Medicaid Program; Disproportionate Share Hospital Allotments and Institutions for Mental Diseases Disproportionate Share Hospital Limits for FY 2012, and Preliminary FY 2013 Disproportionate Share Hospital Allotments and Limits

AGENCY:

Centers for Medicare & Medicaid Services (CMS), HHS.

ACTION:

Notice.

SUMMARY:

This notice announces the final federal share disproportionate share hospital (DSH) allotments for federal fiscal year (FY) 2012 and the preliminary federal share DSH allotments for FY 2013. This notice also announces the final FY 2012 and the preliminary FY 2013 limits on aggregate DSH payments that states may make to institutions for mental diseases (IMDs) and other mental health facilities. This notice also includes background information describing the methodology for determining the amounts of states' FY DSH allotments and IMD DSH limits.

DATES:

Effective Date: This notice is effective on August 26, 2013. The final allotments and limitations set forth in this notice are effective for the fiscal years specified.

FOR FURTHER INFORMATION CONTACT:

Richard Strauss, (410) 786-2019.

SUPPLEMENTARY INFORMATION:

I. Background

In general, in accordance with the methodology specified under section 1923(f)(3) of the Social Security Act (the Act), a state's federal fiscal year (FY) disproportionate share hospital (DSH) allotment is calculated by increasing the amount of its DSH allotment for the preceding FY by the percentage change in the Consumer Price Index for all Urban Consumers (CPI-U) for the previous FY. Also in accordance with section 1923(f)(3) of the Act, a state's DSH allotment for a FY is subject to the limitation that an increase to a state's DSH allotment for a FY cannot result in the DSH allotment exceeding the greater of the state's DSH allotment for the previous FY or 12 percent of the state's total medical assistance expenditures for the allotment year (this is referred to as the 12 percent limit).

Furthermore, under section 1923(h) of the Act, federal financial participation (FFP) for DSH payments to institutions for mental diseases (IMDs) and other mental health facilities is limited to state-specific aggregate amounts determined in accordance with the methodology specified under such section. Under this provision, the aggregate limit for DSH payments to IMDs and other mental health facilities is the lesser of a state's FY 1995 total computable (state and federal share) IMD and other mental health facility DSH expenditures applicable to the state's FY 1995 DSH allotment (as reported on the Form CMS-64 as of January 1, 1997), or the amount equal to the product of the state's current year total computable DSH allotment and the applicable percentage specified in section 1902(h) of the Act (the applicable percentage is the IMD share of DSH total computable expenditures as of FY 1995).

In general, we determine states' DSH allotments and IMD DSH limits for a FY using the most recent available estimates of or actual medical assistance expenditures, including DSH expenditures in their Medicaid programs and the most recent available change in the CPI-U used for the FY in accordance with the methodology prescribed in statute. The indicated estimated or actual expenditures are obtained from states for each relevant FY from the most recent available quarterly Medicaid budget reports (Form CMS-37) or quarterly Medicaid expenditure reports (Form CMS-64), respectively, submitted by the states. For example, as part of the initial determination of a state's FY DSH allotment (referred to as the preliminary DSH allotments) that is determined before the beginning of the FY for which the DSH allotments and IMD DSH limits are being determined, we use estimated expenditures for the FY obtained from the August submission of the CMS-37 submitted by states prior to the beginning of the FY; such estimated expenditures are subject to update and revision during the FY before such actual expenditure data become available. We also use the most recent available estimated CPI-U percentage change that is available before the beginning of the FY for determining the states' preliminary FY DSH allotments; such estimated CPI-U percentage change is subject to update and revision during the FY before the actual CPI-U percentage change becomes available. In determining the final DSH allotments and IMD DSH limits for a FY we use the actual expenditures for the FY and actual CPI-U percentage change for the previous FY.

II. Provisions of the Notice

A. Calculation of the Final FY 2012 Federal Share State DSH Allotments, and the Preliminary FY 2013 Federal Share State DSH Allotments

1. Final FY 2012 Federal Share State DSH Allotments

Chart 1 of the Addendum to this notice provides the states' final FY 2012 DSH allotments determined in accordance with section 1923(f)(3) of the Act. As described in the background section, in general, the DSH allotment for a FY is calculated by increasing the FY DSH allotment for the preceding FY by the CPI-U increase for the previous fiscal year. For purposes of calculating the states' final FY 2012 DSH allotments, the preceding final fiscal year DSH allotments (for FY 2011) were contained in the Federal Register published on July 24, 2012 (77 FR 43301). For purposes of calculating the states' final FY 2012 DSH allotments we are using the actual Medicaid expenditures for FY 2012. Finally, for purposes of calculating the states' final FY 2012 DSH allotments, the applicable historical percentage change in the CPI-U for the previous FY (FY 2011) was 2.6 percent; we note that this is an increase from the estimated 2.4 percentage change in the CPI-U for FY 2011 that was available and used in the calculation of the preliminary FY 2012 DSH allotments which were published in the July 24, 2012 Federal Register (77 FR 43301).

2. Calculation of the Preliminary FY 2013 Federal Share State DSH Allotments

Chart 2 of the Addendum to this notice provides the preliminary FY 2013 DSH allotments determined in accordance with section 1923(f)(3) of the Act. The preliminary FY 2013 DSH allotments contained in this notice were determined based on the most recent available estimates from states of their FY 2013 total computable Medicaid expenditures. Also, the preliminary FY 2013 allotments contained in this notice were determined by increasing the final FY 2012 DSH allotments as contained in this notice (and described in section II.A.1. above) by 2.4 percent, representing the most recent available estimate of the percentage increase in the CPI-U for FY 2012 (the previous FY to FY 2013). In this regard, we note that in September of 2012 for purposes of calculating preliminary FY 2013 DSH allotments for states (which at that time was prior to the beginning FY 2013), we calculated such preliminary FY 2013 allotments by increasing states' preliminary FY 2012 allotments by 2.5 percent, representing the estimate of the percentage change in the CPI-U for FY 2012 available at that time. Again, we note that the preliminary FY 2013 allotments contained in this notice were determined using the final FY 2012 DSH allotments contained in this notice, the most recent available estimates of FY 2013 Medicaid expenditures, and the most recent available estimate of the percentage change in the CPI-U for FY 2012.

States' final FY 2013 DSH allotments will be published in future rulemaking based on the states' four quarterly Medicaid expenditure reports (Form CMS-64) for FY 2013 available following the end of FY 2013 and the actual change in the CPI-U for FY 2012.

B. Calculation of the Final FY 2012 and the Preliminary FY 2013 IMD DSH Limits

Section 1923(h) of the Act specifies the methodology to be used to establish the limits on the amount of DSH payments that a state can make to IMDs and other mental health facilities. FFP is not available for IMD or DSH payments that exceed the IMD limits. In this notice, we are publishing the final FY 2012 and the preliminary FY 2013 IMD DSH Limits determined in accordance with the provisions discussed above.

Charts 3 and 4 of the “Addendum” to this notice detail each state's final FY 2012 and preliminary FY 2013 IMD DSH Limit, respectively, determined in accordance with section 1923(h) of the Act

III. Collection of Information Requirements

This notice does not impose any new or revised information collection or recordkeeping requirements. The requirements and burden associated with Form CMS-37 (OMB No. 0938-0101), and Form CMS-64 (OMB No. 0938-0067) are unaffected by this notice. Consequently, this notice, the Form CMS-37, and Form CMS-64 are not subject to Office of Management and Budget review under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

IV. Regulatory Impact Statement

We have examined the impact of this notice as required by Executive Order 12866 on Regulatory Planning and Review (September 1993), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Act, section 202 of the Unfunded Mandates Reform Act of 1995 (March 22, 1995; Pub. L. 104-4), Executive Order 13132 on Federalism (August 4, 1999) and the Congressional Review Act (5 U.S.C. 804(2)).

Executive Order 12866 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 notice reaches the $100 million economic threshold and thus is considered a major rule under the Congressional Review Act.

The final FY 2012 DSH allotments being published in this notice are approximately $20 million more than the preliminary FY 2012 DSH allotments published in the July 24, 2012 Federal Register (77 FR 43301). The increase in the final FY 2012 DSH allotments is due to the difference between the actual percentage change in the CPI-U for FY 2011 used in the calculation of the final FY 2012 allotments [2.6 percent) as compared to the estimated percentage change in the CPI-U for FY 2011 used in the calculation of the preliminary FY 2012 allotments (2.4 percent). The final FY 2012 IMD DSH limits being published in this notice are approximately $1 million more than the preliminary FY 2012 IMD DSH limits published in the July 24, 2012 Federal Register (77 FR 43301). The increases in the IMD DSH limits are because the DSH allotment for a FY is a factor in the determination of the IMD DSH limit for the FY. Since the final FY 2012 DSH allotments were increased as compared to the preliminary FY 2012 DSH allotments, the associated FY 2012 IMD DSH limits for some states were also increased.

The preliminary FY 2013 DSH allotments being published in this notice are about $182 million more than the final FY 2012 DSH allotments being published in this notice. The increase in the DSH allotments is due to the application of the statutory formula for calculating DSH allotments under which the prior fiscal year allotments are increased by the percentage increase in the CPI-U for the prior fiscal year. The preliminary FY 2013 IMD DSH limits being published in this notice are about $13 million more than the final FY 2012 IMD DSH limits being published in this notice. The increase in the IMD DSH limits is because the DSH allotment for a FY is a factor in the determination of the IMD DSH limit for the FY. Since the preliminary FY 2013 DSH allotments are greater than the final FY 2012 DSH allotments, the associated preliminary FY 2013 IMD DSH limits for some states also increased.

The RFA requires agencies to analyze options for regulatory relief of small businesses, if a rule has a significant impact on a substantial number of small entities. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. Most hospitals and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of less than $7.0 million to $34.5 million in any one 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 Secretary has determined that this notice will not have significant economic impact on a substantial number of small entities. Specifically, any impact on providers is due to the effect of the various controlling statutes; providers are not impacted as a result of the independent regulatory action in publishing this notice. The purpose of the notice is to announce the latest distributions as required by the statute.

In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Core-Based Statistical Area for Medicaid payment regulations and has fewer than 100 beds. We are not preparing analysis for section 1102(b) of the Act because the Secretary has determined that this notice will not have a significant impact on the operations of a substantial number of small rural hospitals.

The Medicaid statute specifies the methodology for determining the amounts of states' DSH allotments and IMD DSH limits; and as described previously, the application of the methodology specified in statute results in the decreases or increases in states' DSH allotments and IMD DSH limits for the applicable FYs. The statute applicable to these allotments and limits does not apply to the determination of the amounts of DSH payments made to specific DSH hospitals; rather, these allotments and limits represent an overall limit on the total of such DSH payments. In this regard, we do not believe that this notice will have a significant economic impact on a substantial number of small entities.

Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2013, that threshold is approximately $141 million. This notice will have no consequential effect on state, local, or tribal governments, in the aggregate, or on the private sector.

Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on state and local governments, preempts state law, or otherwise has Federalism implications. Since this notice does not impose any costs on state or local governments, the requirements of E.O. 13132 are not applicable.

Alternatives Considered

The methodologies for determining the states' fiscal year DSH allotments and IMD DSH Limits, as reflected in this notice, were established in accordance with the methodologies and formula for determining states' allotments as specified in statute. This notice does not put forward any further discretionary administrative policies for determining such allotments.

Accounting Statement

As required by OMB Circular A-4 (available at http://www.whitehouse.gov/omb/circulars/a004/a-4.pdf ), in the Table 1, we have prepared an accounting statement showing the classification of the estimated expenditures associated with the provisions of this notice. Table 1 provides our best estimate of the change (decrease) in the federal share of states' Medicaid DSH payments resulting from the application of the provisions of the Medicaid statute relating to the calculation of states' FY DSH allotments and the increase in the FY DSH allotments from FY 2012 to FY 2013.

Congressional Review Act

This proposed regulation is subject to the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.) and has been transmitted to the Congress and the Comptroller General for review.

In accordance with the provisions of Executive Order 12866, this notice was reviewed by the Office of Management and Budget.

(Catalog of Federal Domestic Assistance Program No. 93.778, Medical Assistance Program)

Addendum

This addendum contains the charts 1 through 4 (preceded by associated keys) that are referred to in the preamble of this notice.

Key to Chart 1. Final DSH Allotments for FY 2012

Key to Chart 2. Preliminary DSH Allotments for FY 2013

Key to Chart 3. Final IMD DSH Limit for FY 2012

Key to Chart 4. Preliminary IMD DSH Limit for FY 2013