2010-16272. Medicaid Program; Premiums and Cost Sharing; Correction

AGENCY:

Centers for Medicare & Medicaid Services (CMS), HHS

ACTION:

Correction of final rule with comment period.

SUMMARY:

This document corrects technical errors that appeared in the final rule with comment period published in the Federal Register on May 28, 2010 entitled “Medicaid Program; Premiums and Cost Sharing.” The May 28, 2010, final rule revised a November 25, 2008, final rule entitled, “Medicaid Programs; Premiums and Cost Sharing” which addressed public comments received during reopened comment periods, and reflected relevant statutory changes made in the American Recovery and Reinvestment Act of 2009. The November 2008 document revised final rule implemented and interpreted section 1916A of the Social Security Act.

DATES:

Effective Date: This correction document is effective July 1, 2010.

FOR FURTHER INFORMATION CONTACT:

Christine Gerhardt, [phone].

SUPPLEMENTARY INFORMATION:

I. Background

In FR Doc. 2010-12954 of May 28, 2010 (75 FR 30244), there were two technical errors that are identified and corrected in the “Correction of Errors” section below. The provisions in this correction notice are effective as if they had been included in the document published May 28, 2010. Accordingly, the corrections are effective July 1, 2010.

II. Summary of Errors

On page 30255, in the preamble under Section III, “Provisions of the Revised Final Rule,” we set forth the definition of “Indian health care provider.” On page 30256, we specify that the definition is added to a new paragraph (b) under § 447.50. However, on page 30261, we inadvertently omitted the definition of “Indian health care provider” from § 447.50 (b) of the regulations text.

On page 30264, we inadvertently omitted a statutory exception to the policy specified in the amended paragraph (b) under § 447.74 of the regulations text. According to section 1916A(e)(2) of the Social Security Act (the Act), the limitation to 20 percent of the State Medicaid agency's payment for alternative cost sharing imposed on individuals with family income more than 150 percent of the Federal poverty level (FPL) does not apply to non-emergency services furnished in a hospital emergency department.

III. Waiver of Proposed Rulemaking

We ordinarily publish a notice of proposed rulemaking in the Federal Register to provide a period for public comment before the provisions of a rule take effect in accordance with section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). However, we can waive this notice and comment procedure if the Secretary finds, for good cause, that the notice and comment process is impracticable, unnecessary, or contrary to the public interest, and incorporates a statement of the finding and the reasons therefore in the notice.

Section 553(d) of the APA ordinarily requires a 30-day delay in effective date of final rules after the date of their publication in the Federal Register. This 30-day delay in effective date can be waived, however, if an agency finds for good cause that the delay is impracticable, unnecessary, or contrary to the public interest, and the agency incorporates a statement of the findings and its reasons in the rule issued.

With respect to our proposal to add a definition of “Indian health care provider” as a new paragraph (b)(2) in § 447.50 of the regulations text, we inadvertently omitted this definition from the revised final rule. In the preamble under Section III, Provisions of the Revised Final Rule, we gave the new definition on page 30255. Also, on page 30256, we mentioned that the definition of “Indian health care provider” is added to a new paragraph (b) under § 447.50. Because the intended content of the regulation is clear when the document is read as a whole, we believe further process is unnecessary. We further believe that correction of the error is in the public interest because it would avoid confusion. Therefore, we find good cause to waive a notice of proposed rulemaking and delayed effective date.

With respect to our proposal to add an exception to the policy specified in the amended paragraph (b) under § 447.74, section 1916A(e)(2) of the Act makes clear that the limitation to 20 percent of the State Medicaid agency's payment for alternative cost sharing imposed on individuals with family income more than 150 percent of the Federal poverty level (FPL) does not apply to non-emergency services furnished in a hospital emergency department. Since this change is necessary to accurately reflect the statutory requirements, we believe that correction of this error is in the public interest because it will prevent confusion as to those requirements. Therefore, we find good cause to waive a notice of proposed rulemaking and delayed effective date in order to comply with the statutory exemption of this service from the requirements specified in § 447.74(b).

IV. Correction of Errors

Regulations Text

Accordingly, CMS amends 42 CFR part 447, as amended in FR Doc. 2010-12954 of May 28, 2010 (75 FR 30244), effective July 1, 2010, by making the following corrections:

PART 447—PAYMENTS FOR SERVICES

1. The authority citation for part 447 continues to read as follows:

Authority: Sec. 1102 of the Social Security Act (42 U.S.C. 1302).

2. In § 447.50, a new paragraph (b)(2) is added to read as follows:

§ 447.50

Cost sharing: Basis and purpose.

* * * * *

(b) * * *

(2) Indian health care provider means a health care program operated by the Indian Health Service (IHS) or by an Indian Tribe, Tribal Organization, or Urban Indian Organization (otherwise known as an I/T/U) as those terms are defined in section 4 of the Indian Health Care Improvement Act (25 U.S.C. 1603).

* * * * *

3. In § 447.74, revise paragraph (b) to read as follows:

§ 447.74

Alternative premium and cost sharing protections for individuals with family incomes above 150 percent of the FPL.

* * * * *

(b) Cost sharing may be imposed under the State plan on individuals whose family income exceeds 150 percent of the FPL if the cost sharing does not exceed 20 percent of the payment the agency makes for the item or service (including a non-preferred drug but not including non-emergency services furnished in a hospital emergency department), with the following exception: In the case of States that do not have fee-for-service payment rates, any copayment that the State imposes for services provided by an MCO to a Medicaid beneficiary, including a child covered under a Medicaid expansion program for whom enhanced match is claimed under title XXI of the Act, may not exceed $3.40 per visit for Federal FY 2009. Thereafter, any copayment may not exceed this amount as updated each October 1 by the percentage increase in the medical care component of the CPI-U for the period of September to September ending in the preceding calendar year and then rounded to the next highest 5-cent increment.

* * * * *

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

Dated: June 29, 2010.

Dawn L. Smalls,

Executive Secretary to the Department.