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###### Department of Health and Human Services

###### Centers for Medicare & Medicaid Services

          - 42 CFR Part 412
          - [CMS-1538-CN]
          - RIN 0938-AP56

# AGENCY:

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

# ACTION:

Correction of final rule.

# SUMMARY:

                        This document corrects technical errors that appeared in the final rule published in the                         **Federal Register**                         on August 7, 2009 entitled “Inpatient Rehabilitation Facility Prospective Payment System for Federal Fiscal Year 2010” (74 FR 39762).                    

# DATES:

*Effective Date.*                         The correction to the average length of stay value for CMG 0501, tier 2, in Table 1 on page 39768 of the final rule (74 FR 39762) is effective October 1, 2009. The correction to the preamble text at the top of the middle column of page 39791 of the final rule (74 FR 39762) is effective January 1, 2010.                    

# FOR FURTHER INFORMATION CONTACT:

Susanne Seagrave, (410) 786-0044.

# SUPPLEMENTARY INFORMATION:

## I. Background

In FR Doc. E9-18616 of August 7, 2009 (74 FR 39762), there are technical errors that we are identifying and correcting in the Correction of Errors section below. The corrections in this notice are effective as if they were included in the final rule published on August 7, 2009. Accordingly, the correction to the average length of stay value for CMG 0501, tier 2, in Table 1 on page 39768 of the final rule (74 FR 39762) is effective October 1, 2009. This change is applicable for IRF discharges occurring on or after October 1, 2009 and on or before September 30, 2010 (FY 2010). The correction to the preamble text at the top of the middle column of page 39791 of the final rule is effective January 1, 2010.

## II. Summary of Errors

In the August 7, 2009 final rule (74 FR 39762), the average length of stay value for CMG 0501, tier 2, in Table 1 on page 39768 should have been listed as 10, but was inadvertently listed as 0. In the FY 2010 IRF PPS proposed rule (74 FR 21052 at 21057), we proposed the average length of stay value for CMG 0501, tier 2, as 10. The proposal was based on FY 2007 IRF claims data, which was the most recent available data we had at the time. The updated FY 2008 data that we used for the final rule contained no IRF cases for CMG 0501, tier 2. When there are not enough cases in a particular CMG and tier (referred to herein as a “payment group”) to calculate an average length of stay, we combine the cases in that payment group with the next highest-paying payment group to calculate an average length of stay value. Accordingly, for the final rule, we used the average length of stay value of 10 from CMG 0501, tier 1 for CMG 0501, tier 2, but in Table 1 we inadvertently indicated a value of 0 instead of 10. Thus, we are correcting Table 1 to show the average length of stay value for CMG 0501, tier 2, is 10.

                    In addition, we are correcting certain language in the preamble that could be misread, resulting in confusion with the regulatory requirements that must be met with respect to the preadmission screening required under § 412.622(a)(4)(A). Section 412.622(a)(4)(A) requires that the comprehensive preadmission screening be conducted by a licensed or certified clinician(s) designated by the rehabilitation physician described in § 412.622(a)(3(iv) within 48 hours immediately preceding the IRF admission. Our policy is that the IRF personnel conducting the screening must be a clinician or group of clinicians who are appropriately trained and qualified to assess the patient's medical and functional status, assess the risk for clinical and rehabilitation complications, and assess other aspects of the patient's condition both medically and functionally. As we stated in the final rule, we do not believe that non-clinical personnel can adequately perform these assessments. In the final rule (74 FR 39791), we stated that, “* * * we believe that the IRF personnel involved in collecting the information for the preadmission screening must be appropriately trained and qualified to assess the patient's medical and functional status, assess the risk for clinical and rehabilitation complications, and assess other aspects of the patient's condition both medically and functionally” (emphasis added). As the discussion in which this sentence was embedded only pertained to clinical staff assessments under § 412.622(a)(4)(A), we should have utilized terminology that referenced “clinical staff” and “assessment,” not “IRF personnel” and “collecting.” Consistent with the discussion in which the statement appears, we meant to convey that the IRF clinical staff conducting the preadmission screening must be trained and qualified to make the appropriate assessments. The appropriate use of non-clinical staff in the collection of the information that is used in the § 412.622(a)(4)(A) assessment is beyond the scope of the preamble discussion. Therefore, to eliminate any confusion, we are revising the sentence in the middle column at the top of page 39791 of the final rule to read, “* * * we believe that the clinician(s) conducting the preadmission screening must be appropriately trained and qualified to assess the patient's medical and functional status, assess the risk for clinical and rehabilitation                           ( print page 50713)                        complications, and assess other aspects of the patient's condition both medically and functionally.”                

## III. Correction of Errors

In FR Doc. E9-18616 of August 7, 2009 (74 FR 39762), make the following corrections:

1. On page 39768, in Table 1, in CMG 0501, under “Average length of stay,” tier 2, the value “0” is corrected to read “10.” 

2. On page 39791, in column 2, in line 7 from the top, the phrase “IRF personnel involved in collecting the information for,” is corrected to read, “clinician(s) conducting.” 

## IV. Waiver of Proposed Rulemaking and Delayed 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)). We also ordinarily provide a 30-day delay in the effective date of the provisions of a rule in accordance with section 553(d) of the APA (5 U.S.C. 553(d)). However, we can waive both notice and comment procedures and the 30-day delay in effective date if the Secretary finds, for good cause, that such procedures are impracticable, unnecessary, or contrary to the public interest, and incorporates a statement of the finding and the reasons into the notice.                

The policies and payment methodology expressed in the FY 2010 IRF PPS final rule (74 FR 39762) have previously been subjected to notice and comment procedures. This correction notice provides technical corrections to the FY 2010 final rule that was promulgated through notice and comment rulemaking, and does not make substantive changes to the policies or payment methodologies that were expressed in the final rule. Therefore, we find it unnecessary to undertake further notice and comment procedures with respect to this correction notice. We also believe that it is in the public interest (and would be contrary to the public interest to do otherwise) to waive notice and comment procedures and the 30-day delay in effective date for this notice. This correction notice is intended to ensure that the FY 2010 final rule accurately reflects the policies expressed in the final rule, and that the correct information is made available to the public prior to the effective dates of the final rule. Therefore, we find good cause to waive notice and comment procedures and the 30-day delay in the effective date for this correction notice.

(Catalog of Federal Domestic Assistance Program No. 93.773, Medicare—Hospital Insurance; and Program No. 93.774, Medicare—Supplementary Medical Insurance Program)

Dated: September 25, 2009.

Dawn L. Smalls,

Executive Secretary to the Department.

[FR Doc. E9-23708 Filed 9-30-09; 8:45 am]

BILLING CODE 4120-01-P