Federal Register / Vol. 70, No. 169 / Thursday, September 1, 2005 / Rules and Regulations 52023 

(3) The organization possesses an 

ownership or equity interest of 5 

percent or more in the endorsed drug 

card sponsor on both the date on which 

the endorsed drug card sponsor markets 

the organization’s Part D plan, and the 

date on which the endorsed drug card 

sponsor signed its endorsement contract 

with CMS. 

* * * * * 

Part D plan has the meaning given the 

term at § 423.4. 

* * * * * 

■ 3. Section 403.806(g)(5) is amended 

by—

■ A. Revising paragraph (g)(5)(i). 

■ B. Revising paragraph (g)(5)(iii). 

■ C. Adding paragraph (g)(5)(vi). 

The revisions and addition read as 

follows: 

§ 403.806 Sponsor requirements for 

eligibility for endorsement. 

* * * * * 

(g) * * * 

(5) * * * 

(i) Comply with the Information and 

Outreach Guidelines published by CMS 

except as provided in paragraph 

(g)(5)(vi) of this section. 

* * * * * 

(iii) If CMS does not disapprove the 

initial submission of information and 

outreach materials within 30 days of 

receipt of these materials, the materials 

are deemed approved under paragraph 

(g)(5)(ii) of this section. 

* * * * * 

(vi) All materials related to products 

and services that are Part D plans must 

comply with the requirements specified 

in § 423.50 of this chapter. 

* * * * * 

■ 4. Section 403.813 is amended by 

revising paragraph (a)(1) to read: 

§ 403.813 Marketing limitations and record 

retention requirements. 

(a) Marketing limitations. (1) An 

endorsed sponsor may only market the 

following: 

(i) Those products and services 

offered under the endorsed program that 

are inside the scope of endorsement 

defined in § 403.806(h) and permitted 

under § 403.812(b). 

(ii) A Part D plan offered by the 

endorsed sponsor or an affiliated 

organization of the endorsed sponsor. 

* * * * * 

(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) 

Dated: July 8, 2005. 

Mark B. McClellan, 

Administrator, Centers for Medicare & 

Medicaid Services. 

Approved: August 10, 2005. 

Michael O. Leavitt, 

Secretary. 

[FR Doc. 05–17424 Filed 8–29–05; 11:58 am] 

BILLING CODE 4120–01–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

42 CFR Part 422 

[CMS–4069–F3] 

RIN 0938–AN06 

Medicare Program; Establishment of 

the Medicare Advantage Program 

AGENCY: Centers for Medicare & 

Medicaid Services (CMS), HHS. 

ACTION: Final rule; correcting 

amendment; partial stay of 

effectiveness. 

SUMMARY: This document corrects 

technical errors that appeared in the 

final rule published in the Federal 

Register on January 28, 2005 entitled 

‘‘Establishment of the Medicare 

Advantage Program.’’ It also stays 

several amendments made in the 

previous rule. 

EFFECTIVE DATES: This final rule is 

effective March 22, 2005. Sections 

422.152(a)(1) and (c), 422.156(b)(7), 

422.316, and 422.527 are stayed from 

September 1, 2005 until January 1, 2006. 

FOR FURTHER INFORMATION CONTACT: 

Christopher McClintick, (410) 786–

4682. 

SUPPLEMENTARY INFORMATION: 

I. Background 

In FR Doc. 05–1322 of January 28, 

2005 (70 FR 4588), there were several 

errors that we identify in the ‘‘Summary 

of Errors’’ section and correct in the 

‘‘Correction of Errors’’ section below. 

The provisions in this correcting 

amendment are effective as if they were 

included in the final rule published 

January 28, 2005. Accordingly, the 

corrections are effective retroactive to 

March 22, 2005, the effective date of 

most of the provisions of the January 28, 

2005 final rule, except for those 

provisions that are specifically 

designated in the EFFECTIVE DATES

section as being stayed effective 

September 1, 2005 until January 1, 2006. 

II. Summary of Errors 

In the January 28, 2005 final rule, on 

page 4588, we inadvertently omitted 

from the list of provisions that will 

become effective January 1, 2006, the 

following provisions relating to changes 

in the quality improvement provisions 

in subpart D: §§ 422.152(a)(1) and (c), 

and 422.156(b)(7). These provisions 

implement changes to section 1852(e) of 

the Social Security Act (the Act) that, 

under section 722(c) of the MMA, apply 

to contract years beginning on and after 

January 1, 2006. Sections 422.152(a)(1) 

and (c) concern the requirement that an 

MA organization must have a chronic 

care improvement program for each 

plan it offers. In order to clarify that 

these provisions of the quality 

improvement requirements do not apply 

to contracts previous to contract periods 

beginning January 1, 2006, and to 

comply with the Act, we are staying the 

effective dates of §§ 422.152(a)(1) and 

(c) until January 1, 2006. We are also 

staying § 422.156(b)(7), a quality 

improvement provision concerning 

deemable requirements and Part D 

prescription drug programs offered by 

MA programs. We also inadvertently 

omitted from the list of provisions that 

will become effective January 1, 2006, 

the following provisions relating to 

arrangements with federally qualified 

health centers: §§ 422.316 and 422.527. 

Section 237(c) of the MMA provides 

that these changes apply to services 

provided on or after January 1, 2006, 

and contract years beginning on or after 

that date. In order to clarify the effective 

dates of these provisions and to bring 

our regulations into conformance with 

the statute, we are also staying the 

effective dates of §§ 422.316 and 

422.527 until January 1, 2006. 

On page 4676, we clarify that an MA 

organization and not a practitioner is 

responsible for providing a written 

notice to the beneficiary when an 

adverse decision is made in an office 

setting. In other words, if an enrollee 

requests an explanation of a 

practitioner’s denial of an item or 

service, in whole or in part, the MA 

organization is responsible for giving 

the enrollee a written notice. We are 

making a corresponding change to 

§ 422.568(d) of the regulation text. 

On page 4681, we inadvertently 

specified 72 hours as the timeline for 

the expedited grievance process MA 

organizations must establish for 

complaints involving certain procedural 

matters in the appeals process. In that 

discussion, we were referring to 42 CFR 

422.564(d), which we redesignated in 

the final rule as § 422.564(f), but did not 

otherwise change. The timeline, as 

52024 Federal Register / Vol. 70, No. 169 / Thursday, September 1, 2005 / Rules and Regulations 

specified in redesignated § 422.564(f), is 

actually 24 hours. Our correction now 

specifies this. 

On page 4685, we retained language 

based on, and references to the 

proposed rule. As a result, we 

incorrectly referred to the possibility of 

public comment, and referred to a table 

of information collection requirements 

instead of the section of the final rule 

specifying such requirements. 

In addition to correcting errors in the 

preamble, in section III of this correcting 

amendment, we also correct several 

sections of the regulation text. In the 

summary of the regulation text 

corrections, we first discuss, in 

numerical order, changes that are 

primarily limited to a specific section of 

the regulation text. We then discuss 

changes with a broader scope. 

A. Corrections to Specific Sections 

In § 422.2 of the final rule, in the 

definition of ‘‘Provider network,’’ we 

inadvertently retained a reference to a 

‘‘network MSA plan’’ that is no longer 

valid. 

Also in § 422.2 of the final rule, in the 

definitions of ‘‘Prescription drug plan 

(PDP)’’ and ‘‘Prescription drug plan 

(PDP) sponsor,’’ we incorrectly referred 

to the pertinent definitions section of 

the prescription drug regulations. In 

both instances the references should be 

to ‘‘§ 423.4,’’ the corresponding 

definitions section for the prescription 

drug benefit requirements under Part 

423. 

In the heading for § 422.6, we are 

replacing the term ‘‘MA user fee’’ with 

‘‘Cost-sharing in enrollment-related 

costs,’’ as well as removing the first 

reference in § 422.6(d)(2)(ii) to ‘‘200 

million’’ in order to avoid repetition and 

confusion. 

In § 422.6(f)(1)(ii) of the final rule, in 

our requirements concerning costsharing of enrollment-related costs for 

prescription drug plans (PDPs), we 

inadvertently did not include the text 

introducing the assessment formula for 

PDPs. 

In § 422.132, we are replacing the 

incorrect reference to § 422.502(g) with 

§ 422.504(g). The error came about as a 

result of our reorganization and revision 

of these contract-related sections of 

subpart K for the final rule. 

In § 422.152(b)(3)(ii), we replace the 

incorrect reference to ‘‘§ 422.64(c)(10),’’

a non-existent provision, with the 

reference, ‘‘§ 422.64.’’

In § 422.208(c)(2) of the final rule, we 

retained a reference to periodic surveys 

that are no longer required as a result of 

section 222(h) of the Medicare 

Prescription Drug, Improvement and 

Modernization and Improvement Act of 

2003 (MMA). 

In § 422.210, we inadvertently deleted 

paragraph (b), Disclosure to Medicare 

beneficiaries, which we intended to 

retain, with the exception of a reference 

to surveys no longer required. 

In § 422.252, in the definition of ‘‘MA 

monthly supplemental beneficiary 

premium,’’ we are correcting the cross 

reference to § 422.266(b)(2)(i), which 

does not exist, and replacing it with the 

correct reference, § 422.266(b)(1). 

In § 422.254, paragraph (b)(1)(i), we 

are removing ‘‘statutory non-drug bid 

amount’’ and adding ‘‘unadjusted MA 

statutory non-drug monthly bid 

amount,’’ the defined term, in its place, 

which was our original intent. 

We are amending § 422.314(c)(1)(i) to 

remove an inadvertent reference to 

§ 422.306. Section 422.306 concerns the 

capitation rate but not the calculated 

payment for deposit in the MA MSA, 

the requirement that is the subject of 

§ 422.314(c). 

We are amending § 422.320(c)(1) by 

removing ‘‘prescription drug beneficiary 

premium (described at § 422.252)’’ and 

replacing this with ‘‘prescription drug 

payment described in § 423.315 (if any)’’

since § 422.252 refers to the basic 

definition while § 423.315 describes the 

actual payment to which § 422.320 is 

referring. Likewise, we are amending 

paragraph (c)(2)(ii) of § 422.320 by 

removing ‘‘beneficiary premium (if 

any)’’ and adding ‘‘payment described 

in § 423.315 (if any).’’

We are amending § 422.458 to include 

the correct reference to 

§ 422.504(d)(1)(iii), a section specifying 

contract provisions. Although we 

revised several sections for the final 

rule, we inadvertently referred to the 

previous organization of the managed 

care regulations and § 422.502(d)(1)(iii) 

of those regulations. 

We are amending § 422.504(h) to 

reflect the correct reference to the False 

Claims Act. In the final rule we 

inadvertently cited ‘‘32 U.S.C. 3729 et 

seq.,’’ whereas the correct reference is 

‘‘31 U.S.C. 3729 et seq.’’

In § 422.510(a)(4), we are replacing 

the term ‘‘PDP sponsor’’ with ‘‘MA 

organization’’ as we inadvertently used 

the term ‘‘PDP sponsor’’ in this section. 

In § 422.552(a)(3)(iii), we 

inadvertently did not make a 

conforming change to the cross 

reference and, instead of referring to 

‘‘subpart J,’’ we should have referred to 

‘‘subpart K,’’ the subpart containing the 

application and contract requirements. 

In § 422.553(b)(2), we inadvertently 

referred to ‘‘subpart L,’’ when intending 

to refer to ‘‘subpart K,’’ and the 

requirements for applications and 

contracts. 

In §§ 422.562(c)(1)(ii) and 

422.622(b)(1)(i), which concern the 

requirements for appeals of quality 

improvement organization (QIO) 

determinations, we incorrectly 

referenced the CFR Parts governing such 

appeals. As a result, we are amending 

these sections by replacing the incorrect 

references with ‘‘Parts 476 and 478 of 

Chapter 42 of the CFR’’, the correct 

references. 

B. Corrections Affecting Multiple 

Sections 

In the August 3, 2004 proposed rule 

(69 FR 46866), we proposed to 

reorganize and revise subparts F and G 

due to the substantial revisions that the 

MMA made to pricing and payment 

rules for MA organization. In 

reorganizing and revising these subparts 

to reflect the new MA bidding and 

payment procedures, we reversed the 

order of the subparts and reorganized 

several of the provisions within the 

subparts. However, in the final rule, we 

made several errors as a result of this 

reorganization. Errors primarily consist 

of cross-references to subparts F and G 

or sections of the subparts, and other 

technical changes resulting from our 

reference to the previous organization of 

the subparts. Because there are several 

related errors involving subparts F and 

G, we address these together, below. 

As a result of reorganizing and 

revising subparts F and G, we 

incorrectly referred to, or identified 

several specific sections of these 

subparts. In the table of contents for 

subpart G, we incorrectly identified a 

section of the subpart. Instead of 

identifying the Announcement of 

annual capitation rate, benchmarks, and 

methodology changes as section 

§ 422.312, we incorrectly identified the 

section as § 422.311. Other sections in 

which we incorrectly identified or 

referred to sections in subparts F and G 

include §§ 422.60(f), 422.66(f)(1), 

422.101 (introductory text), 

422.101(b)(3)(i), 422, 100(d)(2), 

422.103(d)(2), 422.109(a)(1)(ii), 

422.216(b)(2), 422.322(b), 422.500(b), 

and 422.504(a)(8). 

Sections in which we revise incorrect 

references to the subparts F and G 

themselves include § 422.504(a)(9) 

through (a)(10), and the introductory 

text of § 422.504(l), and § 422.752(a)(2). 

In another general change related to 

revision of the payment provisions, we 

are replacing incorrect terminology and 

references to the previous payment 

system. The changes, which replace the 

‘‘adjusted community rate’’ (ACR), an 

element of the previous payment rate for 

Federal Register / Vol. 70, No. 169 / Thursday, September 1, 2005 / Rules and Regulations 52025 

MA organizations, with language 

reflecting the new bidding process, 

affect several sections of the regulation. 

As we do in our discussion of the cross 

references to subparts F and G, we are 

discussing these payment language 

corrections together. 

Sections in which we replace the term 

‘‘ACR’’ with ‘‘bid’’ to reflect the new 

process include §§ 422.206(b)(2)(i) and 

§ 422.503(d)(1). Several of the contract 

requirements specified in subpart K are 

also affected. Thus, in § 422.504 we 

make corrections to reflect the correct 

payment language in paragraphs 

(d)(1)(i), (d)(1)(iv), (d)(1)(v) and (l)(4). 

The changes to remove references to 

ACR are consistent with § 422.2 of the 

final rule, where we correctly deleted 

the definition of ACR. 

In another correction affecting several 

sections of the regulations, we replace 

incorrect references referring to 

‘‘encounter data.’’ Just as we changed 

the term ‘‘ACR’’ to ‘‘bid’’ in order to be 

consistent with the statute, we are also 

changing the term ‘‘encounter data’’ to 

‘‘data.’’ Sections affected include 

§ 422.504(a)(8), (l)(2) through (l)(3), and 

§ 422.510(a)(7). In both the proposed 

and final rules we discussed that we 

were no longer requiring encounter data 

and, instead, are requiring other data, to 

include risk adjustment data. Although 

we discussed this change in the 

preamble (see 70 FR 4661), we 

inadvertently did not revise the 

regulation text to reflect this. 

In our final rule, we stated that MA 

organizations, like PDP sponsors, are 

required to maintain data for the current 

contract period and 10 prior periods. 

We discussed this requirement in the 

comments section of the preamble of the 

final rule and correctly stated the 

requirement in the published regulation 

text. Several other sections of the 

regulation text should have been 

amended to reflect the data retention 

requirement. In this correcting 

amendment we are making conforming 

change to those sections (see 

§ 422.504(d), (e)(1)(iii), and (i)(2)(ii)). 

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 incorporate a statement of 

the finding and the reasons therefore in 

the notice. 

Section 553(d) of the Administrative 

Procedure Act 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. In addition, section 1871(e)(1)(B) 

of the Act, as amended by section 903(b) 

of Pub. L. 108–173, provides that 

substantive changes may take effect 

before the end of the 30-day period that 

begins on the date that the Secretary has 

issued the substantive change only if the 

waiver of the 30-day period is necessary 

to comply with statutory requirements 

or the application of the 30-day delay is 

contrary to the public interest. 

Most of the revisions contained in this 

rule concern conforming changes, cross 

references, and typographical errors, 

and therefore, are not substantive. 

Because they are not substantive, we 

find that public comment on these 

revisions is not necessary. The revisions 

do not represent changes to our policy, 

and the public interest would, as a 

result, be best served by timely 

correction of these technical errors. A 

delay in the applicability of the nonsubstantive changes would be contrary 

to public interest in that such 

corrections are necessary for, especially, 

plans transitioning to the new Medicare 

Advantage program. 

Several of the changes, however, are 

corrections that could be viewed as 

substantive. We are staying the 

effectiveness of certain quality 

improvement requirements to clarify 

that MA plans need not meet them until 

January 1, 2006. Similarly, we are 

staying the effectiveness of the 

provisions pertaining to Federally 

Qualified Health Centers (FQHC) 

payments. In the case of these 

substantive corrections, we find that 

public comment is unnecessary because 

the corrections are being made to bring 

the regulations into conformity with the 

statutory requirements, which 

themselves do not apply until January 1, 

2006. We also find that the 30-day delay 

ordinarily called for under the APA and 

section 1871(e)(1)(B) of the Act is 

contrary to the public interest because 

there is no statutory authority for these 

regulatory provisions until January 1, 

2006, the effective date of the statutory 

provisions. 

Section 1871(e)(1)(A) of the Act, as 

amended by section 903(a) of Pub. L. 

108–173, provides that a substantive 

change in regulations shall not be 

applied retroactively to items and 

services furnished before the effective 

date of the change, unless the Secretary 

finds that such retroactive application is 

necessary to comply with statutory 

requirements or failure to apply the 

change retroactively would be contrary 

to the public interest. 

The provisions of this correcting 

amendment that apply retroactively 

make no substantive changes, but 

merely correct minor technical errors. 

Failure to make these changes 

retroactive to March 22, 2005, is 

contrary to the public interest because 

of the confusion that could result from 

the technical errors identified above. It 

is in the public interest to make the 

corrections retroactive in that it will 

help prevent confusion among plans 

that must now follow these 

requirements for plans offered in 

January 1, 2006, the year the new MA 

program requirements are implemented. 

IV. Correction of Errors 

Make the following corrections to the 

January 28, 2005 final rule (70 FR 4588): 

1. On page 4676 in column 3, at the 

end of the first full paragraph add the 

following: ‘‘Thus, we are making a 

conforming change to § 422.568(d) to 

provide that if an enrollee requests an 

MA organization to provide an 

explanation of a practitioner’s denial of 

an item or service, in whole or in part, 

the MA organization must give the 

enrollee a written notice. This change 

eliminates the practitioner’s 

requirement to deliver a general notice 

to an enrollee whenever an adverse 

decision is made in an office setting. An 

enrollee retains the right to obtain a 

detailed notice from an MA organization 

upon an enrollee’s request for an 

explanation of a practitioner’s denial.’’

2. On page 4681, column 1, line 7, 

delete ‘‘72-hour’’ and add ‘‘24-hour’’ in 

its place. 

3. On page 4685, column 2—

A. In line 8, remove the word 

‘‘proposed.’’

B. In line 13, remove the word 

‘‘Table’’ and add the word ‘‘section’’ in 

its place. 

C. Remove the paragraph beginning 

line 15. 

List of Subjects in 42 CFR Part 422 

Administrative practice and 

procedure, Health facilities, Health 

maintenance organizations (HMO), 

Medicare, Penalties, Privacy, Reporting 

and recordkeeping requirements. 

■ Accordingly, 42 CFR chapter IV is 

corrected by making the following 

correcting amendments to part 422: 

52026 Federal Register / Vol. 70, No. 169 / Thursday, September 1, 2005 / Rules and Regulations 

PART 422—MEDICARE ADVANTAGE 

PROGRAM 

■ 1. The authority citation for part 422 

continues to read as follows: 

Authority: Secs. 1102 and 1871 of the 

Social Security Act (42 U.S.C. 1302 and 

1395hh). 

■ 2. Amend § 422.2 as follows: 

■ A. Revise the definition for ‘‘Provider 

network’’. 

■ B. In the definition for ‘‘Prescription 

drug plan (PDP)’’ remove the reference 

to ‘‘§ 423.272’’ and add ‘‘§ 423.4’’ in its 

place. 

■ C. In the definition for ‘‘Prescription 

drug plan (PDP) sponsor’’ remove the 

reference to ‘‘§ 423.2’’ and add ‘‘§ 423.4’’

in its place. 

The revisions read as follows: 

§ 422.2 Definitions. 

* * * * * 

Provider network means the providers 

with which an MA organization 

contracts or makes arrangements to 

furnish covered health care services to 

Medicare enrollees under an MA 

coordinated care plan. 

* * * * * 

§ 422.4 [Corrected] 

■ 3. In § 422.4, amend paragraph 

(a)(1)(iii) by removing the parenthetical 

phrase ‘‘(except MSA and PFFS plans)’’

and adding in its place ‘‘(except PFFS 

plans).’’

■ 4. In § 422.6—

■ A. Revise the section heading to read 

as set forth below. 

■ B. Revise paragraph (d)(2)(ii) to read 

as set forth below. 

■ C. In paragraph (e), remove the phrase 

‘‘for those PDP sponsors PDP sponsors’’

and add ‘‘for those PDP sponsors’’ in its 

place. 

■ D. Revise paragraph (f)(1)(ii) to read as 

set forth below. 

The revisions read as follows: 

§ 422.6 Cost-sharing in enrollment-related 

costs. 

* * * * * 

(d) * * * 

(2) * * * 

(ii) For fiscal year 2006 and each 

succeeding year, the applicable portion 

(as defined in paragraph (e) of this 

section) of $200 million.’’

* * * * * 

(f) * * * 

(1) * * * 

(ii) The assessment formula for PDPs: 

C divided by A times B where—A is the 

total estimated January payments to all 

PDP sponsors subject to the assessment; 

B is the 9-month (January through 

September) assessment period; and C is 

the total fiscal year PDP sponsor’s user 

fee assessment amount determined in 

accordance with paragraph (d)(2) of this 

section. 

* * * * * 

§ 422.50 [Corrected] 

■ 5. In § 422.50, amend paragraph (a)(4) 

by removing the reference to ‘‘§ 422.12’’

and adding in its place ‘‘§ 422.112.’’

§ 422.60 [Corrected] 

■ 6. In § 422.60, amend paragraph (f) 

introductory text by removing the 

reference to ‘‘§ 422.250(b)’’ and adding 

‘‘§ 422.308(f)(2)’’ in its place. 

§ 422.66 [Corrected] 

■ 7. In § 422.66 amend paragraph (f)(1) 

by removing the reference to 

‘‘§ 422.250(b)’’ and adding ‘‘§ 422.308 

(f)(2)’’ in its place. 

§ 422.100 [Amended] 

■ 8. In § 422.100 amend paragraph (d)(2) 

by removing the reference to 

‘‘§ 422.304(b)(2)’’ and adding 

‘‘§ 422.262(c)(2)’’ in its place. 

§ 422.101 [Corrected] 

■ 9. In § 422.101—

■ A. Amend the introductory text by 

removing the references to ‘‘§ 422.264’’

and ‘‘§ 422.266’’ and adding in their 

place ‘‘§ 422.318’’ and ‘‘§ 422.320’’, 

respectively. 

■ B. Amend paragraph (b)(3)(i) by 

removing the reference to ‘‘§ 422.306(a)’’

and adding in its place 

‘‘§ 422.254(a)(1),’’ and by removing the 

phrase ‘‘adjusted community rate 

proposals’’ and adding ‘‘bid amounts’’

in its place. 

■ C. Amend paragraph (d)(1) by 

removing the phrase ‘‘are only 

permitted’’ and adding in its place ‘‘are 

permitted.’’

§ 422.103 [Corrected] 

■ 10. In § 422.103, amend paragraph 

(d)(2) by removing the reference to 

‘‘§ 422.252(b)’’ and adding in its place 

‘‘§ 422.306(a)(2).’’

§ 422.109 [Corrected] 

■ 11. In § 422.109, amend paragraph 

(a)(1)(ii) by removing the reference to 

‘‘§ 422.254(b)’’ and adding in its place 

‘‘§ 422.308(a).’’

§ 422.111 [Corrected] 

■ 12. In § 422.111, amend paragraph 

(b)(2) by removing the reference to ‘‘MDPD’’ and adding ‘‘MA-PD’’ in its place. 

§ 422.132 [Amended] 

■ 13. In § 422.132 remove the reference 

to ‘‘§ 422.502(g)’’ and add ‘‘§ 422.504(g)’’

in its place. 

§ 422.152 [Stayed in part] 

■ 14. Section 422.152(a)(1) and (c) is 

stayed effective September 1, 2005 until 

January 1, 2006. 

§ 422.152 [Corrected] 

■ 14a. In § 422.152, amend paragraph 

(b)(3)(ii) by removing the reference to 

‘‘§ 422.64(c)(10)’’ and adding in its 

place, ‘‘§ 422.64.’’

§ 422.156 [Stayed in part] 

■ 15. Section 422.156(b)(7) is stayed 

effective September 1, 2005 until 

January 1, 2006. 

§ 422.206 [Amended] 

■ 16. In § 422.206, amend paragraph 

(b)(2)(i) by removing the phrase ‘‘ACR’’

and adding in its place ‘‘bid’’. 

§ 422.208 [Corrected] 

■ 17. In § 422.208, amend paragraph 

(c)(2) by removing the phrase ‘‘and 

conduct periodic surveys in accordance 

with paragraph (h) of this section’’. 

■ 18. Revise § 422.210 to read as 

follows. 

§ 422.210 Assurances to CMS. 

(a) Assurances to CMS. Each 

organization will provide assurance 

satisfactory to the Secretary that the 

requirements of § 422.208 are met. 

(b) Disclosure to Medicare 

Beneficiaries. Each MA organization 

must provide the following information 

to any Medicare beneficiary who 

requests it: 

(1) Whether the MA organization uses 

a physician incentive plan that affects 

the use of referral services. 

(2) The type of incentive arrangement. 

(3) Whether stop-loss protection is 

provided. 

§ 422.216 [Amended] 

■ 19. In § 422.216, amend paragraph 

(b)(2) by removing the reference to 

‘‘§ 422.308(b)’’ and adding in its place 

‘‘§ 422.256(b)(3).’’

§ 422.252 [Corrected] 

■ 20. In § 422.252, amend the entry, 

‘‘MA monthly supplemental beneficiary 

premium’’ by removing the reference to 

‘‘§ 422.266(b)(2)(i)’’ and adding in its 

place ‘‘§ 422.266(b)(1).’’

§ 422.254 [Corrected] 

■ 21. In § 422.254 amend paragraph 

(b)(1)(i) by removing the phrase 

‘‘statutory non-drug bid amount’’ and 

adding ‘‘unadjusted MA statutory nondrug monthly bid amount’’ in its place. 

Federal Register / Vol. 70, No. 169 / Thursday, September 1, 2005 / Rules and Regulations 52027 

§ 422.256 [Corrected] 

■ 22. Amend paragraph (c) by removing 

the reference to ‘‘§ 422.258(b)’’ and 

adding ‘‘§ 422.258(c)’’ in its place. 

§ 422.314 [Corrected] 

■ 23. In § 422.314, amend paragraph 

(c)(1)(i) by removing the phrase 

‘‘determined under § 422.306’’. 

§ 422. 316 [Stayed] 

■ 23a. Section 422.316 is stayed 

effective September 1, 2005 until 

January 1, 2006. 

§ 422.320 [Corrected] 

■ 24. In § 422.320—

■ A. Amend paragraph (c)(1) by 

removing the phrase ‘‘prescription drug 

beneficiary premium (described at 

§ 422.252)’’ and adding ‘‘prescription 

drug payment described in § 423.315 (if 

any)’’ in its place. 

■ B. Amend paragraph (c)(2)(ii) by 

removing the phrase ‘‘beneficiary 

premium (if any)’’ and adding ‘‘payment 

described in § 423.315 (if any)’’ in its 

place. 

§ 422.322 [Corrected] 

■ 25. In § 422.322—

■ A. Amend paragraph (b) by removing 

the reference to ‘‘§ 422.264’’ and adding 

‘‘§ 422.316’’ in its place; by removing 

the reference to ‘‘§ 422.266’’ and adding 

‘‘§ 422.320’’ in its place. 

■ B. Amend paragraph (c) by adding the 

reference ‘‘§ 422.316,’’ immediately 

following the reference to ‘‘§ 422.314’’. 

■ 26. In § 422.458, revise paragraph 

(d)(2) to read as follows: 

§ 422.458 Risk sharing with regional MA 

organizations for 2006 and 2007. 

* * * * * 

(d) * * * 

(2) According to § 422.504(d)(1)(iii), 

CMS has the right to inspect and audit 

any books and records of the 

organization that pertain to the 

information regarding costs provided to 

CMS under paragraph (b)(2) of this 

section. 

* * * * * 

§ 422.500 [Corrected] 

■ 27. In § 422.500(b), amend paragraph 

(1) of the definition of ‘‘Clean claim’’ by 

removing the reference to 

‘‘§ 422.257(d)’’ and adding 

‘‘§ 422.310(d)’’ in its place. 

§ 422.503 [Corrected] 

■ 28. In § 422.503—

■ A. Amend paragraph (b)(4)(vi)(H) by 

removing the phrase ‘‘MA-PDPs’’ and 

adding ‘‘MA-PDs’’ in its place. 

■ B. Amend paragraph (d)(1) by 

removing the phrase ‘‘ACR’’ and adding 

‘‘bid’’ in its place. 

§ 422.504 [Corrected] 

■ 29. In § 422.504—

■ A. Amend paragraph (a)(8) by 

removing the cross reference to 

‘‘§ 422.257’’ and adding ‘‘§ 422.310’’ in 

its place, and by removing ‘‘encounter 

data’’ and adding ‘‘data’’ in its place. 

■ B. Amend paragraph (a)(9) by 

removing the cross reference to ‘‘subpart 

F’’ and adding ‘‘subpart G’’ in its place. 

■ C. Amend paragraph (a)(10) by 

removing the phrase ‘‘ACR’’ and adding 

‘‘bid’’ in its place; by removing the 

phrase ‘‘May 1’’ and adding ‘‘not later 

than the first Monday in June’’ in its 

place; and by removing the phrase 

‘‘subpart G’’ and adding ‘‘subpart F’’ in 

its place. 

■ D. Amend paragraph (d), introductory 

text, by removing the phrase ‘‘6 years’’

and adding ‘‘10 years’’ in its place. 

■ E. Amend paragraphs (d)(1)(i), 

(d)(1)(iv) and (d)(1)(v) by removing the 

phrase ‘‘ACR’’ and adding ‘‘bid’’ in its 

place wherever it occurs. 

■ F. Amend paragraphs (d)(2)(ii) and 

(d)(2)(iii) by removing the phrase ‘‘six 

prior periods’’ and adding ‘‘10 prior 

periods’’ in its place wherever it occurs. 

■ G. Amend paragraph (e)(1)(iii) by 

removing the phrase ‘‘six prior periods’’

and adding ‘‘10 prior periods’’ in its 

place. 

■ H. Amend paragraph (h)(1) by 

removing the reference to ‘‘32 U.S.C. 

3729 et seq.’’ and adding ‘‘31 U.S.C. 

3729 et seq.’’ in its place. 

■ I. Amend paragraph (i)(2)(ii) by 

removing the phrase ‘‘6 years’’ and 

adding ‘‘10 years’’ in its place. 

■ J. Amend the introductory text of 

paragraph (l) by removing the cross 

reference to ‘‘subpart F’’ and adding 

‘‘subpart G’’ in its place, and by 

removing the phrase ‘‘encounter data.’’

■ K. Amend paragraph (l)(2) by 

removing the phrase ‘‘encounter data’’

and adding ‘‘data’’ in its place, and by 

removing the cross reference to 

‘‘§ 422.257’’ and adding ‘‘§ 422.310’’ in 

its place. 

■ L. Amend paragraph (l)(3) by 

removing the phrase ‘‘encounter data’’

and adding ‘‘data’’ in its place.’’

■ M. Amend paragraph (l)(4) by 

removing the phrase ‘‘ACR’’ and adding 

‘‘bid’’ in its place and by removing the 

cross reference to ‘‘§ 422.310’’ and 

adding ‘‘§ 422.254’’ in its place. 

§ 422.510 [Corrected] 

■ 30. In § 422.510—

■ A. Amend paragraph (a)(4) by 

removing the phrase ‘‘PDP sponsor’’ and 

adding ‘‘MA organization’’ in its place. 

■ B. Amend paragraph (a)(7) by 

removing the phrase ‘‘encounter data’’

and adding ‘‘data’’ in its place, and by 

removing the reference to ‘‘§ 422.257’’

and adding ‘‘§ 422.310’’ in its place. 

§ 422.527 [Stayed] 

■ 30a. Section 422.527 is stayed 

effective September 1, 2005 until 

January 1, 2006. 

§ 422.552 [Amended] 

■ 31. In § 422.552—

■ A. Amend paragraph (a) by removing 

the phrase ‘‘HCFA’’ and adding ‘‘CMS’’

in its place. 

■ B. Amend paragraph (a)(3)(iii) by 

removing the reference to ‘‘subpart J’’

and adding ‘‘subpart K’’ in its place. 

§ 422.553 [Amended] 

■ 32. In § 422.553, amend paragraph 

(b)(2) by removing the reference to 

‘‘subpart L’’ and adding ‘‘subpart K’’ in 

its place. 

§ 422.562 [Corrected] 

■ 33. In § 422.562, amend paragraph 

(c)(1)(ii) by removing the phrase ‘‘in part 

478 of this chapter’’ and adding in its 

place ‘‘in parts 476 and 478 of this 

chapter.’’

■ 34. In § 422.568 revise paragraph (d) 

to read as follows: 

§ 422.568 Standard timeframes and notice 

requirements for organization 

determinations. 

* * * * * 

(d) Written notice for MA 

Organization denials. If an enrollee 

requests an MA organization to provide 

an explanation of a practitioner’s denial 

of an item or service, in whole or in 

part, the MA organization must give the 

enrollee a written notice. 

* * * * * 

■ 35. In § 422.622 revise paragraph 

(b)(1)(i) to read as follows: 

§ 422.622 Requesting immediate QIO 

review of noncoverage of inpatient hospital 

care. 

* * * * * 

(b) * * * 

(1) * * * 

(i) To the QIO that has an agreement 

with the hospital under parts 476 and 

478 of this chapter. 

* * * * * 

§ 422.752 [Corrected] 

■ 36. In § 422.752, amend paragraph 

(a)(2) by removing the reference to 

‘‘subpart G,’’ and adding in its place 

‘‘subpart F.’’

(Catalog of Federal Domestic Assistance 

Program No. 93.773, Medicare—Hospital 

52028 Federal Register / Vol. 70, No. 169 / Thursday, September 1, 2005 / Rules and Regulations 

Insurance; and Program No. 93.774, 

Medicare—Supplementary Medical 

Insurance Program) 

Dated: August 16, 2005. 

Ann C. Agnew, 

Executive Secretary to the Department. 

[FR Doc. 05–17280 Filed 8–26–05; 10:10 am] 

BILLING CODE 4120–01–P 

DEPARTMENT OF THE INTERIOR 

Bureau of Land Management 

43 CFR Part 3834 

[WO–620–1990–00–24 1A] 

RIN 1004–AD75 

Mining Claim and Site Maintenance 

and Location Fees—Fee Adjustment 

AGENCY: Bureau of Land Management, 

Interior. 

ACTION: Interim rule. 

SUMMARY: The Bureau of Land 

Management (BLM) is publishing this 

interim rule to amend regulations found 

at 43 CFR part 3834, subpart B, related 

to adjustments of the fees required to be 

paid for mining claims and mill sites, so 

as to clarify that mining claimants may 

cure the filing of an insufficient 

payment of fees when the fees have 

changed through any means, including 

a Consumer Price Index (CPI) 

adjustment or other statutorily required 

adjustment. 

DATES: The interim rule is effective 

September 1, 2005. 

ADDRESSES: Inquiries may be addressed 

to the to Bureau of Land Management, 

Solid Minerals Group, Room 501 LS, 

1849 C Street, NW., Washington, DC 

20240–001. 

FOR FURTHER INFORMATION CONTACT: 

Roger Haskins in the Solid Minerals 

Group at (202) 452–0355. Persons who 

use a telecommunications device for the 

deaf (TDD) may call the Federal 

Information Relay Service at 1–800–

877–8339, 24 hours a day, 7 days a 

week. 

SUPPLEMENTARY INFORMATION: 

I. Background 

II. Discussion of the Interim Rule 

III. Procedural Matters 

I. Background 

On July 1, 2004, the Department of the 

Interior adjusted the location and 

maintenance fees for mining claims and 

sites based upon the CPI, as required by 

the Mining Law. See 69 FR 40294. The 

Department increased the location fee 

from $25 to $30 and increased the 

annual maintenance fee from $100 to 

$125. The Interior and Related Agencies 

Appropriations Act for fiscal year 2005, 

Division E, Title I, Section 120 of Public 

Law 108–447 of December 8, 2004, 

directed the Department of the Interior 

to roll back these location and 

maintenance fees for mining claims and 

sites to their pre-July 2004 level. This 

meant that, as of December 8, 2004, the 

location fee was rolled back from $30 to 

$25 per new location and the annual 

maintenance fee was rolled back from 

$125 to $100 per mining claim or site. 

However, the 2005 Appropriations 

Act also provided that the fees would 

return to their increased levels when the 

Department met certain conditions, 

including establishing a plan of 

operations tracking system and filing a 

report with Congress regarding the 

length of time it takes the Department to 

approve proposed mining plans of 

operations and recommending steps to 

reduce current delays. As described in 

the Federal Register on July 1, 2005 (70 

FR 38192) the Department met these 

conditions on June 30, 2005. Therefore, 

in accordance with the terms of the 

2005 Appropriations Act, the fees 

returned to the rates established in 2004 

on June 30, 2005. Mining claim holders 

must pay a $30 location fee and a $125 

maintenance fee for all mining claims 

and sites recorded on or after June 30, 

2005. In addition, the annual 

maintenance fee due on or before 

September 1, 2005, is $125 per mining 

claim or site. 

BLM noted in the July 1, 2005, 

Federal Register notice that the 

regulation at 43 CFR 3834.23(c) 

provides that, if a mining claimant 

timely pays pre-increase fees, the BLM 

will provide notice to the claimant and 

an opportunity to pay the difference. 

BLM noted that although the fee 

increase at issue in the July 1, 2005, 

Federal Register notice was not directly 

a CPI-based increase, the 2004 increase 

that has been restored was CPI-based. 

Therefore, BLM noted that it believed 

that the cure provisions of the rule will 

apply if a claimant timely pays at least 

$100 for a claim or site on or before 

September 1, 2005. However, the BLM 

noted that it would publish an 

additional rule before September 1, 

2005, further clarifying that mining 

claimants may cure the filing of an 

insufficient payment of fees when the 

fees have changed through any means, 

including a Consumer Price Index (CPI) 

adjustment or other statutorily required 

adjustment. The purpose of this interim 

rule is to amend the regulations found 

at 43 CFR part 3834, subpart B, to make 

this clarification. 

II. Discussion of the Interim Rule 

Why the Rule Is Being Published on a 

Interim Basis 

BLM is adopting this interim rule to 

clarify that mining claimants may cure 

the filing of an insufficient payment of 

fees when the fees have changed 

through means other than a CPI 

adjustment. The existing provision 

found at 43 CFR 3834.23(b) provides 

that, after BLM adjusts the fees to reflect 

a change in the CPI, as required by the 

Mining Law, claimants who pay the fees 

timely, but pay the pre-adjustment 

amount, will be given an opportunity to 

cure that insufficient payment. This rule 

will make this curing provision 

applicable whenever Congress enacts 

any other statutes that require an 

adjustment of the fees. 

The Department of the Interior, for 

good cause, finds under 5 U.S.C. 

553(b)(B) that notice and public 

procedure are unnecessary and contrary 

to the public interest. The clarification 

to the curing provision is a reasonable 

and equitable administrative way in 

which to handle fee adjustments and to 

avoid inadvertent loss of mining claims 

due to lack of actual notice of an 

adjustment. It is in the public interest to 

provide such equitable means for a 

mining claimant to be able to cure an 

underpayment of the fees when the 

claimant has shown an intent to 

maintain the claim by paying the preadjusted fee amount in a timely manner. 

This will avoid the disruption of mining 

operations that would be caused if the 

mining claimant unintentionally loses 

their mining claim or site due to a 

minimal underpayment of fees. 

We also determine under 5 U.S.C. 

553(d) that there is good cause to place 

the rule into effect on the date of 

publication, because a fee adjustment 

has already occurred and the deadline 

for filing the adjusted fees for all 

existing mining claims and sites is 

September 1, 2005. This rule will make 

it clear that the BLM will give any 

claimant who pays the pre-adjusted fee 

amount in a timely fashion an 

opportunity to pay the additional 

amount within 30 days. As such, it 

grants temporary exemption to the 

immediate forfeiture of a mining claim 

due to failure to timely pay fees. 

Organization of the Interim Rule 

This interim rule amends existing 

regulations at Subpart B of Part 3834. 

The existing regulations apply to fee 

adjustments made in accordance with 

the CPI, as required by the Mining Law. 

The amendment will apply to fee 

adjustments made in accordance with 

other statutes.