[Federal Register Volume 67, Number 144 (Friday, July 26, 2002)]
[Rules and Regulations]
[Pages 48800-48801]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-17622]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Part 405

[CMS-3074-F2]
RIN 0938-AK98


Medicare Program; End-Stage Renal Disease: Removing of Waiver of 
Conditions for Coverage Under a State of Emergency in the Houston, 
Texas Area

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

ACTION: Final rule.

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SUMMARY: This final rule removes an emergency waiver of the Medicare 
end-stage renal disease (ESRD) conditions for coverage granted to 
permit the transplant team of an approved renal transplant center to 
furnish kidney transplant services in three specific hospitals in the 
Houston, Texas area during a state of emergency. The state of emergency 
has ceased, the primary kidney transplant center in the area is now 
fully operational, and the effective period of the waiver provisions 
has expired.

EFFECTIVE DATE: July 26, 2002.

FOR FURTHER INFORMATION CONTACT: Rachael Weinstein, (410) 786-6775

SUPPLEMENTARY INFORMATION

I. Provisions of This Rule

    On June 20, 2001, we published a final rule in the Federal Register 
(66 FR 33030-33031) that granted an emergency waiver of the Medicare 
end-stage renal disease (ESRD) conditions of coverage to permit the 
transplant team of an approved renal transplant center to furnish 
covered kidney transplant services in three specific hospitals in the 
Houston, Texas area during a state of emergency. The state of emergency 
(a natural disaster due to flooding) resulted in a severe health and 
safety threat to hospitals in the entire Houston, Texas area, including 
ESRD facilities that were approved to furnish kidney transplant 
services. Waivers of the conditions of coverage were granted to 
Memorial Hermann-Memorial City Hospital, Memorial Hermann Southwest 
Hospital, and Memorial Hermann Southeast Hospital to permit an approved 
transplant team to furnish kidney transplant services in the three 
hospitals, effective June 15, 2001, through the earlier of December 15, 
2001, or until Memorial Hermann Hospital, the primary kidney transplant 
center, reopened.
    Memorial Hermann Hospital is now reopened. In the June 20, 2001 
final rule, we amended the Medicare regulations to include a new 
Sec. 405.2175 that incorporated the waiver provisions. In 
Sec. 405.2175, we specified that we would publish a rule removing the 
waiver provisions from the regulations after the waiver expired. The 
waiver has expired and we are removing the provisions from the Medicare 
regulations.

II. Waiver of Proposed Rulemaking and Delay of Effective Date

    We ordinarily publish a notice of proposed rulemaking in the 
Federal Register and invite public comment on a proposed rule. 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 findings and its reasons in the rule issued.
    Further, we generally provide for final rules to be effective no 
sooner than 30 days after the date of publication unless we find good 
cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay of the 
effective date. The purpose of the 30-day waiting period between 
publication of an administrative agency final rule and its effective 
date is to give affected parties reasonable time to adjust their 
behavior before the final rule takes place.
    The state of emergency under which we granted a waiver of the ESRD 
conditions of coverage is now over in the Houston, Texas area, and 
Memorial Hermann Hospital is reopened to furnish kidney transplant 
services. We announced in the June 20, 2001 final rule our intention to 
remove the

[[Page 48801]]

emergency waiver when the waiver expired, as well as our intention to 
publish a rule removing Sec. 405.2175 from our regulations after the 
waiver expired. We find good cause to waive a notice-and-comment 
procedure to remove the waiver provisions from the regulation. We 
believe that a notice-and-comment procedure is unnecessary because the 
June 20, 2001 final rule puts the public on notice that the waiver of 
the conditions for coverage for the specifically named hospitals was 
created to address a public health crisis in Houston and it was to be 
of limited duration (it was to remain in effect until no later than 
December 15, 2001). This rule merely conforms the Medicare regulation 
to the mandate expressed by the agency on June 20. Therefore, we are 
waiving notice-and-comment procedures under 5 U.S.C. 553(b)(3)(B).
    Given the fact that the waiver has already expired by its own 
terms, we find good cause to waive the 30-day delay in the effective 
date established by 5 U.S.C. 553(d)(3). We believe that delaying the 
effective date of this regulation is unnecessary since it does not 
require the public to adjust its behavior before the final rule takes 
place.

List of Subjects in 42 CFR Part 405

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

    For the reasons set forth in the preamble, the Centers for Medicare 
& Medicaid Services amends 42 CFR Part 405, Subpart U as set forth 
below:

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

Subpart U--Conditions for Coverage of Suppliers of End-Stage Renal 
Disease (ESRD)

    1. The authority citation for Part 405, Subpart U continues to read 
as follows:

    Authority: Secs. 1102, 1138, 1861, 1862(a), 1871, 1874, and 1881 
of the Social Security Act (42 U.S.C. 1302, 1320b-8, 1365x, 
1395y(a), 1395hh, 1395kk, and 1395rr, unless otherwise noted).

Sec. 405.2175  [Removed]

    2. Section 405.2175 is removed.

(Catalog of Federal Domestic Assistance Program No. 93.773, 
Medicare--Hospital Insurance)

    Dated: March 15, 2002.
Thomas A. Scully,
Administrator, Centers for Medicare & Medicaid Services.
    Approved: April 2, 2002.
Tommy G. Thompson,
Secretary.
[FR Doc. 02-17622 Filed 7-25-02; 8:45 am]
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