[Federal Register Volume 61, Number 183 (Thursday, September 19, 1996)]
[Rules and Regulations]
[Pages 49269-49271]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23957]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Health Care Financing Administration

42 CFR Parts 401 and 405

[BPD-869-F]


Medicare Program; Waiver of Recovery of Overpayments

AGENCY: Health Care Financing Administration (HCFA), HHS.

ACTION: Final rule.

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SUMMARY: This final rule duplicates in HCFA's regulations the content 
of two sections of the Social Security Administration's regulations 
concerning waiver of recovery of overpayments. In the past, regulations 
in 20 CFR part 404 were applicable to both the Federal Old-Age, 
Survivors and Disability Insurance program (OASDI), which provides 
monthly Social Security checks directly to beneficiaries or their 
representatives, and the Medicare program. Since the Social Security 
Administration (SSA) is now independent of HHS, and SSA is 
restructuring its regulations to apply only to the OASDI program, we 
are establishing the content of these sections in 42 CFR part 405 to 
preserve

[[Page 49270]]

provisions that are applicable to the Medicare program.

EFFECTIVE DATE: These regulations are effective on October 21, 1996.

FOR FURTHER INFORMATION CONTACT: David Walczak, (410) 786-4475.

SUPPLEMENTARY INFORMATION:

I. Background

    Until 1977, HCFA was a part of SSA and all Medicare rules were 
located in title 20 of the Code of Federal Regulations (20 CFR). Since 
then, we have developed separate Medicare rules in title 42. However, 
some Medicare rules remain in 20 CFR, and we have been working with SSA 
to restructure those rules.
    Recently, we and SSA mutually agreed to restructure regulations on 
recovery or adjustment of overpayments in the OASDI program (title II) 
and the Medicare program (title XVIII). The overpayment recovery 
provisions for both the OASDI and Medicare programs have historically 
been located in 20 CFR part 404, subpart F. The SSA project revises 
part 404, subpart F, so that it applies only to the OASDI program, and 
removes all reference to the Medicare program. We are developing 
separate regulations, which would, similarly, apply only to the 
Medicare program and provide more specific criteria for applying waiver 
authority. Unfortunately, our regulations are not yet ready for 
publication, whereas SSA has already published a proposed rule on June 
2, 1995 (60 FR 28767), and the SSA final rule revising several of its 
provisions is in preparation. With the publication of the SSA final 
rule, all references to the Medicare program are removed from 20 CFR 
404.502a and 404.506, thus eliminating certain regulatory authorities 
necessary for continuation of these provisions in the Medicare program. 
Therefore, until we publish final regulations, we are moving the 
content of those two sections of the regulations from 20 CFR part 404 
to 42 CFR part 405 so that this content is preserved until our final 
rule is published.

II. Provisions of the Rule

    We are incorporating the content of 20 CFR 404.502a, ``Notice of 
right to waiver consideration,'' as new 42 CFR 405.357, and the content 
of 20 CFR 404.506, ``When waiver of adjustment or recovery may be 
applied,'' as new 42 CFR 405.358, with minor editorial changes. In new 
Secs. 405.357 and 405.358, we are removing reference to section 204(b) 
of the Act, since it is the basis for the OASDI provisions. In 
Sec. 405.358, we are adding another reference (in paragraph (b)(1)) to 
the Medicare program (title XVIII) to conform to the actual wording of 
the Medicare statute (section 1870(c) of the Social Security Act). We 
are also making conforming changes to existing Secs. 401.601(d)(2)(ii), 
401.607(d)(2), 405.350, and 405.356 to revise cross-references that 
reflect the addition of Secs. 405.357 and 405.358.
    This is a technical regulation and no changes in Medicare policies 
concerning waiver result from this action. Any restructuring or 
expansion of the applicability of waiver to Medicare would be issued as 
a proposed rule.

III. Waiver of Proposed Rulemaking

    We ordinarily publish a notice of proposed rulemaking in the 
Federal Register and invite prior public comment on proposed rules. 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. This procedure can be waived, however, if an agency 
finds good cause that a notice-and-comment procedure is impracticable, 
unnecessary, or contrary to the public interest and incorporates a 
statement of the finding and its reasons in the rule issued.
    Since this rule merely incorporates, with minor editorial changes, 
content from one part of the CFR to another, we believe that it is 
unnecessary to publish a proposed rule. Therefore, we find good cause 
to waive the notice of proposed rulemaking and to issue this final 
rule.

IV. Regulatory Impact Statement

A. Introduction

    We generally prepare a regulatory flexibility analysis that is 
consistent with the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 
through 612) unless the Secretary certifies that a final rule will not 
have a significant economic impact on a substantial number of small 
entities. Individuals and States are not included in the definition of 
a small entity.
    In addition, section 1102(b) of the Act requires the Secretary to 
prepare a regulatory impact analysis if a rule may have a significant 
impact on the operations of a substantial number of small rural 
hospitals. This analysis must conform to the provisions of section 604 
of the RFA. For purposes of section 1102(b) of the Act, we define a 
small rural hospital as a hospital that is located outside of a 
Metropolitan Statistical Area and has fewer than 50 beds.

B. Provisions of the Final Regulations

    This is a technical rule that makes no changes to Medicare policy. 
It incorporates in 42 CFR part 405, with only minor editorial changes, 
the content of 20 CFR 404.502a and 404.506. This rule also makes 
conforming changes to cross references in 42 CFR parts 401 and 405 
resulting from the transfer of content from 20 CFR part 404 to 42 CFR 
part 405. We are not preparing analyses for either the RFA or section 
1102(b) of the Act, since we have determined, and the Secretary 
certifies, that this final rule will not result in a significant 
economic impact on a substantial number of small entities and will not 
have a significant impact on the operations of a substantial number of 
small rural hospitals.
    This rule is not a major rule as defined at 5 U.S.C. 804(2).
    In accordance with the provisions of Executive Order 12866, this 
regulation was not reviewed by the Office of Management and Budget.

C. Collection of Information Requirements

    This document does not impose information collection and 
recordkeeping requirements. Consequently, it need not be reviewed by 
the Office of Management and Budget under the authority of the 
Paperwork Reduction Act of 1995.

List of Subjects

42 CFR Part 401

    Claims, Freedom of information, Health facilities, Medicare, 
Privacy.

42 CFR Part 405

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

    42 CFR chapter IV is amended as follows:
    A. Part 401 is amended as set forth below:

PART 401--GENERAL ADMINISTRATIVE REQUIREMENTS

    1. The authority citation for part 401 continues to read as 
follows:

    Authority: Secs 1102 and 1871 of the Social Security Act (42 
U.S.C. 1302 and 1895hh). Subpart F is also issued under the 
authority of the Federal Claims Collection Act (31 U.S.C. 3711).

    2. Section 401.601 is amended by revising paragraph (d)(2)(ii) to 
read as follows:

[[Page 49271]]

Sec. 401.601   Basis and scope.

* * * * *
    (d) * * *
    (2) * * *
    (ii) Adjustments in Railroad Retirement or Social Security benefits 
to recover Medicare overpayments to individuals are covered in 
Secs. 405.350--405.358 of this chapter.
* * * * *
    3. Section 401.607 is amended by revising paragraph (d)(2) to read 
as follows:


Sec. 401.607   Claims collection.

* * * * *
    (d) * * *
    (2) Under regulations at Sec. 405.350--405.358 of this chapter, 
HCFA may initiate adjustments in program payments to which an 
individual is entitled under title II of the Act (Federal Old Age, 
Survivors, and Disability Insurance Benefits) or under the Railroad 
Retirement Act of 1974 (45 U.S.C. 231) to recover Medicare 
overpayments.
    B. Part 405 is amended as set forth below:

PART 405--FEDERAL HEALTH INSURANCE FOR THE AGED AND DISABLED

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

    Authority: Secs. 1102, 1862, and 1871 of the Social Security Act 
(42 U.S.C. 1302, 1395y, and 1895hh).

    2. Section 405.350 is amended by revising the introductory 
paragraph to read as follows:


Sec. 405.350  Individual's liability for payments made to providers and 
other persons for items and services furnished the individual.

    Any payment made under title XVIII of the Act to any provider of 
services or other person with respect to any item or service furnished 
an individual shall be regarded as a payment to the individual, and 
adjustment shall be made pursuant to Secs. 405.352 through 405.358 
where:
* * * * *
    3. Section 405.356 is revised to read as follows:


Sec. 405.356  Principles applied in waiver of adjustment or recovery.

    The principles applied in determining waiver of adjustment or 
recovery (Sec. 405.355) are the applicable principles of Sec. 405.358 
and 20 CFR 404.507-404.509, 404.510a, and 404.512.
    4. New Sec. 405.357 is added to subpart C to read as follows:


Sec. 405.357  Notice of right to waiver consideration.

    Whenever an initial determination is made that more than the 
correct amount of payment has been made, notice of the provisions of 
section 1870(c) of the Act regarding waiver of adjustment or recovery 
shall be sent to the overpaid individual and to any other individual 
against whom adjustment or recovery of the overpayment is to be 
effected (see Sec. 405.358).
    5. New Sec. 405.358 is added to subpart C to read as follows:


Sec. 405.358  When waiver of adjustment or recovery may be applied.

    Section 1870(c) of the Act provides that there shall be no 
adjustment or recovery in any case where an incorrect payment under 
title XVIII (hospital and supplementary medical insurance benefits) has 
been made (including a payment under section 1814(e) of the Act with 
respect to an individual:
    (a) Who is without fault, and
    (b) Adjustment or recovery would either:
    (1) Defeat the purposes of title II or title XVIII of the Act, or
    (2) Be against equity and good conscience.

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

    Dated: July 1, 1996.
Bruce C. Vladeck,
Administrator, Health Care Financing Administration.
[FR Doc. 96-23957 Filed 9-18-96; 8:45 am]
BILLING CODE 4120-01-P