Medicare Program; Changes to the Medicare Claims Appeal Procedures: Correcting Amendment to an Interim Final Rule, 37700-37705 [05-12982]

Download as PDF 37700 Federal Register / Vol. 70, No. 125 / Thursday, June 30, 2005 / Rules and Regulations in these circumstances, under 5 U.S.C. 553(d)(1) because a deletion from the section 313 list relieves a regulatory restriction. EPA believes that where a chemical does not satisfy any of the criteria of section 313(d)(2)(A)(C), no purpose is served by requiring facilities to collect data or file TRI reports for that chemical, or, therefore, by leaving that chemical on the section 313 list for any additional period of time. This construction of section 313(d)(4) is consistent with previous rules deleting chemicals from the section 313 list. For further discussion of the rationale for immediate effective dates for EPCRA section 313 delistings, see 59 FR 33205 (June 28, 1994). III. References 1. American Chemistry Council v. Johnson, No. 04–5189, (DC Cir. June 13, 2005). IV. Statutory and Executive Order Reviews This rule is not a significant regulatory action, as defined under EO 12866, and therefore does not require review by the Office of Management and Budget (OMB) under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993), or Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). It also does not meet the requirements for review under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104–4), Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999), Executive Order 13175, entitled Consultation and Coordination With Indian Tribal Governments (65 FR 67249, November 9, 2000), Executive Order 13211, entitled Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001), or Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994). In addition, this rule does not impose any impact on small entities and thus does not require preparation of a regulatory flexibility analysis under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.). The deletion of methyl ethyl ketone from the EPCRA section 313 list will reduce the overall reporting and recordkeeping burden estimate provided for EPCRA section 313, but this action does not require any review or approval by OMB under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et VerDate jul<14>2003 15:12 Jun 29, 2005 Jkt 205001 seq. until EPA decides to subtract the total burden eliminated by today’s action from the EPCRA section 313 overall burden approved by OMB. At some point in the future, EPA will determine the total EPCRA section 313 burden associated with the deletion of methyl ethyl ketone, and will complete the required Information Collection Worksheet to adjust the total EPCRA section 313 estimate. The reporting and recordkeeping burdens associated with EPCRA section 313 are approved by OMB under OMB No. 2070–0093 (EPCRA section 313 base program and Form R, EPA ICR No. 1363) and under OMB No. 2070–0145 (Form A, EPA ICR No. 1704). The current public reporting burden for EPCRA section 313 is estimated to be 34.2 hours for a Form R submitter and 20.6 hours for a Form A submitter. These estimates include the time needed for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. For reporting year 2003 there were 1,515 Form Rs submitted for methyl ethyl ketone and 108 Form As submitted. Pursuant to the Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. However, section 808 of that Act provides that any rule for which the issuing agency for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rule) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest, shall take effect at such time as the agency promulgating the rule determines (5 U.S.C. 808(2)). As stated previously, EPA has made such a good cause finding, including the reasons therefore, and established an effective date of June 30, 2005. This rule is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 372 Environmental protection, Intergovernmental relations, Reporting and recordkeeping requirements. Dated: June 24, 2005. Stephen L. Johnson, Administrator. Therefore, 40 CFR part 372 is amended to read as follows: I 1. The authority citation for part 372 continues to read as follows: I PO 00000 Frm 00054 Fmt 4700 Sfmt 4700 Authority: 42 U.S.C. 11013 and 11028. § 372.65 [Amended] 2. Section 372.65 is amended by removing the entry for methyl ethyl ketone under paragraph (a), and removing the entire CAS No. entry for 78–93–3 under paragraph (b). I [FR Doc. 05–12928 Filed 6–29–05; 8:45 am] BILLING CODE 6560–50–P 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 Centers for Medicare & Medicaid Services (CMS), HHS. ACTION: Correcting amendment to an interim final rule. AGENCY: 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 E:\FR\FM\30JNR1.SGM 30JNR1 Federal Register / Vol. 70, No. 125 / Thursday, June 30, 2005 / Rules and Regulations 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 § 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 § 405.1016(d) and § 405.1037(a)(1). VerDate jul<14>2003 15:12 Jun 29, 2005 Jkt 205001 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 § 405.926, § 405.980, § 405.990, § 405.1020, and § 405.1102. We also made typographical and editing errors in § 405.980, § 405.986, § 405.990, § 405.1016, § 405.1018, § 405.1020, § 405.1037, § 405.1042, § 405.1052, § 405.1104, § 405.1112, and § 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 § 405.912(g) and § 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 § 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 § 405.946(b), § 405.950 and PO 00000 Frm 00055 Fmt 4700 Sfmt 4700 37701 § 405.970 by stating that the decisionmaking time frame is extended ‘‘by up to 14 days’’ each time evidence is submitted after an appeal is filed. At § 405.946(b) and § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 405.980. This editing error is corrected in section D by E:\FR\FM\30JNR1.SGM 30JNR1 37702 Federal Register / Vol. 70, No. 125 / Thursday, June 30, 2005 / Rules and Regulations deleting paragraph (d) from § 405.986 and inserting it into § 405.980(a)(6). In § 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 § 405.1046(d), we incorrectly referred to the ALJ hearing office as the proper filing location for ALJ hearing requests. Additionally, in § 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 § 405.1014(c)(4) and § 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 § 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 prehearing 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 § 405.1052(a)(4) and § 405.1052(a)(5), however, we inadvertently failed to update the crossreferences 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 VerDate jul<14>2003 15:12 Jun 29, 2005 Jkt 205001 described in § 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 § 405.974(b), § 405.1002(a), § 405.1004(a), and § 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 PART 405—[CORRECTED] 3. The authority citation for part 405 continues to read as follows: I 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). § 405.912 [Corrected] 4. Section 405.912 is amended as follows— I A. In paragraph (g) introductory text, the word ‘‘assignee’’ is corrected to ‘‘assignor’’. I B. In paragraph (g)(1), the word ‘‘assignor’’, which precedes ‘‘and’’, is corrected to ‘‘assignee’’. I § 405.926 I I I I [Corrected] 5. Section 405.926 is amended by— A. Revising paragraph (j). B. Revising paragraph (n). The revisions read as follows: § 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; * * * * * § 405.946 [Corrected] 6. In § 405.946, paragraph (b), the words ‘‘up to’’ are inserted between ‘‘for’’ and ‘‘14’’. Accordingly, 42 CFR chapter IV is corrected by making the following correcting amendments to parts 401 and 405: I PART 401—[CORRECTED] I I 1. The authority citation for part 401 continues to read as follows: I 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). § 401.108 [Corrected] PO 00000 Frm 00056 Fmt 4700 Sfmt 4700 [Corrected] 7. In § 405.950, paragraph (b)(3), the words ‘‘up to’’ are inserted between ‘‘for’’ and ‘‘14’’. § 405.970 [Corrected] 8. Section 405.970 is amended by revising paragraph (c)(2) to read as follows: I § 405.970 Timeframe for making a reconsideration. * 2. In § 401.108, paragraph (c) is corrected by removing the phrase ‘‘pertaining to Medicare Part A and Medicare Part B’’. I § 405.950 * * * * (c) * * * (1) * * * (2) Notify the parties that it cannot complete the reconsideration by the E:\FR\FM\30JNR1.SGM 30JNR1 Federal Register / Vol. 70, No. 125 / Thursday, June 30, 2005 / Rules and Regulations 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. * * * * * § 405.974 [Corrected] 9. Section 405.974 is amended by adding paragraphs (b)(1)(i) and (b)(1)(ii) to read as follows: I § 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 60day filing deadline, the request is considered as filed on the date it is received by the QIC indicated on the notice of dismissal. * * * * * § 405.980 [Corrected] 10. Section 405.980 is amended by— A. Revising introductory text of paragraph (a)(1). I B. Revising paragraph (a)(3) introductory text. I D. Revising paragraph (a)(4). I C. Revising paragraph (a)(6). I D. Revising paragraph (d)(2). I E. Revising paragraph (e)(2). I The revisions read as follows: I I § 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 § 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 VerDate jul<14>2003 15:12 Jun 29, 2005 Jkt 205001 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 § 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 § 405.986. * * * * * § 405.986 I [Corrected] 11. In § 405.986, remove paragraph (d). § 405.990 [Corrected] 12. Section 405.990 is amended by revising paragraph (b)(1)(i)(A) to read as follows: Expedited access to judicial * * * * * (b) * * * (1) * * * (i) * * * (A) An ALJ hearing in accordance with § 405.1002 and a final decision of the ALJ has not been issued; * * * * * PO 00000 Frm 00057 Fmt 4700 Sfmt 4700 [Corrected] 13. Section 405.1002 is amended by— A. Revising paragraph (a)(1). B. Adding paragraphs (a)(3) and (a)(4). The revision and additions read as follows: I I I I § 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 60day filing deadline, the request is considered as filed on the date it is received by the entity specified in the QIC’s reconsideration. * * * * * § 405.1004 [Corrected] 14. Section 405.1004 is amended by— A. Revising paragraph (a)(1). B. Adding paragraphs (a)(3) and (a)(4). The revision and additions read as follows: I I I § 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 60day filing deadline, the request is considered as filed on the date it is received by the entity specified in the QIC’s dismissal. * * * * * § 405.1014 [Corrected] 15. In § 405.1014, the phrase ‘‘hearing office’’ is removed from paragraph (c)(4). I I § 405.990 review. § 405.1002 37703 § 405.1016 [Corrected] 16. Section 405.1016 is amended by revising paragraphs (b) and (d) to read as follows: I § 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 E:\FR\FM\30JNR1.SGM 30JNR1 37704 Federal Register / Vol. 70, No. 125 / Thursday, June 30, 2005 / Rules and Regulations 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 § 405.1037 against another party to the hearing, the adjudication periods discussed in paragraphs (a) and (c) of this section are tolled. I § 405.1018 § 405.1046 [Corrected] 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.’’ § 405.1042 [Corrected] 21. In § 405.1042, paragraph (a)(3), the phrase ‘‘[t]he appellant’’ is corrected to ‘‘[a] party’’. I [Corrected] 22. In § 405.1046, paragraph (d), the I 17. In § 405.1018, in paragraph (c), the phrase ‘‘when the request for hearing is phrase ‘‘must be accompanied by a received in the ALJ hearing office’’ is statement explaining why the evidence is not previously submitted’’ is corrected corrected to ‘‘when the request for to ‘‘must be accompanied by a statement hearing is received by the entity specified in the QIC’s reconsideration.’’ explaining why the evidence was not previously submitted.’’ § 405.1052 [Corrected] I § 405.1020 [Corrected] 18. Section 405.1020 is amended by— A. Revising paragraph (c)(1). B. Revising the introductory heading for paragraph (i). I C. Revising paragraph (i)(4). The revisions read as follows: I I I § 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 inperson hearing is granted, the party is deemed to have waived the 90-day time frame specified in § 405.1016. § 405.1028 [Corrected] 19. The title of § 405.1028 is corrected to ‘‘Prehearing case review of evidence submitted to the ALJ’’. I § 405.1037 [Corrected] 20. Amend 405.1037 as follows: A. In paragraph (a)(1), the words ‘‘or its contractor’’ are inserted after ‘‘CMS’’. I B. In paragraph (c)(1), the word ‘‘hearing’’ at the end of the paragraph is removed. I I VerDate jul<14>2003 15:12 Jun 29, 2005 Jkt 205001 23. Amend § 405.1052 as follows: A. In paragraph (a)(4), the crossreference to ‘‘§ 405.1014(d)’’ is corrected to ‘‘§ 405.1014(c)’’. B. In paragraph (a)(5)(iii), the crossreference to ‘‘§ 405.1020’’ is corrected to ‘‘§ 405.1014’’. § 405.1060 [Corrected] 24. Section 405.1060 is amended by revising paragraph (a)(4) to read as follows: § 405.1060 Applicability of national coverage determinations (NCDs). (a) * * * (4) An NCD is binding on fiscal intermediaries, carriers, QIOs, QICs, ALJs, and the MAC. * * * * * § 405.1102 [Corrected] 25. Section 405.1102 is amended by: A. Revising paragraph (a). B. Redesignating paragraph (b) as paragraph (c). I C. Redesignating paragraph (c) as paragraph (d). I D. Adding a new paragraph (b). The revisions read as follows: I I I § 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. PO 00000 Frm 00058 Fmt 4700 Sfmt 4700 (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 § 405.942(b)(2) and § 405.942(b)(3). * * * * * § 405.1104 [Corrected] 26. Amend § 405.1104 as follows: A. The word ‘‘latter’’ is corrected to ‘‘later’’ in paragraph (a)(2). I B. In paragraph (c), the phrase ‘‘and the appellant does not request escalation to the MAC’’ is removed. I I § 405.1106 [Corrected] 27. Section 405.1106 is amended by revising paragraph (a) to read as follows: I § 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 § 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. * * * * * § 405.1112 [Corrected] 28. In § 405.1112, paragraph (a), the phrase ‘‘must be made on a standard form’’ is corrected to ‘‘may be made on a standard form’’. I E:\FR\FM\30JNR1.SGM 30JNR1 Federal Register / Vol. 70, No. 125 / Thursday, June 30, 2005 / Rules and Regulations § 405.1136 [Corrected] 29. In § 405.1136, paragraph (d)(1), in the first sentence, the words ‘‘is filed’’ are removed. I 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 § 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 § 405.1046(d), for example, consistent with the provision at § 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 VerDate jul<14>2003 15:12 Jun 29, 2005 Jkt 205001 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 FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 64 [CG Docket No. 02–278, FCC 05–132] Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 Federal Communications Commission. ACTION: Final rule; delay of effective date. AGENCY: SUMMARY: In this document, the Commission delays until January 9, 2006, the effective date of the rule requiring the sender of a facsimile advertisement to obtain the recipient’s express permission in writing. DATES: The effective date of the rule amending 47 CFR Part 64, § 64.1200(a)(3)(i) published at 68 FR 44144, July 25, 2003, is delayed until January 9, 2006. ADDRESSES: Federal Communications Commission, 445 12th Street SW., Washington, DC 20554. FOR FURTHER INFORMATION CONTACT: Erica H. McMahon at 202–418–2512, Consumer & Governmental Affairs Bureau, Federal Communications Commission. This is a summary of the Commission’s Order in CG Docket No. 02–278, FCC 05–132, adopted on June 27, 2005 and released on June 27, 2005. The full text of this document is available at the Commission’s Web site http://www.fcc.gov on the Electronic Comment Filing System and for public inspection and copying during regular business hours in the FCC Reference Information Center, Room CY–A257, SUPPLEMENTARY INFORMATION: PO 00000 Frm 00059 Fmt 4700 Sfmt 4700 37705 445 12th Street, SW., Washington, DC 20554. The complete text of the decision may be purchased from the Commission’s duplicating contractor, Best Copy and Printing, Inc. (BCPA), Portals II, 445 12th Street, SW., Room CY–B402, Washington, DC 20554. Customers may contact BCPI, Inc. at its Web site: http://www.bcpiweb.com or call 1–800– 378–3160. To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at (202) 418–0530 (voice) or (202) 418–0432 (TTY). The Order can also be downloaded in Word and Portable Document Format (PDF) at http://www.fcc.gov/cgb. Synopsis On July 3, 2003, the Commission revised the unsolicited facsimile advertising requirements under the Telephone Consumer Protection Act of 1991 (TCPA). On August 18, 2003, the Commission issued an Order on Reconsideration (68 FR 50978, August 25, 2003) that delayed until January 1, 2005, the effective date of these amended requirements. On September 15, 2004, the Commission adopted an Order (69 FR 62816, October 28, 2004) further extending the stay of the effective date of the requirements through June 30, 2005. On April 15, 2005, the Fax Ban Coalition (Coalition) filed a petition urging the Commission to further delay the effective date of the revised rules governing unsolicited facsimile advertisements through December 31, 2005. The Coalition maintains that a further delay is warranted to avoid irreparable injury to the members of the Coalition and negative impact on the economy. The Coalition also argues that delay is important while Congress considers legislation to amend the TCPA and the Commission considers petitions for reconsideration and requests for clarification. We now further delay, until January 9, 2006, the effective date of the determination that an established business relationship will no longer be sufficient to show that an individual or business has given express permission to receive unsolicited facsimile advertisements, as well as the amended unsolicited facsimile provisions at 47 CFR 64.1200(a)(3)(i). Section 64.1200(a)(3)(i), as amended, requires the sender of a facsimile advertisement to first obtain from the recipient a signed, written statement that includes the facsimile number to which any E:\FR\FM\30JNR1.SGM 30JNR1

Agencies

[Federal Register Volume 70, Number 125 (Thursday, June 30, 2005)]
[Rules and Regulations]
[Pages 37700-37705]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-12982]


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

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.

-----------------------------------------------------------------------

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