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

 
CONTENT
Federal Register, Volume 85 Issue 1 (Thursday, January 2, 2020)
[Federal Register Volume 85, Number 1 (Thursday, January 2, 2020)]
[Rules and Regulations]
[Pages 7-8]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-28363]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Medicare & Medicaid Services
42 CFR Parts 402, 403, 411, 412, 422, 423, 460, 483, 488, and 493
[CMS-6076-RCN]
RIN 0991-AC07
Medicare and Medicaid Programs; Adjustment of Civil Monetary
Penalties for Inflation; Continuation of Effectiveness and Extension of
Timeline for Publication of the Final Rule
AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS.
ACTION: Continuation of effectiveness and extension of timeline for
publication of the final rule.
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SUMMARY: This document announces the continuation of, effectiveness of,
and the extension of the timeline for publication of a final rule. We
are issuing this document in accordance with the Social Security Act
(the Act), which allows an interim final rule to remain in effect after
the expiration of the timeline specified in the Act if the Secretary
publishes a notice of continuation explaining why the regular timeline
was not complied with.
DATES: Effective December 31, 2019, the Medicare provisions adopted in
the interim final rule published on September 6, 2016 (81 FR 61538)
continue in effect and the regular timeline for publication of the
final rule is extended for an additional year, until September 6, 2020.
FOR FURTHER INFORMATION CONTACT: Steve Forry (410) 786-1564 or
Jaqueline Cipa (410) 786-3259.
SUPPLEMENTARY INFORMATION: Section 1871(a) of the Social Security Act
(the Act) sets forth certain procedures for promulgating regulations
necessary to carry out the administration of the insurance programs
under Title XVIII of the Act. Section 1871(a)(3)(A) of the Act requires
the Secretary, in consultation with the Director of the Office of
Management and Budget (OMB), to establish a regular timeline for the
publication of final regulations based on the previous publication of a
proposed rule or an interim final rule. In accordance with section
1871(a)(3)(B) of the Act, such timeline may vary among different rules,
based on the complexity of the rule, the number and scope of the
comments received, and other relevant factors. However, the timeline
for publishing the final rule, cannot exceed 3 years from the date of
publication of the proposed or interim final rule, unless there are
exceptional circumstances. After consultation with the Director of OMB,
the Secretary published a notice, which appeared in the December 30,
2004 Federal Register on (69 FR 78442), establishing a general 3-year
timeline for publishing Medicare final rules after the publication of a
proposed or interim final rule.
    Section 1871(a)(3)(C) of the Act states that upon expiration of the
regular timeline for the publication of a final regulation after
opportunity for public comment, a Medicare interim final rule shall not
continue in effect unless the Secretary publishes notification of
continuation of the regulation that includes an explanation of why the
regular timeline was not met. Upon publication of such notification,
the regular timeline for publication of the final regulation is treated
as having been extended for 1 additional year.
    On September 6, 2016 Federal Register (81 FR 61538), the Department
[[Page 8]]
of Health and Human Services (HHS) issued a department-wide interim
final rule titled ``Adjustment of Civil Monetary Penalties for
Inflation'' that established new regulations at 45 CFR part 102 to
adjust for inflation the maximum civil monetary penalty amounts for the
various civil monetary penalty authorities for all agencies within the
Department. HHS took this action to comply with the Federal Civil
Penalties Inflation Adjustment Act of 1990 (the Inflation Adjustment
Act) (28 U.S.C. 2461 note 2(a)), as amended by the Federal Civil
Penalties Inflation Adjustment Act Improvements Act of 2015 (section
701 of the Bipartisan Budget Act of 2015, (Pub. L. 114-74), enacted on
November 2, 2015). In addition, this September 2016 interim final rule
included updates to certain agency-specific regulations to reflect the
new provisions governing the adjustment of civil monetary penalties for
inflation in 45 CFR part 102.
    One of the purposes of the Inflation Adjustment Act was to create a
mechanism to allow for regular inflationary adjustments to federal
civil monetary penalties. Section 2(b)(1) of the Inflation Adjustment
Act. The 2015 amendments removed an inflation update exclusion that
previously applied to the Social Security Act as well as to the
Occupational Safety and Health Act. The 2015 amendments also ``reset''
the inflation calculations by excluding prior inflationary adjustments
under the Inflation Adjustment Act and requiring agencies to identify,
for each penalty, the year and corresponding amount(s) for which the
maximum penalty level or range of minimum and maximum penalties was
established (that is, originally enacted by Congress) or last adjusted
other than pursuant to the Inflation Adjustment Act. In accordance with
section 4 of the Inflation Adjustment Act, agencies were required to:
(1) Adjust the level of civil monetary penalties with an initial
``catch-up'' adjustment through an interim final rulemaking (IFR) to
take effect by August 1, 2016; and (2) make subsequent annual
adjustments for inflation.
    In the September 2016 interim final rule, HHS adopted new
regulations at 45 CFR part 102 to govern adjustment of civil monetary
penalties for inflation. The regulation at 45 CFR 102.1 provides that
part 102 applies to each statutory provision under the laws
administered by the Department of Health and Human Services concerning
civil monetary penalties, and that the regulations in part 102
supersede existing HHS regulations setting forth civil monetary penalty
amounts. The civil money penalties and the adjusted penalty amounts
administered by all HHS agencies are listed in tabular form in 45 CFR
102.3. In addition to codifying the adjusted penalty amounts identified
in Sec.  102.3, the HHS-wide interim final rule included several
technical conforming updates to certain agency-specific regulations,
including various CMS regulations, to identify their updated
information, and incorporate a cross-reference to the location of HHS-
wide regulations.
    Because the conforming changes to the Medicare provisions were part
of a larger, omnibus departmental interim final rule, we inadvertently
missed setting a target date for the final rule to make permanent the
changes to the Medicare regulations in accordance with section
1871(a)(3)(A) of the Act and the procedures outlined in the December
2004 notice. Consistent with section 1871(a)(3)(C) of the Act, we are
publishing this notice of continuation extending the effectiveness of
the technical conforming changes to the Medicare regulations that were
implemented through interim final rule and to allow time to publish a
final rule. The extended time is needed to allow for coordination with
the Department to issue a final rule and to avoid the potential for
confusion between 45 CFR part 102, which establishes the civil monetary
payment amounts, and the Medicare regulations subject to the timing
requirements in section 1871(a)(3)(C) of the Act which would otherwise
revert to the language that was used prior to the Inflation Adjustment
Act. Therefore, the Medicare provisions adopted in interim final
regulation continue in effect and the regular timeline for publication
of the final rule is extended for an additional year, until September
6, 2020.
    Dated: December 19, 2019.
Ann C. Agnew,
Executive Secretary to the Department, Department of Health and Human
Services.
[FR Doc. 2019-28363 Filed 12-31-19; 4:15 pm]
BILLING CODE 4120-01-P