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

###### Health Care Financing Administration

          - 42 CFR Part 405
          - [HCFA-3074-F]
          - RIN 0938-AK98

# AGENCY:

Health Care Financing Administration (HCFA), HHS.

# ACTION:

Final rule.

# SUMMARY:

This final rule grants a waiver of the end-stage renal disease conditions for coverage to permit the transplant team of an approved renal transplant center to furnish covered kidney transplant services in three specific hospitals in the Houston, Texas area during a state of emergency crisis.

# EFFECTIVE DATE:

These regulations are effective on June 15, 2001.

# FOR FURTHER INFORMATION CONTACT:

Jackie Sheridan, (410) 786-4635, or Jennifer Doherty, (410) 786-2462.

# SUPPLEMENTARY INFORMATION:

## I. Provisions of this Rule

A state of emergency has resulted from a natural disaster causing massive flooding, loss of power, and disruption to basic services throughout the Houston, Texas area. A severe health and safety threat exists from the unanticipated damage done to hospitals in the entire Houston area. Approximately 2,000 hospital beds in downtown Houston have been closed, including end-stage renal disease (ESRD) facilities currently approved to furnish kidney transplant services.

Effective June 15, 2001, we are waiving the ESRD conditions for coverage in 42 CFR, part 405, subpart U to permit coverage of kidney transplant services performed by the transplant team from Memorial Hermann Hospital when performed at one of the following hospitals:
    - Memorial Hermann-Memorial City Hospital (commonly referred to as Memorial City Hospital).
    - Memorial Hermann Southwest Hospital (commonly referred to as Memorial Southwest Hospital).
    - Memorial Hermann Southeast Hospital (commonly referred to as Memorial Southeast Hospital).

This waiver of the conditions for coverage is effective until December 15, 2001 or until memorial Hermann Hospital re-opens to furnish kidney transplant services, whichever date occurs first.

## II. Waiver of Proposed Rulemaking & Delay of Effective Date

                    We ordinarily publish a notice of proposed rulemaking in the                     **Federal Register**                     and invite public comment on the proposed rule. The notice of proposed rulemaking includes a reference to the legal authority under which the rule is proposed, and the terms and substances of the proposed rule or a description of the subjects and issues involved. We generally delay the effective date of a final rule. These procedures can be waived, however, if an agency finds good cause that the notice-and-comment and effective date delay procedures are impracticable, unnecessary, or contrary to the public interest and incorporates a statement of the finding and its reasons in the rule issued. Because of the imminent danger posed to patients needing a kidney transplant and the loss of availability of facilities to perform these services, we find that notice-and-comment is impracticable, unnecessary, and contrary to the public interest.                

Therefore, we find good cause to waive the notice of proposed rulemaking and delay of effective date to issue this final rule.

# List of Subjects in Part 405

      - Administrative practice and procedure
      - Health facilities
      - Health professions
      - Kidney diseases
      - Medicare
      - Reporting and recordkeeping requirements
      - Rural areas
      - X-rays

For the reasons set forth in the preamble, 42 CFR, chapter IV, is amended as set forth below:

# PART 405—FEDERAL HEALTH INSURANCE FOR THE AGED AND DISABLED

1. The authority citation for part 405, subpart U continues to read as follows: 

Authority:Secs. 1102, 1138, 1861, 1862(a), 1871, 1874, and 1881 of the Social Security Act (42 U.S.C. 1302, 1320b-8, 1395x, 1395y(a), 1395hh, 1395kk, and 1395rr), unless otherwise noted.

# Subpart U—Conditions for Coverage of Suppliers of End-Stage Renal Disease (ESRD)

2. A new § 405.2175 is added to read as follows: 

§ 405.2175

                            (a) Effective June 15, 2001, HCFA waives the ESRD conditions for coverage in this subpart to permit coverage of kidney transplant services                                   ( print page 33031)                                performed by the transplant team from Memorial Hermann Hospital when performed at one of the following hospitals:                        

(1) Memorial Hermann-Memorial City Hospital (commonly referred to as Memorial City Hospital).

(2) Memorial Hermann Southwest Hospital (commonly referred to as Memorial Southwest Hospital).

(3) Memorial Herman Southeast Hospital (commonly referred to as Memorial Southeast Hospital).

(b) The waiver of the conditions for coverage is effective until December 15, 2001 or until Memorial Hermann Hospital re-opens to furnish kidney transplant services, whichever date occurs first. HCFA will publish a rule removing this waiver after it expires.

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

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

Thomas A. Scully,

Administrator, Health Care Financing Administration.

Tommy G. Thompson,

Secretary.

[FR Doc. 01-15587  Filed 6-15-01; 5:10 pm]

BILLING CODE 4120-01-M