[Federal Register: March 27, 2009 (Volume 74, Number 58)]
[Rules and Regulations]
[Page 13346-13348]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27mr09-12]
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Medicare & Medicaid Services
42 CFR Parts 447 and 457
[CMS-2244-F3]
RIN 0938-A047
Medicaid Program; Premiums and Cost Sharing
AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS.
ACTION: Final rule; delay of effective date and reopening of comment
period.
-----------------------------------------------------------------------
SUMMARY: This action temporarily delays the effective date of the
November 25, 2008 final rule entitled, ``Medicaid Program; Premiums and
Cost Sharing'' (73 FR 71828) until December 31, 2009. In addition, this
action reopens the comment period on the policies set out in the
November 25, 2008 final rule, and specifically solicits comments on the
effect of certain provisions of the American Recovery and Reinvestment
Act of 2009.
DATES: Effective Date. This action is effective March 26, 2009. The
effective date of the rule amending 42 CFR parts 447 and 457 published
in the November 25, 2008 Federal Register (73 FR 71828) is delayed
until December 31, 2009.
Comment Period. To be assured consideration, comments must be
received at one of the addresses provided below, no later than 5 p.m.
on April 27, 2009.
ADDRESSES: In commenting, please refer to file code CMS-2244-F3.
Because of staff and resource limitations, we cannot accept comments by
facsimile (FAX) transmission.
You may submit comments in one of four ways (please choose only one
of the ways listed):
1. Electronically. You may submit electronic comments on this
regulation to http://www.regulations.gov. Follow the instructions for
``Comment or Submission'' and enter the file code to find the document
accepting comments.
2. By regular 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-2244-F3, P.O. Box 8010, Baltimore, MD 21244-8010.
Please allow sufficient time for mailed comments to be received
before the close of the comment period.
3. By express or overnight mail. You may send written comments (one
[[Page 13347]]
original and two copies) to the following address ONLY: Centers for
Medicare & Medicaid Services, Department of Health and Human Services,
Attention: CMS-2244-F3, Mail Stop C4-26-05, 7500 Security Boulevard,
Baltimore, MD 21244-8010.
4. 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 either of the following addresses:
a. Room 445-G, Hubert H. Humphrey Building, 200 Independence
Avenue, SW., Washington, DC 20201.
(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.)
b. 7500 Security Boulevard, Baltimore, MD 21244-1850.
If you intend to deliver your comments to the Baltimore address,
please call telephone number (410) 786-9994 in advance to schedule your
arrival with one of our staff members.
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: Christine Gerhardt, (410) 786-0693.
SUPPLEMENTARY INFORMATION:
I. Background
A. Regulatory History
On November 25, 2008, we published a final rule entitled ``Medicaid
Program; Premiums and Cost Sharing'' in the Federal Register to
implement and interpret the provisions of sections 6041, 6042, and 6043
of the Deficit Reduction Act of 2005 (DRA), and section 405(a)(1) of
the Tax Relief and Health Care Act of 2006 (TRHCA) (73 FR 71828). The
DRA was amended by the TRHCA which revised sections 6041, 6042, and
6043 of the DRA including limitations on cost sharing for individuals
with family incomes at or below 100 percent of the Federal poverty
line. These sections amended the Social Security Act (the Act) by
adding a new section 1916A to provide State Medicaid agencies with
increased flexibility to impose premium and cost sharing requirements
on certain Medicaid recipients. The final rule allowed for flexibility
to supplement the existing authority States have to impose premiums and
cost sharing under section 1916 of the Act. The DRA provisions also
specifically address cost sharing for non-preferred drugs and non-
emergency care furnished in a hospital emergency department. In
addition, in the November 25, 2008 final rule, we responded to public
comments on the February 22, 2008 proposed rule (73 FR 9727).
Subsequent to the publication of the November 25, 2008 final rule,
in accordance with the memorandum of January 20, 2009 from the
Assistant to the President and the Chief of Staff, entitled
``Regulatory Review,'' we published a final rule in the Federal
Register to temporarily delay for 60 days the effective date of the
November 25, 2008 final rule entitled, ``Medicaid Program; Premiums and
Cost Sharing'' (January 27, 2009, 74 FR 4888). The final rule also
reopened the comment period on the policies set out in the November 25,
2008 final rule. We received 5 public comments in response to the
January 27, 2009 final rule.
B. New Legislation
The American Recovery and Reinvestment Act of 2009 (ARRA), Pub. L.
111-5, was enacted on February 17, 2009. Certain provisions of ARRA
affect current regulations regarding premiums and cost sharing.
Specifically, section 5006(a) of ARRA added section 1916(j) to the
Social Security Act (the Act) to provide that effective December 31,
2009, the Medicaid program and the Children's Health Insurance Program
(CHIP) are prohibited from imposing an enrollment fee, premium, or
similar charge, or deduction, copayment, cost-sharing or similar charge
on American Indians and Alaska Natives for services provided directly
by the Indian Health Service, an Indian Tribe, Tribal Organization, or
Urban Indian Organization or through referral under contract health
services for which payment may be made.
II. Provisions of the Final Rule
This action delays the effective date of the November 25, 2008
final rule. The effective date of that rule, which would have been
March 27, 2009, is now December 31, 2009. Upon review and consideration
of the new provisions of ARRA and the public comments we received
during the reopened comment period, we believe that it may be necessary
to revise a substantial portion of the November 25, 2008 final rule.
Therefore, to inform future rulemaking on this issue, we are delaying
the effective date a second time to give the public an additional
opportunity to submit additional comments on the policy set forth in
the November 25, 2008 final rule as well as the provisions of ARRA,
discussed above. We anticipate that this time period will allow
sufficient time for CMS to consider such comments and develop
appropriate revisions to the delayed rule.
IV. Waiver of Proposed Rulemaking and Delay in Effective Date
We ordinarily publish a notice of proposed rulemaking in the
Federal Register to provide a period for public comment before the
provisions of a notice such as this take effect, in accordance with
section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C.
553(b)). We also ordinarily provide a 30-day delay in the effective
date of the provisions of a notice in accordance with section 553(d) of
the APA (5 U.S.C. 553(d)). However, we can waive both the notice and
comment procedure and the 30-day delay in effective date if the
Secretary finds, for good cause, that it is impracticable, unnecessary
or contrary to the public interest to follow the notice and comment
procedure or to comply with the 30-day delay in the effective date, and
incorporates a statement of the finding and the reasons in the notice.
This final rule delays the effective date of the final rule that
was promulgated through notice and comment rulemaking, and does not
make substantive changes to the policies that were finalized in the
final rule. Delay in the effective date and reopening of the comment
period is necessary to ensure that the final rule fully takes into
account public comments, and conforms to recently enacted legislation,
before the rule becomes effective. We do not believe that there will be
any adverse impact or effect on the public from this delay in the
effective date. Moreover, it would not be in the public interest for
the underlying rule to go into effect, or to have uncertainty about
whether it is in effect, when the underlying rule does not conform to
statutory requirements. In addition, it is not in the public interest
to put into effect a rule that we intend to revise in a reasonable time
frame after fully taking into account public comment. For the reasons
stated above, we find that both notice and comment procedures and the
30-day delay in effective date for this final rule are unnecessary and
contrary to the public interest. Therefore, we find there is good cause
to waive notice and comment procedures and the 30-day delay in
effective date for this final rule.
[[Page 13348]]
(Catalog of Federal Domestic Assistance Program No. 93.778, Medical
Assistance Program)
Dated: March 20, 2009.
Charlene Frizzera,
Acting Administrator, Centers for Medicare & Medicaid Services.
Approved: March 24, 2009.
Charles E. Johnson,
Acting Secretary.
[FR Doc. E9-6907 Filed 3-24-09; 4:15 pm]
BILLING CODE 4120-01-P