[Federal Register Volume 85, Number 1 (Thursday, January 2, 2020)]
[Rules and Regulations]
[Pages 7-8]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-28363]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Parts 402, 403, 411, 412, 422, 423, 460, 483, 488, and 493

[CMS-6076-RCN]
RIN 0991-AC07


Medicare and Medicaid Programs; Adjustment of Civil Monetary 
Penalties for Inflation; Continuation of Effectiveness and Extension of 
Timeline for Publication of the Final Rule

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

ACTION: Continuation of effectiveness and extension of timeline for 
publication of the final rule.

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SUMMARY: This document announces the continuation of, effectiveness of, 
and the extension of the timeline for publication of a final rule. We 
are issuing this document in accordance with the Social Security Act 
(the Act), which allows an interim final rule to remain in effect after 
the expiration of the timeline specified in the Act if the Secretary 
publishes a notice of continuation explaining why the regular timeline 
was not complied with.

DATES: Effective December 31, 2019, the Medicare provisions adopted in 
the interim final rule published on September 6, 2016 (81 FR 61538) 
continue in effect and the regular timeline for publication of the 
final rule is extended for an additional year, until September 6, 2020.

FOR FURTHER INFORMATION CONTACT: Steve Forry (410) 786-1564 or 
Jaqueline Cipa (410) 786-3259.

SUPPLEMENTARY INFORMATION: Section 1871(a) of the Social Security Act 
(the Act) sets forth certain procedures for promulgating regulations 
necessary to carry out the administration of the insurance programs 
under Title XVIII of the Act. Section 1871(a)(3)(A) of the Act requires 
the Secretary, in consultation with the Director of the Office of 
Management and Budget (OMB), to establish a regular timeline for the 
publication of final regulations based on the previous publication of a 
proposed rule or an interim final rule. In accordance with section 
1871(a)(3)(B) of the Act, such timeline may vary among different rules, 
based on the complexity of the rule, the number and scope of the 
comments received, and other relevant factors. However, the timeline 
for publishing the final rule, cannot exceed 3 years from the date of 
publication of the proposed or interim final rule, unless there are 
exceptional circumstances. After consultation with the Director of OMB, 
the Secretary published a notice, which appeared in the December 30, 
2004 Federal Register on (69 FR 78442), establishing a general 3-year 
timeline for publishing Medicare final rules after the publication of a 
proposed or interim final rule.
    Section 1871(a)(3)(C) of the Act states that upon expiration of the 
regular timeline for the publication of a final regulation after 
opportunity for public comment, a Medicare interim final rule shall not 
continue in effect unless the Secretary publishes notification of 
continuation of the regulation that includes an explanation of why the 
regular timeline was not met. Upon publication of such notification, 
the regular timeline for publication of the final regulation is treated 
as having been extended for 1 additional year.
    On September 6, 2016 Federal Register (81 FR 61538), the Department

[[Page 8]]

of Health and Human Services (HHS) issued a department-wide interim 
final rule titled ``Adjustment of Civil Monetary Penalties for 
Inflation'' that established new regulations at 45 CFR part 102 to 
adjust for inflation the maximum civil monetary penalty amounts for the 
various civil monetary penalty authorities for all agencies within the 
Department. HHS took this action to comply with the Federal Civil 
Penalties Inflation Adjustment Act of 1990 (the Inflation Adjustment 
Act) (28 U.S.C. 2461 note 2(a)), as amended by the Federal Civil 
Penalties Inflation Adjustment Act Improvements Act of 2015 (section 
701 of the Bipartisan Budget Act of 2015, (Pub. L. 114-74), enacted on 
November 2, 2015). In addition, this September 2016 interim final rule 
included updates to certain agency-specific regulations to reflect the 
new provisions governing the adjustment of civil monetary penalties for 
inflation in 45 CFR part 102.
    One of the purposes of the Inflation Adjustment Act was to create a 
mechanism to allow for regular inflationary adjustments to federal 
civil monetary penalties. Section 2(b)(1) of the Inflation Adjustment 
Act. The 2015 amendments removed an inflation update exclusion that 
previously applied to the Social Security Act as well as to the 
Occupational Safety and Health Act. The 2015 amendments also ``reset'' 
the inflation calculations by excluding prior inflationary adjustments 
under the Inflation Adjustment Act and requiring agencies to identify, 
for each penalty, the year and corresponding amount(s) for which the 
maximum penalty level or range of minimum and maximum penalties was 
established (that is, originally enacted by Congress) or last adjusted 
other than pursuant to the Inflation Adjustment Act. In accordance with 
section 4 of the Inflation Adjustment Act, agencies were required to: 
(1) Adjust the level of civil monetary penalties with an initial 
``catch-up'' adjustment through an interim final rulemaking (IFR) to 
take effect by August 1, 2016; and (2) make subsequent annual 
adjustments for inflation.
    In the September 2016 interim final rule, HHS adopted new 
regulations at 45 CFR part 102 to govern adjustment of civil monetary 
penalties for inflation. The regulation at 45 CFR 102.1 provides that 
part 102 applies to each statutory provision under the laws 
administered by the Department of Health and Human Services concerning 
civil monetary penalties, and that the regulations in part 102 
supersede existing HHS regulations setting forth civil monetary penalty 
amounts. The civil money penalties and the adjusted penalty amounts 
administered by all HHS agencies are listed in tabular form in 45 CFR 
102.3. In addition to codifying the adjusted penalty amounts identified 
in Sec.  102.3, the HHS-wide interim final rule included several 
technical conforming updates to certain agency-specific regulations, 
including various CMS regulations, to identify their updated 
information, and incorporate a cross-reference to the location of HHS-
wide regulations.
    Because the conforming changes to the Medicare provisions were part 
of a larger, omnibus departmental interim final rule, we inadvertently 
missed setting a target date for the final rule to make permanent the 
changes to the Medicare regulations in accordance with section 
1871(a)(3)(A) of the Act and the procedures outlined in the December 
2004 notice. Consistent with section 1871(a)(3)(C) of the Act, we are 
publishing this notice of continuation extending the effectiveness of 
the technical conforming changes to the Medicare regulations that were 
implemented through interim final rule and to allow time to publish a 
final rule. The extended time is needed to allow for coordination with 
the Department to issue a final rule and to avoid the potential for 
confusion between 45 CFR part 102, which establishes the civil monetary 
payment amounts, and the Medicare regulations subject to the timing 
requirements in section 1871(a)(3)(C) of the Act which would otherwise 
revert to the language that was used prior to the Inflation Adjustment 
Act. Therefore, the Medicare provisions adopted in interim final 
regulation continue in effect and the regular timeline for publication 
of the final rule is extended for an additional year, until September 
6, 2020.

    Dated: December 19, 2019.
Ann C. Agnew,
Executive Secretary to the Department, Department of Health and Human 
Services.
[FR Doc. 2019-28363 Filed 12-31-19; 4:15 pm]
BILLING CODE 4120-01-P