4888 Federal Register / Vol. 74, No. 16 / Tuesday, January 27, 2009 / Rules and Regulations 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

42 CFR Parts 447 and 457 

[CMS–2244–F2] 

RIN 0938–A047 

Medicaid Program; Premiums and Cost 

Sharing 

AGENCY: Centers for Medicare & 

Medicaid Services (CMS), HHS. 

ACTION: Final rule; delay of effective 

date and reopening of comment period. 

SUMMARY: In accordance with the 

memorandum of January 20, 2009, from 

the Assistant to the President and Chief 

of Staff, entitled ‘‘Regulatory Review 

Plan,’’ this action temporarily delays for 

60 days the effective date of the final 

rule entitled ‘‘Medicaid Program; 

Premiums and Cost Sharing’’ (73 FR 

71828). The temporary 60-day delay in 

effective date is necessary to give 

Department officials the opportunity for 

further review and consideration of new 

regulations. In addition, this action 

reopens the comment period on the 

policies set out in the November 25, 

2008 final rule. 

DATES: Effective Date. This action is 

effective January 23, 2009. The effective 

date of the rule amending 42 CFR parts 

447 and 457 published in the November 

25, 2008 Federal Register (73 FR 71828) 

is delayed 60 days until March 27, 2009. 

Comment Period. To be assured 

consideration, comments must be 

received at one of the addresses 

provided below, no later than 5 p.m. on 

February 26, 2009. 

ADDRESSES: In commenting, please refer 

to file code CMS–2244–F2. Because of 

staff and resource limitations, we cannot 

accept comments by facsimile (FAX) 

transmission. 

You may submit comments in one of 

four ways (please choose only one of the 

ways listed): 

1. Electronically. You may submit 

electronic comments on this regulation 

to http://www.regulations.gov. Follow 

the instructions for ‘‘Comment or 

Submission’’ and enter the filecode to 

find the document accepting comments. 

2. By regular mail. You may mail 

written comments (one original and two 

copies) to the following address only: 

Centers for Medicare & Medicaid 

Services, Department of Health and 

Human Services, Attention: CMS–2244– 

F2, P.O. Box 8010, Baltimore, MD 

21244–8010. 

Please allow sufficient time for mailed 

comments to be received before the 

close of the comment period. 

3. By express or overnight mail. You 

may send written comments (one 

original and two copies) to the following 

address only: Centers for Medicare & 

Medicaid Services, Department of 

Health and Human Services, Attention: 

CMS–2244–F2, Mail Stop C4–26–05, 

7500 Security Boulevard, Baltimore, MD 

21244–8010. 

4. By hand or courier. If you prefer, 

you may deliver (by hand or courier) 

your written comments (one original 

and two copies) before the close of the 

comment period to either of the 

following addresses: 

a. Room 445–G, Hubert H. Humphrey 

Building, 200 Independence Avenue, 

SW., Washington, DC 20201. 

(Because access to the interior of the 

HHH Building is not readily available to 

persons without Federal Government 

identification, commenters are 

encouraged to leave their comments in 

the CMS drop slots located in the main 

lobby of the building. A stamp-in clock 

is available for persons wishing to retain 

a proof of filing by stamping in and 

retaining an extra copy of the comments 

being filed.) 

b. 7500 Security Boulevard, 

Baltimore, MD 21244–1850. 

If you intend to deliver your 

comments to the Baltimore address, 

please call telephone number (410) 786– 

9994 in advance to schedule your 

arrival with one of our staff members. 

Comments mailed to the addresses 

indicated as appropriate for hand or 

courier delivery may be delayed and 

received after the comment period. 

FOR FURTHER INFORMATION CONTACT: 

Christine Gerhardt, (410) 786–0693. 

SUPPLEMENTARY INFORMATION:

I. Background 

On November 25, 2008, we published 

a final rule entitled ‘‘Medicaid Program; 

Premiums and Cost Sharing’’ in the 

Federal Register to implement and 

interpret the provisions of sections 

6041, 6042, and 6043 of the Deficit 

Reduction Act of 2005 (DRA), and 

section 405(a)(1) of the Tax Relief and 

Health Care Act of 2006 (TRHCA) (73 

FR 71828). The DRA was amended by 

the TRHCA which revised sections 

6041, 6042, and 6043 of the DRA 

including limitations on cost sharing for 

individuals with family incomes at or 

below 100 percent of the federal poverty 

line. These sections amended the Social 

Security Act (the Act) by adding a new 

section 1916A to provide State 

Medicaid agencies with increased 

flexibility to impose premium and cost 

sharing requirements on certain 

Medicaid recipients. The DRA 

provisions also specifically address cost 

sharing for non-preferred drugs and 

non-emergency care furnished in a 

hospital emergency department. 

The November 25, 2008 final rule 

integrated into CMS regulations the 

statutory flexibility to impose premiums 

and cost sharing that was added by the 

DRA. In addition, in the November 25, 

2008 final rule, we responded to public 

comments on the February 22, 2008 

proposed rule (73 FR 9727). 

II. Provisions of This Action 

This action delays the effective date of 

the November 25, 2008 final rule and 

reopens the comment period on the 

policies set out in the final rule. The 

effective date of the November 25, 2008 

final rule, which would have been 

January 26, 2009, is now March 27, 

2009. The 60-day delay in the effective 

date is necessary to give the public the 

opportunity to submit additional 

comments on the policies set forth in 

the November 25, 2008 final rule, and 

to provide an opportunity for CMS to 

consider all additional public 

comments. 

III. 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 

finding and the reasons in the notice. 

This action delays the effective date of 

the November 25, 2008 final rule that 

was promulgated through notice and 

comment rulemaking. A delay in 

effective date and reopening of the 

comment period is necessary to ensure 

that we have the opportunity to receive 

additional public comments to fully 

inform our decisions before the policies 

contained in the final rule become 

effective. Moreover, we believe it would 

be contrary to the public interest for the 

November 25, 2008 final rule to become 

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Federal Register / Vol. 74, No. 16 / Tuesday, January 27, 2009 / Rules and Regulations 4889 

effective until we are certain that all 

public comments, including any 

additional comments that are submitted 

in the reopened comment period, are 

considered. To do otherwise could 

potentially result in uncertainty and 

confusion as to the finality of the final 

rule. For the reasons stated above, 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. 

(Catalog of Federal Domestic Assistance 

Program No. 93.778, Medical Assistance 

Program) 

Dated: January 22, 2009. 

Approved: 

Charles Johnson, 

Acting Secretary. 

[FR Doc. E9–1771 Filed 1–23–09; 11:15 am] 

BILLING CODE 4120–01–P 

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