Medicaid Program; Health Care-Related Taxes, 13726-13734 [07-1331]
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13726
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land areas located well within the
boundaries of a nonattainment area,
such as the three Indian reservations in
the Phoenix nonattainment area and the
four Indian reservations in the Owens
Valley nonattainment area. Moreover,
violations of the PM–10 standard, which
are measured and modeled throughout
each of the nonattainment areas, as well
as shared meteorologic conditions,
would dictate the same result. EPA
does, however, recognize the
significance of Indian country
boundaries within the nonattainment
areas and, as described below, will
consult with the affected Tribes
regarding this finding of failure to attain
the NAAQS and their Indian country.
III. Summary of Proposed Action
EPA is proposing to find that the
Phoenix and Owens Valley
nonattainment areas did not attain the
24-hour PM–10 NAAQS by the
December 31, 2006 attainment deadline
as discussed above in section II.
Under section 189(d) of the Act,
serious PM–10 nonattainment areas that
fail to attain are required to submit
within 12 months of the applicable
attainment date, ‘‘plan revisions which
provide for attainment of the PM–10 air
quality standard and, from the date of
such submission until attainment, for an
annual reduction in PM–10 or PM–10
precursor emissions within the area of
not less than 5 percent of the amount of
such emissions as reported in the most
recent inventory prepared for such
area.’’
In accordance with CAA section
179(d)(3), the attainment deadline
applicable to an area that misses the
serious area attainment date is as soon
as practicable, but no later than 5 years
from the publication date of the
nonattainment finding notice. EPA may,
however, extend the attainment
deadline to the extent it deems
appropriate for a period no greater than
10 years from the publication date,
‘‘considering the severity of
nonattainment and the availability and
feasibility of pollution control
measures.’’ In addition to the attainment
demonstration and 5 percent
requirements, the plans under section
189(d) for the Phoenix and Owens
Valley nonattainment areas must
address all applicable requirements of
the CAA, including sections 110(a),
172(c), 176(c) and 189(c)(1).
Because the applicable attainment
date for both nonattainment areas was
December 31, 2006, under section
189(d), the submittal deadline for the
plans will be December 31, 2007 if
EPA’s proposed findings of failure to
attain are finalized.
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IV. Statutory and Executive Order
Reviews
Under Executive Order 12866 (58 FR
51735, October 4, 1993), this proposed
action is not a ‘‘significant regulatory
action’’ and therefore is not subject to
review by the Office of Management and
Budget. For this reason, this action is
also not subject to Executive Order
13211, ‘‘Actions Concerning Regulations
That Significantly Affect Energy Supply,
Distribution, or Use’’ (66 FR 28355, May
22, 2001). This proposed action in and
of itself establishes no new
requirements, it merely notes that the
air quality in the Phoenix
nonattainment area and the Owens
Valley nonattainment area did not meet
the federal health standard for PM–10
by the CAA deadline. Accordingly, the
Administrator certifies that this
proposed rule will not have a significant
economic impact on a substantial
number of small entities under the
Regulatory Flexibility Act (5 U.S.C. 601
et seq.). Because this proposed rule does
not in and of itself establish new
requirements, EPA believes that it is
questionable whether a requirement to
submit a SIP revision constitutes a
federal mandate. The obligation for a
State to revise its SIP arises out of
sections 110(a), 179(d), and 189(d) of
the CAA and is not legally enforceable
by a court of law, and at most is a
condition for continued receipt of
highway funds. Therefore, it is possible
to view an action requiring such a
submittal as not creating any
enforceable duty within the meaning of
section 421(5)(9a)(I) of the Unfunded
Mandates Reform Act (UMRA) (2 U.S.C.
658(a)(I)). Even if it did, the duty could
be viewed as falling within the
exception for the condition of Federal
assistance under section 421(5)(a)(i)(I) of
UMRA (2 U.S.C. 658(5)(a)(i)(I)).
Therefore, today’s proposed action does
not contain any unfunded mandate or
significantly or uniquely affect small
governments, as described in the
Unfunded Mandates Reform Act of 1995
(Pub. L. 104–4).
Several Indian tribes have
reservations located within the
boundaries of the Phoenix and Owens
Valley nonattainment areas. EPA is
responsible for the implementation of
federal Clean Air Act programs in
Indian country, including findings of
failure to attain. EPA has notified the
affected tribal officials and will be
consulting with all interested tribes, as
provided for by Executive Order 13175
(65 FR 67249, November 9, 2000). EPA
will ensure that each tribe is contacted
and given the opportunity to enter into
consultation on a government-to-
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government basis. This proposed action
also does not have Federalism
implications because it does not have
substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132 (64 FR 43255,
August 10, 1999). This proposed action
does not in and of itself create any new
requirements and does not alter the
relationship or the distribution of power
and responsibilities established in the
Clean Air Act. This proposed rule also
is not subject to Executive Order 13045,
‘‘Protection of Children from
Environmental Health Risks and Safety
Risks’’ (62 FR 19885, April 23, 1997),
because it is not economically
significant. Because these proposed
findings of failure to attain are factual
determinations based on air quality
considerations, the requirements of
section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not
apply. This proposed rule does not
impose an information collection
burden under the provisions of the
Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Intergovernmental relations, Nitrogen
dioxide, Ozone, Particulate matter,
Reporting and recordkeeping
requirements, Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: March 15, 2007.
Wayne Nastri,
Regional Administrator, Region IX.
[FR Doc. E7–5357 Filed 3–22–07; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Centers for Medicare & Medicaid
Services
42 CFR Part 433
[CMS 2275–P]
RIN 0938–AO80
Medicaid Program; Health CareRelated Taxes
Centers for Medicare &
Medicaid Services (CMS), HHS.
ACTION: Proposed rule.
AGENCY:
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Federal Register / Vol. 72, No. 56 / Friday, March 23, 2007 / Proposed Rules
SUMMARY: This proposed rule would
revise the threshold under the indirect
guarantee hold harmless arrangement
test to reflect the provisions of the Tax
Relief and Health Care Act of 2006,
Public Law 109–432, by providing that,
when determining whether there is an
indirect guarantee under the 2-prong
test for any part of a fiscal year on or
after January 1, 2008 through September
30, 2011, the allowable amount that can
be collected from a health care-related
tax is reduced from 6 to 5.5 percent of
net patient revenues received by the
taxpayers. This proposed rule would
also clarify the standard for determining
the existence of a hold harmless
arrangement under the positive
correlation test, Medicaid payment test,
and the guarantee test (with conforming
changes to parallel provisions
concerning hold harmless arrangements
with respect to provider-related
donations); codify descriptions for two
classes of health care services
permissible under Federal statute for
purposes of taxes on health care
providers; and, remove obsolete
transition period regulatory language.
DATES: To be assured consideration,
comments must be received at one of
the addresses provided below, no later
than 5 p.m. on May 22, 2007.
ADDRESSES: In commenting, please refer
to file code CMS–2275–P. Because of
staff and resource limitations, we cannot
accept comments by facsimile (FAX)
transmission. You may submit
comments in one of three ways (no
duplicates, please):
1. Electronically. You may submit
electronic comments to https://
www.cms.hhs.gov/regulations/
ecomments (attachments should be in
Microsoft Word, WordPerfect, or Excel;
however, we prefer Microsoft Word).
2. By mail. You may mail written
comments (one original and two copies)
to the following address ONLY: Centers
for Medicare & Medicaid Services,
Department of Health and Human
Services, Attention: CMS–2275–P, P.O.
Box 8017, Baltimore, MD 21244–8017.
Please allow sufficient time for mailed
comments to be received before the
close of the comment period.
3. By hand or courier. If you prefer,
you may deliver (by hand or courier)
your written comments (one original
and two copies) before the close of the
comment period to one of the following
addresses. If you intend to deliver your
comments to the Baltimore address,
please call telephone number (410) 786–
7195 in advance to schedule your
arrival with one of our staff members.
Room 445–G, Hubert H. Humphrey
Building, 200 Independence Avenue,
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SW., Washington, DC 20201; or 7500
Security Boulevard, Baltimore, MD
21244–1850.
(Because access to the interior of the
HHH Building is not readily available to
persons without Federal Government
identification, commenters are
encouraged to leave their comments in
the CMS drop slots located in the main
lobby of the building. A stamp-in clock
is available for persons wishing to retain
a proof of filing by stamping in and
retaining an extra copy of the comments
being filed.)
Comments mailed to the addresses
indicated as appropriate for hand or
courier delivery may be delayed and
received after the comment period.
FOR FURTHER INFORMATION CONTACT:
Charles Hines, (410) 786–0252 or Stuart
Goldstein, (410) 786–0694.
SUPPLEMENTARY INFORMATION:
Submitting Comments: We welcome
comments from the public on all issues
set forth in this rule to assist us in fully
considering issues and developing
policies. You can assist us by
referencing the file code CMS–2275–P
and the specific ‘‘issue identifier’’ that
precedes the section on which you
choose to comment.
Inspection of Public Comments: All
comments received before the close of
the comment period are available for
viewing by the public, including any
personally identifiable or confidential
business information that is included in
a comment. After the close of the
comment period, we post all electronic
comments received before the close of
the comment period on its public Web
site. Comments received timely will be
available for public inspection as they
are received, generally beginning
approximately 3 weeks after publication
of a document, at the headquarters of
the Centers for Medicare & Medicaid
Services, 7500 Security Boulevard,
Baltimore, Maryland 21244, Monday
through Friday of each week from 8:30
a.m. to 4 p.m. To schedule an
appointment to view public comments,
phone 1–800–743–3951.
I. Background
A. General
Title XIX of the Social Security Act
(the Act) authorizes Federal grants to
the States for Medicaid programs to
provide medical assistance to persons
with limited income and resources.
While Medicaid programs are
administered by the States, they are
jointly financed by the Federal and State
governments. The Federal government
pays its share of medical assistance
expenditures to the State on a quarterly
basis according to a formula described
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in sections 1903 and 1905(b) of the Act.
The amount of the Federal share of
medical assistance expenditures is
called Federal financial participation
(FFP). The State pays its share of
medical expenditures in accordance
with section 1902(a)(2) of the Act.
The Medicaid Voluntary Contribution
and Provider Specific Tax Amendments
of 1991 (Pub. L. 102–234), enacted
December 12, 1991, amended section
1903 of the Act to specify limitations on
the amount of FFP available for medical
assistance expenditures in a fiscal year
when States receive certain funds
donated from providers and revenues
generated by certain health care-related
taxes. We issued regulations to
implement the statutory provisions
concerning provider donations and
health care-related taxes in an interim
final rule (with comment period)
published on November 24, 1992 (57 FR
55118). A final rule was issued on
August 13, 1993 (58 FR 43156). The
Federal statute and implementing
regulations were designed to protect
Medicaid providers from being unduly
burdened by tax programs. Health care
related tax programs that are compliant
with the requirements set forth by the
Congress create a significant tax burden
for health care providers that do not
participate in the Medicaid program or
that provide limited services to
Medicaid individuals.
B. Health Care-Related Taxes
Section 1903(w) of the Act requires
that State health care-related taxes must
be imposed on a permissible class of
health care services; be broad based or
apply to all providers within a class; be
uniform, such that all providers within
a class must be taxed at the same rate;
and avoid hold harmless arrangements
in which collected taxes are returned
directly or indirectly to taxpayers.
Section 1903(w)(3)(E) of the Act
specifies that the Secretary shall
approve broad based (and uniformity)
waiver applications if the net impact of
the health care-related tax is generally
redistributive and that the amount of the
tax is not directly correlated to
Medicaid payments. The broad based
and uniformity provisions are waivable
through a statistical test that measures
the degree to which the Medicaid
program incurs a greater tax burden
when a State tax program is otherwise
not compliant with the broad based
and/or uniformity requirement. The
permissible class of health care services
and hold harmless requirements cannot
be waived. The statute and Federal
regulation identify 19 permissible
classes of health care items or services
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that States can tax without triggering a
penalty against Medicaid expenditures.
The regulatory language at 42 CFR
433.68(f) sets forth tests for determining
the presence of a hold harmless
arrangement that were directly based on
the language contained in section
1903(w)(4) of the Act. The preamble to
that regulation provided guidance and
some illustrative examples of the types
of health care-related tax programs that
we believed would violate the hold
harmless prohibitions. In a June 29,
2005 decision, however, the HHS
Departmental Appeals Board (DAB),
DAB No. 1981, found that these
regulations did not clearly preclude
certain types of arrangements that we
believe to be within the scope of the
statutory hold harmless prohibition and
implementing regulations. The DAB
consequently reversed disallowances
issued by CMS to five States. In each of
these reversed disallowances, the States
had created programs that imposed a tax
on nursing homes and simultaneously
created programs that awarded grants or
tax credits to private pay residents of
those nursing homes. These grants and/
or tax credits were designed by the
States to compensate private pay
residents of nursing homes for the costs
of the tax passed on to them by their
nursing homes through increased
charges. We concluded that the grants
and tax credits amounted to hold
harmless arrangements prohibited from
FFP under the Medicaid statute and
regulations.
One of the hold harmless tests, set
forth in current rules at § 433.68(f)(3)(i),
defines arrangements that are
considered to be prohibited indirect
guarantees. Taxes imposed on health
care-related providers may not exceed 6
percent of total revenues received by the
taxpayers unless the State makes a
showing that, in the aggregate, 75
percent of taxpayers do not receive 75
percent or more of their total tax costs
back in enhanced Medicaid payments or
other State payments. States can tax
individual classes of health care
services and providers, including
inpatient hospital services, outpatient
hospital services, and nursing facility
services up to 6 percent of the net
revenues received by the taxpayers
within the class of health care services
without violating prohibitions on the
indirect hold harmless arrangements.
The 6 percent limit was established to
maintain consistency with the average
level of taxes applied to other goods and
services in the State, as discussed in the
November 24, 1992 preamble to the
interim final rule implementing the
statute.
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On December 20, 2006 the Tax Relief
and Health Care Act of 2006 was signed
into law as Public Law 109–432. Section
403 of that law incorporated the existing
regulatory test for an indirect guarantee
into the Medicaid statute but provided
for a temporary reduction in the
allowable tax rate under the first prong
of the test. Specifically, the indirect
hold harmless threshold has been
reduced from 6 percent to 5.5 percent
effective in any portion of fiscal years
beginning on or after January 1, 2008
and through September 30, 2011.
II. Provisions of the Proposed Rule
[If you choose to comment on issues
in this section, please include the
caption ‘‘PROVISIONS OF THE
PROPOSED RULE’’ at the beginning of
your comments.]
A. Permissible Class of Services—
Managed Care Organizations—
§ 433.56(a)(8)
Section 6051 of the Deficit Reduction
Act of 2005 (DRA) (Pub. L. 109–171),
enacted on February 8, 2006, amends
section 1903(w)(7)(viii) of the Act to
expand the previous Medicaid managed
care organization (MCO) provider class
to include all MCOs. The effective date
of section 6051 of the DRA is the date
of enactment, that is, February 8, 2006.
Therefore to qualify for Federal
reimbursement, a State’s health carerelated tax would need to apply to both
Medicaid participating and nonMedicaid participating MCOs.
Previously, the statute recognized
services of a Medicaid MCO with a
contract under section 1903(m) of the
Act as a permissible class of health care
services. This particular class of health
care services was unlike any other
permissible class of health care services
identified in statute and regulation, as it
was the only listed class of health care
services that permitted taxation of solely
Medicaid providers of the service. In
addition, MCOs that participated in
Medicaid were beginning to use the
statutory language to reorganize their
corporate structure to protect their
commercial lines of business from tax
liability. The result of this corporate
restructuring was that the tax was
imposed on only the Medicaid
subsidiary of the MCO. With this
reorganization, States were able to
impose a tax on only the Medicaid
revenues of the MCO, effectively
shifting the entire burden of the tax to
the Medicaid program.
We are proposing to implement the
statutory amendment made in the
section 6051 of the DRA with
conforming changes to the regulatory
provision in § 433.56(a)(8). We are
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proposing to revise the regulatory
language to specify that all services of
MCOs (including health maintenance
organizations and preferred provider
organizations) regardless of payer source
will be considered a permissible class of
health care items or services for
purposes of health care-related taxes.
We note that the DRA provides a
transition period for those States with
existing Medicaid MCO taxes. For those
States with a Medicaid MCO only tax
enacted as of December 8, 2005, this
provision becomes effective October 1,
2009.
B. Tests To Determine Hold Harmless
Arrangements—§ 433.68(f)
Currently, the regulations at
§ 433.68(f) set forth three broad tests to
determine if there is a hold harmless
arrangement with respect to a health
care-related tax. If States enact a tax
program that violates any of these tests,
FFP will be reduced by the amount
collected through that tax program. As
mentioned above, the recent DAB
decision has drawn into question how
the current hold harmless provisions
will be interpreted and applied.
Therefore, it is necessary to clarify these
provisions and ensure proper
implementation of section 1903(w)(4) of
the Act. We propose to continue using
the same regulatory structure of
§ 433.68(f), while clarifying certain
terms in each of these hold harmless
tests.
Positive Correlation Test—§ 433.68(f)(1)
We propose to modify and clarify the
test set forth at § 433.68(f)(1), also
known as the positive correlation test. A
State or other unit of government will
violate this test if they impose a health
care-related tax and also provide for a
direct or indirect non-Medicaid
payment and the payment amount is
positively correlated to the tax amount
or to the difference between the
Medicaid payment and tax amount.
This proposed rule explains that both
direct and indirect payments to
providers, or others paying a health
care-related tax, will be analyzed in
determining compliance with this test.
We propose to interpret the phrase
‘‘direct and indirect non-Medicaid
payment’’ broadly. These payments may
take many forms, such as grants or tax
credits, although there will undoubtedly
be other types of payments that we have
not yet anticipated. The provision of
non-Medicaid payments may violate
both the positive correlation test and the
guarantee test, discussed further below.
Our discussion of direct and indirect
non-Medicaid payments is applicable to
both tests.
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Determining if a direct payment exists
should be readily apparent. When a
non-Medicaid payment is made directly
to a provider, and it is positively
correlated to the tax amount, then FFP
will be denied for the health care related
tax.
Unlike a direct payment, an indirect
payment to a provider may be more
difficult to detect. Yet, even though an
indirect payment may not be as obvious,
indirect payments that are positively
correlated to a tax will also violate this
test. An indirect payment can take many
forms. For example, if the State imposes
a health care-related tax, such as a tax
on nursing home beds, and a provider
is allowed under State statutes or
regulations (either expressly or
implicitly) to pass the costs of its tax
onto patients through rate increases,
payments by the State to those nonMedicaid patients that demonstrate a
linkage to the rate increase would be an
indirect payment to that provider.
Under this example, the revenue source
for the payment is not relevant in
determining that the payment is an
indirect payment. Money is fungible,
and, as long as the payment is from a
source controlled or influenced by the
State, it will be considered in
determining whether it has been made
available as compensation for the tax. In
reviewing this issue, we would look at
whether the payment would be made by
the entity for documented charitable or
business reasons even if the State were
not involved. We endeavored to prohibit
these indirect payments in the 1993
rules, but the recent DAB decision
evidences that the original rule may
have been unclear. This proposed rule
is intended to further clarify the
Secretary’s policy. However, the
purpose of this example is only to
provide illustration of the broad scope
of indirect payments. Due to the
difficulty in predicting all possible
types of indirect payments, this example
does not limit our ability to detect other
indirect payments in the future.
We recognize that this test interjects
some degree of subjectivity into this
analysis. However, the Congress
intended to prohibit hold harmless
arrangements that directly or indirectly
paid a taxpayer for the costs of a tax.
Some degree of subjective analysis is
inevitable in determining whether an
indirect payment exists. We will look at
all relevant circumstances surrounding
a tax and payment program to determine
whether a linkage exists to establish an
indirect payment.
The phrase ‘‘positively correlated’’
was defined in the 1993 final rule as
having the ‘‘same meaning as the
statistical term.’’ As is evidenced in the
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DAB decision, this definition has led to
much confusion as to how ‘‘positively
correlated’’ should be defined.
Therefore, we would clarify that tax and
payment amounts are positively
correlated when they have a positive
relationship with each other even when
that relationship is not evidenced
through a strict correlation in a
mathematical sense. Two variables can
be positively correlated even though the
correlation may vary over time. For
example, the rate of a tax and payment
may be closely related, but, the next
year, the tax rate might be increased
while the payment might stay the same.
Although the correlation between the
two variables may have changed, it
would still be positive since providers
incurring the tax receive increased
payments to offset the tax. For example,
a State might impose a $4 a day
occupied bed tax on nursing homes,
which the homes are permitted to pass
onto their residents in the form of rate
increases. At or about the same time
they impose the tax, the State issues a
$3.75 grant (or tax credit) for nonMedicaid nursing home residents. A
year later, the tax might be increased to
$4.10, but the grant or tax credit might
remain level. In such a case, a positive
correlation would be found to exist
between the grant and the tax because,
in each year, there would be a positive
correlation between the tax and grant
amounts paid in relation to each
individual service unit (bed-days) to
non-Medicaid residents. The correlation
would not be destroyed through the
variation of one of the two variables (in
tax or grant amounts). Moreover, as
discussed above with respect to
identifying indirect payments, we may
look to extrinsic evidence, such as
legislative history and circumstances
surrounding the tax and grant programs,
to establish the positive correlation.
We want to make clear that a positive
correlation can be discovered in various
ways. First, a positive correlation can be
found through a statistical, numerical
test where a series of tax and payment
amounts are analyzed to determine if
there is a statistical relationship
between both amounts. Second, a
positive correlation could be found
where the rate of a tax and the rate of
a non-Medicaid payment are based on
the same numeric factors (such as the
amount of revenues, or bed days). Third,
a positive correlation could be found
based on a finding that the nonMedicaid payment is conditional on
payment (direct or indirect) of the tax.
In addition to these numerical tests,
evidence of the intended effect of linked
tax and payment programs may
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demonstrate that a positive correlation
exists, especially when a State enacts
the tax and/or payment programs in the
same legislative session. Tax and
payment amounts, as articulated in
either statute or regulation, can be
compared and if there is a positive
relationship between those amounts,
then the arrangement will be considered
a hold harmless arrangement. Further, if
the calculation of the payment amount
is determined in whole or in part by the
tax amount, we would also find that
those amounts are positively correlated.
The same would hold true if the tax
amount was calculated based in whole
or in part on the payment amount.
There may be other ways that this
positive relationship could be found,
and we only provide these examples as
a demonstration of the broad
interpretation of the positive correlation
test. It is simply impossible to anticipate
all hold harmless plans that could be
created.
Defining Tax and Payment Amounts for
Hold Harmless Analyses
We propose to clarify the definition of
tax amounts and payment amounts for
purposes of hold harmless analyses. We
propose to unify these definitions so
that they will have identical meanings
in all three hold harmless tests. In the
current rule, we use terms such as
‘‘amount of the payment,’’ ‘‘amount of
such tax,’’ ‘‘total tax cost,’’ and ‘‘amount
of total tax payment.’’ These slightly
differing phrases have apparently lead
to confusion as to what amounts should
be examined in determining whether a
hold harmless exists. We propose that in
the positive correlation test, as well as
the other two tests, to use the terms ‘‘tax
amount’’ and ‘‘payment amount.’’
Although we are using standardized
terminology, we intend for these terms
to encompass all of the meanings that
could previously have been attributed to
each of the prior terms, to permit
maximum flexibility in analyzing the
relationships between tax and payment
programs, depending on the particular
circumstances presented by State tax
programs. A relationship between a tax
program and Medicaid or non-Medicaid
payments, or a direct or indirect
guarantee, could be found based either
on the aggregate tax amount that the
provider pays over a period of time, or
on the unit tax rate that is applied for
a particular service. Therefore, if a State
statute articulates a tax rate applicable
to each nursing home bed within a
nursing home, then that tax rate could
be used in this analysis as the tax
amount. Likewise, an analysis could be
based on aggregate payments to
providers, on payments made on a per-
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service basis, or on payments to
individual patients. As with other terms
that we have clarified, it is impossible
to anticipate all permutations of what
would constitute a tax or payment
amount. Our intention is to define these
terms broadly to capture new hold
harmless arrangements as they arise.
We also believe that standardization
of the term ‘‘tax amount’’ and ‘‘payment
amount’’ in all three tests will
demonstrate that money does not have
to be expended before a hold harmless
situation can be discovered. Therefore,
we will look at the State legislation
creating a tax and hold harmless
payment program (for example, grant or
tax credit program). If a hold harmless
situation exists on the face of the
legislation, FFP will be denied for the
tax amount. It is not necessary for us to
determine, for example, the amount of
grant funds actually expended by a State
in an effort to hold taxpayers harmless
for the tax. It would be extremely costly
and administratively burdensome for us
to track individual monies actually paid
by States in these payment programs. If
the tax and pay back programs exist to
allow for a hold harmless situation,
such a hold harmless violation will be
found.
(such as supplemental payments
conditioned on receipt of taxes). Where
Medicaid payment is conditioned on
receipt of taxes, we would view the
payment to be, in part or in full, to
repay the taxes in a hold harmless
arrangement rather than as a protected
reimbursement for costs of Medicaid
services.
This clarification is thus necessary to
ensure that Medicaid payments are not
made simply to repay providers for the
tax, but also to ensure the integrity of
the development of sound payment
rates in compliance with the
requirements of section 1902(a)(30) of
the Act. If Medicaid payments are
conditional on receipt of particular tax
amounts, it is an indication that the
Medicaid payment rate would not
otherwise be consistent with efficiency,
economy, and quality of care, and is
based solely on the return of funding
received through the tax program. The
proposed language would, however,
limit the ability of States to expressly
condition payment rates on tax receipts
rather than on a process that determines
rates that are consistent with efficiency,
economy and quality of care in
compliance with section 1902(a)(30)(A)
of the Act.
Medicaid Payment Test—§ 433.68(f)(2)
Under the current second hold
harmless test, a hold harmless
arrangement exists if all or any portion
of the Medicaid payment varies based
only on the amount of the total tax
payment. For the reasons discussed
above, we are proposing to revise this
rule to use the standardized terminology
‘‘tax amount.’’ We are also adding a
clarification that a Medicaid payment
will be considered to vary based on the
tax amount when the payment is
conditional on the tax payment. In that
circumstance, the variation between a
payment of zero and a positive payment
would be based only on the payment of
the tax amount.
We do not believe this clarification is
inconsistent with the provision in
section 1903(w)(4) of the Act that
indicates that the restrictions on hold
harmless arrangements does not prevent
States from using taxes ‘‘to reimburse
health care providers in a class for
expenditures under this title.’’ Nor do
we believe that this clarification would
preclude States that use cost-based
payment mechanisms from including
provider tax costs as one of many
provider costs that are considered in
setting individualized provider rates.
But this clarification would affect States
that seek to use rates that are based
solely on the receipt of provider taxes,
rather than on overall provider costs
Guarantee Test—§ 433.68(f)(3)
Under the current third hold harmless
test, a hold harmless arrangement exists
if there is a direct or indirect guarantee
that holds taxpayers harmless for any
portion of their tax cost. We propose to
clarify this test to specify that a State
can provide a direct or indirect
guarantee through a direct or indirect
payment. An indirect guarantee can be
found based on the test as explained
and modified below. A direct guarantee
will be found when a State payment is
made available to a taxpayer or a party
related to the taxpayer (for example, as
a nursing home resident is related to a
nursing home), in the reasonable
expectation that the payment would
result in the taxpayer being held
harmless for any part of the tax. A direct
guarantee does not need to be an
explicit promise or assurance of
payment. Instead, the element necessary
to constitute a direct guarantee is the
provision for payment by State statute,
regulation, or policy.
An indirect payment to the taxpayer
would also constitute a direct guarantee.
One such example of this indirect
payment providing a direct guarantee
would be found where a State imposing
a tax on nursing facilities provided
grants or tax credits to private pay
residents of those facilities that could be
used to compensate those residents for
any portion of the tax amount that the
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State has allowed to be passed down to
them by their nursing homes. This
represents a direct guarantee of an
indirect payment to taxpayers.
Additionally, we interpret the phrase
‘‘all or any portion of the tax amount’’
to mean that a guarantee exists when a
taxpayer is assured that money will be
made available for repayment for any
identifiable portion of the tax liability.
An indirect guarantee is distinct from
a direct guarantee in that the payment
to the provider is through regular or
enhanced payments for pre-existing
Medicaid obligations. We discuss
indirect guarantees separately below.
C. Indirect Guarantee Hold Harmless
Arrangements
Currently, under § 433.68(f)(3)(i) an
indirect hold harmless violation is
determined using a two pronged test. If
a health care-related tax or taxes are
applied at a rate that produces revenues
less than 6 percent of the revenues
received by the taxpayers, the tax or
taxes will not be in violation of the
indirect hold harmless provision. If a
health care-related tax or taxes exceed a
6 percent rate, we would consider a
hold harmless to exist if 75 percent or
more of the taxpayers in the class
receive 75 percent or more of their total
tax back in enhanced Medicaid
payments or other State payments. The
second prong of this test applies the test
in the aggregate to all health care-related
taxes applicable to each class. Moreover,
in applying this test, we may consider
as ‘‘enhanced Medicaid payments’’ any
amount that any branch of the State,
including legislative and executive
branches, has indicated could be subject
to reduction in the absence of provider
tax revenues.
The Tax Relief and Health Care Act of
2006 has lowered the maximum
threshold under the indirect hold
harmless provision from 6 percent of net
patient service revenue to 5.5 percent
effective in fiscal years beginning on or
after January 1, 2008 through September
30, 2011, prior to a State being required
to demonstrate the second prong of the
indirect hold harmless provision.
D. Permissible Class of Services—
Intermediate Care Facilities for the
Mentally Retarded—§ 433.56(a)(4)
In the interim final rule with
comment that implemented Medicaid
Voluntary Contribution and Provider
Specific Tax Amendments of 1991, the
statutory class of health care items and
services at section 1903(w)(7)(iv) of the
Act for services of intermediate care
facilities for the mentally retarded (ICF/
MR) was expanded to include similar
services furnished by community-based
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residences for the mentally retarded
under a waiver under section 1915(c) of
the Act, in a State in which, as of
December 24, 1992, at least 85 percent
of those facilities were classified as ICF/
MRs before the grant of the waiver.
These services furnished by the
residences were added because, ‘‘in
some States, many former ICF/MRs were
converted to group homes under the
waivers. These facilities could easily be
converted back to ICF/MRs.’’ This
exception was very narrow and was
only intended to capture those States
that, before the issuance of the interim
final rule December 24, 1992, were
granted waivers that converted existing
ICF/MRs to community-based
residences.
We no longer believe that it is
appropriate to include community
residences in the ICF/MR class even to
the extent of this narrow exception. We
are no longer concerned that States will
convert group homes back to ICF/MRs
because of the general success of the
home and community based services
program. As important, it is not
equitable to accord different treatment
to States that converted ICF/MRs before
December 24, 1992 than to other States.
Therefore, we are clarifying at
§ 433.56(a)(4) the permissible class for
purposes of health care-related taxes to
those services of ICF/MRs.
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E. Hold Harmless Tests for Determining
Bona Fide Provider Related Donations
At § 433.54(c), the regulations contain
tests for hold harmless arrangements
with respect to provider-related
donations that are similar to those with
respect to provider taxes. For the
reasons discussed above with respect to
provider taxes, we are proposing
parallel revisions to this section. We
note that, similar to the provisions
concerning provider taxes, we intend
that a hold harmless arrangement would
be found without regard to whether the
transfers of funds that are the basis for
the donation or the repayment are
collected or distributed through third
parties (such as patients, provider
associations, or other entities).
F. Miscellaneous
Section 1903(w) of the Act, as added
by the Medicaid Voluntary Contribution
and Provider Specific Tax Amendments
of 1991, became effective January 1,
1992. However, section 1903(w)(1)(C)(ii)
of the Act provided for transition
periods during which, under certain
circumstances, States could receive,
without a reduction in FFP, revenues
from provider-related donations and
impermissible health care-related tax
programs in effect before the enactment
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of the Medicaid Voluntary Contribution
and Provider Specific Tax Amendments
of 1991. The requirements related to
these transition periods are currently
located in various sections of the
current regulation from § 433.58 through
§ 433.68. The last transition period
expired in 1993.
We are proposing to remove from
within the regulatory text all references
to collection of provider-related
donations and health care-related taxes
during the transition periods since all
transition periods have expired. We
believe this would create a more
streamlined regulation that is easier to
read.
III. Collection of Information
Requirements
This document does not impose
information collection and
recordkeeping requirements.
Consequently, it need not be reviewed
by the Office of Management and
Budget under the authority of the
Paperwork Reduction Act of 1995 (44
U.S.C. 35).
IV. Response to Comments
Because of the large number of public
comments we normally receive on
Federal Register documents, we are not
able to acknowledge or respond to them
individually. We will consider all
comments we receive by the date and
time specified in the DATES section of
this preamble, and, when we proceed
with a subsequent document, we will
respond to the comments in the
preamble to that document.
V. Regulatory Impact Analysis
[If you choose to comment on issues
in this section, please include the
caption ‘‘Regulatory Impact Analysis’’ at
the beginning of your comments.]
A. Overall Impact
We have examined the impact of this
rule as required by Executive Order
12866 (September 1993, Regulatory
Planning and Review), the Regulatory
Flexibility Act (RFA) (September 19,
1980, Pub. L. 96–354), section 1102(b) of
the Social Security Act, the Unfunded
Mandates Reform Act of 1995 (Pub. L.
104–4), and Executive Order 13132.
Executive Order 12866 (as amended
by Executive Order 13258, which
merely reassigns responsibility of
duties) directs agencies to assess all
costs and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
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13731
equity). A regulatory impact analysis
(RIA) must be prepared for major rules
with economically significant effects
($100 million or more in any 1 year).
This rule would surpass the economic
threshold and is considered a major
rule. This rule is estimated to reduce
Federal Medicaid outlays by $85 million
in FY 2008 and by $115 million per year
in FY 2009 through FY 2011.
The RFA requires agencies to analyze
options for regulatory relief of small
businesses. 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 $6 million to $29 million in any 1
year. Individuals and States are not
included in the definition of a small
entity. We are not preparing an analysis
for the RFA because the regulation will
not have a direct impact on small
entities. In this case the regulation
directly affects payments the States
receive from the Federal government
and the impact on health care facilities
is a secondary impact.
While the impact on health care
facilities is secondary, we nevertheless
discuss the potential impact on small
entities. First, the reduced tax limit
proposed under this rule would help
alleviate tax burdens on small health
care facilities, to the extent they were
subject to a health care-related tax. If
States choose to maintain
reimbursement rates, small health care
facilities may receive higher net
Medicaid reimbursement in light of the
reduced tax burden. However, States
may be unwilling to maintain
reimbursement rates without the full
revenue from the health care-related tax
to contribute to the non-Federal share.
If States choose to reduce Medicaid
reimbursement rates to small health care
facilities, this could result in lower net
Medicaid reimbursement even after
accounting for a reduction in the tax
burden.
Since we are uncertain how States
will alter their Medicaid
reimbursements in response to the
reduced tax limit, we cannot provide an
exact and quantifiable impact on such
small entities. For this reason, we would
like to specifically solicit public
comment on the impact this rule would
have on small health care facilities.
In addition, section 1102(b) of the Act
requires us to prepare a regulatory
impact analysis if a rule may have a
direct impact on the operations of a
substantial number of small rural
hospitals. This analysis must conform to
the provisions of section 603 of the
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RFA. For purposes of section 1102(b) of
the Act, we define a small rural hospital
as a hospital that is located outside of
a Metropolitan Statistical Area and has
fewer than 100 beds. We are not
preparing an analysis for section 1102(b)
of the Act because we have determined
that this rule would not have a direct
impact on the operations of a substantial
number of small rural hospitals.
Section 202 of the Unfunded
Mandates Reform Act of 1995 also
requires that agencies assess anticipated
costs and benefits before issuing any
rule whose mandates require spending
in any 1 year of $100 million in 1995
dollars, updated annually for inflation.
That threshold level is currently
approximately $120 million. This rule
would not result in expenditure in any
1 year by State, local, or tribal
governments, in the aggregate, or by the
private sector, of $120 million.
Executive Order 13132 establishes
certain requirements that an agency
must meet when it promulgates a
proposed rule (and subsequent final
rule) that imposes substantial direct
requirement costs on State and local
governments, preempts State law, or
otherwise has Federalism implications.
While this regulation would reduce the
threshold rate for allowable provider
taxes from 6 percent to 5.5 percent, this
change is required by section 403 of the
Tax Relief and Health Care Act of 2006.
This section of the statute was selfimplementing on December 20, 2006;
however, this rulemaking is necessary to
include the reduction in the regulatory
text, therefore ensuring consistency
with applicable law and thus
minimizing any confusion.
Furthermore, we do not believe the
discretionary requirements put in place
by this rulemaking would impose
substantial direct requirements or costs
on State and local governments.
B. Anticipated Effects
ESTIMATED REDUCTION IN FEDERAL MEDICAID OUTLAYS RESULTING FROM THE PROVIDER TAX REFORM PROPOSAL
BEING IMPLEMENTED BY CMS–2275–P—ANNUAL EXPECTED SAVINGS
[Amounts in millions]
Reduction in Federal Medicaid outlays in
millions
Fiscal year
2008
Provider Tax Reform ....................................................................................................
3% discount rate ..........................................................................................................
7% discount rate ..........................................................................................................
Accounting Statement
As required by OMB Circular A–4
(available at https://
www.whitehouse.gov/omb/circulars/
a004/a-4.pdf), in the table below, we
have prepared an accounting statement
showing the classification of the
expenditures associated with the
provisions of this proposed rule. This
table provides our best estimate of the
reduction in Federal Medicaid outlays
for the years 2008 through 2012 as a
result of the changes presented in this
proposed rule. This rule only affects
transfer payments between the Federal
government and State governments.
OMB—STATEMENT OF ACCOUNTS
Annualized monetized
transfers
(in millions)
3% ......................................
7% ......................................
87 per year.
88 per year.
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Provider Tax Reform
1. Effects on State Medicaid Programs
Estimates of the impact of lowering
the maximum allowable provider taxes,
fees, and assessments were derived from
Medicaid financial management reports
on State receipts from these programs
(form CMS–64.11). Since we do not
believe that all States report completely
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2009
85
83
79
their tax receipts from health carerelated taxes on the form CMS–64.11,
we bolstered our estimates by also
analyzing information reported by some
States as part of their request for waiver
of the broad-based and/or uniformity
requirements. These requests include
estimated total tax collections and total
net revenues received by taxpayers
applicable to a permissible class of
health care services. From this available
information, we identified 15 whose
receipts as of the date of the reports
were believed to equal the maximum
threshold of 6 percent of net patient
service revenue. In accordance with the
new statutory language to reduce the
maximum threshold from 6 to 5.5
percent, FFP corresponding to these
receipts would be reduced by 8.33
percent [(1–0.55/6.0) × 100]. As
described below, there are a number of
avenues available for States to address
these reductions. Accordingly, in
estimating the potential Federal savings,
we applied a behavioral offset of 50
percent to the savings calculated from
reported data as described above. In
accordance with the statute, savings
were estimated only for portions of
fiscal years beginning January 1, 2008
and ending September 30, 2011.
States have a number of options open
to them for addressing the reduction in
FFP. In order to maintain existing
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2010
115
108
100
115
105
94
2011
115
102
88
2012
0
0
0
reimbursement rates funded by a health
care related tax in excess of the 5.5
percent threshold, they can restructure
State spending and shift funds between
programs. This could result in loss of
State funding for other programs. States
may also be able to raise funds through
increases in other forms of generally
applicable tax revenue increases. This
could raise tax costs for other taxpaying
entities within States. Finally, States, as
a last resort, can reduce reimbursement
to the taxpaying health care providers.
We are uncertain which options
States may employ to address this
change.
2. Effects on Other Providers
The reduced tax limit proposed under
this rule would help alleviate tax
burdens on health care providers for
obligations to the Medicaid program
that are otherwise the responsibility of
the States. However, if States choose to
reduce reimbursement rates to health
care providers, this could result in
lower net Medicaid reimbursement for
the provider even after accounting for
reduction in the tax burden. On the
other hand, if States choose to maintain
reimbursement rates by finding other
non-Federal share sources to support
the Medicaid reimbursement rates,
providers may receive higher net
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Medicaid reimbursement in light of the
reduced tax burden.
C. Alternatives Considered
In developing this regulation the
following alternatives were considered.
First, the existing regulatory threshold
percentage of 6 percent could be
maintained. Second, we considered
reducing the regulatory threshold to 3
percent because we have noticed a
recent trend in States’ efforts to
maximize non-Federal share funding
opportunities under current Medicaid
law through taxation of health care
providers.
The result has been that the Federal
government is providing matching
funds on Medicaid rate increases that
are funded without additional State
dollars but instead, with revenues
collected from taxes on health-care
providers. This shift in fiscal
responsibilities is typically
accompanied by creative payment
mechanisms that effectively place a
disproportionate burden on the
Medicaid program relative to other
payers. In this way, States are avoiding
their payment responsibilities to the
Medicaid program by shifting their
share of the increased Medicaid
payment rate obligations to the same
health care providers serving Medicaid
beneficiaries.
The current trend in States’ approach
to taxing health care providers appears
to start with a determination of the
maximum amount of tax revenue that
can be collected from health care
providers. We have seen this
particularly in State health care-related
tax programs targeting high Medicaid
utilized services solely as the basis for
increasing Medicaid rates to those same
providers.
States appear to be exercising their
ability under the law to request waivers
of the broad based and/or uniformity
requirements of the provider tax law in
an effort to minimize the tax burden on
facilities that furnish little to no services
to Medicaid patients. Although we
would only approve such a waiver
request within the allowable regulatory
standards, States requesting the waivers
continue to propose taxes that collect
the maximum 6 percent limit and vary
the rate of tax to minimize the tax
burden on non-Medicaid facilities
within the slightest margin allowable
under current regulations. Most waiver
requests are initially submitted
applicable to a tax structure that is
inconsistent with the Federal statute
and regulations. This requires CMS to
provide ongoing feedback and
assistance to States. States ultimately
deviate from their initial tax structure
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until they are able to reach an optimal
tax structure that enables them to gain
approval while maximizing the nonMedicaid tax burden.
Through our review of these practices,
we have also noticed that many States
are applying the current statutory and
regulatory authority that permits the
exclusion of Medicare revenue from a
health care-related tax, which
effectively raises the rate of tax on only
the Medicaid revenues and commercial/
private pay revenues above the
aggregate 6 percent limit (measured on
all payers’ revenues). We have also seen
an increase in the tax revenues collected
through our examination of the
revenues reported by States on the CMS
64.11A. Based on a review of recent
quarterly expenditures, States reported
the collection of over $2.2 billion in tax
revenues from health care providers.
However, since the Tax Relief and
Health Care Act of 2006 reduced the
regulatory threshold to 5.5 percent,
none of the above mentioned
alternatives were taken.
D. Conclusion
For these reasons, we are not
preparing analysis for either the RFA or
section 1102 (b) of the Act because we
have determined that this rule would
not have a direct significant economic
impact on a substantial number of small
entities or a direct significant impact on
the operations of a substantial number
of small rural hospitals.
In accordance with the provisions of
Executive Order 12866, this regulation
was reviewed by the Office of
Management and Budget.
List of Subjects in 42 CFR Part 433
Administrative practice and
procedure, Child support, Claims, Grant
programs-health, Medicaid, Reporting
and recordkeeping requirements.
For the reasons set forth in the
preamble, the Centers for Medicare &
Medicaid Services proposes to amend
42 CFR chapter IV as follows:
PART 433—STATE FISCAL
ADMINISTRATION
1. The authority citation for part 433
continues to read as follows:
§ 433.54
*
*
*
*
(c) A hold harmless practice exists if
any of the following applies:
(1) The State (or other unit of
government) provides for a direct or
indirect non-Medicaid payment to those
providers or others making, or
responsible for, the donation, and the
payment amount is positively correlated
to the donation. A positive correlation
includes any positive relationship
between these variables, even if not
consistent over time.
(2) All or any portion of the Medicaid
payment to the donor, provider class, or
related entity, varies based only on the
amount of the donation, including
where Medicaid payment is conditional
on receipt of the donation.
(3) The State (or other unit of
government) receiving the donation
provides for any direct or indirect
payment, offset, or waiver such that the
provision of that payment, offset, or
waiver directly or indirectly guarantees
to return any portion of the donation to
the provider (or other parties
responsible for the donation).
*
*
*
*
*
3. Section 433.56 is amended by—
A. Republishing the introductory text
to paragraph (a).
B. Revising paragraph (a)(4).
C. Revising paragraph (a)(8).
The revisions read as follow:
§ 433.56 Classes of health care services
and providers defined.
(a) For purposes of this subpart, each
of the following will be considered as a
separate class of health care items or
services:
*
*
*
*
*
(4) Intermediate care facility services
for the mentally retarded;
*
*
*
*
*
(8) Services of managed care
organizations (including health
maintenance organizations, preferred
provider organizations);
*
*
*
*
*
§ 433.57
Subpart B—General Administrative
Requirements State Financial
Participation
§ 433.60
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[Amended]
4. Section § 433.57 is amended by—
A. Removing paragraph (a).
B. Redesignating existing paragraphs
(b) and (c) as paragraphs (a) and (b),
respectively.
§ 433.58
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Bona fide donations.
*
Authority: Sections 1902(a)(2), 1903(a) and
1903(w) of the Social Security Act (42 U.S.C.
1302).
2. Section 433.54 is amended by
revising paragraph (c) to read as follows:
13733
[Removed and reserved]
5. Section 433.58 is removed and
reserved.
[Removed and reserved]
6. Section 433.60 is removed and
reserved.
7. Section 433.66 is amended by—
A. Revising the section heading.
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The revisions read as follows:
B. Revising paragraph (a).
The revisions read as follows:
§ 433.68
taxes.
§ 433.66 Permissible provider-related
donations.
(a) General rule. (1) Except as
specified in paragraph (a)(2) of this
section, a State may receive revenues
from provider-related donations without
a reduction in FFP, only in accordance
with the requirements of this section.
(2) The provisions of this section
relating to provider-related donations
for outstationed eligibility workers are
effective on October 1, 1992.
*
*
*
*
*
8. Section 433.67 is amended by
revising paragraph (a)(2) to read as
follows:
§ 433.67 Limitations on level of FFP for
permissible provider-related donations.
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(a)(1) * * *
(2) Limitations on donations for
outstationed eligibility workers.
Effective October 1, 1992, the maximum
amount of provider-related donations
for outstationed eligibility workers, as
described in § 433.66(b)(2), that a State
may receive without a reduction in FFP
may not exceed 10 percent of a State’s
medical assistance administrative costs
(both the Federal and State share),
excluding the costs of family planning
activities. The 10 percent limit for
provider-related donations for
outstationed eligibility workers is not
included in the limit in effect through
September 30, 1995, for health carerelated taxes as described in § 433.70.
*
*
*
*
*
9. Section 433.68 is amended by—
A. Revising the section heading.
B. Revising paragraph (a).
C. Republishing paragraph (f)
introductory text.
D. Revising paragraphs (f)(1), (f)(2),
(f)(3) introductory text, and (f)(3)(i).
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Permissible health care-related
(a) General rule. A State may receive
health care-related taxes, without a
reduction in FFP, only in accordance
with the requirements of this section.
*
*
*
*
*
(f) Hold harmless. A taxpayer will be
considered to be held harmless under a
tax program if any of the following
conditions applies:
(1) The State (or other unit of
government) imposing the tax provides
for a direct or indirect non-Medicaid
payment to those providers or others
paying the tax and the payment amount
is positively correlated to either the tax
amount or to the difference between the
Medicaid payment and the tax amount.
A positive correlation includes any
positive relationship between these
variables, even if not consistent over
time.
(2) All or any portion of the Medicaid
payment to the taxpayer varies based
only on the tax amount, including
where Medicaid payment is conditional
on receipt of the tax amount.
(3) The State (or other unit of
government) imposing the tax provides
for any direct or indirect payment,
offset, or waiver such that the provision
of that payment, offset, or waiver
directly or indirectly guarantees to hold
taxpayers harmless for all or any portion
of the tax amount.
(i) An indirect guarantee will be
determined to exist under a two prong
‘‘guarantee’’ test. If the health carerelated tax or taxes on each health care
class are applied at a rate that produces
revenues less than or equal to 6 percent
of the revenues received by the
taxpayer, the tax or taxes are
permissible under this test, except that,
for any portion of a fiscal year beginning
PO 00000
Frm 00023
Fmt 4702
Sfmt 4702
on or after January 1, 2008 through
September 30, 2011, the applicable
percentage of net operating revenues is
5.5 percent. When the tax or taxes
produce revenues in excess of the
applicable percentage of the revenue
received by the taxpayer, CMS will
consider an indirect hold harmless
provision to exist if 75 percent or more
of the taxpayers in the class receive 75
percent or more of their total tax costs
back in enhanced Medicaid payments or
other State payments. The second prong
of the indirect hold harmless test is
applied in the aggregate to all health
care taxes applied to each class. If this
standard is violated, the amount of tax
revenue to be offset from medical
assistance expenditures is the total
amount of the taxpayers’ revenues
received by the State.
*
*
*
*
*
§ 433.70
[Amended]
10. Section 433.70 is amended by—
A. Revising the section heading.
B. Removing paragraph (a)(1).
C. Removing the paragraph
designation for existing paragraph (a)(2).
The revised heading reads as follows:
§ 433.70 Limitation on level of FFP for
revenues from health care-related taxes.
*
*
*
*
*
(Catalog of Federal Domestic Assistance
Program No. 93.778, Medical Assistance
Program.)
Dated: September 8, 2006.
Mark B. McClellan,
Administrator, Centers for Medicare &
Medicaid Services.
Approved: January 24, 2007.
Michael O. Leavitt,
Secretary.
[FR Doc. 07–1331 Filed 3–15–07; 4:00 pm]
BILLING CODE 4120–01–P
E:\FR\FM\23MRP1.SGM
23MRP1
Agencies
[Federal Register Volume 72, Number 56 (Friday, March 23, 2007)]
[Proposed Rules]
[Pages 13726-13734]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-1331]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Medicare & Medicaid Services
42 CFR Part 433
[CMS 2275-P]
RIN 0938-AO80
Medicaid Program; Health Care-Related Taxes
AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS.
ACTION: Proposed rule.
-----------------------------------------------------------------------
[[Page 13727]]
SUMMARY: This proposed rule would revise the threshold under the
indirect guarantee hold harmless arrangement test to reflect the
provisions of the Tax Relief and Health Care Act of 2006, Public Law
109-432, by providing that, when determining whether there is an
indirect guarantee under the 2-prong test for any part of a fiscal year
on or after January 1, 2008 through September 30, 2011, the allowable
amount that can be collected from a health care-related tax is reduced
from 6 to 5.5 percent of net patient revenues received by the
taxpayers. This proposed rule would also clarify the standard for
determining the existence of a hold harmless arrangement under the
positive correlation test, Medicaid payment test, and the guarantee
test (with conforming changes to parallel provisions concerning hold
harmless arrangements with respect to provider-related donations);
codify descriptions for two classes of health care services permissible
under Federal statute for purposes of taxes on health care providers;
and, remove obsolete transition period regulatory language.
DATES: To be assured consideration, comments must be received at one of
the addresses provided below, no later than 5 p.m. on May 22, 2007.
ADDRESSES: In commenting, please refer to file code CMS-2275-P. Because
of staff and resource limitations, we cannot accept comments by
facsimile (FAX) transmission. You may submit comments in one of three
ways (no duplicates, please):
1. Electronically. You may submit electronic comments to https://
www.cms.hhs.gov/regulations/ecomments (attachments should be in
Microsoft Word, WordPerfect, or Excel; however, we prefer Microsoft
Word).
2. By mail. You may mail written comments (one original and two
copies) to the following address ONLY: Centers for Medicare & Medicaid
Services, Department of Health and Human Services, Attention: CMS-2275-
P, P.O. Box 8017, Baltimore, MD 21244-8017.
Please allow sufficient time for mailed comments to be received
before the close of the comment period.
3. By hand or courier. If you prefer, you may deliver (by hand or
courier) your written comments (one original and two copies) before the
close of the comment period to one of the following addresses. If you
intend to deliver your comments to the Baltimore address, please call
telephone number (410) 786-7195 in advance to schedule your arrival
with one of our staff members. Room 445-G, Hubert H. Humphrey Building,
200 Independence Avenue, SW., Washington, DC 20201; or 7500 Security
Boulevard, Baltimore, MD 21244-1850.
(Because access to the interior of the HHH Building is not readily
available to persons without Federal Government identification,
commenters are encouraged to leave their comments in the CMS drop slots
located in the main lobby of the building. A stamp-in clock is
available for persons wishing to retain a proof of filing by stamping
in and retaining an extra copy of the comments being filed.)
Comments mailed to the addresses indicated as appropriate for hand
or courier delivery may be delayed and received after the comment
period.
FOR FURTHER INFORMATION CONTACT: Charles Hines, (410) 786-0252 or
Stuart Goldstein, (410) 786-0694.
SUPPLEMENTARY INFORMATION: Submitting Comments: We welcome comments
from the public on all issues set forth in this rule to assist us in
fully considering issues and developing policies. You can assist us by
referencing the file code CMS-2275-P and the specific ``issue
identifier'' that precedes the section on which you choose to comment.
Inspection of Public Comments: All comments received before the
close of the comment period are available for viewing by the public,
including any personally identifiable or confidential business
information that is included in a comment. After the close of the
comment period, we post all electronic comments received before the
close of the comment period on its public Web site. Comments received
timely will be available for public inspection as they are received,
generally beginning approximately 3 weeks after publication of a
document, at the headquarters of the Centers for Medicare & Medicaid
Services, 7500 Security Boulevard, Baltimore, Maryland 21244, Monday
through Friday of each week from 8:30 a.m. to 4 p.m. To schedule an
appointment to view public comments, phone 1-800-743-3951.
I. Background
A. General
Title XIX of the Social Security Act (the Act) authorizes Federal
grants to the States for Medicaid programs to provide medical
assistance to persons with limited income and resources. While Medicaid
programs are administered by the States, they are jointly financed by
the Federal and State governments. The Federal government pays its
share of medical assistance expenditures to the State on a quarterly
basis according to a formula described in sections 1903 and 1905(b) of
the Act. The amount of the Federal share of medical assistance
expenditures is called Federal financial participation (FFP). The State
pays its share of medical expenditures in accordance with section
1902(a)(2) of the Act.
The Medicaid Voluntary Contribution and Provider Specific Tax
Amendments of 1991 (Pub. L. 102-234), enacted December 12, 1991,
amended section 1903 of the Act to specify limitations on the amount of
FFP available for medical assistance expenditures in a fiscal year when
States receive certain funds donated from providers and revenues
generated by certain health care-related taxes. We issued regulations
to implement the statutory provisions concerning provider donations and
health care-related taxes in an interim final rule (with comment
period) published on November 24, 1992 (57 FR 55118). A final rule was
issued on August 13, 1993 (58 FR 43156). The Federal statute and
implementing regulations were designed to protect Medicaid providers
from being unduly burdened by tax programs. Health care related tax
programs that are compliant with the requirements set forth by the
Congress create a significant tax burden for health care providers that
do not participate in the Medicaid program or that provide limited
services to Medicaid individuals.
B. Health Care-Related Taxes
Section 1903(w) of the Act requires that State health care-related
taxes must be imposed on a permissible class of health care services;
be broad based or apply to all providers within a class; be uniform,
such that all providers within a class must be taxed at the same rate;
and avoid hold harmless arrangements in which collected taxes are
returned directly or indirectly to taxpayers. Section 1903(w)(3)(E) of
the Act specifies that the Secretary shall approve broad based (and
uniformity) waiver applications if the net impact of the health care-
related tax is generally redistributive and that the amount of the tax
is not directly correlated to Medicaid payments. The broad based and
uniformity provisions are waivable through a statistical test that
measures the degree to which the Medicaid program incurs a greater tax
burden when a State tax program is otherwise not compliant with the
broad based and/or uniformity requirement. The permissible class of
health care services and hold harmless requirements cannot be waived.
The statute and Federal regulation identify 19 permissible classes of
health care items or services
[[Page 13728]]
that States can tax without triggering a penalty against Medicaid
expenditures.
The regulatory language at 42 CFR 433.68(f) sets forth tests for
determining the presence of a hold harmless arrangement that were
directly based on the language contained in section 1903(w)(4) of the
Act. The preamble to that regulation provided guidance and some
illustrative examples of the types of health care-related tax programs
that we believed would violate the hold harmless prohibitions. In a
June 29, 2005 decision, however, the HHS Departmental Appeals Board
(DAB), DAB No. 1981, found that these regulations did not clearly
preclude certain types of arrangements that we believe to be within the
scope of the statutory hold harmless prohibition and implementing
regulations. The DAB consequently reversed disallowances issued by CMS
to five States. In each of these reversed disallowances, the States had
created programs that imposed a tax on nursing homes and simultaneously
created programs that awarded grants or tax credits to private pay
residents of those nursing homes. These grants and/or tax credits were
designed by the States to compensate private pay residents of nursing
homes for the costs of the tax passed on to them by their nursing homes
through increased charges. We concluded that the grants and tax credits
amounted to hold harmless arrangements prohibited from FFP under the
Medicaid statute and regulations.
One of the hold harmless tests, set forth in current rules at Sec.
433.68(f)(3)(i), defines arrangements that are considered to be
prohibited indirect guarantees. Taxes imposed on health care-related
providers may not exceed 6 percent of total revenues received by the
taxpayers unless the State makes a showing that, in the aggregate, 75
percent of taxpayers do not receive 75 percent or more of their total
tax costs back in enhanced Medicaid payments or other State payments.
States can tax individual classes of health care services and
providers, including inpatient hospital services, outpatient hospital
services, and nursing facility services up to 6 percent of the net
revenues received by the taxpayers within the class of health care
services without violating prohibitions on the indirect hold harmless
arrangements. The 6 percent limit was established to maintain
consistency with the average level of taxes applied to other goods and
services in the State, as discussed in the November 24, 1992 preamble
to the interim final rule implementing the statute.
On December 20, 2006 the Tax Relief and Health Care Act of 2006 was
signed into law as Public Law 109-432. Section 403 of that law
incorporated the existing regulatory test for an indirect guarantee
into the Medicaid statute but provided for a temporary reduction in the
allowable tax rate under the first prong of the test. Specifically, the
indirect hold harmless threshold has been reduced from 6 percent to 5.5
percent effective in any portion of fiscal years beginning on or after
January 1, 2008 and through September 30, 2011.
II. Provisions of the Proposed Rule
[If you choose to comment on issues in this section, please include
the caption ``PROVISIONS OF THE PROPOSED RULE'' at the beginning of
your comments.]
A. Permissible Class of Services--Managed Care Organizations--Sec.
433.56(a)(8)
Section 6051 of the Deficit Reduction Act of 2005 (DRA) (Pub. L.
109-171), enacted on February 8, 2006, amends section 1903(w)(7)(viii)
of the Act to expand the previous Medicaid managed care organization
(MCO) provider class to include all MCOs. The effective date of section
6051 of the DRA is the date of enactment, that is, February 8, 2006.
Therefore to qualify for Federal reimbursement, a State's health care-
related tax would need to apply to both Medicaid participating and non-
Medicaid participating MCOs. Previously, the statute recognized
services of a Medicaid MCO with a contract under section 1903(m) of the
Act as a permissible class of health care services. This particular
class of health care services was unlike any other permissible class of
health care services identified in statute and regulation, as it was
the only listed class of health care services that permitted taxation
of solely Medicaid providers of the service. In addition, MCOs that
participated in Medicaid were beginning to use the statutory language
to reorganize their corporate structure to protect their commercial
lines of business from tax liability. The result of this corporate
restructuring was that the tax was imposed on only the Medicaid
subsidiary of the MCO. With this reorganization, States were able to
impose a tax on only the Medicaid revenues of the MCO, effectively
shifting the entire burden of the tax to the Medicaid program.
We are proposing to implement the statutory amendment made in the
section 6051 of the DRA with conforming changes to the regulatory
provision in Sec. 433.56(a)(8). We are proposing to revise the
regulatory language to specify that all services of MCOs (including
health maintenance organizations and preferred provider organizations)
regardless of payer source will be considered a permissible class of
health care items or services for purposes of health care-related
taxes.
We note that the DRA provides a transition period for those States
with existing Medicaid MCO taxes. For those States with a Medicaid MCO
only tax enacted as of December 8, 2005, this provision becomes
effective October 1, 2009.
B. Tests To Determine Hold Harmless Arrangements--Sec. 433.68(f)
Currently, the regulations at Sec. 433.68(f) set forth three broad
tests to determine if there is a hold harmless arrangement with respect
to a health care-related tax. If States enact a tax program that
violates any of these tests, FFP will be reduced by the amount
collected through that tax program. As mentioned above, the recent DAB
decision has drawn into question how the current hold harmless
provisions will be interpreted and applied. Therefore, it is necessary
to clarify these provisions and ensure proper implementation of section
1903(w)(4) of the Act. We propose to continue using the same regulatory
structure of Sec. 433.68(f), while clarifying certain terms in each of
these hold harmless tests.
Positive Correlation Test--Sec. 433.68(f)(1)
We propose to modify and clarify the test set forth at Sec.
433.68(f)(1), also known as the positive correlation test. A State or
other unit of government will violate this test if they impose a health
care-related tax and also provide for a direct or indirect non-Medicaid
payment and the payment amount is positively correlated to the tax
amount or to the difference between the Medicaid payment and tax
amount.
This proposed rule explains that both direct and indirect payments
to providers, or others paying a health care-related tax, will be
analyzed in determining compliance with this test. We propose to
interpret the phrase ``direct and indirect non-Medicaid payment''
broadly. These payments may take many forms, such as grants or tax
credits, although there will undoubtedly be other types of payments
that we have not yet anticipated. The provision of non-Medicaid
payments may violate both the positive correlation test and the
guarantee test, discussed further below. Our discussion of direct and
indirect non-Medicaid payments is applicable to both tests.
[[Page 13729]]
Determining if a direct payment exists should be readily apparent.
When a non-Medicaid payment is made directly to a provider, and it is
positively correlated to the tax amount, then FFP will be denied for
the health care related tax.
Unlike a direct payment, an indirect payment to a provider may be
more difficult to detect. Yet, even though an indirect payment may not
be as obvious, indirect payments that are positively correlated to a
tax will also violate this test. An indirect payment can take many
forms. For example, if the State imposes a health care-related tax,
such as a tax on nursing home beds, and a provider is allowed under
State statutes or regulations (either expressly or implicitly) to pass
the costs of its tax onto patients through rate increases, payments by
the State to those non-Medicaid patients that demonstrate a linkage to
the rate increase would be an indirect payment to that provider. Under
this example, the revenue source for the payment is not relevant in
determining that the payment is an indirect payment. Money is fungible,
and, as long as the payment is from a source controlled or influenced
by the State, it will be considered in determining whether it has been
made available as compensation for the tax. In reviewing this issue, we
would look at whether the payment would be made by the entity for
documented charitable or business reasons even if the State were not
involved. We endeavored to prohibit these indirect payments in the 1993
rules, but the recent DAB decision evidences that the original rule may
have been unclear. This proposed rule is intended to further clarify
the Secretary's policy. However, the purpose of this example is only to
provide illustration of the broad scope of indirect payments. Due to
the difficulty in predicting all possible types of indirect payments,
this example does not limit our ability to detect other indirect
payments in the future.
We recognize that this test interjects some degree of subjectivity
into this analysis. However, the Congress intended to prohibit hold
harmless arrangements that directly or indirectly paid a taxpayer for
the costs of a tax. Some degree of subjective analysis is inevitable in
determining whether an indirect payment exists. We will look at all
relevant circumstances surrounding a tax and payment program to
determine whether a linkage exists to establish an indirect payment.
The phrase ``positively correlated'' was defined in the 1993 final
rule as having the ``same meaning as the statistical term.'' As is
evidenced in the DAB decision, this definition has led to much
confusion as to how ``positively correlated'' should be defined.
Therefore, we would clarify that tax and payment amounts are positively
correlated when they have a positive relationship with each other even
when that relationship is not evidenced through a strict correlation in
a mathematical sense. Two variables can be positively correlated even
though the correlation may vary over time. For example, the rate of a
tax and payment may be closely related, but, the next year, the tax
rate might be increased while the payment might stay the same. Although
the correlation between the two variables may have changed, it would
still be positive since providers incurring the tax receive increased
payments to offset the tax. For example, a State might impose a $4 a
day occupied bed tax on nursing homes, which the homes are permitted to
pass onto their residents in the form of rate increases. At or about
the same time they impose the tax, the State issues a $3.75 grant (or
tax credit) for non-Medicaid nursing home residents. A year later, the
tax might be increased to $4.10, but the grant or tax credit might
remain level. In such a case, a positive correlation would be found to
exist between the grant and the tax because, in each year, there would
be a positive correlation between the tax and grant amounts paid in
relation to each individual service unit (bed-days) to non-Medicaid
residents. The correlation would not be destroyed through the variation
of one of the two variables (in tax or grant amounts). Moreover, as
discussed above with respect to identifying indirect payments, we may
look to extrinsic evidence, such as legislative history and
circumstances surrounding the tax and grant programs, to establish the
positive correlation.
We want to make clear that a positive correlation can be discovered
in various ways. First, a positive correlation can be found through a
statistical, numerical test where a series of tax and payment amounts
are analyzed to determine if there is a statistical relationship
between both amounts. Second, a positive correlation could be found
where the rate of a tax and the rate of a non-Medicaid payment are
based on the same numeric factors (such as the amount of revenues, or
bed days). Third, a positive correlation could be found based on a
finding that the non-Medicaid payment is conditional on payment (direct
or indirect) of the tax. In addition to these numerical tests, evidence
of the intended effect of linked tax and payment programs may
demonstrate that a positive correlation exists, especially when a State
enacts the tax and/or payment programs in the same legislative session.
Tax and payment amounts, as articulated in either statute or
regulation, can be compared and if there is a positive relationship
between those amounts, then the arrangement will be considered a hold
harmless arrangement. Further, if the calculation of the payment amount
is determined in whole or in part by the tax amount, we would also find
that those amounts are positively correlated. The same would hold true
if the tax amount was calculated based in whole or in part on the
payment amount. There may be other ways that this positive relationship
could be found, and we only provide these examples as a demonstration
of the broad interpretation of the positive correlation test. It is
simply impossible to anticipate all hold harmless plans that could be
created.
Defining Tax and Payment Amounts for Hold Harmless Analyses
We propose to clarify the definition of tax amounts and payment
amounts for purposes of hold harmless analyses. We propose to unify
these definitions so that they will have identical meanings in all
three hold harmless tests. In the current rule, we use terms such as
``amount of the payment,'' ``amount of such tax,'' ``total tax cost,''
and ``amount of total tax payment.'' These slightly differing phrases
have apparently lead to confusion as to what amounts should be examined
in determining whether a hold harmless exists. We propose that in the
positive correlation test, as well as the other two tests, to use the
terms ``tax amount'' and ``payment amount.''
Although we are using standardized terminology, we intend for these
terms to encompass all of the meanings that could previously have been
attributed to each of the prior terms, to permit maximum flexibility in
analyzing the relationships between tax and payment programs, depending
on the particular circumstances presented by State tax programs. A
relationship between a tax program and Medicaid or non-Medicaid
payments, or a direct or indirect guarantee, could be found based
either on the aggregate tax amount that the provider pays over a period
of time, or on the unit tax rate that is applied for a particular
service. Therefore, if a State statute articulates a tax rate
applicable to each nursing home bed within a nursing home, then that
tax rate could be used in this analysis as the tax amount. Likewise, an
analysis could be based on aggregate payments to providers, on payments
made on a per-
[[Page 13730]]
service basis, or on payments to individual patients. As with other
terms that we have clarified, it is impossible to anticipate all
permutations of what would constitute a tax or payment amount. Our
intention is to define these terms broadly to capture new hold harmless
arrangements as they arise.
We also believe that standardization of the term ``tax amount'' and
``payment amount'' in all three tests will demonstrate that money does
not have to be expended before a hold harmless situation can be
discovered. Therefore, we will look at the State legislation creating a
tax and hold harmless payment program (for example, grant or tax credit
program). If a hold harmless situation exists on the face of the
legislation, FFP will be denied for the tax amount. It is not necessary
for us to determine, for example, the amount of grant funds actually
expended by a State in an effort to hold taxpayers harmless for the
tax. It would be extremely costly and administratively burdensome for
us to track individual monies actually paid by States in these payment
programs. If the tax and pay back programs exist to allow for a hold
harmless situation, such a hold harmless violation will be found.
Medicaid Payment Test--Sec. 433.68(f)(2)
Under the current second hold harmless test, a hold harmless
arrangement exists if all or any portion of the Medicaid payment varies
based only on the amount of the total tax payment. For the reasons
discussed above, we are proposing to revise this rule to use the
standardized terminology ``tax amount.'' We are also adding a
clarification that a Medicaid payment will be considered to vary based
on the tax amount when the payment is conditional on the tax payment.
In that circumstance, the variation between a payment of zero and a
positive payment would be based only on the payment of the tax amount.
We do not believe this clarification is inconsistent with the
provision in section 1903(w)(4) of the Act that indicates that the
restrictions on hold harmless arrangements does not prevent States from
using taxes ``to reimburse health care providers in a class for
expenditures under this title.'' Nor do we believe that this
clarification would preclude States that use cost-based payment
mechanisms from including provider tax costs as one of many provider
costs that are considered in setting individualized provider rates. But
this clarification would affect States that seek to use rates that are
based solely on the receipt of provider taxes, rather than on overall
provider costs (such as supplemental payments conditioned on receipt of
taxes). Where Medicaid payment is conditioned on receipt of taxes, we
would view the payment to be, in part or in full, to repay the taxes in
a hold harmless arrangement rather than as a protected reimbursement
for costs of Medicaid services.
This clarification is thus necessary to ensure that Medicaid
payments are not made simply to repay providers for the tax, but also
to ensure the integrity of the development of sound payment rates in
compliance with the requirements of section 1902(a)(30) of the Act. If
Medicaid payments are conditional on receipt of particular tax amounts,
it is an indication that the Medicaid payment rate would not otherwise
be consistent with efficiency, economy, and quality of care, and is
based solely on the return of funding received through the tax program.
The proposed language would, however, limit the ability of States to
expressly condition payment rates on tax receipts rather than on a
process that determines rates that are consistent with efficiency,
economy and quality of care in compliance with section 1902(a)(30)(A)
of the Act.
Guarantee Test--Sec. 433.68(f)(3)
Under the current third hold harmless test, a hold harmless
arrangement exists if there is a direct or indirect guarantee that
holds taxpayers harmless for any portion of their tax cost. We propose
to clarify this test to specify that a State can provide a direct or
indirect guarantee through a direct or indirect payment. An indirect
guarantee can be found based on the test as explained and modified
below. A direct guarantee will be found when a State payment is made
available to a taxpayer or a party related to the taxpayer (for
example, as a nursing home resident is related to a nursing home), in
the reasonable expectation that the payment would result in the
taxpayer being held harmless for any part of the tax. A direct
guarantee does not need to be an explicit promise or assurance of
payment. Instead, the element necessary to constitute a direct
guarantee is the provision for payment by State statute, regulation, or
policy.
An indirect payment to the taxpayer would also constitute a direct
guarantee. One such example of this indirect payment providing a direct
guarantee would be found where a State imposing a tax on nursing
facilities provided grants or tax credits to private pay residents of
those facilities that could be used to compensate those residents for
any portion of the tax amount that the State has allowed to be passed
down to them by their nursing homes. This represents a direct guarantee
of an indirect payment to taxpayers. Additionally, we interpret the
phrase ``all or any portion of the tax amount'' to mean that a
guarantee exists when a taxpayer is assured that money will be made
available for repayment for any identifiable portion of the tax
liability.
An indirect guarantee is distinct from a direct guarantee in that
the payment to the provider is through regular or enhanced payments for
pre-existing Medicaid obligations. We discuss indirect guarantees
separately below.
C. Indirect Guarantee Hold Harmless Arrangements
Currently, under Sec. 433.68(f)(3)(i) an indirect hold harmless
violation is determined using a two pronged test. If a health care-
related tax or taxes are applied at a rate that produces revenues less
than 6 percent of the revenues received by the taxpayers, the tax or
taxes will not be in violation of the indirect hold harmless provision.
If a health care-related tax or taxes exceed a 6 percent rate, we would
consider a hold harmless to exist if 75 percent or more of the
taxpayers in the class receive 75 percent or more of their total tax
back in enhanced Medicaid payments or other State payments. The second
prong of this test applies the test in the aggregate to all health
care-related taxes applicable to each class. Moreover, in applying this
test, we may consider as ``enhanced Medicaid payments'' any amount that
any branch of the State, including legislative and executive branches,
has indicated could be subject to reduction in the absence of provider
tax revenues.
The Tax Relief and Health Care Act of 2006 has lowered the maximum
threshold under the indirect hold harmless provision from 6 percent of
net patient service revenue to 5.5 percent effective in fiscal years
beginning on or after January 1, 2008 through September 30, 2011, prior
to a State being required to demonstrate the second prong of the
indirect hold harmless provision.
D. Permissible Class of Services--Intermediate Care Facilities for the
Mentally Retarded--Sec. 433.56(a)(4)
In the interim final rule with comment that implemented Medicaid
Voluntary Contribution and Provider Specific Tax Amendments of 1991,
the statutory class of health care items and services at section
1903(w)(7)(iv) of the Act for services of intermediate care facilities
for the mentally retarded (ICF/MR) was expanded to include similar
services furnished by community-based
[[Page 13731]]
residences for the mentally retarded under a waiver under section
1915(c) of the Act, in a State in which, as of December 24, 1992, at
least 85 percent of those facilities were classified as ICF/MRs before
the grant of the waiver. These services furnished by the residences
were added because, ``in some States, many former ICF/MRs were
converted to group homes under the waivers. These facilities could
easily be converted back to ICF/MRs.'' This exception was very narrow
and was only intended to capture those States that, before the issuance
of the interim final rule December 24, 1992, were granted waivers that
converted existing ICF/MRs to community-based residences.
We no longer believe that it is appropriate to include community
residences in the ICF/MR class even to the extent of this narrow
exception. We are no longer concerned that States will convert group
homes back to ICF/MRs because of the general success of the home and
community based services program. As important, it is not equitable to
accord different treatment to States that converted ICF/MRs before
December 24, 1992 than to other States. Therefore, we are clarifying at
Sec. 433.56(a)(4) the permissible class for purposes of health care-
related taxes to those services of ICF/MRs.
E. Hold Harmless Tests for Determining Bona Fide Provider Related
Donations
At Sec. 433.54(c), the regulations contain tests for hold harmless
arrangements with respect to provider-related donations that are
similar to those with respect to provider taxes. For the reasons
discussed above with respect to provider taxes, we are proposing
parallel revisions to this section. We note that, similar to the
provisions concerning provider taxes, we intend that a hold harmless
arrangement would be found without regard to whether the transfers of
funds that are the basis for the donation or the repayment are
collected or distributed through third parties (such as patients,
provider associations, or other entities).
F. Miscellaneous
Section 1903(w) of the Act, as added by the Medicaid Voluntary
Contribution and Provider Specific Tax Amendments of 1991, became
effective January 1, 1992. However, section 1903(w)(1)(C)(ii) of the
Act provided for transition periods during which, under certain
circumstances, States could receive, without a reduction in FFP,
revenues from provider-related donations and impermissible health care-
related tax programs in effect before the enactment of the Medicaid
Voluntary Contribution and Provider Specific Tax Amendments of 1991.
The requirements related to these transition periods are currently
located in various sections of the current regulation from Sec. 433.58
through Sec. 433.68. The last transition period expired in 1993.
We are proposing to remove from within the regulatory text all
references to collection of provider-related donations and health care-
related taxes during the transition periods since all transition
periods have expired. We believe this would create a more streamlined
regulation that is easier to read.
III. Collection of Information Requirements
This document does not impose information collection and
recordkeeping requirements. Consequently, it need not be reviewed by
the Office of Management and Budget under the authority of the
Paperwork Reduction Act of 1995 (44 U.S.C. 35).
IV. Response to Comments
Because of the large number of public comments we normally receive
on Federal Register documents, we are not able to acknowledge or
respond to them individually. We will consider all comments we receive
by the date and time specified in the DATES section of this preamble,
and, when we proceed with a subsequent document, we will respond to the
comments in the preamble to that document.
V. Regulatory Impact Analysis
[If you choose to comment on issues in this section, please include
the caption ``Regulatory Impact Analysis'' at the beginning of your
comments.]
A. Overall Impact
We have examined the impact of this rule as required by Executive
Order 12866 (September 1993, Regulatory Planning and Review), the
Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354),
section 1102(b) of the Social Security Act, the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104-4), and Executive Order 13132.
Executive Order 12866 (as amended by Executive Order 13258, which
merely reassigns responsibility of duties) directs agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). A
regulatory impact analysis (RIA) must be prepared for major rules with
economically significant effects ($100 million or more in any 1 year).
This rule would surpass the economic threshold and is considered a
major rule. This rule is estimated to reduce Federal Medicaid outlays
by $85 million in FY 2008 and by $115 million per year in FY 2009
through FY 2011.
The RFA requires agencies to analyze options for regulatory relief
of small businesses. 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
$6 million to $29 million in any 1 year. Individuals and States are not
included in the definition of a small entity. We are not preparing an
analysis for the RFA because the regulation will not have a direct
impact on small entities. In this case the regulation directly affects
payments the States receive from the Federal government and the impact
on health care facilities is a secondary impact.
While the impact on health care facilities is secondary, we
nevertheless discuss the potential impact on small entities. First, the
reduced tax limit proposed under this rule would help alleviate tax
burdens on small health care facilities, to the extent they were
subject to a health care-related tax. If States choose to maintain
reimbursement rates, small health care facilities may receive higher
net Medicaid reimbursement in light of the reduced tax burden. However,
States may be unwilling to maintain reimbursement rates without the
full revenue from the health care-related tax to contribute to the non-
Federal share. If States choose to reduce Medicaid reimbursement rates
to small health care facilities, this could result in lower net
Medicaid reimbursement even after accounting for a reduction in the tax
burden.
Since we are uncertain how States will alter their Medicaid
reimbursements in response to the reduced tax limit, we cannot provide
an exact and quantifiable impact on such small entities. For this
reason, we would like to specifically solicit public comment on the
impact this rule would have on small health care facilities.
In addition, section 1102(b) of the Act requires us to prepare a
regulatory impact analysis if a rule may have a direct impact on the
operations of a substantial number of small rural hospitals. This
analysis must conform to the provisions of section 603 of the
[[Page 13732]]
RFA. For purposes of section 1102(b) of the Act, we define a small
rural hospital as a hospital that is located outside of a Metropolitan
Statistical Area and has fewer than 100 beds. We are not preparing an
analysis for section 1102(b) of the Act because we have determined that
this rule would not have a direct impact on the operations of a
substantial number of small rural hospitals.
Section 202 of the Unfunded Mandates Reform Act of 1995 also
requires that agencies assess anticipated costs and benefits before
issuing any rule whose mandates require spending in any 1 year of $100
million in 1995 dollars, updated annually for inflation. That threshold
level is currently approximately $120 million. This rule would not
result in expenditure in any 1 year by State, local, or tribal
governments, in the aggregate, or by the private sector, of $120
million.
Executive Order 13132 establishes certain requirements that an
agency must meet when it promulgates a proposed rule (and subsequent
final rule) that imposes substantial direct requirement costs on State
and local governments, preempts State law, or otherwise has Federalism
implications. While this regulation would reduce the threshold rate for
allowable provider taxes from 6 percent to 5.5 percent, this change is
required by section 403 of the Tax Relief and Health Care Act of 2006.
This section of the statute was self-implementing on December 20, 2006;
however, this rulemaking is necessary to include the reduction in the
regulatory text, therefore ensuring consistency with applicable law and
thus minimizing any confusion. Furthermore, we do not believe the
discretionary requirements put in place by this rulemaking would impose
substantial direct requirements or costs on State and local
governments.
B. Anticipated Effects
Estimated Reduction in Federal Medicaid Outlays Resulting From the Provider Tax Reform Proposal Being
Implemented by CMS-2275-P--Annual Expected Savings
[Amounts in millions]
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Reduction in Federal Medicaid outlays in
millions
----------------------------------------------------------------------------------------------------------------
Fiscal year
----------------------------------------------------------------------------------------------------------------
2008 2009 2010 2011 2012
----------------------------------------------------------------------------------------------------------------
Provider Tax Reform...................................... 85 115 115 115 0
3% discount rate......................................... 83 108 105 102 0
7% discount rate......................................... 79 100 94 88 0
----------------------------------------------------------------------------------------------------------------
Accounting Statement
As required by OMB Circular A-4 (available at https://
www.whitehouse.gov/omb/circulars/a004/a-4.pdf), in the table below, we
have prepared an accounting statement showing the classification of the
expenditures associated with the provisions of this proposed rule. This
table provides our best estimate of the reduction in Federal Medicaid
outlays for the years 2008 through 2012 as a result of the changes
presented in this proposed rule. This rule only affects transfer
payments between the Federal government and State governments.
OMB--Statement of Accounts
------------------------------------------------------------------------
Annualized monetized transfers (in
millions)
------------------------------------------------------------------------
3%..................................... 87 per year.
7%..................................... 88 per year.
------------------------------------------------------------------------
Provider Tax Reform
1. Effects on State Medicaid Programs
Estimates of the impact of lowering the maximum allowable provider
taxes, fees, and assessments were derived from Medicaid financial
management reports on State receipts from these programs (form CMS-
64.11). Since we do not believe that all States report completely their
tax receipts from health care-related taxes on the form CMS-64.11, we
bolstered our estimates by also analyzing information reported by some
States as part of their request for waiver of the broad-based and/or
uniformity requirements. These requests include estimated total tax
collections and total net revenues received by taxpayers applicable to
a permissible class of health care services. From this available
information, we identified 15 whose receipts as of the date of the
reports were believed to equal the maximum threshold of 6 percent of
net patient service revenue. In accordance with the new statutory
language to reduce the maximum threshold from 6 to 5.5 percent, FFP
corresponding to these receipts would be reduced by 8.33 percent [(1-
0.55/6.0) x 100]. As described below, there are a number of avenues
available for States to address these reductions. Accordingly, in
estimating the potential Federal savings, we applied a behavioral
offset of 50 percent to the savings calculated from reported data as
described above. In accordance with the statute, savings were estimated
only for portions of fiscal years beginning January 1, 2008 and ending
September 30, 2011.
States have a number of options open to them for addressing the
reduction in FFP. In order to maintain existing reimbursement rates
funded by a health care related tax in excess of the 5.5 percent
threshold, they can restructure State spending and shift funds between
programs. This could result in loss of State funding for other
programs. States may also be able to raise funds through increases in
other forms of generally applicable tax revenue increases. This could
raise tax costs for other taxpaying entities within States. Finally,
States, as a last resort, can reduce reimbursement to the taxpaying
health care providers.
We are uncertain which options States may employ to address this
change.
2. Effects on Other Providers
The reduced tax limit proposed under this rule would help alleviate
tax burdens on health care providers for obligations to the Medicaid
program that are otherwise the responsibility of the States. However,
if States choose to reduce reimbursement rates to health care
providers, this could result in lower net Medicaid reimbursement for
the provider even after accounting for reduction in the tax burden. On
the other hand, if States choose to maintain reimbursement rates by
finding other non-Federal share sources to support the Medicaid
reimbursement rates, providers may receive higher net
[[Page 13733]]
Medicaid reimbursement in light of the reduced tax burden.
C. Alternatives Considered
In developing this regulation the following alternatives were
considered. First, the existing regulatory threshold percentage of 6
percent could be maintained. Second, we considered reducing the
regulatory threshold to 3 percent because we have noticed a recent
trend in States' efforts to maximize non-Federal share funding
opportunities under current Medicaid law through taxation of health
care providers.
The result has been that the Federal government is providing
matching funds on Medicaid rate increases that are funded without
additional State dollars but instead, with revenues collected from
taxes on health-care providers. This shift in fiscal responsibilities
is typically accompanied by creative payment mechanisms that
effectively place a disproportionate burden on the Medicaid program
relative to other payers. In this way, States are avoiding their
payment responsibilities to the Medicaid program by shifting their
share of the increased Medicaid payment rate obligations to the same
health care providers serving Medicaid beneficiaries.
The current trend in States' approach to taxing health care
providers appears to start with a determination of the maximum amount
of tax revenue that can be collected from health care providers. We
have seen this particularly in State health care-related tax programs
targeting high Medicaid utilized services solely as the basis for
increasing Medicaid rates to those same providers.
States appear to be exercising their ability under the law to
request waivers of the broad based and/or uniformity requirements of
the provider tax law in an effort to minimize the tax burden on
facilities that furnish little to no services to Medicaid patients.
Although we would only approve such a waiver request within the
allowable regulatory standards, States requesting the waivers continue
to propose taxes that collect the maximum 6 percent limit and vary the
rate of tax to minimize the tax burden on non-Medicaid facilities
within the slightest margin allowable under current regulations. Most
waiver requests are initially submitted applicable to a tax structure
that is inconsistent with the Federal statute and regulations. This
requires CMS to provide ongoing feedback and assistance to States.
States ultimately deviate from their initial tax structure until they
are able to reach an optimal tax structure that enables them to gain
approval while maximizing the non-Medicaid tax burden.
Through our review of these practices, we have also noticed that
many States are applying the current statutory and regulatory authority
that permits the exclusion of Medicare revenue from a health care-
related tax, which effectively raises the rate of tax on only the
Medicaid revenues and commercial/private pay revenues above the
aggregate 6 percent limit (measured on all payers' revenues). We have
also seen an increase in the tax revenues collected through our
examination of the revenues reported by States on the CMS 64.11A. Based
on a review of recent quarterly expenditures, States reported the
collection of over $2.2 billion in tax revenues from health care
providers.
However, since the Tax Relief and Health Care Act of 2006 reduced
the regulatory threshold to 5.5 percent, none of the above mentioned
alternatives were taken.
D. Conclusion
For these reasons, we are not preparing analysis for either the RFA
or section 1102 (b) of the Act because we have determined that this
rule would not have a direct significant economic impact on a
substantial number of small entities or a direct significant impact on
the operations of a substantial number of small rural hospitals.
In accordance with the provisions of Executive Order 12866, this
regulation was reviewed by the Office of Management and Budget.
List of Subjects in 42 CFR Part 433
Administrative practice and procedure, Child support, Claims, Grant
programs-health, Medicaid, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Centers for Medicare
& Medicaid Services proposes to amend 42 CFR chapter IV as follows:
PART 433--STATE FISCAL ADMINISTRATION
1. The authority citation for part 433 continues to read as
follows:
Authority: Sections 1902(a)(2), 1903(a) and 1903(w) of the
Social Security Act (42 U.S.C. 1302).
Subpart B--General Administrative Requirements State Financial
Participation
2. Section 433.54 is amended by revising paragraph (c) to read as
follows:
Sec. 433.54 Bona fide donations.
* * * * *
(c) A hold harmless practice exists if any of the following
applies:
(1) The State (or other unit of government) provides for a direct
or indirect non-Medicaid payment to those providers or others making,
or responsible for, the donation, and the payment amount is positively
correlated to the donation. A positive correlation includes any
positive relationship between these variables, even if not consistent
over time.
(2) All or any portion of the Medicaid payment to the donor,
provider class, or related entity, varies based only on the amount of
the donation, including where Medicaid payment is conditional on
receipt of the donation.
(3) The State (or other unit of government) receiving the donation
provides for any direct or indirect payment, offset, or waiver such
that the provision of that payment, offset, or waiver directly or
indirectly guarantees to return any portion of the donation to the
provider (or other parties responsible for the donation).
* * * * *
3. Section 433.56 is amended by--
A. Republishing the introductory text to paragraph (a).
B. Revising paragraph (a)(4).
C. Revising paragraph (a)(8).
The revisions read as follow:
Sec. 433.56 Classes of health care services and providers defined.
(a) For purposes of this subpart, each of the following will be
considered as a separate class of health care items or services:
* * * * *
(4) Intermediate care facility services for the mentally retarded;
* * * * *
(8) Services of managed care organizations (including health
maintenance organizations, preferred provider organizations);
* * * * *
Sec. 433.57 [Amended]
4. Section Sec. 433.57 is amended by--
A. Removing paragraph (a).
B. Redesignating existing paragraphs (b) and (c) as paragraphs (a)
and (b), respectively.
Sec. 433.58 [Removed and reserved]
5. Section 433.58 is removed and reserved.
Sec. 433.60 [Removed and reserved]
6. Section 433.60 is removed and reserved.
7. Section 433.66 is amended by--
A. Revising the section heading.
[[Page 13734]]
B. Revising paragraph (a).
The revisions read as follows:
Sec. 433.66 Permissible provider-related donations.
(a) General rule. (1) Except as specified in paragraph (a)(2) of
this section, a State may receive revenues from provider-related
donations without a reduction in FFP, only in accordance with the
requirements of this section.
(2) The provisions of this section relating to provider-related
donations for outstationed eligibility workers are effective on October
1, 1992.
* * * * *
8. Section 433.67 is amended by revising paragraph (a)(2) to read
as follows:
Sec. 433.67 Limitations on level of FFP for permissible provider-
related donations.
(a)(1) * * *
(2) Limitations on donations for outstationed eligibility workers.
Effective October 1, 1992, the maximum amount of provider-related
donations for outstationed eligibility workers, as described in Sec.
433.66(b)(2), that a State may receive without a reduction in FFP may
not exceed 10 percent of a State's medical assistance administrative
costs (both the Federal and State share), excluding the costs of family
planning activities. The 10 percent limit for provider-related
donations for outstationed eligibility workers is not included in the
limit in effect through September 30, 1995, for health care-related
taxes as described in Sec. 433.70.
* * * * *
9. Section 433.68 is amended by--
A. Revising the section heading.
B. Revising paragraph (a).
C. Republishing paragraph (f) introductory text.
D. Revising paragraphs (f)(1), (f)(2), (f)(3) introductory text,
and (f)(3)(i).
The revisions read as follows:
Sec. 433.68 Permissible health care-related taxes.
(a) General rule. A State may receive health care-related taxes,
without a reduction in FFP, only in accordance with the requirements of
this section.
* * * * *
(f) Hold harmless. A taxpayer will be considered to be held
harmless under a tax program if any of the following conditions
applies:
(1) The State (or other unit of government) imposing the tax
provides for a direct or indirect non-Medicaid payment to those
providers or others paying the tax and the payment amount is positively
correlated to either the tax amount or to the difference between the
Medicaid payment and the tax amount. A positive correlation includes
any positive relationship between these variables, even if not
consistent over time.
(2) All or any portion of the Medicaid payment to the taxpayer
varies based only on the tax amount, including where Medicaid payment
is conditional on receipt of the tax amount.
(3) The State (or other unit of government) imposing the tax
provides for any direct or indirect payment, offset, or waiver such
that the provision of that payment, offset, or waiver directly or
indirectly guarantees to hold taxpayers harmless for all or any portion
of the tax amount.
(i) An indirect guarantee will be determined to exist under a two
prong ``guarantee'' test. If the health care-related tax or taxes on
each health care class are applied at a rate that produces revenues
less than or equal to 6 percent of the revenues received by the
taxpayer, the tax or taxes are permissible under this test, except
that, for any portion of a fiscal year beginning on or after January 1,
2008 through September 30, 2011, the applicable percentage of net
operating revenues is 5.5 percent. When the tax or taxes produce
revenues in excess of the applicable percentage of the revenue received
by the taxpayer, CMS will consider an indirect hold harmless provision
to exist if 75 percent or more of the taxpayers in the class receive 75
percent or more of their total tax costs back in enhanced Medicaid
payments or other State payments. The second prong of the indirect hold
harmless test is applied in the aggregate to all health care taxes
applied to each class. If this standard is violated, the amount of tax
revenue to be offset from medical assistance expenditures is the total
amount of the taxpayers' revenues received by the State.
* * * * *
Sec. 433.70 [Amended]
10. Section 433.70 is amended by--
A. Revising the section heading.
B. Removing paragraph (a)(1).
C. Removing the paragraph designation for existing paragraph
(a)(2).
The revised heading reads as follows:
Sec. 433.70 Limitation on level of FFP for revenues from health care-
related taxes.
* * * * *
(Catalog of Federal Domestic Assistance Program No. 93.778, Medical
Assistance Program.)
Dated: September 8, 2006.
Mark B. McClellan,
Administrator, Centers for Medicare & Medicaid Services.
Approved: January 24, 2007.
Michael O. Leavitt,
Secretary.
[FR Doc. 07-1331 Filed 3-15-07; 4:00 pm]
BILLING CODE 4120-01-P