E8-27712. Medicare Program; Revisions to the Medicare Advantage and Prescription Drug Benefit Programs; Correcting Amendment

AGENCY:

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

ACTION:

Interim final rule with comment period; correcting amendment.

SUMMARY:

In the September 18, 2008 issue of the Federal Register (73 FR 54226), we published an interim final rule with comment period that revises the regulations governing the Medicare Advantage (MA) program (Part C), prescription drug benefit program (Part D) and section 1876 cost plans. The interim final rule makes conforming changes to the MA regulations to reflect new statutory requirements regarding special needs plans (SNP), private-fee-for-service plans (PFFS), regional preferred provider organizations (RPPO) plans, Medicare medical savings accounts (MSA) plans, and new statutory provisions governing cost-sharing for dual-eligible enrollees in the MA program prescription drug pricing, coverage, and payment processes in the Part D program. In addition, the interim final rule sets forth new requirements governing the marketing of Part C and Part D plans which by statute must be in place at a date specified by the Secretary, but no later than November 15, 2008. Both the conforming changes to the regulations to reflect new statutory provisions and the new marketing requirements are based on provisions in the Medicare Improvements for Patients and Providers Act (MIPPA), which became law on July 15, 2008. This correcting amendment corrects technical and typographical errors identified in the September 18, 2008 interim final rule.

DATES:

Effective Date: This correcting amendment is effective November 21, 2008, and is applicable on September 18, 2008.

FOR FURTHER INFORMATION CONTACT:

Vanessa Duran, [phone].

SUPPLEMENTARY INFORMATION:

I. Background

In FR Doc. E8-21686 (73 FR 54226), the interim final rule with comment period entitled “Revisions to the Medicare Advantage and Prescription Drug Benefit Programs,” there were typographical and technical errors that are identified and corrected in the preamble and regulations text of this correcting amendment. The provisions of this correcting amendment are effective September 18, 2008.

II. Summary of Errors in the Preamble

On page 54240, in the last paragraph of the second column, the acronym “HIPAA” was inadvertently written instead of the acronym “MIPPA.”

III. Correction of Errors in the Preamble

1. On page 54240, in the second column; in the last paragraph, change the acronym “HIPAA” to read “MIPPA.”

IV. Summary of Errors in the Regulations Text

On page 54251 of the September 18, 2008 interim final rule, we made technical errors in § 423.505(i)(3)(iv) and (v) of the regulations text. In these paragraphs, we inadvertently replaced § 423.505(i)(3)(iv) and (v) as they appeared in the December 5, 2007 final rule (72 FR 68732), entitled, “Revisions to the Medicare Advantage and Part D Prescription Drug Contract Determinations, Appeals, and Intermediate Sanctions Process.” We note that the provisions in the December 5, 2007 final rule (72 FR 68732) were not intended to be revised in the September 18, 2008 interim final rule (73 FR 54226). Accordingly, we are redesignating § 423.505(i)(3)(iv) through (vi) as § 423.505(i)(3)(vi) through (viii). At this time, we are reserving paragraphs § 423.505(i)(3)(iv) and (v) because these provisions in the December 5, 2007 final rule do not go into effect until January 1, 2009.

Under § 423.505(i)(3), redesignated paragraphs (vi) through (viii) will now reflect our intended policy changes in the September 18, 2008 interim final rule.

V. 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 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.

Our policy on contracts or written arrangements between Part D sponsors and first tier, downstream, and related entities in the September 18, 2008 interim final rule has previously been subjected to notice and comment procedures. This correcting amendment merely corrects technical errors in the preamble and regulations text of the September 18, 2008 interim final rule. Therefore, we find that undertaking further notice and comment procedures to incorporate these corrections into the interim final rule is unnecessary and contrary to the public interest.

For the same reasons, we are also waiving the 30-day delay in effective date for this correcting amendment. We believe that it is in the public interest to ensure that the September 18, 2008 interim final rule accurately states our policy on contracts or written arrangements between Part D sponsors and first tier, downstream, and related entities. Thus delaying the effective date of these corrections would be contrary to the public interest. Therefore, we also find good cause to waive the 30-day delay in effective date.

List of Subjects in 42 CFR Part 423

• Administrative practice and procedure
• Emergency medical services
• Health facilities
• Health maintenance organizations (HMO)
• Medicare
• Penalties
• Privacy
• Reporting and recordkeeping

Accordingly, 42 CFR chapter IV is corrected by making the following correcting amendments to part 423:

PART 423—VOLUNTARY MEDICARE PRESCRIPTION DRUG BENEFIT

1. The authority citation for part 423 continues to read as follows:

Authority: Secs. 1102, 1860D-1 through 1860D-42, and 1871 of the Social Security Act (42 U.S.C. 1302, 1395w-101 through 1395w-152, and 1395hh).

Subpart K—Application Procedures and Contracts with Part D Plan Sponsors

2. Amend § 423.505 by—

A. Redesignating paragraphs (i)(3)(iv) through (vi) as paragraphs (i)(3)(vi) through (viii).

B. Reserving paragraphs (i)(3)(iv) and (v).

The revisions read as follows:

§ 423.505

Contract Provisions.

* * * * *

(i) * * *

(3) * * *

(iv) [Reserved]

(v) [Reserved]

* * * * *

(Catalog of Federal Domestic Assistance Program No. 93.773, Medicare—Hospital Insurance; and Program No. 93.774, Medicare—Supplementary Medical Insurance Program)

Dated: November 7, 2008.

Ann Agnew,

Executive Secretary to the Department.