[Federal Register Volume 88, Number 191 (Wednesday, October 4, 2023)]
[Rules and Regulations]
[Pages 68494-68495]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-22051]



[[Page 68494]]

-----------------------------------------------------------------------

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Part 412

[CMS-1781-CN]
RIN 0938-AV04


Medicare Program; Inpatient Rehabilitation Facility Prospective 
Payment System for Federal Fiscal Year 2024 and Updates to the IRF 
Quality Reporting Program; Correction

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

ACTION: Final rule; correction.

-----------------------------------------------------------------------

SUMMARY: This document corrects technical and typographical errors in 
the final rule that appeared in the August 2, 2023 Federal Register 
entitled ``Medicare Program; Inpatient Rehabilitation Facility 
Prospective Payment System for Federal Fiscal Year 2024 and Updates to 
the IRF Quality Reporting Program'' (referred to hereafter as the ``FY 
2024 IRF final rule''). The effective date of the FY 2024 IRF final 
rule is October 1, 2023.

DATES: This document is effective October 1, 2023.

FOR FURTHER INFORMATION CONTACT: 
    Heidi Oumarou, (410) 786-7942 and Bridget Dickensheets, (410) 786-
8670, for the percentage of hospital compensation hours correction.
    Ariel Cress, (410) 786-8571, for the IRF quality reporting program 
corrections.
    Kia Burwell, (410) 786-7816 and Catie Cooksey, (410) 786-0179 for 
wage index corrections.

SUPPLEMENTARY INFORMATION: 

I. Background

    In FR Doc. 2023-16050 of August 2, 2023, the FY 2024 IRF final rule 
(88 FR 50956), there were technical and typographical errors that are 
identified and corrected in this correcting document. These corrections 
are effective as if they had been included in the FY 2024 IRF final 
rule. Accordingly, the corrections are effective October 1, 2023.

II. Summary of Errors

A. Summary of Errors in the Preamble

    On page 50978, we made a typographical error in the estimated 
percentage that hospital workers' hours represent of total compensation 
hours.
    On pages 51017, 51020, and 51025 we inadvertently made technical 
errors in measure names.
    On page 51040, we made a typographical error in identifying the 
calendar year.
    On page 51048, we made a technical error in the Total Percent 
Change for the Rural South Atlantic region in Table 21.

B. Summary of Errors and Corrections Posted on the CMS Website for the 
IRF Wage Index

    As discussed in the FY 2024 IRF PPS final rule (88 FR 50988 through 
50989), in developing the wage index to be applied to IRFs under the 
IRF PPS, we use the updated, pre-reclassified, pre-rural floor hospital 
inpatient PPS (IPPS) wage data, exclusive of the occupational mix 
adjustment. For FY 2024, the updated, unadjusted, pre-reclassified, 
pre-rural floor IPPS wage data used under the IRF PPS are for cost 
reporting periods beginning on or after October 1, 2019, and before 
October 1, 2020 (FY 2020 cost report data), as discussed in the final 
rule 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 
2024 Rates; Quality Programs and Medicare Promoting Interoperability 
Program Requirements for Eligible Hospitals and Critical Access 
Hospitals; Rural Emergency Hospital and Physician-Owned Hospital 
Requirements; and Provider and Supplier Disclosure of Ownership; and 
Medicare Disproportionate Share Hospital (DSH) Payments: Counting 
Certain Days Associated with Section 1115 Demonstrations in the 
Medicaid Fraction'' (88 FR 58640) (hereinafter referred to as the FY 
2024 IPPS final rule). In calculating the wage index under the FY 2024 
IPPS final rule, we made an inadvertent error related to the 
calculation of the wage index. This error is identified, discussed, and 
corrected in the document 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 2024 Rates; Quality Programs and Medicare Promoting 
Interoperability Program Requirements for Eligible Hospitals and 
Critical Access Hospitals; Rural Emergency Hospital and Physician-Owned 
Hospital Requirements; and Provider and Supplier Disclosure of 
Ownership; and Medicare Disproportionate Share Hospital (DSH) Payments: 
Counting Certain Days Associated with Section 1115 Demonstrations in 
the Medicaid Fraction; Correction,'' published elsewhere in this issue 
of the Federal Register. The error that affects the unadjusted, pre-
reclassified, pre-rural floor IPPS wage data and thereby affects the 
IRF PPS wage data was an error in the wage data collected from the 
Medicare cost reports of one hospital (CMS Certification Number (CCN) 
340064--Core-Based Statistical Area (CBSA) 34 rural North Carolina). 
Given this error, we are republishing the wage indexes in Tables A and 
B accordingly on the CMS website at https://www.cms.gov/medicare/medicare-fee-for-service-payment/inpatientrehabfacpps.
    Thus, the use of the corrected wage data for the one hospital in 
CBSA 34 required the recalculation of the final FY 2024 IRF PPS wage 
indexes. Additionally, as discussed in the FY 2024 IRF PPS final rule 
adjustments or updates to the IRF wage index made under section 
1886(j)(6) of the Social Security Act must be made in a budget-neutral 
manner. Due to the recalculation and subsequent revision of the final 
FY 2024 IRF PPS wage indexes, it was necessary to recalculate the FY 
2024 IRF PPS wage index budget neutrality factor as well with no 
subsequent changes noted. Due to the recalculated wage indexes, we 
recalculated the impact analysis provided in Table 21 of the FY 2024 
IRF PPS final rule (88 FR 51047 through 51049). The correction to this 
error is found in section IV. of this document.
    We are correcting the wage index in Table B setting forth the wage 
indexes for rural areas based on CBSA labor market areas (Table B), 
which is available exclusively on the CMS website at https://www.cms.gov/medicare/medicare-fee-for-service-payment/inpatientrehabfacpps. Table B has been updated to reflect the error 
discussed in this correcting document, and we are republishing the wage 
indexes in Tables A and B accordingly on the CMS website at https://www.cms.gov/medicare/medicare-fee-for-service-payment/inpatientrehabfacpps.

III. Waiver of Proposed Rulemaking

    Under section 553(b) of the Administrative Procedure Act (the APA) 
(5 U.S.C. 553(b)), 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 for notice of the 
proposed rule in the Federal Register and provide a period of

[[Page 68495]]

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 APA notice and comment, and delay in effective date 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 notice and comment 
rulemaking procedures for good cause if the agency makes a finding that 
the notice and comment process is impracticable, unnecessary, or 
contrary to the public interest, and includes a statement of the 
finding and the reasons for it in the rule. In addition, 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 the agency 
finds that such delay is contrary to the public interest and the agency 
includes in the rule a statement of the finding and the reasons for it.
    In our view, this correcting document does not constitute a 
rulemaking that would be subject to these requirements. This document 
merely corrects technical errors in the FY 2024 IRF final rule. The 
corrections contained in this document are consistent with, and do not 
make substantive changes to, the policies and payment methodologies 
that were proposed, subject to notice and comment procedures, and 
adopted in the FY 2024 IRF final rule. As a result, the corrections 
made through this correcting document are intended to resolve 
inadvertent errors so that the rule accurately reflects the policies 
adopted in the final rule. Even if this were a rulemaking to which the 
notice and comment 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 FY 2024 IRF final rule or delaying the effective 
date of the corrections would be contrary to the public interest 
because it is in the public interest to ensure that the rule accurately 
reflects our policies as of the date they take effect. Further, such 
procedures would be unnecessary because we are not making any 
substantive revisions to the final rule, but rather, we are simply 
correcting the Federal Register document to reflect the policies that 
we previously proposed, received public comment on, and subsequently 
finalized in the final rule. For these reasons, we believe there is 
good cause to waive the requirements for notice and comment and delay 
in effective date.

IV. Correction of Errors in the Preamble

    In FR Doc. 2023-16050 of August 2, 2023 (88 FR 50956), make the 
following corrections:
    1. On page 50978, second column, last full paragraph, line 28, the 
percentage that reads ``97 percent'' is corrected to read ``96 
percent''.
    2. On page 51017, second column, first full paragraph:
    a. Line 29, the measure name that reads ``Discharge in Mobility 
Score'' is corrected to read ``Discharge Mobility Score''.
    b. Line 30, the measure name that reads ``Discharge in Self-Care 
Score'' is corrected to read ``Discharge Self-Care Score''.
    3. On page 51020, third column, second full paragraph:
    a. Lines 25 and 26, the measure name that reads ``Discharge in 
Mobility Score'' is corrected to read ``Discharge Mobility Score''.
    b. Line 26, the measure name that reads ``Discharge in Self-Care 
Score'' is corrected to read ``Discharge Self-Care Score''.
    4. On page 51025, second column, first partial paragraph:
    a. Lines 3 and 4, the measure name that reads ``Discharge in 
Mobility Score'' is corrected to read ``Discharge Mobility Score''.
    b. Line 14, the measure name that reads ``Discharge in Mobility 
Score'' is corrected to read ``Discharge Mobility Score''.
    5. On page 51040, third column, second to last full paragraph, line 
9, the public display date of the Transfer of Health (TOH) Information 
to the Provider and TOH Information to the Patient measure that reads 
``September 2025'' is corrected to read ``September 2024''.
    6. On page 51048, Table 21 ``titled ``IRF Impact for FY 2024 
(Columns 4 through 7 in percentage)'', row 29, column 7, the Total 
Percent change that reads ``3.9'' is corrected to read ``4.0''.

Wilma Robinson,
Deputy Executive Secretary, Department of Health and Human Services.
[FR Doc. 2023-22051 Filed 9-29-23; 4:15 pm]
BILLING CODE 4120-01-P