[Federal Register Volume 88, Number 2 (Wednesday, January 4, 2023)]
[Rules and Regulations]
[Pages 297-299]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-28517]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Parts 405, 410, 411, 412, 413, 416, 419, 424, 485, and 489

[CMS-1772-CN; CMS-3419-CN]
RIN 0938-AU82


Medicare Program: Hospital Outpatient Prospective Payment and 
Ambulatory Surgical Center Payment Systems and Quality Reporting 
Programs; Organ Acquisition; Rural Emergency Hospitals: Payment 
Policies, Conditions of Participation, Provider Enrollment, Physician 
Self-Referral; New Service Category for Hospital Outpatient Department 
Prior Authorization Process; Overall Hospital Quality Star Rating; 
COVID-19; Correction

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

ACTION: Final rule with comment period and final rule; correction.

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SUMMARY: This document corrects technical errors in the final rule with 
comment period and final rule that appeared in the Federal Register on 
November 23, 2022, titled ``Medicare Program: Hospital Outpatient 
Prospective Payment and Ambulatory Surgical Center Payment Systems and 
Quality Reporting Programs; Organ Acquisition; Rural Emergency 
Hospitals: Payment Policies, Conditions of Participation, Provider 
Enrollment, Physician Self-Referral; New Service Category for Hospital 
Outpatient Department Prior Authorization Process; Overall Hospital 
Quality Star Rating; COVID-19.''

DATES: This correction is effective January 1, 2023.

FOR FURTHER INFORMATION CONTACT: 
    Elise Barringer via email, [email protected] or at (410) 
786-9222, for general inquiries.
    Kianna Banks via email, [email protected] or at (410) 786-
3498, for issues related to REH Conditions of Participation (CoP) and 
Critical Access Hospital (CAH) CoP Updates.
    Nicole Hilton via email, [email protected] or at (410) 786-
1000, for issues related to Rural Emergency Health Quality Reporting 
Program (REHQR).
    Terri Postma via email, [email protected] or at (410) 786-
4169, for issues related to Request for Information on Use of CMS Data 
to Drive Competition in Healthcare Marketplaces.

SUPPLEMENTARY INFORMATION:

I. Background

    In the final rule with comment period and final rule that appeared 
in the November 23, 2022 Federal Register (87 FR 71748) titled 
``Medicare Program: Hospital Outpatient Prospective Payment and 
Ambulatory Surgical Center Payment Systems and Quality Reporting 
Programs; Organ Acquisition; Rural Emergency Hospitals: Payment 
Policies, Conditions of Participation, Provider Enrollment, Physician 
Self-Referral; New Service Category for Hospital Outpatient Department 
Prior Authorization Process; Overall Hospital Quality Star Rating; 
COVID-19'', there were a number of technical and typographical errors 
that are identified and corrected in this correcting document. The 
provisions in this correction document are effective as if they had 
been included in the document published November 23, 2022. Accordingly, 
the corrections are effective January 1, 2023.

[[Page 298]]

II. Summary of Errors

A. Summary of Errors in the Preamble

1. Rural Emergency Health Quality Reporting Program (REHQR)
    On pages 72147 and 72148, in the discussion of ``Comments on 
Additional Measurement Topics and for Suggested Measures for REH 
Quality Reporting,'' we are correcting typographical and technical 
errors in the footnotes.
2. REH Conditions of Participation (CoP) and Critical Access Hospital 
(CAH) CoP Updates (CMS-3419-F)
    On page 72206, in the discussion of the addition of the definition 
of ``primary roads'' to the CAH requirements at Sec.  485.610(c), we 
inadverdently omitted discussion of the cross-reference making a 
conforming change to the requirements at Sec.  485.610(e)(2), 
``Standard: Off-campus and co-location requirements for CAHs''; 
therefore, we are adding this discussion. This standard requires that 
if a CAH or a necessary provider CAH that operates an off-campus 
provider-based location, excluding an RHC as defined in Sec.  
405.2401(b) of this chapter, but including a department or remote 
location, as defined in Sec.  413.65(a)(2) of this chapter, or an off-
campus distinct part psychiatric or rehabilitation unit, as defined in 
Sec.  485.647, that was created or acquired by the CAH on or after 
January 1, 2008, the CAH can continue to meet the location requirement 
of paragraph (c) of this section only if the off-campus provider-based 
location or off-campus distinct part unit is located more than a 35-
mile drive (or, in the case of mountainous terrain or in areas with 
only secondary roads available, a 15-mile drive) from a hospital or 
another CAH. We are making the conforming change to note that the 35-
mile drive distance from a hospital or another CAH is on primary roads.
3. Request for Information (RFI) on Use of CMS Data To Drive 
Competition in Healthcare Marketplaces
    On page 72224, we incorrectly stated the number of timely pieces of 
correspondence that were submitted in response to the Competition RFI 
questions. We are correcting the number of timely pieces of 
correspondence from ``21'' to ``22''.

B. Summary of Errors in the Regulations Text

    1. On page 72306, in the REH regulations at Sec.  485.542 (e), 
(e)(2), and (e)(3), we inadvertently used the term ``CAH'' when we 
intended to use the term ``REH.''
    2. On page 72307, we intended to amend Sec.  485.610(e)(2) to 
incorporate the phrase ``on primary roads'' into the language and to 
incorporate and cross-reference the change made to ``primary roads'' 
finalized at Sec.  485.610(c). This section requires that the off-
campus provider-based location or off-campus distinct part unit of the 
CAH be located more than a 35-mile drive on primary roads (or, in the 
case of mountainous terrain or in areas with only secondary roads 
available, a 15-mile drive) from a hospital or another CAH. For the 
purpose of determining the driving distance of an off-campus provider-
based location or off-campus distinct part unit of a CAH relative to 
other facilities, ``primary roads'' are defined as a numbered federal 
highway, including interstates, intrastates, expressways or any other 
numbered federal highway with 2 or more lanes each way; or a numbered 
State highway with 2 or more lanes each way. This technical change to 
Sec.  485.610(e)(2), along with the changes made to Sec.  485.610(c), 
provides clarity and consistency regarding the distance requirements. 
Therefore, we are correcting Sec.  485.610(e)(2) to cross-reference the 
change made at Sec.  485.610(c).
    3. On page 72307, we inadvertently labeled amendatory instruction 
number ``45'' amendatory instruction ``3''. Therefore, we are 
correcting the instruction number to read ``45''. In addition, 
instructions ``45 through 52'' beginning on page 72307 and ending on 
page 72309 are corrected to read ``46 through 53''.

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 proposed rulemaking in 
the Federal Register before the provisions of a rule take effect. 
Similarly, section 1871(b)(1) of the Social Security Act (the Act) 
requires the Secretary to provide notice of the proposed rulemaking in 
the Federal Register and 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 sections 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 correcting document does not constitute a 
rulemaking that would be subject to these requirements. This correcting 
document corrects technical and typographic errors in the preamble, 
addenda, payment rates, tables, and appendices included or referenced 
in the CY 2023 OPPS/ASC final rule but does not make substantive 
changes to the policies or payment methodologies that were adopted in 
the final rule. As a result, the corrections made through this 
correcting document are intended to ensure that the information in the 
CY 2023 OPPS/ASC final rule and the REH Conditions of Participation 
(CoP) and Critical Access Hospital (CAH) CoP Updates final rule 
accurately reflect the policies adopted in those rules.
    In addition, even if this were a rulemaking 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 CY 2023 OPPS/ASC final rule 
and the Critical Access Hospital (CAH) CoP Updates final rule 
accurately reflect our policies as of the date they take effect and are 
applicable.
    Furthermore, such procedures would be unnecessary, as we are not 
altering our payment methodologies or policies, but rather, we are 
simply correctly implementing the policies that we previously proposed, 
received comment on, and subsequently finalized. This correcting 
document is intended solely to ensure that the CY 2023 OPPS/ASC final 
rule and the Critical Access Hospital (CAH) CoP Updates final rule 
accurately reflect these payment methodologies and policies. For these 
reasons, we believe we have good cause

[[Page 299]]

to waive the notice and comment and effective date requirements.

IV. Correction of Errors

    In FR Doc. 2022-23918 of November 23, 2022 (87 FR 71748), make the 
following corrections:

A. Correction of Errors in the Preamble

    1. On page 72147, third column, footnote 274 is corrected to read: 
``In Brief, Rural Behavioral Health, Telehealth Challenges and 
Opportunities, SUBSTANCE ABUSE AND MENTAL HEALTH SERVICES 
ADMINISTRATION, (Nov 2016). https://store.samhsa.gov/product/In-Brief-Rural-Behavioral-Health-Telehealth-Challenges-and-Opportunities/SMA16-4989.''.
    2. On page 72148, first column, footnote 277 is corrected to read: 
``Centers for Medicare and Medicaid Services Measures Inventory Tool: 
Emergency Department Utilization (EDU). https://cmit.cms.gov/cmit/#/MeasureView?variantId=4866&sectionNumber=1.''.
    3. On page 72148, first column, footnote 279 is corrected to read: 
``All-Cause Emergency Department (ED) Utilization for Medicaid 
Beneficiaries Public Comment Framing Document. https://www.cms.gov/files/document/all-cause-ed-utilization-medicaid-beneficiaries-measure-framing-document.pdf.''
    4. On page 72148, third column, footnote 283 is corrected to read:
    ``Gabayan, G, et al. (January 17, 2013) Factors Associated With 
Short-Term Bounce-Back Admissions After Emergency Department Discharge. 
Annals of Emergency Medicine, 62(2): 136-144. https://doi.org/10.1016/j.annemergmed.2013.01.017.''.
    5. On page 72206, under the section titled ``b. Changes for 
Critical Access Hospital Conditions of Participation (Part 485, Subpart 
F)''--
    a. First column, the title ``(1) Conditions of Participation: 
Status and Location (Sec.  485.610(c)'' is corrected to read: ``(1) 
Condition of Participation: Status and Location (Sec.  485.610(c) and 
485.610(e)(2))''.
    b. Second column, first partial paragraph, lines 7 through 13, the 
sentence ``The current regulatory requirement at Sec.  485.610(c) sets 
forth the distance requirements for CAHs relative to other CAHs and 
hospitals, and specific definitions as related to the distance 
requirements are found in the SOM, Chapter 2, Section 2256A,'' is 
corrected to read, ``The current regulatory requirement at Sec.  
485.610(c) sets forth the distance requirements for CAHs relative to 
other CAHs and hospitals. Additionally, the regulatory requirement at 
Sec.  485.610(e)(2) sets forth the distance requirements for off-campus 
provider-based locations of the CAH. Specific definitions as related to 
the distance requirements are found in the SOM, Chapter 2, Section 
2256A.''
    6. On page 72224, third column, in the section titled ``Request for 
Information on Use of CMS Data to Drive Competition in Healthcare 
Marketplaces'', line 6, correct the number ``21'' to read ``22''.

B. Correction of Errors in the Regulations Text


Sec.  485.542  [Corrected]

0
7. On page 72306, first column--
0
a. Fourth paragraph, ``(e) Emergency standby and power systems,'' line 
2, ``CAH'' is corrected to read ``REH''.
0
b. Sixth paragraph, ``(2) Emergency generator inspection and testing'', 
line 2, ``CAH'' is corrected to read ``REH''.
0
c. Seventh paragraph, ``(3) Emergency generator fuel'', line 1, 
``CAHs'' is corrected to read ``REHs''.


Sec.  485.610  [Corrected]

0
8. On page 72307,
0
a. Second column, bottom half of the page, the amendatory instruction 
``3. Section 485.610 is amended by revising paragraph (c) to read as 
follows:'' is corrected to read:
    ``45. Section 485.610 is amended by:
0
a. Revising paragraph (c); and
0
b. Amending paragraph (e)(2) by adding the phrase ``on primary roads, 
as defined in paragraph (c)(2) of this section''after the phrase ``a 
35-mile drive''.
    The revision reads as follows:''

0
9. On pages 72307 through 72309, Amendatory instructions ``45'' through 
``52'', appearing in numerical order, are corrected to read ``46'' 
through ``53'' respectively.

Elizabeth J. Gramling,
Executive Secretary to the Department, Department of Health and Human 
Services.
[FR Doc. 2022-28517 Filed 12-30-22; 11:15 am]
BILLING CODE 4120-01-P