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

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

          - 42 CFR Part 424 
          - [CMS-6006-F2] 
          - RIN 0938-AO84 

# AGENCY:

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

# ACTION:

Final rule; correcting amendment. 

      ( print page 13346)    

# SUMMARY:

                        This correcting amendment corrects a technical error in the amendatory instructions of the regulations text in the final rule entitled “Medicare Program; Surety Bond Requirement for Suppliers of Durable Medical Equipment, Prosthetics, Orthotics, and Supplies (DMEPOS)” published in the January 2, 2009                         **Federal Register**                         (74 FR 166). In that final rule, we implemented section 1834(a)(16)(B) of the Social Security Act (the Act) requiring certain Medicare suppliers of durable medical equipment, prosthetics, orthotics and supplies (DMEPOS) to furnish CMS with a surety bond. In addition, in the January 2, 2009 final rule, we responded to public comments on the August 1, 2007 proposed rule (72 FR 42001). The effective date for the January 2, 2009 final rule was March 3, 2009.                     

# DATES:

*Effective Date:*                         This correcting amendment is effective March 27, 2009.                     

# FOR FURTHER INFORMATION CONTACT:

Frank Whelan, (410) 786-1302. 

# SUPPLEMENTARY INFORMATION:

## I. Background and Summary of Error 

In FR Doc. E8-30802 issued on January 2, 2009 (74 FR 166), the final rule entitled “Medicare Program; Surety Bond Requirement for Suppliers of Durable Medical Equipment, Prosthetics, Orthotics, and Supplies (DMEPOS), there was a technical error that is identified and corrected in this document. The error was the result of a conflicting amendatory instruction in the “Payment Policies Under the Physician Fee Schedule and Other Revisions to Part B for CY 2009” final rule with comment period (73 FR 69726) that was effective January 1, 2009. The correction in this correcting amendment is effective on March 27, 2009. 

On page 198 of the January 2, 2009 final rule, we made a technical error in the amendatory instruction for § 424.57. In the first amendatory instruction 2.D., the phrase “Redesignating paragraphs (d) and (e) as paragraphs (e) and (f)” should be corrected to read “Redesignating paragraphs (d) and (e) as paragraphs (e) and (g).” 

## II. 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 notice 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 notice 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 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 findings and the reasons in the notice.                 

This action merely corrects a technical error in the January 2, 2009 final rule that was promulgated through notice and comment rulemaking. We are in no way changing the policy contained in that rule. For this reason, we find that both notice and comment and the 30-day delay in effective date for this action are unnecessary. Therefore, we find there is good cause to waive notice and comment procedures and the 30-day delay in effective date for this action. 

# List of Subjects in 42 CFR Part 424

      - Emergency medical services
      - Health facilities
      - Health professions
      - Medicare

For the reasons set forth in the preamble, the Centers for Medicare & Medicaid Services amends 42 CFR chapter IV as set forth below: 

# PART 424—CONDITIONS FOR MEDICARE PAYMENT 

1. The authority citation for part 424 is revised to read as follows: 

Authority:Secs. 1102 and 1871 of the Social Security Act (42 U.S.C. 1302 and 1395hh). 

# Subpart D—To Whom Payment Is Ordinarily Made 

§ 424.57 

2. Section 424.57 is amended by redesignating paragraphs (d) and (e) as paragraphs (e) and (g). 

Authority:Catalog of Federal Domestic Program No. 93.774, Medicare—Supplementary Medical Insurance Program. 

Dated: March 17, 2009. 

Ashley Files Flory, 

Acting Executive Secretary to the Department.

 [FR Doc. E9-6778 Filed 3-26-09; 8:45 am] 

BILLING CODE 4120-01-P