ 

which implemented section 1866(j)(7) of 

the Act by establishing new regulations 

at 42 CFR 424.570. Under 

§ 424.570(a)(2)(i) and (iv), CMS, or CMS 

in consultation with the Department of 

Health and Human Services’ Office of 

Inspector General (HHS–OIG) or the 

Department of Justice (DOJ), or both, 

may impose a temporary moratorium on 

newly enrolling Medicare providers and 

suppliers if CMS determines that there 

is a significant potential for fraud, 

waste, or abuse with respect to a 

particular provider or supplier type, or 

particular geographic locations, or both. 

At § 424.570(a)(1)(ii), CMS stated that it 

would announce any temporary 

moratorium in a Federal Register 

document that includes the rationale for 

the imposition of such moratorium. 

Based on this authority and our 

regulations at § 424.570, we initially 

imposed moratoria to prevent 

enrollment of new Home Health 

Agencies, subunits, and branch 

locations 1 (hereafter referred to as 

HHAs) in Miami-Dade County, Florida 

and Cook County, Illinois, as well as 

surrounding counties, and Medicare 

Part B ground ambulance suppliers in 

Harris County, Texas and surrounding 

counties, in a notice issued on July 31, 

2013 (78 FR 46339). These moratoria 

also applied to Medicaid and CHIP. We 

exercised this authority again in a notice 

published on February 4, 2014 (79 FR 

6475) when we extended the existing 

moratoria for an additional 6 months 

and expanded them to include 

enrollment of HHAs in Broward County, 

Florida; Dallas County, Texas; Harris 

County, Texas; and Wayne County, 

Michigan and surrounding counties, 

and enrollment of ground ambulance 

suppliers in Philadelphia, Pennsylvania 

and surrounding counties. Then, we 

further extended these moratoria in 

documents issued on August 1, 2014 (79 

FR 44702), February 2, 2015 (80 FR 

5551), July 28, 2015 (80 FR 44967), and 

February 2, 2016 (81 FR 5444). On 

August 3, 2016 (81 FR 51120), we 

extended the moratoria for an additional 

6 months and expanded them to 

statewide for enrollment of HHAs in 

Florida, Illinois, Michigan, and Texas, 

and non-emergency ground ambulance 

suppliers in New Jersey, Pennsylvania, 

and Texas. We also announced the 

lifting of temporary moratoria for all 

Part B emergency ambulance suppliers 

as well as emergency ambulance 

providers in Medicaid and CHIP.2

Finally, on January 29, 2017 (82 FR 

2363) and again on July 28, 2017 (82 FR 

35122), we extended the statewide 

moratoria of HHAs in Florida, Illinois, 

Michigan, and Texas, and Part B nonemergency ground ambulance suppliers 

in New Jersey, Pennsylvania, and Texas 

for additional 6 month periods. These 

extensions also applied to such 

providers in Medicaid and CHIP. 

II. Lifting a Temporary Moratorium 

CMS has authority under § 424.570(d) 

to lift a temporary moratorium at any 

time in specified situations, including if 

the President declares an area a disaster 

under the Robert T. Stafford Disaster 

Relief and Emergency Assistance Act. 

On August 25, 2017, the President of the 

United States signed the Presidential 

Disaster Declaration for several counties 

in the State of Texas. As a result of the 

President’s declaration, CMS carefully 

reviewed the potential impact of 

continued moratoria in Texas, and 

decided to lift the temporary enrollment 

moratorium on Medicare Part B nonemergency ground ambulance suppliers 

in Texas in order to aid in the disaster 

response to Hurricane Harvey. This 

lifting of the moratorium also applied to 

Medicaid and CHIP in Texas. A 

notification that CMS lifted the 

moratorium was published at https://

www.cms.gov/Medicare/ProviderEnrollment-and-Certification/Medicare

ProviderSupEnroll/ProviderEnrollment

Moratorium.html and became effective 

on September 1, 2017. In accordance 

with § 424.570(d), CMS is also 

publishing this document in the Federal 

Register to announce this action. Nonemergency ground ambulance suppliers 

that were previously unable to enroll in 

Medicare, Medicaid or CHIP in Texas 


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Federal Register / Vol. 82, No. 212 / Friday, November 3, 2017 / Notices 51275 

because of the moratorium will be able 

to apply for enrollment and will be 

designated to the ‘‘high’’ screening level 

in accordance with §§ 424.518(c)(3)(iii) 

and 455.450(e)(2) if such supplier 

applies at any time within 6 months 

from the date the moratorium was lifted. 

III. Clarification of Right to Judicial 

Review 

Section 1866(j)(7)(B) of the Act 

provides that there shall be no judicial 

review under section 1869, section 

1878, or otherwise, of a temporary 

moratorium imposed on the enrollment 

of new providers of services and 

suppliers if the Secretary determines 

that the moratorium is necessary to 

prevent or combat fraud, waste, or 

abuse. Accordingly, our regulations at 

42 CFR 498.5(l)(4) state that for appeals 

of denials based on a temporary 

moratorium, the scope of review will be 

limited to whether the temporary 

moratorium applies to the provider or 

supplier appealing the denial. The 

agency’s basis for imposing a temporary 

moratorium is not subject to review. Our 

regulations do not limit the right to seek 

judicial review of a final agency 

decision that the temporary moratorium 

applies to a particular provider or 

supplier. In the preamble to the 

February 2, 2011 (76 FR 5918) final rule 

with comment period establishing this 

regulation, we explained that ‘‘a 

provider or supplier may 

administratively appeal an adverse 

determination based on the imposition 

of a temporary moratorium up to and 

including the Department Appeal Board 

(DAB) level of review.’’ We are 

clarifying that providers and suppliers 

that have received unfavorable 

decisions in accordance with the 

limited scope of review described in 

§ 498.5(l)(4) may seek judicial review of 

those decisions after they exhaust their 

administrative appeals. However, we 

reiterate that section 1866(j)(7)(B) of the 

Act precludes judicial review of the 

agency’s basis for imposing a temporary 

moratorium. 

IV. Collection of Information 

Requirements 

This document does not impose 

information collection requirements, 

that is, reporting, recordkeeping or 

third-party disclosure requirements. 

Consequently, there is no need for 

review by the Office of Management and 

Budget under the authority of the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.). 

V. Regulatory Impact Statement 

CMS has examined the impact of this 

document 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 Social Security 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), the Congressional 

Review Act (5 U.S.C. 804(2)), and 

Executive Order 13771 on Reducing 

Regulation and Controlling Regulatory 

Costs (January 30, 2017). 

Executive Orders 12866 and 13563 

direct agencies to assess all costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health, and safety 

effects, distributive impacts, and 

equity). A regulatory impact analysis 

(RIA) must be prepared for major 

regulatory actions with economically 

significant effects ($100 million or more 

in any 1 year). This document 

announces CMS’s decision to lift the 

moratorium on new enrollment of nonemergency ground ambulance suppliers 

in Medicare Part B, Medicaid, and CHIP 

in Texas. Though costs may result from 

allowing non-emergency ambulance 

enrollment in Texas, the monetary 

amount cannot be quantified. After the 

imposition of the initial moratoria on 

July 31, 2013, specifically to the nonemergency ambulance suppliers, a total 

of 24 ambulance companies in all 

geographic areas affected by the 

moratoria had their applications denied. 

Since the moratorium was lifted on 

September 1, 2017, we have had two 

ambulance enrollments in Texas, and 

we have seen no evidence that there 

will be a large surge in applications in 

the immediate future. Therefore, this 

document does not reach the economic 

threshold, and thus is not considered a 

major action. 

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. CMS is not preparing 

an analysis for the RFA because it has 

determined, and the Secretary certifies, 

that this document will not have a 

significant economic impact on a 

substantial number of small entities. 

In addition, section 1102(b) of the Act 

requires us to prepare a regulatory 

impact analysis if an action 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 604 of the 

RFA. For purposes of section 1102(b) of 

the Act, CMS defines a small rural 

hospital as a hospital that is located 

outside of a metropolitan statistical area 

(MSA) for Medicare payment purposes 

and has fewer than 100 beds. CMS is not 

preparing an analysis for section 1102(b) 

of the Act because it has determined, 

and the Secretary certifies, that this 

document will 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 

regulatory action whose mandates 

require spending in any 1 year of $100 

million in 1995 dollars, updated 

annually for inflation. In 2017 that 

threshold is approximately $148 

million. This document will have no 

consequential effect on state, local, or 

tribal governments or on the private 

sector. 

Executive Order 13771, titled 

‘‘Reducing Regulation and Controlling 

Regulatory Costs,’’ was issued on 

January 30, 2017 (82 FR 9339, February 

3, 2017). It has been determined that 

this notice is a transfer notice that does 

not impose more than de minimis costs 

and thus is not a regulatory action for 

the purposes of E.O. 13771. 

Executive Order 13132 establishes 

certain requirements that an agency 

must meet when it promulgates a 

proposed regulatory action (and 

subsequent final action) that imposes 

substantial direct requirement costs on 

state and local governments, preempts 

state law, or otherwise has Federalism 

implications. Because this document 

does not impose substantial costs on 

state or local governments, the 

requirements of Executive Order 13132 

are not applicable. 

In accordance with the provisions of 

Executive Order 12866, this document 

was reviewed by the Office of 

Management and Budget. 

Dated: October 27, 2017. 

Seema Verma, 

Administrator, Centers for Medicare & 

Medicaid Services. 

[FR Doc. 2017–24007 Filed 11–2–17; 8:45 am] 

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