[Federal Register: November 21, 2008 (Volume 73, Number 226)]
[Rules and Regulations]               
[Page 70598-70599]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21no08-10]                         

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Parts 423

[CMS-4138-IFC3]
RIN-0938-AP52

 
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.

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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

[[Page 70599]]

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, (410) 786-8697.

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 Sec.  423.505(i)(3)(iv) and (v) of the regulations 
text. In these paragraphs, we inadvertently replaced Sec.  
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 Sec.  423.505(i)(3)(iv) 
through (vi) as Sec.  423.505(i)(3)(vi) through (viii). At this time, 
we are reserving paragraphs Sec.  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 Sec.  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.

0
Accordingly, 42 CFR chapter IV is corrected by making the following 
correcting amendments to part 423:

PART 423--VOLUNTARY MEDICARE PRESCRIPTION DRUG BENEFIT

0
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

0
2. Amend Sec.  423.505 by--
0
A. Redesignating paragraphs (i)(3)(iv) through (vi) as paragraphs 
(i)(3)(vi) through (viii).
0
B. Reserving paragraphs (i)(3)(iv) and (v).
    The revisions read as follows:


Sec.  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.
[FR Doc. E8-27712 Filed 11-20-08; 8:45 am]

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