[Federal Register Volume 73, Number 163 (Thursday, August 21, 2008)]
[Rules and Regulations]
[Pages 49355-49357]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-19295]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Parts 405, 413, and 417

[CMS-1727-CN]
RIN 0938-AL54


Medicare Program; Provider Reimbursement Determinations and 
Appeals; Correction

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

ACTION: Correction of final rule.

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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 
23, 2008 entitled ``Provider Reimbursement Determinations and 
Appeals.''

DATES: Effective Date: August 21, 2008.

FOR FURTHER INFORMATION CONTACT: Morton Marcus, (410) 786-4477. Donald 
Romano, (410) 786-1401.

SUPPLEMENTARY INFORMATION:

I. Background

    In FR Doc. E8-11227 of May 23, 2008 (73 FR 30190), there were a 
number of typographical and technical errors that are identified and 
corrected in the Correction of Errors section in section III. of this 
notice. The provisions of this correction notice are effective as if 
they had been included in the final rule published on May 23, 2008. 
Accordingly, the corrections are effective August 21, 2008.

II. Summary of Errors

    We note that in section III. of this notice, we correct a number of 
typographical and technical errors. We note that the following are the 
more significant corrections:
    On pages 30211 and 30250, we are correcting an error relating to 
the usage and filing of mandatory group appeals. We stated in the 
preamble and regulations text of Sec.  405.1835(b)(4)(i) that a 
commonly-owned provider must state in its request for Board hearing 
that: ``* * * sano other provider related to it by common ownership or 
control has an individual or group appeal pending before the Board on 
the same issue for a cost reporting period that falls within the same 
calendar year.'' This statement was incorrect. To provide consistency 
with the regulations text at Sec.  405.1837(b)(1)(i), the word 
``falls'' needs to be replaced with the word ``ends.''
    On page 30243, we are correcting a technical error in the 
regulations text at Sec.  405.1801(b)(2). Following the publication of 
the final rule, we discovered that the regulations at Sec.  
405.1801(b)(2) failed to reference the longstanding exception at Sec.  
413.200(g). In the regulations text at Sec.  405.1801(b)(2), we stated 
that a nonprovider entity is not entitled to an intermediary hearing or 
a Board hearing. (We discussed this issue in the preamble to the 
proposed rule published on June 25, 2004 (69 FR 35721).) However, the 
current text at Sec.  413.200(g) reflects that an OPO (organ 
procurement organization) or histocompatibility laboratory is entitled 
to an intermediary hearing in accordance with the intermediary hearing 
procedures contained in subpart R. While OPOs (formerly referred to as 
organ procurement agencies or OPAs ) and histocompatibility 
laboratories are nonprovider entities and not entitled to a hearing 
under section 1878 of the Act, they have always been an exception to 
the rule with respect to intermediary hearings and historically have 
received intermediary hearings under subpart R of the regulations. (See 
December 14, 1978, 43 FR 58370 through 58371, referencing the 
legislative history of Public Law 95-292 that Congress intended to 
provide an intermediary hearing for the OPOs and histocompatibility 
laboratories, and S. Rep. No. 95-714, 95th Cong. 2d Sess., 12-13 
(1978); H. Rep. No. 95-549, 95th Cong. 1st Sess. 14 (1977)). We wanted 
to assure OPOs that they will continue to have intermediary hearing 
rights as they have always had in the past. Therefore, we are 
correcting Sec.  405.1801(b)(2) by adding a reference to the exception 
for OPOs and histocompatibility laboratories at Sec.  413.200(g) and 
thus clarifying that OPO hearing rights do not derive from section 1878 
of the Act.
    On page 30263, we are correcting an error in the regulations text 
for Sec.  405.1875(d). In the final rule, we inadvertently included the 
sentence ``[T]he Administrator does not consider any communication that 
does not meet these requirements or is not submitted with the required 
time limits'' as the last sentence of paragraph (d)(3)(ii). However 
this statement is applicable to all of the provisions of paragraph (d). 
Therefore, we have removed the sentence from paragraph (d)(3)(ii) and 
after changing the word ``these'' to ``the following'' have added the 
sentence to the introductory text of paragraph (d).
    We also note that the May 23, 2008 final rule referenced a First 
Circuit Court of Appeals decision, MaineGeneral Medical Center v. 
Shalala, 205 F. 3d 493 (1st Cir. 2000). In a number of instances 
throughout the preamble of the final rule, we misspelled 
``MaineGeneral'' as ``Maine General.'' We are acknowledging these 
errors without specifically itemizing each error in the Correction of 
Errors section of this notice.

III. Correction of Errors

    In FR Doc. E8-11227 of May 23, 2008 (73 FR 30190), make the 
following corrections:

A. Correction of Errors in the Preamble

    1. On page 30192, second column, second paragraph, line 3, the 
phrase, ``CMS Reviewing official procedure'' is corrected to read ``CMS 
reviewing official procedure.''
    2. On page 30197, third column,
    a. First partial paragraph, line 4, the phrase ``are more 
appropriately borne by fiscal intermediaries'' is corrected to read 
``are more appropriately borne by intermediaries.''
    b. First full paragraph, lines 9 through 11, the phrase ``In Maine 
General Medical Center v. Shalala, 205 F. 3d 493 (1st Cir. 2000), the 
majority'' is corrected to read ``In MaineGeneral, the majority.''
    3. On page 30206, first column, second paragraph, line 19, the 
phrase ``determinations are governed'' is corrected to read 
``determinations is governed.''
    4. On page 30208, first column, fourth paragraph, line 17, the 
phrase ``Rather, we believe that intermediary officers'' is corrected 
to read ``Rather, we believe that intermediary hearing officers.''
    5. On page 30211, first column, first partial paragraph, line 32, 
the phrase ``a cost reporting period that falls within'' is corrected 
to read ``a cost reporting period that ends within.''
    6. On page 30214, second column, first full paragraph, paragraph 
heading, ``K. Expediting Judicial Review (Sec.  405.1842)'' is 
corrected to read ``K.

[[Page 49356]]

Expedited Judicial Review (Sec.  405.1842).''
    7. On page 30216, second column, third paragraph, line 6, the 
phrase ``which provides agency review of an'' is corrected to read 
``which provides for agency review of an.''
    8. On page 30219, first column, second paragraph, line 3, the 
phrase ``the requirement in section Sec.  405.1853(a)'' is corrected to 
read ``the requirement in Sec.  405.1853(a).''
    9. On page 30222, second column, second paragraph, line 11, the 
phrase ``to 120 days of the'' is corrected to read ``to 120 days before 
the.''
    10. On page 30237,
    a. First column, second paragraph heading, that reads ``D. Provider 
Hearing Rights (Sec.  405.1803(d), Sec.  405.1811, and Sec.  
405.1835))'' is corrected to read ``D. Provider Rights (Sec.  
405.1803(d), Sec.  405.1811, and Sec.  405.1835).''
    b. Third column, fifth bullet, line 2, the phrase ``revised Sec.  
405.1834(e)(1) to state'' is corrected to read ``revised Sec.  
405.1834(e)(1)(i) to state.''
    11. On page 30239,
    a. First column, first bulleted paragraph, line 3, the phrase 
``(unless the time is extended by the Board)'' is corrected to read 
``unless the time is extended by the Board.''
    b. Third column, last bulleted paragraph, lines 1 and 2, the phrase 
``Clarifying language has been added'' is corrected to read ``We added 
clarifying language''
    12. On page 30240, second column, third bulleted paragraph, 
beginning with the phrase ``++Sixty days after'' and ending with the 
phrase ``Sec.  405.1835(c) apply'' is corrected to read as follows:
    ``++Sixty days after the expiration of the applicable 180-day 
period prescribed in Sec.  405.1811(a)(3) (for intermediary hearing 
officer hearings) or Sec.  405.1835(a)(3) (for Board hearings).
    ++Sixty days after the effective date of this rule.
    <bullet> For appeals filed on or after the effective date of this 
rule, the provisions of Sec.  405.1811(c) and Sec.  405.1835(c) 
apply.''

B. Correction of Errors in Regulations Text

0
1. On page 30243, third column, last paragraph,
0
a. Line 1, the phrase ``non-provider'' is corrected to read 
``nonprovider.''
0
b. Line 5, the phrase ``These nonprovider entities'' is corrected to 
read ``Except as provided at Sec.  413.200(g), these nonprovider 
entities.''

0
2. On page 30246,
0
a. Third column, first paragraph, line 6, the word ``extend'' is 
corrected to read ``extends.''
0
b. Third column, seventh paragraph, line 3, the phrase ``the 
Secretary'' is corrected to read ``HHS.''

0
3. On page 30247,
0
a. First column, last paragraph, line 5, the phrase ``or in part if 
applicable,'' is corrected to read ``or in part; if applicable.''

0
4. On page 30248,
0
a. First column, third paragraph, line 4, the phrase ``conducts a 
hearing the intermediary'' is corrected to read ``conducts a hearing, 
the intermediary.''
0
b. Second column, first partial paragraph, lines 2 and 3, the phrase 
``hearing and the intermediary unless'' is corrected to read ``hearing 
and on the intermediary, unless.''
0
c. Third column, third paragraph, line 6, the phrase ``section or Sec.  
405.1821(d)(2)'' is corrected to read ``section or in Sec.  
405.1821(d)(2).''

0
5. On page 30250,
    a. First column,
    (1) Eighth paragraph, line 9, the phrase ``reporting period that 
falls within the'' is corrected to read ``reporting period that ends 
within the.''
    (2) Ninth paragraph, lines 1 and 2, the phrase ``Such a pending 
appeal(s) exist(s), the'' is corrected to read ``Such a pending 
appeal(s) exist(s), and the.''
0
b. Second column, fifth paragraph, line 3, the phrase ``in writing it 
can'' is corrected to read ``in writing it could.''

0
6. On page 30252, third column, sixth paragraph, line 12, the phrase 
``appeal increases'' is corrected to read ``appeal would increase.''

0
7. On page 30253,
0
a. First column, first partial paragraph, line 8, the phrase ``issue 
recurs in the appeal'' is corrected to read ``issue in the appeal 
recurs.''
0
b. First column, first paragraph, line 9, the phrase ``appeal 
increases'' is corrected to read ``appeal would increase.''

0
8. On page 30254, second column,
0
a. First partial paragraph, line 6, the phrase ``this subpart 
explains'' is corrected to read ``this subpart, which explains.''
0
b. First full paragraph, line 5, the word ``Board'' is corrected to 
read ``Board.''

0
9. On page 30255,
0
a. Second column, 11th paragraph, line 6, the phrase ``Sec.  
405.1875(a)(2)(iii) and Sec.  405.1875(e) or'' is corrected to read 
``405.1875(a)(2)(iii), Sec.  405.1875(e), and.''
0
b. Third column,
    (1) Second paragraph, line 11, the phrase ``rendered nonfinal'' is 
corrected to read ``nonfinal.''
    (2) Seventh paragraph, lines 4 and 5, the phrase ``Board (or the 
Administrator) is corrected to read ``Board or the Administrator.''

0
10. On page 30258, first column,
0
a. Sixth paragraph, line 9, the phrase ``is directed or'' is corrected 
to read ``is directed, or.''
0
b. Seventh paragraph, line 4, the phrase ``of documents must'' is 
corrected to read ``of documents, must.''
0
c. Eighth paragraph, line 5, the phrase ``appeal and any nonparty 
subject to a discovery request a'' is corrected to read ``appeal, and 
any nonparty subject to a discovery request, a.''
    11. On page 30259,

0
a. First column,
    (1) First paragraph, the phrase ``for purposes of a--'' is 
corrected to read ``for purposes of--.''
    (2) Second paragraph, the phrase ``(i) Discovery subpoena, 90 
days'' is corrected to read ``(i) Discovery, 90 days.''
    (3) Third paragraph, the phrase ``(ii) Hearing subpoena, whether'' 
is corrected to read ``(ii) An oral hearing, whether.''
0
c. Third column, last paragraph, line 5, the phrase ``until the time'' 
is corrected to read ``until such time.''

0
12. On page 30260,
0
a. Second column,
    (1) First paragraph,
    (a) Line 5, the phrase ``materials to the'' is corrected to read 
``materials submitted to the.''
    (b) Line 11, the phrase `` Attorney Advisor and'' is corrected to 
read ``Attorney Advisor, and.''
    (2) Third paragraph, lines 5 and 6, the phrase ``as well as, CMS 
Rulings'' is corrected to read ``as well as CMS Rulings.''

0
b. Third column, last paragraph, line 7, the phrase ``of this subpart 
or'' is corrected to read ``of this subpart, or.''

0
13. On page 30261, first column, second paragraph, line 4, the phrase 
``Board information'' is corrected to read ``Board, information.''

0
14. On page 30262, second column, sixth paragraph, line 4, the phrase 
``policy, and rules'' is corrected to read ``policy, or rules.''

0
15. On page 30263, first column,
0
a. Tenth paragraph, ``(d) Ex parte communications prohibited. All 
communications from any party, CMS, or other affected nonparty, 
concerning a Board decision (or other reviewable action) that is being 
reviewed or may be reviewed by the Administrator must--'' is corrected 
to read ``(d) Ex parte communications prohibited. The Administrator 
does not consider any

[[Page 49357]]

communication that does not meet the following requirements or is not 
submitted within the required time limits. All communications from any 
party, CMS, or other affected nonparty, concerning a Board decision (or 
other reviewable action) that is being reviewed or may be reviewed by 
the Administrator must--''
0
b. Last paragraph, lines 1 through 3, through the second column, first 
paragraph, lines 1 through 4, the paragraph ``(ii) Written submissions 
regarding review submitted under paragraph (c)(4) of this section. The 
Administrator does not consider any communication that does not meet 
these requirements or is not submitted within the required time 
limits.'' is corrected to read ``(ii) Written submissions regarding 
review submitted under paragraph (c)(4) of this section.''

0
16. On page 30267, first column, sixth full paragraph, lines 2 and 3, 
the phrase ``revising the last sentence in each of paragraphs (c)(1) 
and (c)(2)'' is corrected to read ``removing the last two sentences in 
paragraphs (c)(1) and (c)(2) and adding one sentence in their place in 
paragraphs (c)(1) and (c)(2).''

IV. Waiver of Proposed Rulemaking and 30-Day 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 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.
    We find it unnecessary to undertake notice and comment rulemaking 
because this notice merely provides typographical and technical 
corrections. The revisions do not represent changes in policy, nor do 
they have a substantive effect, and the public interest would be best 
served by timely correction of these technical and typographical 
errors. Therefore, we find good cause to waive notice and comment 
procedures.
    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.
    Because this correction notice does not make substantive changes to 
the final rule, and the public interest is served by quickly correcting 
these technical errors in order to improve the clarity of the 
regulation, we find good cause under section 553(d)(3) of the APA to 
waive the 30-day delay in effective date.

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

    Dated: August 15, 2008.
Ann C. Agnew,
Executive Secretary to the Department.
[FR Doc. E8-19295 Filed 8-20-08; 8:45 am]
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