2021-26069. 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 2022 Rates; Quality Programs and Medicare Promoting ...

AGENCY:

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

ACTION:

Final rule; correction.

SUMMARY:

This document corrects typographical errors in the final rule that appeared in the August 13, 2021, Federal Register as well as additional typographical errors in a related correcting amendment that appeared in the October 20, 2021, Federal Register . The final rule was titled “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 2022 Rates; Quality Programs and Medicare Promoting Interoperability Program Requirements for Eligible Hospitals and Critical Access Hospitals; Changes to Medicaid Provider Enrollment; and Changes to the Medicare Shared Savings Program”.

DATES:

 

Effective date: This correcting document is effective on November 29, 2021.

Applicability date: This correcting document is applicable for discharges beginning October 1, 2021.

FOR FURTHER INFORMATION CONTACT:

Allison Pompey, [phone], New Technology Add-On Payment Issues.

SUPPLEMENTARY INFORMATION:

I. Background

In the final rule which appeared in the August 13, 2021, Federal Register (86 FR 44774) 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 2022 Rates; Quality Programs and Medicare Promoting Interoperability Program Requirements for Eligible Hospitals and Critical Access Hospitals; Changes to Medicaid Provider Enrollment; and Changes to the Medicare Shared Savings Program” (hereinafter referred to as the FY 2022 IPPS/LTCH PPS final rule), there were a number of technical and typographical errors. To correct the typographical and technical errors in the FY 2022 IPPS/LTCH PPS final rule, we published a correcting document that appeared in the October 20, 2021, Federal Register (86 FR 58019) (hereinafter referred to as the FY 2022 IPPS/LTCH PPS correcting amendment).

In FR Doc. 2021-22724 of October 20, 2021 (86 FR 58019), there was an inadvertent omission and typographical error that are identified and corrected in this correcting document. This document also corrects additional typographical errors in FR Doc. 2021-16519 of August 13, 2021 (86 FR 44774). The corrections in this correcting document are applicable to discharges occurring on or after October 1, 2021, as if they had been included in the document that appeared in the August 13, 2021, Federal Register .

II. Summary of Errors

A. Summary of Errors in the FY 2022 IPPS/LTCH PPS Final Rule

On page 44974, in the table displaying the continuation of technologies approved for FY 2021 new technology add-on payments and still considered new for FY 2022, we are correcting inadvertent typographical errors in the coding used to identify cases involving the use of the BAROSTIM NEO^TM System that are eligible for new technology add-on payments.

B. Summary of Errors in the FY 2022 IPPS/LTCH PPS Correcting Document

On page 58023 in section IV.A. of the FY 2022 IPPS/LTCH PPS correcting amendment, we inadvertently omitted corrections to pages 45133, 45150, and 45157 of the FY 2022 IPPS/LTCH PPS final rule, as summarized on page 58019 in section II.A. of the FY 2022 IPPS/LTCH PPS correcting amendment. We are also correcting an inadvertent typographical error in the coding used to identify cases involving the use of RECARBRIO^TM that are eligible for new technology add-on payments.

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 2022 IPPS/LTCH PPS final rule and the FY 2022 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 2022 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 2022 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 2022 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 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 2022 IPPS/LTCH PPS final rule accurately reflects our policies.

IV. Correction of Errors

A. Correction of Errors in the Final Rule

In FR Doc. 2021-16519 of August 13, 2021(86 FR 44774), we are making the following corrections:

1. On page 44974, in the table titled “Continuation of Technologies Approved for FY 2021 New Technology Add-On Payments and Still Considered New for FY 2022, the entry in row 3 is corrected to read as follows:

B. Correction of Errors in the Correcting Document

In FR Doc. 2021-22724 of October 20, 2021 (86 FR 58019), we are making the following corrections:

1. On page 58023, lower half of the page (following the table), third column:

a. Preceding the beginning of the partial paragraph (before item 10), the paragraph is corrected by adding items 7 through 9 to read as follows:

“7. On page 45133, top of the page,

a. First column, partial paragraph,

(1) Line 4, the figure “$31,500” is corrected to read “$63,000”.

(2) Line 5, the figure “$10,500” is corrected to read “$21,000”.

b. Second column, partial paragraph, last line, the figure “$20,475” is corrected to read “$40,950”.

8. On page 45150, second column, last full paragraph, lines 27 through 31, the phrase “in combination with one of the following ICD-10-CM codes: D65 (Disseminated intravascular coagulation) or D68.2 (Hereditary deficiency of other clotting factors).” is corrected to read “in combination with one of the following ICD-10-CM codes: D62 (Acute posthemorrhagic anemia), D65 (Disseminated intravascular coagulation), D68.2 (Hereditary deficiency of other clotting factors), D68.4 (Acquired coagulation factor deficiency) or D68.9 (Coagulation defect, unspecified).”.

9. On page 45157, top third of the page, first column, first partial paragraph, last line, the phrase, “technology group 6).” is corrected to read “technology group 6) in combination with the following ICD-10-CM codes: Y95 (Nosocomial condition) and one of the following: J14 (Pneumonia due to Hemophilus influenzae) J15.0 (Pneumonia due to Klebsiella pneumoniae), J15.1 (Pneumonia due to Pseudomonas), J15.5 (Pneumonia due to Escherichia coli), J15.6 (Pneumonia due to other Gram-negative bacteria), J15.8 (Pneumonia due to other specified bacteria), or J95.851 (Ventilator associated pneumonia) and one of the following: B96.1 (Klebsiella pneumoniae [K. pneumoniae] as the cause of diseases classified elsewhere), B96.20 (Unspecified Escherichia coli [E. coli] as the cause of diseases classified elsewhere), B96.21 (Shiga toxin-producing Escherichia coli [E. coli] [STEC] O157 as the cause of diseases classified elsewhere), B96.22 (Other specified Shiga toxin-producing Escherichia coli [E. coli] [STEC] as the cause of diseases classified elsewhere), B96.23 (Unspecified Shiga toxin-producing Escherichia coli [E. coli] [STEC] as the cause of diseases classified elsewhere, B96.29 (Other Escherichia coli [E. coli] as the cause of diseases classified elsewhere), B96.3 (Hemophilus influenzae [H. influenzae] as the cause of diseases classified elsewhere, B96.5 (Pseudomonas (aeruginosa) (mallei) (pseudomallei) as the cause of diseases classified elsewhere), or B96.89 (Other specified bacterial agents as the cause of diseases classified elsewhere).”

b. Within the partial paragraph (item 10), line 8, the code number “J14.0” is corrected to read “J14”.

Karuna Seshasai,

Executive Secretary to the Department, Department of Health and Human Services.