Medicare and Medicaid: stage renal disease; state of emergency in Houston, TX; removal of waiver of conditions for coverage,

[Federal Register: July 26, 2002 (Volume 67, Number 144)]

[Rules and Regulations]

[Page 48800-48801]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr26jy02-16]

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Part 405

[CMS-3074-F2]

RIN 0938-AK98

Medicare Program; End-Stage Renal Disease: Removing of Waiver of Conditions for Coverage Under a State of Emergency in the Houston, Texas Area

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

ACTION: Final rule.

SUMMARY: This final rule removes an emergency waiver of the Medicare end-stage renal disease (ESRD) conditions for coverage granted to permit the transplant team of an approved renal transplant center to furnish kidney transplant services in three specific hospitals in the Houston, Texas area during a state of emergency. The state of emergency has ceased, the primary kidney transplant center in the area is now fully operational, and the effective period of the waiver provisions has expired.

EFFECTIVE DATE: July 26, 2002.

FOR FURTHER INFORMATION CONTACT: Rachael Weinstein, (410) 786-6775

SUPPLEMENTARY INFORMATION

1. Provisions of This Rule

   On June 20, 2001, we published a final rule in the Federal Register (66 FR 33030-33031) that granted an emergency waiver of the Medicare end-stage renal disease (ESRD) conditions of coverage to permit the transplant team of an approved renal transplant center to furnish covered kidney transplant services in three specific hospitals in the Houston, Texas area during a state of emergency. The state of emergency (a natural disaster due to flooding) resulted in a severe health and safety threat to hospitals in the entire Houston, Texas area, including ESRD facilities that were approved to furnish kidney transplant services. Waivers of the conditions of coverage were granted to Memorial Hermann-Memorial City Hospital, Memorial Hermann Southwest Hospital, and Memorial Hermann Southeast Hospital to permit an approved transplant team to furnish kidney transplant services in the three hospitals, effective June 15, 2001, through the earlier of December 15, 2001, or until Memorial Hermann Hospital, the primary kidney transplant center, reopened.

   Memorial Hermann Hospital is now reopened. In the June 20, 2001 final rule, we amended the Medicare regulations to include a new Sec. 405.2175 that incorporated the waiver provisions. In Sec. 405.2175, we specified that we would publish a rule removing the waiver provisions from the regulations after the waiver expired. The waiver has expired and we are removing the provisions from the Medicare regulations.

2. Waiver of Proposed Rulemaking and Delay of Effective Date

   We ordinarily publish a notice of proposed rulemaking in the Federal Register and invite public comment on a proposed rule. The notice of proposed rulemaking includes a reference to the legal authority under which the rule is proposed, and the terms and substances of the proposed rule or a description of the subjects and issues involved. This procedure can be waived, however, if an agency finds good cause that a notice-and-comment procedure is impracticable, unnecessary, or contrary to the public interest and incorporates a statement of the findings and its reasons in the rule issued.

   Further, we generally provide for final rules to be effective no sooner than 30 days after the date of publication unless we find good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay of the effective date. The purpose of the 30-day waiting period between publication of an administrative agency final rule and its effective date is to give affected parties reasonable time to adjust their behavior before the final rule takes place.

   The state of emergency under which we granted a waiver of the ESRD conditions of coverage is now over in the Houston, Texas area, and Memorial Hermann Hospital is reopened to furnish kidney transplant services. We announced in the June 20, 2001 final rule our intention to remove the

   [[Page 48801]]

   emergency waiver when the waiver expired, as well as our intention to publish a rule removing Sec. 405.2175 from our regulations after the waiver expired. We find good cause to waive a notice-and-comment procedure to remove the waiver provisions from the regulation. We believe that a notice-and-comment procedure is unnecessary because the June 20, 2001 final rule puts the public on notice that the waiver of the conditions for coverage for the specifically named hospitals was created to address a public health crisis in Houston and it was to be of limited duration (it was to remain in effect until no later than December 15, 2001). This rule merely conforms the Medicare regulation to the mandate expressed by the agency on June 20. Therefore, we are waiving notice-and-comment procedures under 5 U.S.C. 553(b)(3)(B).

   Given the fact that the waiver has already expired by its own terms, we find good cause to waive the 30-day delay in the effective date established by 5 U.S.C. 553(d)(3). We believe that delaying the effective date of this regulation is unnecessary since it does not require the public to adjust its behavior before the final rule takes place.

   List of Subjects in 42 CFR Part 405

   Administrative practice and procedures, Health facilities, Health professions, Kidney diseases, Medicare, Reporting and recordkeeping requirements, Rural areas, X-rays.

   For the reasons set forth in the preamble, the Centers for Medicare & Medicaid Services amends 42 CFR Part 405, Subpart U as set forth below:

   PART 405--FEDERAL HEALTH INSURANCE FOR THE AGED AND DISABLED

   Subpart U--Conditions for Coverage of Suppliers of End-Stage Renal Disease (ESRD)

   1. The authority citation for Part 405, Subpart U continues to read as follows:

      Authority: Secs. 1102, 1138, 1861, 1862(a), 1871, 1874, and 1881 of the Social Security Act (42 U.S.C. 1302, 1320b-8, 1365x, 1395y(a), 1395hh, 1395kk, and 1395rr, unless otherwise noted).

      Sec. 405.2175 [Removed]

   2. Section 405.2175 is removed.

      (Catalog of Federal Domestic Assistance Program No. 93.773, Medicare--Hospital Insurance)

      Dated: March 15, 2002. Thomas A. Scully, Administrator, Centers for Medicare & Medicaid Services.

      Approved: April 2, 2002. Tommy G. Thompson, Secretary.

      [FR Doc. 02-17622Filed7-25-02; 8:45 am]

      BILLING CODE 4120-01-P