Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Rules and Regulations 81885 

Commodity Parts per 

million 

Pepper, bell .............................. 0.02 

Pepper, non-bell ....................... 0.02 

Rice, grain ................................ 0.02 

Tomato ...................................... 0.02 

(b) Section 18 emergency exemptions. 

[Reserved] 

(c) Tolerances with regional 

registrations. [Reserved] 

(d) Indirect or inadvertent residues. 

[Reserved] 

[FR Doc. 2010–32451 Filed 12–28–10; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

42 CFR Parts 412, 413, 422, and 495 

[CMS–0033–F2] 

RIN 0938–AP78 

Medicare and Medicaid Programs; 

Electronic Health Record Incentive 

Program; Correcting Amendment 

AGENCY: Centers for Medicare & 

Medicaid Services (CMS), HHS. 

ACTION: Final rule; correcting 

amendment. 

SUMMARY: This document corrects 

typographical and technical errors 

identified in the final rule entitled 

‘‘Medicare and Medicaid Programs; 

Electronic Health Record Incentive 

Program’’ that appeared in the July 28, 

2010 Federal Register. 

DATES: Effective Date: This correcting 

amendment is effective December 29, 

2010. 

FOR FURTHER INFORMATION CONTACT: 

Rachel Maisler, (410) 786–5754. 

SUPPLEMENTARY INFORMATION: 

I. Background 

In FR Doc. 2010–17207 (75 FR 44314) 

the final rule entitled ‘‘Medicare and 

Medicaid Programs; Electronic Health 

Record Incentive Program’’ (hereinafter 

referred to as the Medicare and 

Medicaid EHR Incentive Program), there 

were several technical and 

typographical errors that are identified 

in the Summary of Errors section and 

corrected in the Correction of Errors 

section and in the regulations text of 

this correcting amendment. 

II. Summary of Errors 

A. Errors in the Preamble 

In the preamble to this final rule, we 

made the following technical and 

typographical errors. 

On page 44314, in the FOR FURTHER

INFORMATION CONTACT, we are correcting 

the contact information for Medicaid 

incentive payment issues for better 

accuracy. 

On page 44337, in our response to a 

comment on the objective generate and 

transmit permissible prescriptions 

electronically, we inadvertently 

referenced only the restrictions 

established by the Department of Justice 

(DOJ) on electronic prescribing for 

controlled substances in Schedule II, 

when in fact we meant to include 

Schedule II–V. We intended to 

encompass all prescriptions where eprescribing is not permitted, so we are 

including Schedules III–V. At the time 

of the publication of the our January 13, 

2010 proposed rule, the Drug 

Enforcement Agency (DEA) had not 

published its March 31, 2010 final rule 

(75 FR 16236) on the electronic 

prescribing of controlled substances. We 

are aligning our regulation with the DEA 

regulations regarding electronic 

prescribing of controlled substances by 

adding schedules II–V so that we are in 

line with DEA regulation. 

On page 44351, in our discussion of 

the proposed rule EP/Eligible Hospital 

Measure, we erroneously referred to 

‘‘five rules’’ related to clinical decision 

support although we reduced that 

requirement to one rule. 

On page 44359, in our response to a 

comment regarding charging fees, we 

inadvertently omitted a word. Also, in 

our discussion of the numerator and 

denominator for the clinical summary 

objective, we inadvertently referred to 

unique patients, rather than to office 

visits. As the measure for this objective 

relies on office visits (see 

§ 495.6(d)(13)), we are correcting the 

preamble to also refer to office visits. 

We have also eliminated a reference in 

the preamble to eligible hospitals and 

CAHs in the threshold for this objective, 

as the objective applies only to EPs. 

On pages 44440 and 44442, we are 

revising our discussions of hospitalbased EPs, so that they correctly refer to 

EPs that furnish ‘‘90 percent or more,’’ 

(rather than ‘‘more than 90 percent’’) of 

their covered professional services in an 

inpatient or emergency department 

setting. This is in keeping with the 

definition in § 495.4. 

On page 44487, we are correcting the 

preamble to more precisely state that the 

90-day period for deriving hospitals’ 

patient volume is based on the 

preceding fiscal year. This is in keeping 

with § 495.306, which specifically 

references the fiscal year. 

Also, on page 44487 and page 44488 

we inadvertently referred to hospitals 

when discussing the patient panel 

methodology for estimating Medicaid 

patient volume. As the patient panel 

methodology will be used only by EPs 

(and as our regulation cites only to EPs 

when discussing the patient panel 

methodology—see § 495.306(d)), we are 

eliminating the references to hospitals. 

On page 44488, we incorrectly 

included ‘‘unduplicated Medicaid 

encounters’’ in the last sentence, instead 

of ‘‘unduplicated encounters.’’ This 

correction allows for us to keep the 

numerator and denominator consistent 

when determining the Medicaid patient 

volume. 

On pages 44499, 44518, 44549, and 

44562, we made typographical errors 

which include errors in mathematical 

symbols, column headings, and the 

numbering and referencing of tables. 

B. Errors in the Regulation Text 

On page 44568, in § 495.6(d)(14)(i), 

we erroneously omitted medication 

allergies in the list of examples. 

Therefore, we are including this 

reference to be consistent with the 

preamble of the July 28, 2010 final rule. 

On page 44568, in § 495.6(e)(1), we 

inadvertently omitted a reference to the 

exclusion for any EP who writes fewer 

than 100 prescriptions during the EHR 

reporting period (as discussed in the 

preamble of the final rule (see page 

44336)). Therefore, we are correcting 

§ 495.6(e)(1) by referencing this 

exclusion in accordance with 

§ 495.6(a)(2) ‘‘Implement drug-formulary 

checks.’’ 

On page 44587, in § 495.366(b)(3), we 

made inadvertent errors by citing to 

inpatient and outpatient settings, rather 

than the inpatient or emergency room 

settings in a discussion of ‘‘hospitalbased.’’ 

On page 44588, in § 495.368(c) 

regarding overpayments, we are 

correcting the period of consideration 

for overpayments. We note that section 

1903(d)(2) of the Act was amended by 

section 6506 of the Patient Protection 

and Affordable Care Act (known as the 

Affordable Care Act (ACA)). This 

amendment changed the mandatory 

time period for collection of 

overpayments from 60 days to 1 year. 

Therefore, we are correcting § 495.368(c) 

to implement this statutory change. 

III. Correction of Errors in the Preamble 

In FR Doc. 2010–17207 of July 28, 

2010, we make the following 

corrections: 


srobinson on DSKHWCL6B1PROD with RULES
81886 Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Rules and Regulations 

1. On page 44314, in the first column, 

FOR FURTHER INFORMATION CONTACT

section, lines 3 and 4 the phrase, 

‘‘Edward Gendron, (410) 786–1064, 

Medicaid incentive payment issues,’’ is 

corrected to read ‘‘Jessica Kahn, (410) 

786–9361, and Michelle Mills, (410) 

786–3854, Medicaid incentive program 

issues. 

2. On page 44337, 

a. Second column, last paragraph, last 

line, the phrase ‘‘Schedule II’’ is 

corrected to read ‘‘Schedule II–V.’’ 

b. Third column, first partial 

paragraph, 

(1) Line 1, the phrase ‘‘Schedule II’’ is 

corrected to read ‘‘Schedule II–V.’’ 

(2) Line 20 the phrase ‘‘Schedule II’’ is 

corrected to read ‘‘Schedule II–V.’’ 

3. On page 44351, in the first column, 

fifth paragraph, lines 5 through 11, the 

sentence ‘‘Therefore, we revise this 

measure to require that at least one of 

the five rules be related to a clinical 

quality measure, assuming the EP, 

eligible hospital or CAH has at least one 

clinical quality measure relevant to their 

scope of practice.’’ is corrected to read 

‘‘In light of the decision to limit the 

objective to one clinical decision 

support rule, we do not believe it is 

appropriate to further link that rule to 

a specific clinical quality measure.’’ 

4. On page 44359, 

a. First column, first partial 

paragraph, line 6, ‘‘generated certified 

EHR technology.’’ is corrected to read 

‘‘generated by certified EHR 

technology.’’ 

b. Second column, second full 

paragraph, lines 4 through 16, the 

bulleted text beginning with term 

‘‘Denominator’’ and ending with phrase 

‘‘meet this measure’’ is corrected to read 

as follows: 

• Denominator: Number of office 

visits by the EP during the EHR 

reporting period. 

• Numerator: Number of office visits 

in the denominator for which the 

patient is provided a clinical summary 

within 3 business days.’’ 

• Threshold: The resulting percentage 

must be more than 50 percent in order 

for an EP to meet this measure.’’ 

5. On page 44367, third column, 

seventh full paragraph, last line, the 

term ‘‘ferquency’’ is corrected to read 

‘‘frequency.’’ 

6. On page 44440, second column, last 

paragraph, lines 11 and 12, the phrase 

‘‘if more than 90 percent’’ is corrected to 

read ‘‘if 90 percent or more.’’ 

7. On page 44442, in the first column, 

first full paragraph, lines 9 and 10, the 

phrase ‘‘if more than 90 percent’’ is 

corrected to read ‘‘if 90 percent or 

more.’’ 

8. On page 44487, 

a. Top half of the page, second 

column, third full paragraph, line 13, 

the phrase ‘‘in the preceding calendar 

year’’ is corrected to read ‘‘in the 

preceding calendar year (fiscal year for 

hospitals).’’ 

b. Bottom half of the page, third 

column, last paragraph, lines 4 and 5, 

the phrase ‘‘individual hospital’s or 

EP’s’’ is corrected to read ‘‘individual 

EP’s.’’ 

9. On page 44488, in the first column, 

first partial paragraph, line 20, the 

phrase ‘‘or hospital’’ is deleted. Line 25, 

the phrase, ‘‘unduplicated Medicaid 

encounters’’ is corrected to read 

‘‘unduplicated encounters.’’ 

10. On page 44499, in the middle of 

the page, in Table 19: Hospital 

Incentives, second column, the column 

heading, ‘‘CY’’ is corrected to read ‘‘FY.’’ 

11. On page 44518, in first column, 

first full paragraph, line 23 the figure 

‘‘¥4,675,161’’ is corrected to read 

‘‘4,675,161.’’ 

12. On page 44549, in the third 

column, first partial paragraph, line 10, 

the reference ‘‘Table 51,’’ is corrected to 

read ‘‘Table 38.’’ 

13. On page 44562, second fourth of 

the page, in the table heading, the table 

number ‘‘TABLE 51’’ is corrected to read 

‘‘TABLE 38:’’. 

IV. Waiver of Proposed Rulemaking 

and Delay in Effective Date 

We ordinarily publish a notice of 

proposed rulemaking in the Federal 

Register to provide a period for public 

comment before the provisions of a rule 

take effect in accordance with section 

553(b) of the Administrative Procedure 

Act (APA) (5 U.S.C. 553(b)). However, 

we can waive this notice and comment 

procedure if the Secretary finds, for 

good cause, that the notice and 

comment process is impracticable, 

unnecessary, or contrary to the public 

interest, and incorporates a statement of 

the finding and the reasons therefore in 

the notice. 

Section 553(d) of the APA also 

ordinarily requires a 30-day delay in 

effective date of final rules after the date 

of their publication in the Federal 

Register. This 30-day delay in effective 

date can be waived, however, if an 

agency finds for good cause that the 

delay is impracticable, unnecessary, or 

contrary to the public interest, and the 

agency incorporates a statement of the 

findings and its reasons in the rule 

issued. 

With the exception of the correction 

to § 495.368(c), the changes made by 

this notice do not constitute agency 

rulemaking, and therefore the 60 day 

comment period and delayed effective 

date do not apply. This correction 

notice merely corrects typographical 

and technical errors in the EHR 

incentive program final rule and does 

not make substantive changes to the July 

28, 2010 final rule that would require 

additional time on which to comment or 

a delay in effective date. Instead, this 

correction notice is intended to ensure 

the accuracy of the final rule. 

In addition, even if the notice and 

comment and delayed effective date 

procedures applied, we find good cause 

to waive such procedures. Undertaking 

further notice and comment procedures 

to incorporate the corrections in this 

notice into the final rule or delaying the 

effective date would delay these 

corrections beyond the date necessary 

for EPs, eligible hospitals and CAHs to 

begin receiving incentive payments, and 

would be contrary to the public interest. 

Furthermore, such procedures would be 

unnecessary, as we are not altering the 

policies that were already subject to 

comment and finalized in our final rule. 

The one change we are making, to 

§ 495.368(c), is necessary to comply 

with a provision of the Affordable Care 

Act that is already in effect; thus, we 

find it would be both unnecessary and 

impracticable to subject such change to 

a comment period as well as any delay 

in effective date. 

List of Subjects 

42 CFR Part 412 

Administrative practice and 

procedure, Health facilities, Medicare, 

Puerto Rico, Reporting and 

recordkeeping requirements. 

42 CFR Part 413 

Health facilities, Kidney diseases, 

Medicare, Reporting and recordkeeping 

requirements. 

42 CFR Part 422 

Administrative practice and 

procedure, Health facilities, Health 

maintenance organizations (HMO), 

Medicare, Penalties, Privacy, Reporting 

and recordkeeping requirements. 

42 CFR Part 495 

Administrative practice and 

procedure, Electronic health records, 

Health facilities, Health professions, 

Health maintenance organizations 

(HMO), Medicaid, Medicare, Penalties, 

Privacy, Reporting and recordkeeping 

requirements. 

■ For the reasons set forth in the 

preamble, the Centers for Medicare & 

Medicare Services amends 42 CFR part 

495 as follows: 


srobinson on DSKHWCL6B1PROD with RULES
Federal Register / Vol. 75, No. 249 / Wednesday, December 29, 2010 / Rules and Regulations 81887 

PART 495—STANDARDS FOR THE 

ELECTRONIC HEALTH RECORD 

TECHNOLOGY INCENTIVE PROGRAM 

■ 1. The authority citation continues to 

read as follows: 

Authority: Secs. 1102 and 1871 of the 

Social Security Act (42 U.S.C. 1302 and 

1395hh). 

■ 2. Section 495.6 is amended as 

follows: 

■ A. In paragraph (d)(14)(i), remove the 

parenthetical phrase ‘‘(for example, 

problem list, medication list, allergies, 

and diagnostic test results)’’ and add the 

parenthetical phrase ‘‘(for example, 

problem list, medication list, 

medication allergies, and diagnostic test 

results)’’ in its place. 

■ B. Add paragraph (e)(1)(iii) to read as 

follows: 

§ 495.6 Meaningful use objectives and 

measures for EPs, eligible hospitals, and 

CAHs. 

* * * * * 

(e) * * * 

(1) * * * 

(iii) Exclusion in accordance with 

paragraph (a)(2) of this section. Any EP 

who writes fewer than 100 prescriptions 

during the EHR reporting period. 

* * * * * 

§ 495.366 [Amended] 

■ 3. Amend § 495.366(b)(3) by removing 

the phrase ‘‘furnished in a hospital 

setting, either inpatient or outpatient.’’ 

and adding the phrase ‘‘furnished in a 

hospital inpatient or emergency room 

setting.’’ in its place. 

§ 495.368 [Amended] 

■ 4. Amend 495.368(c) by removing the 

phrase ‘‘60 days’’ and adding the phrase 

‘‘1 year’’ in its place. 

(Catalog of Federal Domestic Assistance 

Program No. 93.778, Medical Assistance 

Program) 

(Catalog of Federal Domestic Assistance 

Program No. 93.773, Medicare—Hospital 

Insurance; and Program No. 93.774, 

Medicare—Supplementary Medical 

Insurance Program) 

Dated: December 22, 2010. 

Dawn L. Smalls, 

Executive Secretary to the Department. 

[FR Doc. 2010–32861 Filed 12–28–10; 8:45 am] 

BILLING CODE 4120–01–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Federal Emergency Management 

Agency 

44 CFR Part 65 

[Docket ID FEMA–2010–0003] 

Changes in Flood Elevation 

Determinations 

AGENCY: Federal Emergency 

Management Agency, DHS. 

ACTION: Final rule. 

SUMMARY: Modified Base (1% annualchance) Flood Elevations (BFEs) are 

finalized for the communities listed 

below. These modified BFEs will be 

used to calculate flood insurance 

premium rates for new buildings and 

their contents. 

DATES: The effective dates for these 

modified BFEs are indicated on the 

following table and revise the Flood 

Insurance Rate Maps (FIRMs) in effect 

for the listed communities prior to this 

date. 

ADDRESSES: The modified BFEs for each 

community are available for inspection 

at the office of the Chief Executive 

Officer of each community. The 

respective addresses are listed in the 

table below. 

FOR FURTHER INFORMATION CONTACT: Luis 

Rodriguez, Chief, Engineering 

Management Branch, Federal Insurance 

and Mitigation Administration, Federal 

Emergency Management Agency, 500 C 

Street SW., Washington, DC 20472, 

(202) 646–4064, or (e-mail) 

luis.rodriguez1@dhs.gov. 

SUPPLEMENTARY INFORMATION: The 

Federal Emergency Management Agency 

(FEMA) makes the final determinations 

listed below of the modified BFEs for 

each community listed. These modified 

BFEs have been published in 

newspapers of local circulation and 

ninety (90) days have elapsed since that 

publication. The Deputy Federal 

Insurance and Mitigation Administrator 

has resolved any appeals resulting from 

this notification. 

The modified BFEs are not listed for 

each community in this notice. 

However, this final rule includes the 

address of the Chief Executive Officer of 

the community where the modified BFE 

determinations are available for 

inspection. 

The modified BFEs are made pursuant 

to section 206 of the Flood Disaster 

Protection Act of 1973, 42 U.S.C. 4105, 

and are in accordance with the National 

Flood Insurance Act of 1968, 42 U.S.C. 

4001 et seq., and with 44 CFR part 65. 

For rating purposes, the currently 

effective community number is shown 

and must be used for all new policies 

and renewals. 

The modified BFEs are the basis for 

the floodplain management measures 

that the community is required either to 

adopt or to show evidence of being 

already in effect in order to qualify or 

to remain qualified for participation in 

the National Flood Insurance Program 

(NFIP). 

These modified BFEs, together with 

the floodplain management criteria 

required by 44 CFR 60.3, are the 

minimum that are required. They 

should not be construed to mean that 

the community must change any 

existing ordinances that are more 

stringent in their floodplain 

management requirements. The 

community may at any time enact 

stricter requirements of its own or 

pursuant to policies established by other 

Federal, State, or regional entities. 

These modified BFEs are used to meet 

the floodplain management 

requirements of the NFIP and also are 

used to calculate the appropriate flood 

insurance premium rates for new 

buildings built after these elevations are 

made final, and for the contents in those 

buildings. The changes in BFEs are in 

accordance with 44 CFR 65.4. 

National Environmental Policy Act. 

This final rule is categorically excluded 

from the requirements of 44 CFR part 

10, Environmental Consideration. An 

environmental impact assessment has 

not been prepared. 

Regulatory Flexibility Act. As flood 

elevation determinations are not within 

the scope of the Regulatory Flexibility 

Act, 5 U.S.C. 601–612, a regulatory 

flexibility analysis is not required. 

Regulatory Classification. This final 

rule is not a significant regulatory action 

under the criteria of section 3(f) of 

Executive Order 12866 of September 30, 

1993, Regulatory Planning and Review, 

58 FR 51735. 

Executive Order 13132, Federalism. 

This final rule involves no policies that 

have federalism implications under 

Executive Order 13132, Federalism. 

Executive Order 12988, Civil Justice 

Reform. This final rule meets the 

applicable standards of Executive Order 

12988. 

List of Subjects in 44 CFR Part 65 

Flood insurance, Floodplains, 

Reporting and recordkeeping 

requirements. 

■ Accordingly, 44 CFR part 65 is 

amended to read as follows: 


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