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.

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 
CMS-4138-IFC3 GJ 2

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. 

EFFECTIVE DATE: This correcting amendment is effective 

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
CMS-4138-IFC3 GJ 3

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. 
CMS-4138-IFC3 GJ 4

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. 
CMS-4138-IFC3 GJ 5

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.
CMS-4138-IFC3 GJ 6

List of Subjects

42 CFR Part 423

Administrative practice and procedure, Emergency medical 

services, Health facilities, Health maintenance organizations 

(HMO), Medicare, Penalties, Privacy, Reporting and 

recordkeeping.
CMS-4138-IFC3 GJ 7

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.

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