[Federal Register Volume 86, Number 227 (Tuesday, November 30, 2021)]
[Rules and Regulations]
[Pages 67874-67876]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-26069]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Part 413

[CMS-1752-CN2 and CMS-1762-CN2]
RINs 0938-AU44 and 0938-AU56


Medicare Program; Hospital Inpatient Prospective Payment Systems 
for Acute Care Hospitals and the Long-Term Care Hospital Prospective 
Payment System and Policy Changes and Fiscal Year 2022 Rates; Quality 
Programs and Medicare Promoting Interoperability Program Requirements 
for Eligible Hospitals and Critical Access Hospitals; Changes to 
Medicaid Provider Enrollment; and Changes to the Medicare Shared 
Savings Program; Correction

AGENCY: Centers for Medicare & Medicaid Services (CMS), Department of 
Health and Human Services (HHS).

ACTION: Final rule; correction.

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SUMMARY: This document corrects typographical errors in the final rule 
that appeared in the August 13, 2021, Federal Register as well as 
additional typographical errors in a related correcting amendment that 
appeared in the October 20, 2021, Federal Register. The final rule was 
titled ``Medicare Program; Hospital Inpatient Prospective Payment 
Systems for Acute Care Hospitals and the Long Term Care Hospital 
Prospective Payment System and Policy Changes and Fiscal Year 2022 
Rates; Quality Programs and Medicare Promoting Interoperability Program 
Requirements for Eligible Hospitals and Critical Access Hospitals; 
Changes to Medicaid Provider Enrollment; and Changes to the Medicare 
Shared Savings Program''.

DATES: 
    Effective date: This correcting document is effective on November 
29, 2021.
    Applicability date: This correcting document is applicable for 
discharges beginning October 1, 2021.

FOR FURTHER INFORMATION CONTACT: Allison Pompey, (410) 786-2348, New 
Technology Add-On Payment Issues.

SUPPLEMENTARY INFORMATION:

I. Background

    In the final rule which appeared in the August 13, 2021, Federal 
Register (86 FR 44774) entitled ``Medicare Program; Hospital Inpatient 
Prospective Payment Systems for Acute Care Hospitals and the Long Term 
Care Hospital Prospective Payment System and Policy Changes and Fiscal 
Year 2022 Rates; Quality Programs and Medicare Promoting 
Interoperability Program Requirements for Eligible Hospitals and 
Critical Access Hospitals; Changes to Medicaid Provider Enrollment; and 
Changes to the Medicare Shared Savings Program'' (hereinafter referred 
to as the FY 2022 IPPS/LTCH PPS final rule), there were a number of 
technical and typographical errors. To correct the typographical and 
technical errors in the FY 2022 IPPS/LTCH PPS final rule, we published 
a correcting document that appeared in the October 20, 2021, Federal 
Register (86 FR 58019) (hereinafter referred to as the FY 2022 IPPS/
LTCH PPS correcting amendment).
    In FR Doc. 2021-22724 of October 20, 2021 (86 FR 58019), there was 
an inadvertent omission and typographical error that are identified and 
corrected in this correcting document. This document also corrects 
additional typographical errors in FR Doc. 2021-16519 of August 13, 
2021 (86 FR 44774). The corrections in this correcting document are 
applicable to discharges occurring on or after October 1, 2021, as if 
they had been included in the document that appeared in the August 13, 
2021, Federal Register .

II. Summary of Errors

A. Summary of Errors in the FY 2022 IPPS/LTCH PPS Final Rule

    On page 44974, in the table displaying the continuation of 
technologies approved for FY 2021 new technology add-on payments and 
still considered new for FY 2022, we are correcting inadvertent 
typographical errors in the coding used to identify cases involving the 
use of the BAROSTIM NEO\TM\ System that are eligible for new technology 
add-on payments.

B. Summary of Errors in the FY 2022 IPPS/LTCH PPS Correcting Document

    On page 58023 in section IV.A. of the FY 2022 IPPS/LTCH PPS 
correcting amendment, we inadvertently omitted corrections to pages 
45133, 45150, and 45157 of the FY 2022 IPPS/LTCH PPS final rule, as 
summarized on page 58019 in section II.A. of the FY 2022 IPPS/LTCH PPS 
correcting amendment. We are also correcting an inadvertent 
typographical error in the coding used to identify cases involving the 
use of RECARBRIO\TM\ that are eligible for new technology add-on 
payments.

III. Waiver of Proposed Rulemaking and Delay in Effective Date

    Under 5 U.S.C. 553(b) of the Administrative Procedure Act (APA), 
the agency is required to publish a notice of the proposed rulemaking 
in the Federal Register before the provisions of a rule take effect. 
Similarly, section 1871(b)(1) of the Act requires the Secretary to 
provide for notice of the proposed rulemaking in the Federal Register 
and provide a

[[Page 67875]]

period of not less than 60 days for public comment. In addition, 
section 553(d) of the APA, and section 1871(e)(1)(B)(i) of the Act 
mandate a 30-day delay in effective date after issuance or publication 
of a rule. Sections 553(b)(B) and 553(d)(3) of the APA provide for 
exceptions from the notice and comment and delay in effective date APA 
requirements; in cases in which these exceptions apply, sections 
1871(b)(2)(C) and 1871(e)(1)(B)(ii) of the Act provide exceptions from 
the notice and 60-day comment period and delay in effective date 
requirements of the Act as well. Section 553(b)(B) of the APA and 
section 1871(b)(2)(C) of the Act authorize an agency to dispense with 
normal rulemaking requirements for good cause if the agency makes a 
finding that the notice and comment process are impracticable, 
unnecessary, or contrary to the public interest. In addition, both 
section 553(d)(3) of the APA and section 1871(e)(1)(B)(ii) of the Act 
allow the agency to avoid the 30-day delay in effective date where such 
delay is contrary to the public interest and an agency includes a 
statement of support.
    We believe that this final rule correction does not constitute a 
rule that would be subject to the notice and comment or delayed 
effective date requirements. This document corrects typographical 
errors in the FY 2022 IPPS/LTCH PPS final rule and the FY 2022 IPPS/
LTCH PPS final rule correcting amendment, but does not make substantive 
changes to the policies or payment methodologies that were adopted in 
the final rule. As a result, this final rule correction is intended to 
ensure that the information in the FY 2022 IPPS/LTCH PPS final rule 
accurately reflects the policies adopted in that document.
    In addition, even if this were a rule to which the notice and 
comment procedures and delayed effective date requirements applied, we 
find that there is good cause to waive such requirements. Undertaking 
further notice and comment procedures to incorporate the corrections in 
this document into the final rule or delaying the effective date would 
be contrary to the public interest because it is in the public's 
interest for providers to receive appropriate payments in as timely a 
manner as possible, and to ensure that the FY 2022 IPPS/LTCH PPS final 
rule accurately reflects our policies. Furthermore, such procedures 
would be unnecessary, as we are not altering our payment methodologies 
or policies, but rather, we are simply implementing correctly the 
methodologies and policies that we previously proposed, requested 
comment on, and subsequently finalized. This final rule correction is 
intended solely to ensure that the FY 2022 IPPS/LTCH PPS final rule 
accurately reflects these payment methodologies and policies. 
Therefore, we believe we have good cause to waive the notice and 
comment and effective date requirements. Moreover, even if these 
corrections were considered to be retroactive rulemaking, they would be 
authorized under section 1871(e)(1)(A)(ii) of the Act, which permits 
the Secretary to issue a rule for the Medicare program with retroactive 
effect if the failure to do so would be contrary to the public 
interest. As we have explained previously, we believe it would be 
contrary to the public interest not to implement the corrections in 
this final rule correction because it is in the public's interest for 
providers to receive appropriate payments in as timely a manner as 
possible, and to ensure that the FY 2022 IPPS/LTCH PPS final rule 
accurately reflects our policies.

IV. Correction of Errors

A. Correction of Errors in the Final Rule

    In FR Doc. 2021-16519 of August 13, 2021(86 FR 44774), we are 
making the following corrections:
    1. On page 44974, in the table titled ``Continuation of 
Technologies Approved for FY 2021 New Technology Add-On Payments and 
Still Considered New for FY 2022, the entry in row 3 is corrected to 
read as follows:
[GRAPHIC] [TIFF OMITTED] TR30NO21.045

B. Correction of Errors in the Correcting Document

    In FR Doc. 2021-22724 of October 20, 2021 (86 FR 58019), we are 
making the following corrections:
    1. On page 58023, lower half of the page (following the table), 
third column:
    a. Preceding the beginning of the partial paragraph (before item 
10), the paragraph is corrected by adding items 7 through 9 to read as 
follows:
    ``7. On page 45133, top of the page,
    a. First column, partial paragraph,
    (1) Line 4, the figure ``$31,500'' is corrected to read 
``$63,000''.
    (2) Line 5, the figure ``$10,500'' is corrected to read 
``$21,000''.
    b. Second column, partial paragraph, last line, the figure 
``$20,475'' is corrected to read ``$40,950''.
    8. On page 45150, second column, last full paragraph, lines 27 
through 31, the phrase ``in combination with one of the following ICD-
10-CM codes: D65 (Disseminated intravascular coagulation) or D68.2 
(Hereditary deficiency of other clotting factors).'' is corrected to 
read ``in combination with one of the following ICD-10-CM codes: D62 
(Acute posthemorrhagic anemia), D65 (Disseminated intravascular 
coagulation), D68.2 (Hereditary deficiency of other clotting factors), 
D68.4 (Acquired coagulation factor deficiency) or D68.9 (Coagulation 
defect, unspecified).''.

[[Page 67876]]

    9. On page 45157, top third of the page, first column, first 
partial paragraph, last line, the phrase, ``technology group 6).'' is 
corrected to read ``technology group 6) in combination with the 
following ICD-10-CM codes: Y95 (Nosocomial condition) and one of the 
following: J14 (Pneumonia due to Hemophilus influenzae) J15.0 
(Pneumonia due to Klebsiella pneumoniae), J15.1 (Pneumonia due to 
Pseudomonas), J15.5 (Pneumonia due to Escherichia coli), J15.6 
(Pneumonia due to other Gram-negative bacteria), J15.8 (Pneumonia due 
to other specified bacteria), or J95.851 (Ventilator associated 
pneumonia) and one of the following: B96.1 (Klebsiella pneumoniae [K. 
pneumoniae] as the cause of diseases classified elsewhere), B96.20 
(Unspecified Escherichia coli [E. coli] as the cause of diseases 
classified elsewhere), B96.21 (Shiga toxin-producing Escherichia coli 
[E. coli] [STEC] O157 as the cause of diseases classified elsewhere), 
B96.22 (Other specified Shiga toxin-producing Escherichia coli [E. 
coli] [STEC] as the cause of diseases classified elsewhere), B96.23 
(Unspecified Shiga toxin-producing Escherichia coli [E. coli] [STEC] as 
the cause of diseases classified elsewhere, B96.29 (Other Escherichia 
coli [E. coli] as the cause of diseases classified elsewhere), B96.3 
(Hemophilus influenzae [H. influenzae] as the cause of diseases 
classified elsewhere, B96.5 (Pseudomonas (aeruginosa) (mallei) 
(pseudomallei) as the cause of diseases classified elsewhere), or 
B96.89 (Other specified bacterial agents as the cause of diseases 
classified elsewhere).''
    b. Within the partial paragraph (item 10), line 8, the code number 
``J14.0'' is corrected to read ``J14''.

Karuna Seshasai,
Executive Secretary to the Department, Department of Health and Human 
Services.
 [FR Doc. 2021-26069 Filed 11-29-21; 8:45 am]
 BILLING CODE 4120-01-P