Document Headings

                    Document headings vary by document type but may contain                    the following:                  
                -                       the agency or agencies that issued and signed a document                    
                -                       the number of the CFR title and the number of each part                      the document amends, proposes to amend, or is directly                      related to                    
                -                       the agency docket number / agency internal file number                    
                -                       the RIN which identifies each regulatory action listed in                      the Unified Agenda of Federal Regulatory and Deregulatory                      Actions                    

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###### Department of Health and Human Services

###### Centers for Medicare & Medicaid Services 

          - 42 CFR Part 440 
          - [CMS-2232-IFC] 
          - RIN 0938-A048 

# AGENCY:

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

# ACTION:

Interim final rule with comment period: delay of effective date and reopening of the comment period. 

# SUMMARY:

                        In accordance with the memorandum of January 20, 2009, from the Assistant to the President and Chief of Staff, entitled “Regulatory Review Plan,” this action temporarily delays for 60 days the effective date of the final rule entitled, Medicaid Program; State Flexibility for Medicaid Benefit Packages” published in the December 3, 2008                         **Federal Register**                         (73 FR 73694). The temporary 60-day delay in effective date is necessary to give Department officials the opportunity for further review of the issues of law and policy raised by this rule. In addition, this action reopens the comment period on the policies set out in the December 3, 2008 final rule to allow interested parties to provide comments about issues of law and policy raised by the rule.                     

      ( print page 5809)    

# DATES:

*Effective Date.*                         This action is effective January 30, 2009. The effective date of the rule amending 42 CFR part 440 published in the December 3, 2008                         **Federal Register**                         (73 FR 73694) is delayed 60 days until April 3, 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 March 4, 2009. Comments may address either December 3, 2008 final rule, or this action (the delay in the effective date, and the reopening of the comment period).                     

# ADDRESSES:

In commenting, please refer to file code CMS-2232-IFC. 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 specific issues in this regulation to                         *http://www.regulations.gov.*                         Follow the instructions for “Comment or Submission” and enter the filecode 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-2232-IFC,  P.O. Box 8016,  Baltimore, MD 21244-8016.                     

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 original and two copies) to the following address ONLY: Centers for Medicare & Medicaid Services, Department of Health and Human Services,  Attention: CMS-2232-IFC,  Mail Stop C4-26-05,  7500 Security Boulevard,  Baltimore, MD 21244-8016.                     

                        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) 786-7195 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 

                    On December 3, 2008, we published a final rule in the                     **Federal Register**                     entitled “Medicaid Program; State Flexibility for Medicaid Benefit” (73 FR 73694). The December 2008 final rule implements provisions of section 6044 of the Deficit Reduction Act of 2005, which amends the Social Security Act by adding a new section 1937 related to the coverage of medical assistance under approved State plans. The final rule also provides States increased flexibility under an approved State plan to define the scope of covered medical assistance by offering coverage of benchmark or benchmark-equivalent benefit packages to certain Medicaid recipients. In addition, the final rule responds to public comments on the February 22, 2008, proposed rule that pertain to the State Medicaid benefit package provisions.                 

## II. Provisions of This Action 

This action delays the effective date of the December 3, 2008 final rule and reopens the comment period on the policies set out in the final rule. The effective date of the December 3 final rule, which would have been February 2, 2009, is now April 3, 2009. The 60-day delay in the effective date is necessary to give Department officials the opportunity for further review of the issues of law and policy raised by this rule, to give the public the opportunity to submit additional comments on issues of law and policy raised by the December 3, 2008 final rule, and to provide an opportunity for CMS to consider all additional comments. We also seek comments on this action (the delay in the effective date and the reopening of the comment period). 

## III. 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 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 rule 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 the 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 rule.                 

This action delays the effective date of the December 3, 2008 final rule that was promulgated through notice and comment rulemaking. A delay in effective date and reopening of the comment period is necessary to ensure that we have the opportunity to receive additional public comments to fully inform our decisions before the policies contained in the final rule become effective. Moreover, we believe it would be contrary to the public interest for the December 3, 2008 final rule to become effective until we are certain that all public comments, including any additional comments that are submitted in the reopened comment period, are considered. To do otherwise could potentially result in uncertainty and confusion as to the finality of the final rule. For the reasons stated above, we find that both notice and comment and the 30-day delay in effective date for this action 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 rule. 

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

Dated: January 28, 2009. 

Charlene Frizzera, 

Acting Administrator, Centers for Medicare & Medicaid Services. 

Approved: January 28, 2009. 

Charles Johnson,

Acting Secretary.

[FR Doc. E9-2186 Filed 1-30-09; 8:45 am] 

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