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[Federal Register: July 6, 2010 (Volume 75, Number 128)]
[Rules and Regulations]               
[Page 38748-38749]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06jy10-15]                         

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Parts 447 and 457

[CMS-2244-CN]
RIN 0938-AP73

 
Medicaid Program; Premiums and Cost Sharing; Correction

AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS

ACTION: Correction of final rule with comment period.

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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, (410) 786-0693.

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 Sec.  447.50. However, on page 
30261, we inadvertently omitted the definition of ``Indian health care 
provider'' from Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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

[[Page 38749]]

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 Sec.  447.74(b).

IV. Correction of Errors

Regulations Text

0
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

0
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).

0
2. In Sec.  447.50, a new paragraph (b)(2) is added to read as follows:

Sec.  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).
* * * * *

0
3. In Sec.  447.74, revise paragraph (b) to read as follows:

Sec.  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.
[FR Doc. 2010-16272 Filed 6-30-10; 4:15 pm]
BILLING CODE 4120-01-P
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