[Federal Register Volume 88, Number 146 (Tuesday, August 1, 2023)]
[Rules and Regulations]
[Pages 50043-50044]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-16307]



[[Page 50043]]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Parts 417, 422, 423, 455, and 460

[CMS-4201-F2]
RIN 0938-AU96


Medicare Program; Contract Year 2024 Policy and Technical Changes 
to the Medicare Advantage Program, Medicare Prescription Drug Benefit 
Program, Medicare Cost Plan Program, and Programs of All-Inclusive Care 
for the Elderly; Correcting Amendment

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

ACTION: Final rule; correcting amendment.

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SUMMARY: This document corrects a technical error that appeared in the 
final rule published in the Federal Register on April 12, 2023 titled 
``Contract Year 2024 Policy and Technical Changes to the Medicare 
Advantage Program, Medicare Prescription Drug Benefit Program, Medicare 
Cost Plan Program, and Programs of All-Inclusive Care for the 
Elderly.''

DATES: This correction is effective August 1, 2023.

FOR FURTHER INFORMATION CONTACT: Kristy Nishimoto, (206) 615-2367.

SUPPLEMENTARY INFORMATION: 

I. Background

    In FR Doc. 2023-07115 of April 12, 2023 (88 FR 22120), the final 
rule titled ``Medicare and Medicaid Programs; Contract Year 2024 Policy 
and Technical Changes to the Medicare Advantage Program, Medicare 
Prescription Drug Benefit Program, Medicaid Program, Medicare Cost Plan 
Program, and Programs of All Inclusive Care for the Elderly'', there 
was a technical error that is identified and corrected in this 
correcting amendment.

II. Summary of Errors in the Regulations Text

    On page 22328 in Sec.  422.62, we erroneously retained a proposed 
amendatory instruction that removed and reserved existing Sec.  
422.62(b)(18). To correct this error, we are restoring the language of 
Sec.  422.62(b)(18).

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 rule in the 
Federal Register before the provisions of a rule take effect. 
Specifically, 5 U.S.C. 553 requires the agency to publish a notice of 
the proposed rule in the Federal Register that includes a reference to 
the legal authority under which the rule is proposed, and the terms and 
substance of the proposed rule or a description of the subjects and 
issues involved. Further, 5 U.S.C. 553 requires the agency to give 
interested parties the opportunity to participate in the rulemaking 
through public comment on a proposed rule. Similarly, section 
1871(b)(1) of the Act requires the Secretary to provide for notice of 
the proposed rule in the Federal Register and provide a period of not 
less than 60 days for public comment for rulemaking to carry out the 
administration of the Medicare program under title XVIII of the Act. In 
addition, section 553(d) of the APA, and section 1871(e)(1)(B)(i) of 
the Social Security Act (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, also provide exceptions from the notice and 60-day comment period 
and delay in effective date requirements of the Act. 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 correcting amendment does not constitute a 
rule that would be subject to the notice and comment or delayed 
effective date requirements of the APA or section 1871 of the Act. This 
correcting amendment corrects technical errors in the regulatory text 
of the final rule but does not make substantive changes to the policies 
that were adopted in the final rule. As a result, this correcting 
amendment is intended to ensure that the information in the final rule 
accurately reflects the policies adopted in that final rule.
    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 regulatory 
text correction in this document into the final rule or delaying the 
effective date would be unnecessary, as we are not altering our 
policies or regulatory changes, but rather, we are simply implementing 
the policies and regulatory changes that we previously proposed, 
requested comment on, and subsequently finalized.
    Specifically, the regulation at Sec.  422.62(b)(18) was adopted in 
the final rule titled ``Medicare Program; Contract Year 2021 Policy and 
Technical Changes to the Medicare Advantage Program, Medicare 
Prescription Drug Benefit Program, and Medicare Cost Plan Program,'' 
which appeared in the June 2, 2020 Federal Register (85 FR 33902). A 
proposal to amend Sec.  422.62(b)(18) was included in the proposed rule 
(with the same title as the subject final being corrected) that 
appeared in the December 27, 2022 Federal Register (87 FR 79710). 
However, the proposed changes to Sec.  422.62(b)(18) have not been 
finalized and we have indicated that the changes will be addressed in a 
subsequent rulemaking document as appropriate (88 FR 22120). We note 
that no rulemaking has finalized removal of Sec.  422.62(b)(18). This 
final rule correcting document is intended solely to ensure that the 
final rule and the text at 42 CFR 422.62(b)(18) accurately reflect 
policies and regulatory changes that have been adopted through 
rulemaking. Furthermore, such notice and comment procedures would be 
contrary to the public interest because it is in the public's interest 
to ensure that the final rule accurately reflects our policies and 
regulatory changes. Therefore, we believe we have good cause to waive 
the notice and comment and effective date requirements.

List of Subjects in 42 CFR Part 422

    Administrative practice and procedure, Health facilities, Health 
maintenance organizations (HMO), Medicare, Penalties, Privacy, 
Reporting and recordkeeping requirements.

    Accordingly, 42 CFR chapter IV is corrected by making the following 
correcting amendments to part 422:

PART 422--MEDICARE ADVANTAGE PROGRAM

0
1. The authority citation for part 422 continues to read as follows:

    Authority:  42 U.S.C. 1302 and 1395hh.


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2. Section 422.62 is amended by revising paragraph (b)(18) to read as 
follows:


Sec.  422.62  Election of coverage under an MA plan.

* * * * *
    (b) * * *
    (18) Individuals affected by an emergency or major disaster 
declared by a Federal, state or local government entity are eligible 
for a SEP to make a MA enrollment or disenrollment election. The SEP 
starts as of the date the declaration is made, the incident start date 
or, if different, the start date identified in the declaration, 
whichever is earlier, and ends 2 full calendar months following the end 
date identified in the declaration or, if different, the date the end 
of the incident is announced, whichever is later. The individual is 
eligible for this SEP provided the individual--
    (i) (A) Resides, or resided at the start of the SEP eligibility 
period described in this paragraph (b)(18), in an area for which a 
federal, state or local government entity has declared an emergency or 
major disaster; or
    (B) Does not reside in an affected area but relies on help making 
healthcare decisions from one or more individuals who reside in an 
affected area; and
    (ii) Was eligible for another election period at the time of the 
SEP eligibility period described in this paragraph (b)(18); and
    (iii) Did not make an election during that other election period 
due to the emergency or major disaster.
* * * * *

Elizabeth J. Gramling,
Executive Secretary to the Department, Department of Health and Human 
Services.
[FR Doc. 2023-16307 Filed 7-31-23; 8:45 am]
BILLING CODE 4120-01-P