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