[Federal Register Volume 87, Number 238 (Tuesday, December 13, 2022)]
[Rules and Regulations]
[Pages 76109-76111]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-26986]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Parts 412, 413, 482, 485, and 495

[CMS-1771-CN]
RIN 0938-AU84


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 2023 Rates; Quality 
Programs and Medicare Promoting Interoperability Program Requirements 
for Eligible Hospitals and Critical Access Hospitals; Costs Incurred 
for Qualified and Non-Qualified Deferred Compensation Plans; and 
Changes to Hospital and Critical Access Hospital Conditions of 
Participation; 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 10, 2022, Federal Register as well as an 
additional typographical error in a related correcting amendment that 
appeared in the November 4, 2022 Federal Register. The final rule was 
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 2023 
Rates; Quality Programs and Medicare Promoting Interoperability Program 
Requirements for Eligible Hospitals and Critical Access Hospitals; 
Costs Incurred for Qualified and Non-qualified Deferred Compensation 
Plans; and Changes to

[[Page 76110]]

Hospital and Critical Access Hospital Conditions of Participation''.

DATES: 
    Effective date: This correction is effective on December 12 2022.
    Applicability date: This correction is applicable for discharges 
beginning October 1, 2022.

FOR FURTHER INFORMATION CONTACT: Donald Thompson, and Michele Hudson, 
(410) 786-4487 or [email protected], Operating Prospective Payment.

SUPPLEMENTARY INFORMATION:

I. Background

    In the final rule which appeared in the August 10, 2022, Federal 
Register (87 FR 48780) 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 2023 Rates; Quality Programs and Medicare Promoting 
Interoperability Program Requirements for Eligible Hospitals and 
Critical Access Hospitals; Costs Incurred for Qualified and Non-
qualified Deferred Compensation Plans; and Changes to Hospital and 
Critical Access Hospital Conditions of Participation'' (hereinafter 
referred to as the FY 2023 IPPS/LTCH PPS final rule), there were a 
number of technical and typographical errors. To correct the 
typographical and technical errors in the FY 2023 IPPS/LTCH PPS final 
rule, we published a correcting document that appeared in the November 
4, 2022, Federal Register (87 FR 66558) (hereinafter referred to as the 
FY 2023 IPPS/LTCH PPS correcting amendment).
    In FR Doc. 2022-24077 of November 4, 2022 (87 FR 66558), there was 
an inadvertent omission that is identified and corrected in this 
correcting document. This document also corrects computational errors 
in FR Doc. 2022-48780 of August 10, 2022 (87 FR 48780). The corrections 
in this correcting document are applicable to discharges occurring on 
or after October 1, 2022, as if they had been included in the document 
that appeared in the August 10, 2022 Federal Register.

II. Summary of Errors

A. Summary of Errors in the in the FY 2023 IPPS/LTCH PPS Final Rule

    On page 49075, in an untitled table regarding direct graduate 
medical education (DGME) Medicare advantage (MA) payments, we 
inadvertently made computational errors in the CY 2020 and CY 2021 
figures for ``Percent Reduction to MA DGME Payments.''

B. Summary of Errors in the FY 2023 IPPS/LTCH PPS Correcting Document

    On page 66563 of the FY 2023 IPPS/LTCH PPS correcting amendment, we 
inadvertently omitted a correction to the outlier fixed-loss cost 
threshold for FY 2023 on page 49428 of the FY 2023 IPPS/LTCH PPS final 
rule, to reflect our recalculation of the outlier fixed-loss cost 
threshold.

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 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 2023 IPPS/LTCH PPS final rule and the FY 2023 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 2023 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 2023 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 2023 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 for discharges occurring on or after October 
1, 2022, 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 2023 IPPS/LTCH PPS final rule accurately reflects 
our policies.

Correction of Errors

A. Correction of Errors in the Final Rule

    In FR Doc. 2022-16472 of August 10, 2022 (87 FR 48780), we are 
making the following corrections:
    1. On page 49075, in the untitled table, line 8 (``Percent 
Reduction to MA DGME Payments''),
    a. Second column (CY 2020), the figure ``3.71%'' is corrected to 
read ``3.73%''.
    b. Fourth column (CY 2021), the figure ``3.22% '' is corrected to 
read ``3.26%''.

[[Page 76111]]

B. Correction of Errors in the Correcting Document

    In FR Doc. 2022-24077 of November 4, 2022 (87 FR 66558), we are 
making the following correction:
    3. On page 66563, second column, after the 14th full paragraph 
(item (2)(b)) the text is corrected by adding a paragraph (item (2)(c)) 
to read as follows:
    ``(c) Second full paragraph, line 9, the figure ``$38,859'' is 
corrected to read ``$38,788''.''

Elizabeth J. Gramling,
Executive Secretary to the Department, Department of Health and Human 
Services.
[FR Doc. 2022-26986 Filed 12-12-22; 8:45 am]
BILLING CODE 4120-01-P