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

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

          - 42 CFR Parts 401 and 405
          - [CMS-4064-RCN2]
          - RIN 0938-AM73

# AGENCY:

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

# ACTION:

Interim final rule with comment period; continuation of effectiveness and extension of timeline for publication of final rule.

# SUMMARY:

                        This notice announces the continuation of effectiveness of a Medicare interim final rule with comment period and the extension of the timeline for publication of the final rule. This notice is issued in accordance with section 1871(a)(3)(C) of the Social Security Act (the Act), which allows an interim final rule to remain in effect after the expiration of the timeline specified in section 1871(a)(3)(B) of the Act (the “regular timeline”) or, if applicable, at the end of each succeeding 1-year extension to the regular timeline, if prior to the expiration of the timeline, the Secretary publishes in the                         **Federal Register**                         a notice of continuation and explains why the regular timeline or any subsequent extension was not complied with.                    

# DATES:

*Effective Date:*                         February 27, 2009.                    

# FOR FURTHER INFORMATION CONTACT:

David Danek, (617) 565-2682. Arrah Tabe-Bedward, (410) 786-7129.

#                     SUPPLEMENTARY INFORMATION:                          ( print page 8868)    

## I. Background

                    Section 1871(a)(3)(A) of the Act requires the Secretary, in consultation with the Director of the Office of Management and Budget (OMB), to establish and publish a regular timeline for the publication of a final rule based on the previous publication of a proposed rule or an interim final rule. In accordance with section 1871(a)(3)(B) of the Act, such regular timeline may vary among different regulations, based on the complexity of the rule, the number and scope of the comments received, and other relevant factors. The timeline for publishing the final regulation, however, cannot exceed 3 years from the date of publication of the proposed or interim final rule, unless there are exceptional circumstances. After consultation with the Director of OMB, we published a notice in the                     **Federal Register**                     on December 30, 2004 (69 FR 78442) establishing a general 3-year timeline for finalizing a Medicare proposed and an interim final rule.                

Section 1871(a)(3)(C) of the Act states that a Medicare interim final rule shall not continue in effect if the final rule is not published before the expiration of the regular timeline and, if applicable, before the expiration of each succeeding one-year period, unless the Secretary publishes at the end of the regular timeline and any subsequent 1-year extension a notice of continuation that includes an explanation of why the regular or previously extended timeline was not met. Upon publication of such a notice, the regular timeline or such timeline as previously extended for publishing the final rule is extended for 1 year.

## II. Notice of Continuation

                    Section 521 of the Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act of 2000 (BIPA), amended section 1869 of the Act to provide for significant changes to the Medicare claims appeal procedures. On November 15, 2002, we published in the                     **Federal Register**                     a proposed rule (67 FR 69312) consistent with Section 521 of BIPA. An interim final rule with comment period implementing the BIPA provisions as well as further changes to the claim appeals procedures enacted in Title IX of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA) appeared in the                     **Federal Register**                     in March 2005 (70 FR 11420). Under the regular timeline for publication of a final rule, we were required to publish a final rule responding to public comments on the interim final rule with comment period no later than March 1, 2008. However, on February 29, 2008, we published in the                     **Federal Register**                     a continuation notice entitled “Medicare Program; Changes to the Medicare Claims Appeal Procedures; Continuation of Effectiveness and Extension of Timeline for Publication of Final Rule” to extend the timeline for publication of the final rule for 1 year until March 1, 2009 (73 FR 11043).                

This notice announces an additional extension of the timeline for publication of the final rule and the continuation of effectiveness of the March 2005 interim final rule with comment period. We are not able to meet the timeline for publication of the final rule due to the need to allow an opportunity for full consideration of issues of law and policy raised in the regulation. We believe it is necessary and appropriate to delay publication of this final rule in order to afford the President's appointees and designees an opportunity to further review and consider the laws and policies that will be set forth in the final rule.

Therefore, this notice extends the timeline for publication of the final rule until March 1, 2010. In accordance with section 1871(a)(3)(C) of the Act, the interim final rule with comment period shall remain in effect through March 1, 2010 (unless the final rule is published and becomes effective before March 1, 2010).

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

Dated: February 23, 2009.

Ashley Files Flory,

Deputy Executive Secretary to the Department.

[FR Doc. E9-4223 Filed 2-26-09; 8:45 am]

BILLING CODE 4120-01-P