[Federal Register Volume 74, Number 20 (Monday, February 2, 2009)]
[Rules and Regulations]
[Pages 5808-5809]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-2186]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Part 440

[CMS-2232-IFC]
RIN 0938-A048


Medicaid Program; State Flexibility for Medicaid Benefit 
Packages: Delay of Effective Date

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

ACTION: Interim final rule with comment period: delay of effective date 
and reopening of the 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; State 
Flexibility for Medicaid Benefit Packages'' published in the December 
3, 2008 Federal Register (73 FR 73694). The temporary 60-day delay in 
effective date is necessary to give Department officials the 
opportunity for further review of the issues of law and policy raised 
by this rule. In addition, this action reopens the comment period on 
the policies set out in the December 3, 2008 final rule to allow 
interested parties to provide comments about issues of law and policy 
raised by the rule.

[[Page 5809]]


DATES: Effective Date. This action is effective January 30, 2009. The 
effective date of the rule amending 42 CFR part 440 published in the 
December 3, 2008 Federal Register (73 FR 73694) is delayed 60 days 
until April 3, 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 March 4, 2009. Comments may address either December 3, 2008 final 
rule, or this action (the delay in the effective date, and the 
reopening of the comment period).

ADDRESSES: In commenting, please refer to file code CMS-2232-IFC. 
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 specific 
issues in 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-2232-IFC, P.O. Box 8016, Baltimore, MD 21244-8016.
    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-2232-IFC, Mail Stop C4-26-05, 7500 Security Boulevard, 
Baltimore, MD 21244-8016.

    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) 786-7195 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 December 3, 2008, we published a final rule in the Federal 
Register entitled ``Medicaid Program; State Flexibility for Medicaid 
Benefit'' (73 FR 73694). The December 2008 final rule implements 
provisions of section 6044 of the Deficit Reduction Act of 2005, which 
amends the Social Security Act by adding a new section 1937 related to 
the coverage of medical assistance under approved State plans. The 
final rule also provides States increased flexibility under an approved 
State plan to define the scope of covered medical assistance by 
offering coverage of benchmark or benchmark-equivalent benefit packages 
to certain Medicaid recipients. In addition, the final rule responds to 
public comments on the February 22, 2008, proposed rule that pertain to 
the State Medicaid benefit package provisions.

II. Provisions of This Action

    This action delays the effective date of the December 3, 2008 final 
rule and reopens the comment period on the policies set out in the 
final rule. The effective date of the December 3 final rule, which 
would have been February 2, 2009, is now April 3, 2009. The 60-day 
delay in the effective date is necessary to give Department officials 
the opportunity for further review of the issues of law and policy 
raised by this rule, to give the public the opportunity to submit 
additional comments on issues of law and policy raised by the December 
3, 2008 final rule, and to provide an opportunity for CMS to consider 
all additional comments. We also seek comments on this action (the 
delay in the effective date and the reopening of the comment period).

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 rule 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 rule 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 the 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 rule.
    This action delays the effective date of the December 3, 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 December 3, 2008 final 
rule to become 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 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 rule.

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

    Dated: January 28, 2009.
Charlene Frizzera,
Acting Administrator, Centers for Medicare & Medicaid Services.
    Approved: January 28, 2009.
Charles Johnson,
Acting Secretary.
[FR Doc. E9-2186 Filed 1-30-09; 8:45 am]
BILLING CODE 4120-01-P