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Federal Register / Vol. 86, No. 146 / Tuesday, August 3, 2021 / Proposed Rules can also be applied to classes of practitioners for whom Medicaid is the only or primary payer. Additionally, state Medicaid agencies often act as employers without a formal relationship to classes of practitioners for whom Medicaid is the only or primary payer, such as home care providers or personal care assistants. Using the states established administrative processes to deduct funds to pay third parties on behalf of the practitioner, with the consent of the individual practitioner, may simplify administrative functions and program operations for the state and provide advantages to practitioners. For example, a practitioner could receive continuous health care coverage because the state automatically deducts funds for health insurance premiums on behalf of the practitioner. Providing state Medicaid agencies with the authority to make deductions from Medicaid reimbursements, with the consent of the individual practitioner, in order to make payments to a third party on behalf of the individual practitioner for benefits such as health insurance, skills training and other benefits customary for employees will ensure many of the countrys most vulnerable workers, who care for the countrys most vulnerable individuals, retain benefits which help them support themselves and their families.
We note that this proposed rule would not authorize a state to claim as a separate expenditure under its approved Medicaid state plan, amounts that are deducted from payments to individual practitioners that is, health and welfare benefit contributions, training, and similar benefits customary for employees. Under the proposed rule, should a state wish to recognize such costs, they would need to be included as part of the rate paid for the service in order to be eligible for federal financial participation. No federal financial participation would be available for such amounts apart from the federal match available for a rate paid by the state for the medical assistance service. These costs also could not be claimed by the Medicaid agency separately as an administrative expense. As a result, this proposed rule would have little to no impact on federal Medicaid funding levels.
As discussed in the January 16, 2014
final rule 79 FR 2947, 3039, the policies proposed within this rule would not require any change in state funding to the extent that practitioner rates have already factored in the cost of benefits, skills training, and other benefits customary for employees. This rule would simply ensure flexibility for states to pay for such costs directly on
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behalf of practitioners and ensure uniform access to benefits, such as health insurance, skills training and other benefits customary for employees.
Indeed, should this proposed rule be finalized, there may be cost savings resulting from the collective purchase of such benefits and greater workforce stability.
We are specifically soliciting public comments on the extent to which the proposed payment arrangements would benefit states and practitioners, particularly if and how practitioners access to benefits would be impacted, as well as any adverse impacts that may have not been anticipated. Additionally, we are seeking comments on other permissible actions based on our proposed statutory interpretation that might similarly simplify and streamline states operations of their Medicaid state plans and payment processes.
III. Collection of Information Requirements To the extent a state changes its payment as a result of finalizing this proposed rule, the state would be required to obtain practitioner consent and update its payment system. We believe the associated burden is exempt from the Paperwork Reduction Act PRA in accordance with 5 CFR
1320.3b2. We believe that the time, effort, and financial resources necessary to exercise this flexibility would be incurred by the state during the normal course of their activities, and therefore should be considered usual and customary business practices.
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 would 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 would respond to the comments in the preamble to that document.
V. Regulatory Impact Analysis A. Statement of Need In California v. Azar, the district court vacated the 2019 rule and remanded to HHS for further proceedings.
Accordingly, we examined the statute anew, and determined that the prohibition in section 1902a32 of the Act is better read to be limited in its applicability to Medicaid payments to a third party pursuant to an assignment, power of attorney, or other similar arrangement. Although the court
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vacated the 2019 rule, our current statutory interpretation requires this rulemaking in order to reclassify the exception in 447.10g4 as instead describing arrangements that are beyond the scope of prohibition in section 1902a32 of the Act. Furthermore, while we now believe these arrangements are beyond the scope of the statute, we nevertheless consider it important to document and ensure clarity and flexibility for individual practitioners. Finally, this rule provides us an opportunity to reinforce the important caveat that such deductions may only be made with the consent of the individual practitioner.
B. Overall Impact We have examined the impacts of this proposed rule as required by Executive Order 12866 on Regulatory Planning and Review September 30, 1993, Executive Order 13563 on Improving Regulation and Regulatory Review January 18, 2011, the Regulatory Flexibility Act RFA September 19, 1980, Pub. L. 96354, section 1102b of the Act, section 202 of the Unfunded Mandates Reform Act of 1995 March 22, 1995; Pub. L. 1044, Executive Order 13132 on Federalism August 4, 1999, and the Congressional Review Act 5 U.S.C. 8042.
Executive Orders 12866 and 13563
direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits including potential economic, environmental, public health and safety effects, distributive impacts, and equity. Section 3f of Executive Order 12866 defines a significant regulatory action as an action that is likely to result in a rule that may: 1 Have an annual effect on the economy of $100
million or more in any 1 year, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local or tribal governments or communities also referred to as economically significant; 2 create a serious inconsistency or otherwise interfering with an action taken or planned by another agency; 3 materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or 4 raise novel legal or policy issues arising out of legal mandates, the Presidents priorities, or the principles set forth in the Executive Order.
A regulatory impact analysis RIA
must be prepared for major rules with economically significant effects $100

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