[Federal Register Volume 74, Number 63 (Friday, April 3, 2009)]
[Rules and Regulations]
[Pages 15221-15222]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-7505]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Part 440

[CMS-2232-F2]
RIN 0938-AP72


Medicaid Program; State Flexibility for Medicaid Benefit Packages

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

ACTION: Final rule; delay of effective date and reopening of comment 
period.

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SUMMARY: This action temporarily delays the effective date of the 
December 3, 2008 final rule entitled, ``Medicaid Program: State 
Flexibility for Medicaid Benefit Packages'' (73 FR 73694) until 
December 31, 2009. In addition, this action reopens the comment period 
on the policies set out in the December 3, 2008 final rule, and 
specifically solicits comments on the effect of certain provisions of 
the Children's Health Insurance Program Reauthorization Act of 2009.

DATES: Effective Date: This action is effective April 2, 2009. The 
effective date of the rule amending 42 CFR part 440 published in the 
December 3, 2008, Federal Register (73 FR 73694), delayed February 2, 
2009 (74 FR 5808), is further delayed until December 31, 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 May 4, 2009.

ADDRESSES: In commenting, please refer to file code CMS-2232-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 file code 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-F2, 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-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) 786-7195 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

A. Regulatory History

    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 (DRA) of 2005, 
(Pub. L. 109-171), enacted on February 8, 2006, 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.
    Subsequent to the publication of the December 3, 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 an interim final rule with comment 
period in the Federal Register to temporarily delay for 60 days the 
effective date of the December 3, 2008 final rule entitled, ``Medicaid 
Program; State Flexibility for Medicaid Benefit Packages'' (February 2, 
2009, 74 FR 5808). The interim final rule also reopened the comment 
period on the policies set out in the December 3, 2008 final rule. We 
received nine public comments in response to the February 2, 2009 
interim final rule.

B. New Legislation

    On February 4, 2009, the Children's Health Insurance Program 
Reauthorization Act (CHIPRA) of 2009 (Pub. L. 111-3) was enacted. 
Certain provisions of the CHIPRA affect current regulations regarding 
State Flexibility for Medicaid Benefit Packages, including the December 
3, 2008 final rule. Specifically, section 611(a)(1)(C) and section 
611(a)(3) of CHIPRA amends section 1937 of the Act, to require States 
to assure that children under the age of 21, rather than those under 19 
as specified in the DRA of 2005, who are included in benchmark or 
benchmark-equivalent plans, have access to the Early Periodic 
Screening, Diagnosis, and Treatment (EPSDT) services. EPSDT services 
may be provided through a benchmark or benchmark-equivalent plan or as 
a wrap-around benefit to those plans.
    Section 611(a)(1)(A)(i) of CHIPRA amends section 1937 of the Act by 
changing the language ``Notwithstanding any other provision of this 
title * * *'' to read ``Notwithstanding section 1902(a)(1) (relating to 
statewideness), section 1902(a)(10)(B) (relating to comparability), and 
any other provision of this title which would be directly contrary to 
the authority * * *''

[[Page 15222]]

II. Provisions of the Final Rule

    This action delays the effective date of the December 3, 2008 final 
rule. The effective date of that rule, which would have been February 
2, 2009, was delayed until April 3, 2009 (74 FR 5808) and is now 
delayed until December 31, 2009. Upon review and consideration of the 
new provisions of CHIPRA 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 December 3, 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 December 3, 
2008 final rule as well as the provisions of CHIPRA, 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 December 3, 2008 
final rule that was promulgated through notice and comment rulemaking, 
and does not make substantive changes to that final rule. Delay in the 
effective date and reopening of the comment period is necessary to 
ensure that the final rule, when effective, fully takes into account 
public comments, and conforms to recently enacted legislation. 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 and statutory changes. 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.

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

    Dated: March 25, 2009.
Charlene Frizzera,
Acting Administrator, Centers for Medicare & Medicaid Services.
    Approved: March 30, 2009.
Charles E. Johnson,
Acting Secretary.
[FR Doc. E9-7505 Filed 4-2-09; 8:45 am]
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