SUPPLEMENTARY INFORMATION:

I. Background

A. Regulatory History

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 final rule allowed for flexibility to supplement the existing authority States have to impose premiums and cost sharing under section 1916 of the Act. The DRA provisions also specifically address cost sharing for non-preferred drugs and non-emergency care furnished in a hospital emergency department. In addition, in the November 25, 2008 final rule, we responded to public comments on the February 22, 2008 proposed rule (73 FR 9727).

Subsequent to the publication of the November 25, 2008 final rule, in accordance with the memorandum of January 20, 2009 from the Assistant to the President and the Chief of Staff, entitled “Regulatory Review,” we published a final rule in the Federal Register to temporarily delay for 60 days the effective date of the November 25, 2008 final rule entitled, “Medicaid Program; Premiums and Cost Sharing” (January 27, 2009, 74 FR 4888). The final rule also reopened the comment period on the policies set out in the November 25, 2008 final rule. We received 5 public comments in response to the January 27, 2009 final rule.

B. New Legislation

The American Recovery and Reinvestment Act of 2009 (ARRA), Pub. L. 111-5, was enacted on February 17, 2009. Certain provisions of ARRA affect current regulations regarding premiums and cost sharing. Specifically, section 5006(a) of ARRA added section 1916(j) to the Social Security Act (the Act) to provide that effective December 31, 2009, the Medicaid program and the Children's Health Insurance Program (CHIP) are prohibited from imposing an enrollment fee, premium, or similar charge, or deduction, copayment, cost-sharing or similar charge on American Indians and Alaska Natives for services provided directly by the Indian Health Service, an Indian Tribe, Tribal Organization, or Urban Indian Organization or through referral under contract health services for which payment may be made.

II. Provisions of the Final Rule

This action delays the effective date of the November 25, 2008 final rule. The effective date of that rule, which would have been March 27, 2009, is now December 31, 2009. Upon review and consideration of the new provisions of ARRA and the public comments we received during the reopened comment period, we believe that it may be necessary to revise a substantial portion of the November 25, 2008 final rule. Therefore, to inform future rulemaking on this issue, we are delaying the effective date a second time to give the public an additional opportunity to submit additional comments on the policy set forth in the November 25, 2008 final rule as well as the provisions of ARRA, discussed above. We anticipate that this time period will allow sufficient time for CMS to consider such comments and develop appropriate revisions to the delayed rule.

IV. 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 final rule delays the effective date of the final rule that was promulgated through notice and comment rulemaking, and does not make substantive changes to the policies that were finalized in the final rule. Delay in the effective date and reopening of the comment period is necessary to ensure that the final rule fully takes into account public comments, and conforms to recently enacted legislation, before the rule becomes effective. We do not believe that there will be any adverse impact or effect on the public from this delay in the effective date. Moreover, it would not be in the public interest for the underlying rule to go into effect, or to have uncertainty about whether it is in effect, when the underlying rule does not conform to statutory requirements. In addition, it is not in the public interest to put into effect a rule that we intend to revise in a reasonable time frame after fully taking into account public comment. For the reasons stated above, we find that both notice and comment procedures and the 30-day delay in effective date for this final rule are unnecessary and contrary to the public interest. Therefore, we find there is good cause to waive notice and comment procedures and the 30-day delay in effective date for this final rule.

( printed page 13348)

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