[Federal Register Volume 89, Number 121 (Monday, June 24, 2024)]
[Rules and Regulations]
[Pages 52392-52396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-13795]



[[Page 52392]]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Parts 438, 442, and 483

[CMS-3442-F; CMS-3442-CN]
RIN 0938-AV25


Medicare and Medicaid Programs; Minimum Staffing Standards for 
Long-Term Care Facilities and Medicaid Institutional Payment 
Transparency Reporting; 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 and technical errors in 
the final rule that appeared in the May 10, 2024 Federal Register, 
entitled ``Medicare and Medicaid Programs; Minimum Staffing Standards 
for Long-Term Care Facilities and Medicaid Institutional Payment 
Transparency Reporting (referred to hereafter as the ``Minimum Staffing 
final rule''). The effective date of the Minimum Staffing final rule is 
June 21, 2024.

DATES: This document is effective June 21, 2024.

FOR FURTHER INFORMATION CONTACT: The Clinical Standard Group's Long 
Term Care Team at [email protected] for information 
related to the minimum staffing standards. Anne Blackfield, (410) 786-
8518, for information related to Medicaid institutional payment 
transparency reporting.

SUPPLEMENTARY INFORMATION:

I. Background

    In FR Doc. 2024-08273 of May 10, 2024 (89 FR 40876), there were 
typographical and technical errors that are identified and corrected in 
this correcting document. These corrections are effective as if they 
had been included in the Minimum Staffing final rule. Accordingly, the 
corrections are effective June 21, 2024.

II. Summary of Errors

A. Summary of Errors in the Preamble

    On page 40876, we made a typographical error in the implementation 
date for Sec. Sec.  438.72(a) and 442.43 that must be implemented by 
all States and territories with Medicaid-certified nursing facilities 
and intermediate care facilities for individuals with intellectual 
disabilities.
    On page 40895, we included an incorrect citation at footnote number 
62.
    On page 40898, Table 2: Requirements for the LTC Staffing Statutory 
Waivers by Facility Type, portions of the table content were omitted.
    On page 40901, we included incorrect links for the Bureau of Labor 
Statistic's Occupational Employment and Wage Statistics Query System 
and the data source used to calculate the population for each MSA or 
non-MSA using population estimates from the United States Census 
Bureau.
    On page 40909 we included an incorrect citation at footnote number 
67.
    On page 40911, we made an error in describing the Census Bureau 
definition of ``urban'' as one that used ``counties'' for the unit of 
measure.
    On pages 40919, 40920, 40923, and 40929, we made typographical 
errors in regulatory citations.
    On page 40930, we made a typographical error in a reference to page 
numbers in the Federal Register.
    On pages 40931 and 40932, we made typographical errors in 
regulatory citations.
    On page 40934, we made typographical errors in the summary of 
regulatory language changes.
    On page 40935, we included an incorrect link for the May 2022 
National Occupational Employment and Wage Statistics.
    On page 40948, we included an incorrect citation at footnote number 
96.
    On page 40949, we included an incorrect table number reference.
    On page 40992, we included incorrect links for the May 2022 
National Occupational Employment and Wage Statistics.

B. Summary of Errors in the Regulation Text

    On page 40995, in the regulation text for Sec.  442.43(b), we made 
a reference to ``State directed payments as defined in Sec.  438.6(c) 
of this chapter''. However, this definition of State directed payments 
was moved to Sec.  438.2 in the Managed Care Access, Finance, and 
Quality final rule (89 FR 41002). We are correcting this error.
    On page 40998, in the regulation text for Sec.  483.35(h)(2)(iv), 
we made an incorrect cross-reference to Sec.  483.71(b)(4), which does 
not exist.

III. Waiver of Proposed Rulemaking

    Under 5 U.S.C. 553(b) of the Administrative Procedure Act (the 
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. In 
addition, section 553(d) of the APA mandates a 30-day delay in 
effective date after issuance or publication of a substantive 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. 
Section 553(b)(B) of the APA authorizes 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. 
Similarly, section 553(d)(3) of the APA allows the agency to avoid the 
30-day delay in effective date where good cause is found 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 Minimum 
Staffing final rule. The corrections contained in this document are 
consistent with, and do not make substantive changes to, the policies 
that were proposed, subject to notice and comment procedures, and 
adopted in the Minimum Staffing 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 Minimum Staffing 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. 2024-08273 of May 10, 2024 (89 FR 40876), make the 
following corrections:

[[Page 52393]]

A. Correction of Errors in the Preamble

    1. On page 40876, first column, sixth paragraph under the heading 
DATES, lines 1 through 7, the sentence that reads ``The regulations at 
Sec. Sec.  438.72(a) and 442.43 must be implemented by all States and 
territories with Medicaid-certified nursing facilities and intermediate 
care facilities for individuals with intellectual disabilities 
beginning May 10, 2028.'' is corrected to read ``The regulations at 
Sec. Sec.  438.72(a) and 442.43 must be implemented by all States and 
territories with Medicaid-certified nursing facilities and intermediate 
care facilities for individuals with intellectual disabilities 
beginning June 21, 2028.''.
    2. On page 40895, footnote number 62 that reads ``42 CFR 483.35, 
https://www.whitehouse.gov/briefing-room/statements-releases/2022/02/28/factsheet-protecting-seniors-and-people-withdisabilities-by-improving-safety-and-quality-of-carein-the-nations-nursing-homes/.'' is 
corrected to read ``42 CFR 483.35(b)(1)''.
    3. On page 40898, Table 2, is corrected to read:

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[GRAPHIC] [TIFF OMITTED] TR24JN24.400


[[Page 52395]]


[GRAPHIC] [TIFF OMITTED] TR24JN24.401

    4. On page 40901, third column, first partial paragraph,
    a. Lines 19 and 20, the parenthetical that reads ``(available at 
https://data.bls.gov/oes/#/home)'' is corrected to read ``(available at 
https://www.bls.gov/oes/tables.htm)''.
    b. Lines 26 through 29, the parenthetical that reads ``(available 
at https://www.census.gov/data/tables/timeseries/demo/popest/2020s-countiestotal.html#v2022)'' is corrected to read ``(available at 
https://www.census.gov/data/tables/time-series/demo/popest/2020s-counties-total.html)''.
    5. On page 40909, footnote number 67 that reads ``https://www.osha.gov/sites/default/files/publications/OSHA3905.pdf'' is 
corrected to read ``Recommended Practices for Anti-Retaliation 
Programs. OSHA, OSHA 3905-01/2017. Accessed at www.https://www.osha.gov/sites/default/files/publications/OSHA3905.pdf. Accessed on 
March 1, 2024.''
    6. On page 40911, second column, first partial paragraph, lines 8 
through 14, the sentence that reads ``For example, if we were to use 
the Census Bureau's definition of `urban', 2,645 counties would be 
classified as urban,\73\ while if we were to use OMB's definition of 
`urban', 1,252 counties would be considered `urban.' \74\'' is 
corrected to read ``For example, if we were to use the Census Bureau's 
definition of `urban', 2,645 areas (combination of counties, cities, 
census designated areas) would be classified as urban,\73\ while if we 
were to use OMB's definition of `urban', 1,252 counties would be 
considered `urban.' \74\''
    7. On page 40919, in the second column,
    a. First full paragraph, line 9, the regulatory citation that reads 
``Sec.  442.43(c)'' is corrected to read ``Sec.  442.43(b)''.
    b. Second full paragraph, line 15, the regulatory citation that 
reads ``Sec.  442.311(e)'' is corrected to read ``Sec.  441.311(e)''.
    8. On page 40920, first column, first paragraph, line 9, the 
regulatory citation that reads ``Sec.  442.43(c)'' is corrected to read 
``Sec.  442.43(b)''.
    9. On page 40923, second column, first partial paragraph, line 5, 
the regulatory citation that reads ``Sec.  442.43(a)(2)(ix)'' is 
corrected to read ``Sec.  442.43(a)(2)(x)''.
    10. On page 40929, first column, first partial paragraph, line 27, 
that regulatory citation that reads ``Sec.  442.311(e)(2)'' is 
corrected to read ``Sec.  441.311(e)(4)''.
    11. On page 40930, third column, last paragraph, lines 12 and 13, 
the Federal Register citation that reads ``88 FR 61831 through 61833'' 
is corrected to read ``88 FR 61381 through 61383''.
    12. On page 40931, third column,
    a. Second paragraph, line 1, the regulatory citation that reads 
``Sec.  442.43(d)(1)'' is corrected to read ``Sec.  442.43(d)''.
    b. Third paragraph, line 1, the regulatory citation that reads 
``Sec.  442.43(d)(2)'' is corrected to read ``Sec.  442.43(d)(1)''.
    13. On page 40932, first column,
    a. First partial paragraph, line 2, the regulatory citation that 
reads ``Sec.  442.43(d)(3)'' is corrected to read ``Sec.  
442.43(d)(2)''.
    b. First partial paragraph, line 7, the regulatory citation that 
reads ``Sec.  442.43(d)(3)'' is corrected to read ``Sec.  
442.43(d)(2)''.
    c. First full paragraph, line 1, the regulatory citation that reads 
``Sec.  442.43(d)(4)'' is corrected to Sec.  442.43(d)(3)''.
    14. On page 40934,
    a. In the second column, sixth paragraph, lines 7 through 11, the 
sentence that reads ``Additionally, we are finalizing the newly 
redesignated paragraph (a)(2)(xi) with a modification to include nurses 
and other staff that providing that clinical supervision.'' is 
corrected to read ``Additionally, we are finalizing the newly 
redesignated paragraph (a)(2)(xi) with a modification to include nurses 
and other staff providing clinical supervision.''
    b. In the third column, third paragraph, lines 5 through 6, the 
phrase ``and added a cross-reference to

[[Page 52396]]

Sec.  442.43(b)(3).'' is corrected to ``and in Sec.  442.43(b)(1) added 
a cross-reference to Sec.  442.43(b)(3).''
    15. On page 40935, third column, eighth paragraph, lines 3 through 
8, the sentence that reads ``Unless otherwise indicated, we obtained 
all salary information from the May 2022 National Occupational 
Employment and Wage Estimates, BLS at https://www.bls.gov/oes/current/oes_nat.htm.'' is corrected to read ``Unless otherwise indicated, we 
obtained all salary information from the May 2022 National Occupational 
Employment and Wage Estimates, BLS at https://www.bls.gov/oes/tables.htm.''
    16. On page 40948, footnote number 96, that reads ``https://
data.cms.gov/summary-statistics-on-use-and-payments/medicare-service-
type-reports/cms-program-statistics-medicare-skilled-nursing-
facility.'' is corrected to read ``https://data.cms.gov/provider-data/
dataset/4pq5-n9py.''.
    17. On page 40949, third column, first full paragraph, line 2, the 
table reference that reads ``table 21'' is corrected to read ``table 
31''.
    18. On page 40992,
    a. In the second column, first full paragraph, lines 1 through 9, 
the sentence that reads ``Using the wage information from the Bureau of 
Labor Statistics, May 2022 National Occupational Employment and Wage 
Estimates, https://www.bls.gov/oes/current/oes_nat.htm, for medical and 
health service managers (Code 11-9111), we estimate that the cost of 
reviewing this rule is $123.06 per hour, including overhead and fringe 
benefits.'' is corrected to read ``Using the wage information from the 
Bureau of Labor Statistics, May 2022 National Occupational Employment 
and Wage Estimates, https://www.bls.gov/oes/tables.htm, for medical and 
health service managers (Code 11-9111), we estimate that the cost of 
reviewing this rule is $123.06 per hour, including overhead and fringe 
benefits.''
    b. In the third column, second paragraph, lines 1 through 9, the 
sentence that reads ``Using the wage information from the Bureau of 
Labor Statistics, May 2022 National Occupational Employment and Wage 
Estimates, https://www.bls.gov/oes/current/oes_nat.htm, for medical and 
health service managers (Code 11-9111), we estimated that the cost of 
reviewing this rule is $123.06 per hour, including overhead and fringe 
benefits.'' is corrected to read ``Using the wage information from the 
Bureau of Labor Statistics, May 2022 National Occupational Employment 
and Wage Estimates, https://www.bls.gov/oes/tables.htm, for medical and 
health service managers (Code 11-9111), we estimated that the cost of 
reviewing this rule is $123.06 per hour, including overhead and fringe 
benefits.''

B. Correction of Errors in the Regulation Text


Sec.  442.43   [Corrected]

0
1. On page 40995, third column, seventh paragraph, the regulation text 
for Sec.  443.43(b) introductory text, line 22, the reference ``Sec.  
438.6(c)'' is corrected to read ``Sec.  438.2''.


Sec.  483.35  [Corrected]

0
2. On page 40998, second column, sixth full paragraph, line 2, in the 
regulation text for Sec.  483.35(h)(2)(iv), the reference ``Sec.  
483.71(b)(4)'' is corrected to read ``Sec.  483.71(c)(4)''.

Wilma Robinson,
Deputy Executive Secretary to the Department, Department of Health and 
Human Services.
[FR Doc. 2024-13795 Filed 6-21-24; 8:45 am]
BILLING CODE 4120-01-P