[Federal Register: June 30, 2005 (Volume 70, Number 125)]
[Rules and Regulations]
[Page 37700-37705]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30jn05-19]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Medicare & Medicaid Services
42 CFR Parts 401 and 405
[CMS-4064-IFC2]
RIN-0938-AM73
Medicare Program; Changes to the Medicare Claims Appeal
Procedures: Correcting Amendment to an Interim Final Rule
AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS.
ACTION: Correcting amendment to an interim final rule.
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SUMMARY: This amendment corrects technical errors in the interim final
rule with comment period that appeared in the Federal Register,
entitled ``Medicare Program: Changes to the Medicare Claims Appeal
Procedures.''
EFFECTIVE DATE: This correcting amendment is effective July 1, 2005.
FOR FURTHER INFORMATION CONTACT: Arrah Tabe-Bedward, (410) 786-7129.
SUPPLEMENTARY INFORMATION:
I. Background
We have identified technical errors and omissions that appeared in
the interim final rule with comment period entitled ``Medicare Program:
Changes to the Medicare Claims Appeal Procedures.'' (FR Doc. 05-4062)
(See 70 FR 11420, March 8, 2005.) In this correcting amendment, we are
correcting these technical errors and omissions.
II. Correction of Errors
A. Summary of Technical Corrections to the Preamble
On page 11436 of the preamble, we identified decisions regarding
the timely submission of claims as not being initial determinations. We
attempted to convey that this was true whether a provider or supplier
failed to submit a timely claim for its own purposes or at the request
of a beneficiary or the beneficiary's
[[Page 37701]]
subrogee. However, we inadvertently omitted the word ``timely'' from
our discussion of the submission of a claim by a provider or supplier
for its own purposes.
On pages 11456 through 11457, we discussed the requirement that
administrative law judge (ALJ) hearings be conducted by
videoteleconferencing (VTC) (if the technology is available and there
are no special or extraordinary circumstances that would make a VTC
hearing inappropriate). We also indicated, however, that a party could
request an in-person hearing that the ALJ, with the concurrence of the
Managing Field Office ALJ, would grant upon a finding of good cause.
The interim final rule generally requires that an ALJ conduct a
hearing and render a decision within 90 days from the date the request
for hearing is received. However, if the ALJ grants a party an in-
person hearing upon a finding of good cause, then that 90-day time
frame requirement is waived.
In the interim final rule, we inadvertently stated that the request
by a party for an in-person hearing would result in a waiver of the 90-
day hearing and decision making time frame requirement. Therefore, we
clarify that a request by a party for an in-person hearing does not
relieve the ALJ of the 90-day hearing and decision making time frame
requirement. Rather, waiver of the 90-day hearing and decision making
time frame requirement results only when an ALJ grants the request for
an in-person hearing. In addition, we clarify that any party, not just
the appellant, can object to the type of hearing scheduled by an ALJ
and request an in-person hearing.
In Sec. 405.1012(a), we provide that CMS or its contractor,
including a qualified independent contractor (QIC), may be a party to
an ALJ hearing. On page 11461 of the preamble, we say that it is
appropriate ``to permit discovery when an ALJ hearing is adversarial
(that is, whenever CMS or its contractor is a party to an ALJ
hearing).'' Later, in the same response on pages 11461 through 11462,
in the second column, when discussing how and when the discovery
provisions apply, we refer only to CMS electing to participate as a
party. To correct the inconsistency in the discussion of this issue, we
clarify here our intention to permit limited discovery not only when
CMS elects to participate as a party to a hearing, but also when a CMS
contractor elects to participate as a party to an ALJ hearing. We also
make a similar correction to the text of the regulations at Sec.
405.1016(d) and Sec. 405.1037(a)(1).
B. Correction of Errors in the Preamble
1. On page 11436, in the first column, line 17, in the first full
paragraph, we inserted the word ``timely'' after the phrase ``submit a
claim''.
2. In the third column of page 11456, in line 2 of the first full
response, the word ``appellant'' is replaced with the word ``party''.
3. On page 11457, in the first column, on line 1, the word
``granted'' is inserted before ``request''.
4. On page 11461, in the second column, on line 35, in the first
full response, the words ``or its contractor'' are inserted after
``CMS''.
5. On page 11461, in the third column, in lines 25, 30, 57, 61, 66,
and 68 the words ``or its contractor'' are inserted after ``CMS''.
6. On page 11462, in the first column, in lines 3, 4, 47, and 53
the words ``or its contractor'' are inserted after ``CMS''.
C. Summary of Technical Corrections to the Regulations Text
In the interim final rule, we made technical omissions in Sec.
405.926, Sec. 405.980, Sec. 405.990, Sec. 405.1020, and Sec.
405.1102. We also made typographical and editing errors in Sec.
405.980, Sec. 405.986, Sec. 405.990, Sec. 405.1016, Sec. 405.1018,
Sec. 405.1020, Sec. 405.1037, Sec. 405.1042, Sec. 405.1052, Sec.
405.1104, Sec. 405.1112, and Sec. 405.1136. We are reflecting these
corrections in section D of this correcting amendment.
Section 405.912 contains the new provisions regarding assignment of
appeal rights. In Sec. 405.912(g) and Sec. 405.912(g)(1), we
incorrectly referred to the ``assignee'' as the ``assignor'' and vice
versa. We are reflecting these corrections in section D of this
correcting amendment.
As we indicated in section A of this correcting amendment, we
inadvertently omitted the word ``timely'' when we stated that
determinations regarding whether a provider or supplier submitted a
claim timely either for its own purposes or at the request of a
beneficiary or the beneficiary's subrogee are not initial
determinations. The corresponding correction to the regulation text at
Sec. 405.926(n) is made in section D of this correcting amendment.
In the interim final rule, we state that submitting evidence after
an appeal is filed may result in a 14-day extension of the decision-
making time frame. Although this 14-day extension applies
automatically, adjudicators are not required to extend the decision-
making time frame by the full 14 days. In the regulation text, we
intended to convey this point in Sec. 405.946(b), Sec. 405.950 and
Sec. 405.970 by stating that the decision-making time frame is
extended ``by up to 14 days'' each time evidence is submitted after an
appeal is filed. At Sec. 405.946(b) and Sec. 405.950(b)(3), however,
we inadvertently left out the words ``up to''. We have corrected this
omission in section D of this correcting amendment.
Paragraph (a) of Sec. 405.970 states that the QIC will transmit to
the parties a written notice of ``(1) The reconsideration; (2) Its
inability to complete its review within 60 days in accordance with
paragraphs (c) through (e) of this section; or (3) Dismissal.''
Paragraph (c)(2), however, states that notice of the QIC's inability to
complete review is mailed only to the appellant. For reasons of
consistency and to decrease ambiguity, we correct this error in section
D of the correcting amendment.
On page 11450 of the preamble, we stated the general rule that a
remedial action taken by an appeals adjudicator to change a final
determination or decision is a reopening ``even though the
determination or decision may have been correct based upon the evidence
of record.'' In the corresponding regulation text at Sec.
405.980(a)(1), our use of the word ``was'', rather than the phrase
``may have been'' seems to contradict the preamble language. To ensure
that the preamble and regulation text are consistent, this error is
corrected in section D of this correcting amendment.
In paragraph (a)(4) of Sec. 405.980, we inadvertently stated that
adjudicators are prohibited from reopening a claim at issue until all
appeal rights are exhausted. We meant to state that adjudicators are
prohibited from reopening issues within a claim, if those issues are on
appeal. We correct this statement in section D of this correcting
amendment.
Also in Sec. 405.980, in paragraphs (d)(2) and (e)(2), we
indicated that only an ALJ can reopen an ALJ decision. These
provisions, as they appear in the interim final rule, seem to
contradict the policy established earlier at Sec. 405.980(a)(iv),
which states that the MAC may reopen its decision, as well as any
hearing decision issued by an ALJ. This inconsistency is corrected in
section D of this rule.
The good cause standard for reopening initial determinations is
defined in Sec. 405.986. As a result of an editing error, we included
paragraph (d), a provision that identifies a type of determination that
is not a reopening. This provision is actually part of paragraph (a)(6)
of Sec. 405.980. This editing error is corrected in section D by
[[Page 37702]]
deleting paragraph (d) from Sec. 405.986 and inserting it into Sec.
405.980(a)(6).
In Sec. 405.1014(b)(2), we stated that the proper filing location
for ALJ hearing requests is with the entity specified in the qualified
independent contractor's reconsideration. However, in Sec.
405.1046(d), we incorrectly referred to the ALJ hearing office as the
proper filing location for ALJ hearing requests. Additionally, in Sec.
405.1106, we incorrectly identified two filing locations for appeals to
the Medicare Appeals Council (MAC). We are correcting these errors in
section D of this correcting amendment.
In the interim final rule, appellants are permitted to request
extensions to the filing deadlines. We intended to state that
adjudicators could grant these extensions if appellants provided good
cause for extending the deadline. To clarify this policy, we are
revising Sec. 405.1014(c)(4) and Sec. 405.1016(b) to state that an
``ALJ'' rather than an ``ALJ hearing office'' may grant a request to
extend the filing deadline.
ALJs are required to provide notice of a hearing to a number of
entities, including all parties to the reconsideration. This is the
policy we intended to convey in Sec. 405.1020(c)(1), but the language
we used in the interim final rule (that is, ``participated in any of
the determinations in paragraphs (c) through (i) of this section'') is
not sufficiently clear. Therefore, we are revising this section to
clarify any ambiguities regarding this requirement and to ensure that
hearing notices are issued to the appropriate entities.
Section 405.1028 discusses the pre-hearing review process for
evidence submitted to the administrative law judge (ALJ). Although the
heading for this section reads ``Prehearing case review of evidence
submitted to the ALJ by the appellant'', this section discusses
evidence submitted by certain other parties. To ensure that the heading
properly reflects the content of the section, we are correcting this
error in section D of this correcting amendment.
In drafting the interim final rule, we made many revisions to the
regulation text, including renumbering certain provisions. When we
renumbered sections of the regulation, our intent was to also update
any corresponding cross-references to reflect the new numbering scheme.
In Sec. 405.1052(a)(4) and Sec. 405.1052(a)(5), however, we
inadvertently failed to update the cross-references to reflect the new
numbering scheme. Therefore, we are correcting these errors in section
D of this correcting amendment.
The binding authority of national coverage determinations (NCDs) is
described in Sec. 405.1060. Here, we stated that NCDs are ``binding on
all Medicare contractors, including QIOs, QICs, Medicare Advantage
Organizations, Prescription Drug Plans and their sponsors, HMOs, CMPs,
HCPPs, ALJs, and the MAC.'' We failed to note, however, that fiscal
intermediaries and carriers are also bound by NCDs and further, that
some of the entities listed are not subject to all NCDs. We correct
this statement in section D of this correcting amendment by revising
paragraph (a)(4) to make NCDs binding on fiscal intermediaries,
carriers, QIOs, QICs, ALJs, and the MAC.
In the interim final rule, we stated a longstanding policy
regarding the calculation of the receipt date of appeal notices; that
is, receipt is presumed to be 5 days after the date of the notice,
unless there is evidence to the contrary. In this same section, we also
established the related policy that an appeal is considered filed on
the date that it is received by the appropriate entity. Our intention
was to restate these policies in each section where we established the
filing deadlines. However, we inadvertently omitted some or all of this
information from Sec. 405.974(b), Sec. 405.1002(a), Sec.
405.1004(a), and Sec. 405.1102(a). We are correcting these omissions
in Section D of this correcting amendment.
In the interim final rule, we also made a single revision to part
401 regarding the applicability of CMS Rulings. In our revision, we
inadvertently failed to encompass the effect of CMS Rulings on matters
other than Medicare Part A and Part B. To correct this error, we have
removed the specific references to Medicare Part A and Medicare Part B.
D. Correction of Regulation Text Errors
0
Accordingly, 42 CFR chapter IV is corrected by making the following
correcting amendments to parts 401 and 405:
PART 401--[CORRECTED]
0
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 1395hh). Subpart F is also issued under the
authority of the Federal Claims Collection Act (31 U.S.C. 3711).
Sec. 401.108 [Corrected]
0
2. In Sec. 401.108, paragraph (c) is corrected by removing the phrase
``pertaining to Medicare Part A and Medicare Part B''.
PART 405--[CORRECTED]
0
3. The authority citation for part 405 continues to read as follows:
Authority: Secs. 205(a), 1102, 1861, 1862(a), 1869, 1871, 1874,
1881, and 1886(k) of the Social Security Act (42 U.S.C. 405(a),
1302, 1395x, 1395y(a), 1395ff, 1395hh, 1395kk, 1395rr and 1395ww(k))
and Sec. 353 of the Public Health Service Act (42 U.S.C. 263a).
Sec. 405.912 [Corrected]
0
4. Section 405.912 is amended as follows--
0
A. In paragraph (g) introductory text, the word ``assignee'' is
corrected to ``assignor''.
0
B. In paragraph (g)(1), the word ``assignor'', which precedes ``and'',
is corrected to ``assignee''.
Sec. 405.926 [Corrected]
0
5. Section 405.926 is amended by--
0
A. Revising paragraph (j).
0
B. Revising paragraph (n).
0
The revisions read as follows:
Sec. 405.926 Actions that are not initial determinations.
* * * * *
(j) Determinations for a finding regarding the general
applicability of the Medicare Secondary Payer provisions (as opposed to
the application of these provisions to a particular claim or claims for
Medicare payment for benefits);
* * * * *
(n) Determinations that a provider or supplier failed to submit a
claim timely or failed to submit a timely claim despite being requested
to do so by the beneficiary or the beneficiary's subrogee;
* * * * *
Sec. 405.946 [Corrected]
0
6. In Sec. 405.946, paragraph (b), the words ``up to'' are inserted
between ``for'' and ``14''.
Sec. 405.950 [Corrected]
0
7. In Sec. 405.950, paragraph (b)(3), the words ``up to'' are inserted
between ``for'' and ``14''.
Sec. 405.970 [Corrected]
0
8. Section 405.970 is amended by revising paragraph (c)(2) to read as
follows:
Sec. 405.970 Timeframe for making a reconsideration.
* * * * *
(c) * * *
(1) * * *
(2) Notify the parties that it cannot complete the reconsideration
by the
[[Page 37703]]
deadline specified in paragraph (b) of this section and offer the
appellant the opportunity to escalate the appeal to an ALJ. The QIC
continues to process the reconsideration unless it receives a written
request from the appellant to escalate the case to an ALJ after the
adjudication period has expired.
* * * * *
Sec. 405.974 [Corrected]
0
9. Section 405.974 is amended by adding paragraphs (b)(1)(i) and
(b)(1)(ii) to read as follows:
Sec. 405.974 Reconsideration.
* * * * *
(b) * * *
(1) * * *
(i) For purposes of this section, the date of receipt of the
contractor's notice of dismissal is presumed to be 5 days after the
date of the notice of dismissal, unless there is evidence to the
contrary.
(ii) For purposes of meeting the 60-day filing deadline, the
request is considered as filed on the date it is received by the QIC
indicated on the notice of dismissal.
* * * * *
Sec. 405.980 [Corrected]
0
10. Section 405.980 is amended by--
0
A. Revising introductory text of paragraph (a)(1).
0
B. Revising paragraph (a)(3) introductory text.
0
D. Revising paragraph (a)(4).
0
C. Revising paragraph (a)(6).
0
D. Revising paragraph (d)(2).
0
E. Revising paragraph (e)(2).
0
The revisions read as follows:
Sec. 405.980 Reopenings of initial determinations, redeterminations,
and reconsiderations, hearings and reviews.
(a) General rules. (1) A reopening is a remedial action taken to
change a final determination or decision that resulted in either an
overpayment or underpayment, even though the final determination or
decision may have been correct at the time it was made based on the
evidence of record. That action may be taken by--
* * * * *
(2) * * *
(3) Notwithstanding paragraph (a)(4) of this section, a contractor
must process clerical errors (which includes minor errors and
omissions) as reopenings, instead of as redeterminations as specified
in Sec. 405.940. If the contractor receives a request for reopening
and disagrees that the issue is a clerical error, the contractor must
dismiss the reopening request and advise the party of any appeal
rights, provided the timeframe to request an appeal on the original
denial has not expired. For purposes of this section, clerical error
includes human or mechanical errors on the part of the party or the
contractor such as--
* * * * *
(4) When a party has filed a valid request for an appeal of an
initial determination, redetermination, reconsideration, hearing, or
MAC review, no adjudicator has jurisdiction to reopen an issue on a
claim that is under appeal until all appeal rights for that issue are
exhausted. Once the appeal rights for the issue have been exhausted,
the contractor, QIC, ALJ, or MAC may reopen as set forth in this
section.
* * * * *
(6) A determination under the Medicare secondary payer provisions
of section 1862(b) of the Act that Medicare has an MSP recovery claim
for services or items that were already reimbursed by the Medicare
program is not a reopening, except where the recovery claim is based
upon a provider's or supplier's failure to demonstrate that it filed a
proper claim as defined in part 411 of this chapter.
* * * * *
(d) * * *
(1) * * *
(2) An ALJ or the MAC may reopen a hearing decision on its own
motion within 180 days from the date of the decision for good cause in
accordance with Sec. 405.986. If the hearing decision was procured by
fraud or similar fault, then the ALJ or the MAC may reopen at any time.
* * * * *
(e) * * *
(1) * * *
(2) A party to a hearing may request that an ALJ or the MAC reopen
a hearing decision within 180 days from the date of the hearing
decision for good cause in accordance with Sec. 405.986.
* * * * *
Sec. 405.986 [Corrected]
0
11. In Sec. 405.986, remove paragraph (d).
Sec. 405.990 [Corrected]
0
12. Section 405.990 is amended by revising paragraph (b)(1)(i)(A) to
read as follows:
Sec. 405.990 Expedited access to judicial review.
* * * * *
(b) * * *
(1) * * *
(i) * * *
(A) An ALJ hearing in accordance with Sec. 405.1002 and a final
decision of the ALJ has not been issued;
* * * * *
Sec. 405.1002 [Corrected]
0
13. Section 405.1002 is amended by--
0
A. Revising paragraph (a)(1).
0
B. Adding paragraphs (a)(3) and (a)(4).
0
The revision and additions read as follows:
Sec. 405.1002 Right to an ALJ hearing.
(a) * * *
(1) The party files a written request for an ALJ hearing within 60
days after receipt of the notice of the QIC's reconsideration.
(2) * * *
(3) For purposes of this section, the date of receipt of the
reconsideration is presumed to be 5 days after the date of the
reconsideration, unless there is evidence to the contrary.
(4) For purposes of meeting the 60-day filing deadline, the request
is considered as filed on the date it is received by the entity
specified in the QIC's reconsideration.
* * * * *
Sec. 405.1004 [Corrected]
0
14. Section 405.1004 is amended by--
0
A. Revising paragraph (a)(1).
0
B. Adding paragraphs (a)(3) and (a)(4).
The revision and additions read as follows:
Sec. 405.1004 Right to ALJ review of QIC notice of dismissal.
(a) * * *
(1) The party files a written request for an ALJ review within 60
days after receipt of the notice of the QIC's dismissal.
(2) * * *
(3) For purposes of this section, the date of receipt of the QIC's
dismissal is presumed to be 5 days after the date of the dismissal
notice, unless there is evidence to the contrary.
(4) For purposes of meeting the 60-day filing deadline, the request
is considered as filed on the date it is received by the entity
specified in the QIC's dismissal.
* * * * *
Sec. 405.1014 [Corrected]
0
15. In Sec. 405.1014, the phrase ``hearing office'' is removed from
paragraph (c)(4).
Sec. 405.1016 [Corrected]
0
16. Section 405.1016 is amended by revising paragraphs (b) and (d) to
read as follows:
Sec. 405.1016 Time frames for deciding an appeal before an ALJ.
* * * * *
(b) The adjudication period specified in paragraph (a) of this
section begins on the date that a timely filed request for hearing is
received by the entity
[[Page 37704]]
specified in the QIC's reconsideration, or, if it is not timely filed,
the date that the ALJ grants any extension to the filing deadline.
* * * * *
(d) When CMS or its contractor is a party to an ALJ hearing and a
party requests discovery under Sec. 405.1037 against another party to
the hearing, the adjudication periods discussed in paragraphs (a) and
(c) of this section are tolled.
Sec. 405.1018 [Corrected]
0
17. In Sec. 405.1018, in paragraph (c), the phrase ``must be
accompanied by a statement explaining why the evidence is not
previously submitted'' is corrected to ``must be accompanied by a
statement explaining why the evidence was not previously submitted.''
Sec. 405.1020 [Corrected]
0
18. Section 405.1020 is amended by--
0
A. Revising paragraph (c)(1).
0
B. Revising the introductory heading for paragraph (i).
0
C. Revising paragraph (i)(4).
The revisions read as follows:
Sec. 405.1020 Time frames for deciding an appeal before an ALJ.
* * * * *
(c) * * *
(1) The ALJ sends a notice of hearing to all parties that filed an
appeal or participated in the reconsideration, any party who was found
liable for the services at issue subsequent to the initial
determination, the contractor that issued the initial determination,
and the QIC that issued the reconsideration, advising them of the
proposed time and place of the hearing.
* * * * *
(i) A party's request for an in-person hearing.
* * * * *
(1) * * *
(2) * * *
(3) * * *
(4) When a party's request for an in-person hearing is granted, the
party is deemed to have waived the 90-day time frame specified in Sec.
405.1016.
Sec. 405.1028 [Corrected]
0
19. The title of Sec. 405.1028 is corrected to ``Prehearing case
review of evidence submitted to the ALJ''.
Sec. 405.1037 [Corrected]
0
20. Amend 405.1037 as follows:
0
A. In paragraph (a)(1), the words ``or its contractor'' are inserted
after ``CMS''.
0
B. In paragraph (c)(1), the word ``hearing'' at the end of the
paragraph is removed.
0
C. In paragraph (e)(2)(iv), the phrase ``where the MAC grants a request
for review made by a party other than CMS of a ruling'' is corrected to
``where the MAC grants a request, made by a party other than CMS, to
review a discovery ruling.''
Sec. 405.1042 [Corrected]
0
21. In Sec. 405.1042, paragraph (a)(3), the phrase ``[t]he appellant''
is corrected to ``[a] party''.
Sec. 405.1046 [Corrected]
0
22. In Sec. 405.1046, paragraph (d), the phrase ``when the request for
hearing is received in the ALJ hearing office'' is corrected to ``when
the request for hearing is received by the entity specified in the
QIC's reconsideration.''
Sec. 405.1052 [Corrected]
23. Amend Sec. 405.1052 as follows:
A. In paragraph (a)(4), the cross-reference to ``Sec.
405.1014(d)'' is corrected to ``Sec. 405.1014(c)''.
B. In paragraph (a)(5)(iii), the cross-reference to ``Sec.
405.1020'' is corrected to ``Sec. 405.1014''.
Sec. 405.1060 [Corrected]
24. Section 405.1060 is amended by revising paragraph (a)(4) to
read as follows:
Sec. 405.1060 Applicability of national coverage determinations
(NCDs).
(a) * * *
(4) An NCD is binding on fiscal intermediaries, carriers, QIOs,
QICs, ALJs, and the MAC.
* * * * *
Sec. 405.1102 [Corrected]
0
25. Section 405.1102 is amended by:
0
A. Revising paragraph (a).
0
B. Redesignating paragraph (b) as paragraph (c).
0
C. Redesignating paragraph (c) as paragraph (d).
0
D. Adding a new paragraph (b).
The revisions read as follows:
Sec. 405.1102 Request for MAC review when ALJ issues decision or
dismissal.
(a)(1) A party to the ALJ hearing may request a MAC review if the
party files a written request for a MAC review within 60 days after
receipt of the ALJ's decision or dismissal.
(2) For purposes of this section, the date of receipt of the ALJ's
decision or dismissal is presumed to be 5 days after the date of the
notice of the decision or dismissal, unless there is evidence to the
contrary.
(3) The request is considered as filed on the date it is received
by the entity specified in the notice of the ALJ's action.
(b) A party requesting a review may ask that the time for filing a
request for MAC review be extended if--
(1) The request for an extension of time is in writing;
(2) It is filed with the MAC; and
(3) It explains why the request for review was not filed within the
stated time period. If the MAC finds that there is good cause for
missing the deadline, the time period will be extended. To determine
whether good cause exists, the MAC uses the standards outlined at Sec.
405.942(b)(2) and Sec. 405.942(b)(3).
* * * * *
Sec. 405.1104 [Corrected]
0
26. Amend Sec. 405.1104 as follows:
0
A. The word ``latter'' is corrected to ``later'' in paragraph (a)(2).
0
B. In paragraph (c), the phrase ``and the appellant does not request
escalation to the MAC'' is removed.
Sec. 405.1106 [Corrected]
0
27. Section 405.1106 is amended by revising paragraph (a) to read as
follows:
Sec. 405.1106 Where a request for review or escalation may be filed.
(a) When a request for a MAC review is filed after an ALJ has
issued a decision or dismissal, the request for review must be filed
with the entity specified in the notice of the ALJ's action. The
appellant must also send a copy of the request for review to the other
parties to the ALJ decision or dismissal. Failure to copy the other
parties tolls the MAC's adjudication deadline set forth in Sec.
405.1100 until all parties to the hearing receive notice of the request
for MAC review. If the request for review is timely filed with an
entity other than the entity specified in the notice of the ALJ's
action, the MAC's adjudication period to conduct a review begins on the
date the request for review is received by the entity specified in the
notice of the ALJ's action. Upon receipt of a request for review from
an entity other than the entity specified in the notice of the ALJ's
action, the MAC sends written notice to the appellant of the date of
receipt of the request and commencement of the adjudication time frame.
* * * * *
Sec. 405.1112 [Corrected]
0
28. In Sec. 405.1112, paragraph (a), the phrase ``must be made on a
standard form'' is corrected to ``may be made on a standard form''.
[[Page 37705]]
Sec. 405.1136 [Corrected]
0
29. In Sec. 405.1136, paragraph (d)(1), in the first sentence, the
words ``is filed'' are removed.
III. Waiver of Proposed Rulemaking
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 take effect. However, we can waive this procedure
if we find good cause for doing so, and incorporate a statement of this
finding and the reasons for it into the rule. A finding that a notice
and comment period is impracticable, unnecessary, or contrary to the
public interest constitutes good cause for waiving this procedure. We
also can waive the 30-day delay in effective date under the
Administrative Procedure Act (5 U.S.C. 553(d)) when there is good cause
to do so and we publish in the rule an explanation of our good cause.
Many of the corrections included in this rule are corrections of
typographical errors and editorial mistakes. For example, the word
``mirror'' has been corrected to ``minor'' in Sec. 405.980(a)(3). The
rest of the corrections are made to correct inadvertent omissions and
clarify inconsistencies in the preamble and regulation text. At Sec.
405.1046(d), for example, consistent with the provision at Sec.
405.1014(b)(2), which states that the proper filing location for ALJ
hearing requests is the entity specified in the QIC's reconsideration,
the regulation text has been revised to reflect the proper filing
location for ALJ hearing requests.
We believe that it is unnecessary to seek public comment on the
correction of typographical and editorial errors. Further, it is in the
public's interest to correct inadvertent omissions and clarify apparent
inconsistencies in the preamble and regulation text. These revisions
help ensure that the rules governing the Medicare administrative
appeals process are more understandable and less ambiguous and protect
the rights of all parties to pursue Medicare claims appeals under these
procedures. Therefore, we find that undertaking notice and comment
rulemaking to incorporate these corrections into the interim final rule
is unnecessary and contrary to the public interest.
For the same reasons, we believe that delaying the effective date
of these corrections beyond July 1, 2005 would be contrary to the
public interest. As a matter of good public policy, the regulations
governing the Medicare claims appeals process should be as accurate and
clear as possible. Thus, it would be contrary to the public interest to
delay implementation of these corrections to provide for a 30-day delay
in effective date. Therefore, we also find good cause to waive the 30-
day delay in effective date.
(Catalog of Federal Domestic Assistance Program No. 93.778, Medical
Assistance Program)
(Catalog of Federal Domestic Assistance Program No. 93.773,
Medicare--Hospital Insurance; and Program No. 93.774, Medicare--
Supplementary Medical Insurance Program)
Dated: June 27, 2005.
Ann Agnew,
Executive Secretary to the Department.
[FR Doc. 05-12982 Filed 6-28-05; 12:44 pm]
BILLING CODE 4120-01-P