42596 Federal Register / Vol. 83, No. 164 / Thursday, August 23, 2018 / Rules and Regulations 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: August 16, 2018. 

James B. Gulliford, 

Regional Administrator, Region 7. 

For the reasons stated in the 

preamble, EPA amends 40 CFR part 52 

as set forth below: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart CC—Nebraska 

■ 2. Amend § 52.1420(c) by revising the 

entry for citation ‘‘129–20’’ to read as 

follows: 

§ 52.1420 Identification of plan. 

* * * * * 

(c)* * * 

EPA-APPROVED NEBRASKA REGULATIONS

Nebraska citation Title State effective 

date EPA Approval date Explanation 

STATE OF NEBRASKA 

Department of Environmental Quality 

Title 129—Nebraska Air Quality Regulations 

*******

129–20 ............ Particulate Emissions; Limitations 

and Standards.

5/13/2014 8/23/2018, [Insert Federal Register citation].

* * * * * * * 

* * * * * 

[FR Doc. 2018–18103 Filed 8–22–18; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

42 CFR Part 412 

[CMS–1709–N] 

RIN 0938–ZB49 

Medicare Program; Certain Changes to 

the Low-Volume Hospital Payment 

Adjustment Under the Hospital 

Inpatient Prospective Payment 

Systems (IPPS) for Acute Care 

Hospitals for Fiscal Years 2011 

Through 2017 

AGENCY: Centers for Medicare & 

Medicaid Services (CMS), HHS. 

ACTION: Application of a payment 

adjustment. 

SUMMARY: This document announces 

changes to the payment adjustment for 

low-volume hospitals under the hospital 

inpatient prospective payment systems 

(IPPS) for acute care hospitals for fiscal 

years (FYs) 2011 through 2017 in 

accordance with section 429 of the 

Consolidated Appropriations Act, 2018. 

DATES: Effective date: August 22, 2018. 

Applicability date: The provisions 

described in this document are 

applicable for discharges on or after 

October 1, 2010, and on or before 

September 30, 2017, in accordance with 

section 429 of the Consolidated 

Appropriations Act, 2018. 

FOR FURTHER INFORMATION CONTACT: 

Michele Hudson, (410) 786–5490.; Mark 

Luxton, (410) 786–4530. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On March 23, 2018 the Consolidated 

Appropriations Act, 2018 (Pub. L. 115– 

141) was enacted. Section 429 of the 

Consolidated Appropriations Act, 2018 

makes certain changes to the payment 

adjustment for low-volume hospitals for 

fiscal years (FYs) 2011 through 2017 

relating to the application of the mileage 

criterion for Indian Health Service and 

non-Indian Health Service facilities. 

II. Provisions of the Document 

A. Changes to the Payment Adjustment 

for Low-Volume Hospitals in FYs 2011 

Through 2017 

1. Background 

Section 1886(d)(12) of the Act 

provides for an additional payment to 

each qualifying low-volume hospital 

under the Hospital Inpatient Prospective 

Payment Systems (IPPS) for Acute Care 

Hospitals beginning in FY 2005. CMS 

implemented this provision in the 

regulations at 42 CFR 412.101. The 

payment adjustment to a low-volume 

hospital provided for under section 

1886(d)(12) of the Act is ‘‘[i]n addition 

to any payment calculated under this 

section.’’ Therefore, meaning the 

payment adjustment is based on the per 

discharge amount paid to the qualifying 

hospital under section 1886 of the Act. 

In other words, the low-volume hospital 

payment adjustment is based on total 

per discharge payments made under 

section 1886 of the Act, including 

capital, disproportionate share hospital 

(DSH), indirect medical education 

(IME), and outlier payments. For sole 

community hospitals (SCHs) and 

Medicare-dependent hospitals (MDHs), 

the low-volume hospital payment 

adjustment is based in part on either the 

Federal rate or the hospital-specific rate, 

whichever results in a greater operating 

IPPS payment. 

The Affordable Care Act amended 

section 1886(d)(12) of the Act by 

modifying the definition of a lowvolume hospital and the methodology 

for calculating the payment adjustment 

for low-volume hospitals, effective only 

for discharges occurring during FYs 

2011 and 2012, and subsequent 

legislation extended those temporary 

modifications through FY 2018. (The 

most recent statutory extension of those 

temporary changes to the low-volume 

hospital payment policy was for FY 

2018 and is discussed in a document 


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Federal Register / Vol. 83, No. 164 / Thursday, August 23, 2018 / Rules and Regulations 42597 

(CMS 1677–N) that appeared in the 

April 26, 2018 Federal Register (83 FR 

18301).) Specifically, those provisions 

amended the qualifying criteria for low 

volume hospitals under section 

1886(d)(12)(C)(i) of the Act to specify 

that, for FYs 2011 through 2018, a 

subsection (d) hospital qualifies as a 

low-volume hospital if it is more than 

15 road miles from another subsection 

(d) hospital and has less than 1,600 

discharges of individuals entitled to, or 

enrolled for, benefits under Part A 

during the fiscal year. In addition, these 

provisions amended section 

1886(d)(12)(D) of the Act to provide that 

for FYs 2011 through 2018, the lowvolume hospital payment adjustment 

(that is, the percentage increase) is to be 

determined using a continuous linear 

sliding scale ranging from 25 percent for 

low-volume hospitals with 200 or fewer 

discharges of individuals entitled to, or 

enrolled for, benefits under Part A in the 

fiscal year to zero percent for lowvolume hospitals with greater than 

1,600 discharges of such individuals in 

the fiscal year. (We note that under 

§ 412.101(b)(2)(ii), for FYs 2011 through 

2017, a hospital’s Medicare discharges 

from the most recently available 

MedPAR data, as determined by CMS, 

are used to determine whether the 

hospital meets the discharge criterion to 

receive the low volume hospital 

payment adjustment in the applicable 

fiscal year. In the FY 2019 IPPS/LTCH 

PPS final rule, we finalized conforming 

changes to this provision to reflect that 

the low-volume hospital payment 

adjustment policy in effect for FY 2018 

is the same low-volume hospital 

payment adjustment policy in effect for 

FYs 2011 through 2017 (83 FR 41144, 

August 17, 2018). 

2. Treatment of Indian Health Service 

and Non-Indian Health Service 

Facilities 

Section 1886(d)(12)(C) of the Act 

requires that, in order to qualify for the 

low volume hospital payment 

adjustment, a hospital must be located 

more than a specified number of miles 

from the nearest subsection (d) hospital 

(referred to as the mileage criterion, 

which is implemented at 

§ 412.101(b)(2)). Since CMS considers 

Indian Health Service (IHS) and Tribal 

hospitals (collectively referred to here as 

‘‘IHS hospitals’’) to be subsection (d) 

hospitals, for the reasons discussed in 

the FY 2018 IPPS/LTCH PPS final rule 

(82 FR 38188 through 38189), we 

adopted a parallel adjustment at 

§ 412.101(e) which specifies that, for 

discharges occurring in FY 2018 and 

subsequent years, only the distance 

between IHS hospitals would be 

considered when assessing whether an 

IHS hospital meets the mileage criterion 

under § 412.101(b)(2), and similarly, 

only the distance between non-IHS 

hospitals would be considered when 

assessing whether a non-IHS hospital 

meets the mileage criterion under 

§ 412.101(b)(2). 

While the policy finalized in the FY 

2018 IPPS/LTCH PPS final rule 

addresses FY 2018 and subsequent 

fiscal years, section 429 of the 

Consolidated Appropriations Act, 2018 

amended section 1886(d)(12)(C) of the 

Act by adding a new clause (iii) 

specifying that for purposes of 

determining whether an IHS or a nonIHS hospital meets the mileage criterion 

under section 1886(d)(12)(C)(i) of the 

Act with respect to FY 2011 or a 

succeeding year, the Secretary shall 

apply the policy described in the 

regulations at § 412.101(e) (as in effect 

on the date of enactment). In other 

words, under this statutory change, the 

special treatment with respect to the 

proximities between IHS and non-IHS 

hospitals as set forth in § 412.101(e) for 

discharges occurring in FY 2018 and 

subsequent fiscal years is now also 

applicable for purposes of applying the 

mileage criterion for the low-volume 

hospital payment adjustment for FYs 

2011 through 2017. Therefore, when 

assessing the mileage criterion under 

§ 412.101(b)(2) for FYs 2011 through 

2017, an IHS hospital would be 

considered to have met the mileage 

criterion in the applicable year if it was 

more than 15 road miles from the 

nearest IHS hospital, and a non-IHS 

hospital would be considered to have 

met the mileage criterion in the 

applicable year if it was more than 15 

road miles from the nearest non-IHS 

hospital. 

B. Implementation of the Low-Volume 

Hospital Payment Adjustment Under 

Section 429 of the Consolidated 

Appropriations Act, 2018 

Section 429 of the Consolidated 

Appropriations Act, 2018 applies the 

policy at § 412.101(e) to prior years, that 

is, for discharges occurring during FYs 

2011 through 2017. To implement these 

changes, hospitals that qualify for the 

low-volume hospital payment 

adjustment under the provisions of the 

Consolidated Appropriations Act, 2018 

may receive the low-volume hospital 

payment adjustment as part of the cost 

report settlement and reopening process 

for each cost report that includes 

discharges from one of the applicable 

fiscal years (that is, from FYs 2011 

through 2017). In the event a hospital, 

having followed our process to request 

the low-volume hospital payment 

adjustment as described in this 

document, qualifies as a low-volume 

hospital for discharges occurring in one 

of the applicable fiscal years and those 

discharges are in a cost report that has 

been settled, the Medicare 

Administrative Contractors (MAC) will 

reopen such cost reports in accordance 

with 42 CFR 405.1885 which allows for 

the reopening of cost reports upon 

request only if a request to reopen is 

received by the MAC within 3 years of 

the date of the determination or 

decision that is the subject of the 

reopening or if the cost report is the 

subject of a pending jurisdictionally 

proper appeal before the Provider 

Reimbursement Review Board or CMS 

Administrator. Therefore, the 

application of the low-volume hospital 

payment adjustment under the 

provisions of section 429 of the 

Consolidated Appropriations Act, 2018 

will only be applied to discharges 

occurring in FYs 2011 through 2017 (as 

applicable) that are in cost reports that 

are either currently open or for which 

the hospital requests reopening within 

the 3-year reopening period by making 

a request to the MAC with the 

information described in this document. 

In this document, we are explicitly 

directing the MACs to reopen and revise 

these matters, but only under the 

circumstances and for the cost reporting 

periods specified herein and subject to 

the time limits specified both in 42 CFR 

405.1885(b) and this document. (See 42 

CFR 405.1885(c)(1).) If a hospital’s 

reopening request is untimely or if a 

hospital fails to provide adequate 

written documentation as described in 

this document, the MAC may deny the 

reopening request. 

We are directing a reopening here 

under the circumstances described 

solely in response to the amendment 

made by section 429 of the Consolidated 

Appropriations Act, 2018, which 

changed the application of the mileage 

criterion for purposes of the low-volume 

hospital payment adjustment for FYs 

2011 through 2017. We reiterate here 

that, apart from the specific 

circumstances, time periods, and cost 

reporting periods for which we are 

explicitly directing reopening in this 

document, reopening denials by the 

MAC in this and other contexts are 

discretionary and unreviewable under 

Your Home Visiting Nurse Servs., Inc. v. 

Shalala, 525 U.S. 449 (1999) and related 

precedent. 

We note, any reopening under this 

procedure shall be for the sole purpose 

of making a low-volume hospital 

payment adjustment under the 

provisions of section 429 of the 

Consolidated Appropriations Act, 2018 


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42598 Federal Register / Vol. 83, No. 164 / Thursday, August 23, 2018 / Rules and Regulations 

and for no other purpose. (For 

additional information on the reopening 

regulations at 42 CFR 405.1885, refer to 

the following final rules published in 

the Federal Register: (67 FR 50096), (73 

FR 30230), and (78 FR 75162) as well as 

sections 2931 through 2932 of chapter 

29 of the Provider Reimbursement 

Manual (PRM), Part 1.) 

The changes to the low-volume 

hospital payment adjustment under 

section 429 of the Consolidated 

Appropriations Act, 2018 do not affect 

the discharge criterion in place between 

FYs 2011 and 2017. Thus, in accordance 

with the existing regulations at 

§ 412.101(b)(2)(ii) and consistent with 

our implementation of the low-volume 

hospital payment adjustment in FYs 

2011 through 2017, the discharge data 

source used to identify qualifying lowvolume hospitals and calculate the 

payment adjustment in accordance with 

the changes under section 429 of the 

Consolidated Appropriations Act, 2018 

is the same discharge data source used 

to identify qualifying low-volume 

hospitals and calculate the payment 

adjustment for discharges that occurred 

in that fiscal year; that is, the most 

recent data available at the time of the 

development of the payment rates and 

factors established in the corresponding 

final rule. Under § 412.101(b)(2)(ii), for 

FYs 2011 through 2017, a hospital’s 

Medicare discharges from the most 

recently available MedPAR data for the 

applicable fiscal year, as determined by 

CMS, are used to determine whether the 

hospital meets the discharge criterion to 

receive the low-volume payment 

adjustment in the applicable year. The 

applicable low-volume percentage 

increase for FYs 2011 through 2017 is 

determined using a continuous linear 

sliding scale equation that results in a 

low-volume adjustment ranging from an 

additional 25 percent for hospitals with 

200 or fewer Medicare discharges to a 

zero percent additional payment 

adjustment for hospitals with 1,600 or 

more Medicare discharges 

(§ 412.101(c)(2)). 

For the discharge data source used to 

identify qualifying low-volume 

hospitals and to calculate the payment 

adjustment for FY 2011, refer to the 

chart in the FY 2011 IPPS/LTCH PPS 

final rule (75 FR 50242 through 50274) 

or the ‘Medicare Discharge Count for FY 

2011 Low Volume Adjustment’ file on 

the ‘‘Files for FY 2011 Final Rule and 

Correction Notice’’ home page (https:// 

www.cms.gov/Medicare/Medicare-Feefor-Service-Payment/AcuteInpatient

PPS/Acute-Inpatient-Files-forDownload-Items/CMS1255464.html). 

For FYs 2012 through 2017, Table 14 of 

each year’s respective IPPS/LTCH PPS 

final rule (which is available through 

the internet on the CMS website at 

https://www.cms.gov/Medicare/ 

Medicare-Fee-for-Service-Payment/ 

AcuteInpatientPPS/index.html under 

‘‘Acute Inpatient—Files for Download’’ 

for the respective year) lists the 

‘‘subsection (d)’’ hospitals with fewer 

than 1,600 Medicare discharges based 

on the applicable data source and their 

payment adjustment for that fiscal year 

(if eligible). 

These discharges and corresponding 

payment adjustment are based on the 

most recent data available at the time of 

the development of that year’s payment 

rates and factors established in the 

corresponding final rule. (For additional 

details on the discharge data source 

used to identify qualifying low-volume 

hospitals and calculate the payment 

adjustment for FYs 2011 through 2017, 

refer to the following FY 2011 (75 FR 

50241 through 50275); FY 2012 (76 FR 

51679 through 51680); FY 2013 (78 FR 

14689 through 14691); FY 2014 ((79 FR 

15022 through 15025) and (79 FR 34444 

through 34446)); FY 2015 ((80 FR 49998 

through 49999) and Change Request 

9197 (Transmittal 3281; June 5, 2015)); 

FY 2016 (80 FR 49595 through 49597); 

and FY 2017 (81 FR 56941 through 

56943).) The list of hospitals with fewer 

than 1,600 Medicare discharges for each 

of FYs 2011 through 2017 (previously 

described) does not reflect whether or 

not the hospital meets the mileage 

criterion. In addition to meeting the 

discharge criterion, an IHS hospital 

would be eligible for the low-volume 

hospital payment adjustment for an 

applicable fiscal year under the 

provisions of section 429 of the 

Consolidated Appropriations Act, 2018 

if, in the applicable fiscal year, it was 

located more than 15 road miles from 

the nearest IHS hospital. Likewise, a 

non-IHS hospital meeting the discharge 

requirement would be eligible for the 

low-volume hospital payment 

adjustment for an applicable fiscal year 

under the provisions of section 429 of 

the Consolidated Appropriations Act, 

2018 if, in the applicable fiscal year, it 

was located more than 15 road miles 

from the nearest non-IHS hospital. 

We are using the following procedure 

for a hospital to request the low-volume 

hospital payment adjustment for any 

applicable fiscal years between FYs 

2011 and 2017 under the provisions of 

section 429 of the Consolidated 

Appropriations Act, 2018. In order for 

the applicable low-volume hospital 

payment adjustment to be applied for an 

applicable fiscal year’s discharges in an 

open or reopenable cost report(s), a 

hospital must notify and provide 

documentation to its MAC in writing 

that it meets the mileage criterion under 

the provisions of section 429 of the 

Consolidated Appropriations Act, 2018 

in the applicable fiscal year (as 

described in this document). In the case 

of a reopenable cost report, the hospital 

must request a reopening when 

submitting its written notification and 

documentation to its MAC. We note, for 

a hospital to receive the low-volume 

payment adjustment in FYs 2011 

through 2017 under the provisions of 

the Consolidated Appropriations Act, 

2018, the hospital must have been 

unable to meet the mileage criterion for 

that fiscal year prior to the enactment of 

the Consolidated Appropriations Act, 

2018 (that is, the provisions of section 

429 of the Consolidated Appropriations 

Act, 2018 do not affect hospitals which 

met the mileage criterion without regard 

to this provision). Specifically, for an 

IHS hospital to be eligible to receive the 

low-volume hospital payment 

adjustment in FYs 2011 through 2017 

under section 429 of the Consolidated 

Appropriations Act, 2018, that IHS 

hospital must not have been able to 

meet the mileage criterion in the 

applicable fiscal year based on its 

proximity to a non-IHS hospital. 

Similarly, for an non-IHS hospital to be 

eligible to receive the low-volume 

payment adjustment in FYs 2011 

through 2017 under section 429 of the 

Consolidated Appropriations Act, 2018, 

that non-IHS hospital must not have 

been able to meet the mileage criterion 

in the applicable fiscal year based on its 

proximity to an IHS hospital. We 

encourage hospitals to notify their MAC 

as soon as possible because, as 

previously noted, under 42 CFR 

405.1885, reopening a cost report is 

limited to 3 years after cost report 

settlement. In other words, the 

application of the low-volume hospital 

payment adjustment under the 

provisions of section 429 of the 

Consolidated Appropriations Act, 2018 

is limited to discharges occurring in FYs 

2011 through 2017 (as applicable) that 

are in cost reports that are either 

currently open or within the 3-year 

reopening period. Therefore, to receive 

the low-volume payment adjustment for 

discharges in FYs 2011 through 2017, 

the written request must be received by 

the MAC prior to the close of the 3-year 

period for the cost report that includes 

such discharges. 

The use of a Web-based mapping tool 

as part of documenting that the hospital 

meets the mileage criterion for lowvolume hospitals in the applicable fiscal 

year is acceptable. The MAC will 

determine if the information submitted 

by the hospital, such as the name and 


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Federal Register / Vol. 83, No. 164 / Thursday, August 23, 2018 / Rules and Regulations 42599 

street address of the nearest hospitals, 

location on a map, and distance (in road 

miles, as defined in the regulations at 

§ 412.101(a)) from the hospital 

requesting low-volume hospital status, 

is sufficient to document that the 

hospital requesting low-volume hospital 

status meets the mileage criterion in the 

applicable fiscal year (and had 

previously been unable to meet the 

mileage criterion in that fiscal year as 

described in this document). The MAC 

may follow up with the hospital to 

obtain additional necessary information 

to determine whether or not the hospital 

meets the low-volume mileage criterion 

for any applicable fiscal year. In 

addition, the MAC will refer to the 

hospital’s Medicare discharge data 

determined by CMS for the applicable 

fiscal year(s) to determine whether or 

not the hospital met the discharge 

criterion in that fiscal year, and the 

amount of the low-volume hospital 

payment adjustment for such year(s), 

once it is determined that the mileage 

criterion has been met. (The applicable 

Medicare discharge data for each of FYs 

2011 through 2017 is previously 

described.) In addition, in order to 

receive the low-volume hospital 

payment adjustment, sufficient 

documentation in the written request to 

the MAC must include the following to 

demonstrate that the hospital was 

unable to meet the mileage criterion for 

that fiscal year prior to the enactment of 

the Consolidated Appropriations Act, 

2018. For each applicable fiscal year, an 

IHS hospital must provide 

documentation to its MAC that it was 

not able to meet the mileage criterion in 

the applicable fiscal year based on its 

proximity to a non-IHS hospital. 

Similarly, a non-IHS hospital must 

provide documentation to its MAC that 

it was not able to meet the mileage 

criterion in the applicable fiscal year 

based on its proximity to an IHS 

hospital. 

Program guidance on the 

implementation of this provision, 

including instructions for cost report 

settlement and reopening as applicable, 

will be announced in an upcoming 

transmittal. We intend to make any 

conforming changes to the regulations 

text at 42 CFR 412.101 to reflect the 

changes to the low-volume hospital 

payment adjustment policy in 

accordance with the amendments made 

by section 429 of the Consolidated 

Appropriations Act, 2018 as described 

in this document in future rulemaking. 

III. Collection of Information 

Requirements 

This document does not impose 

information collection and 

recordkeeping requirements. 

Consequently, it need not be reviewed 

by the Office of Management and 

Budget under the authority of the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 35). 

IV. Regulatory Impact Statement 

A. Statement of Need 

This document is necessary to update 

the low-volume hospital payment 

adjustment policy for FYs 2011 through 

2017 to reflect changes provided by 

section 429 of the Consolidated 

Appropriations Act, 2018. Section 429 

of the Consolidated Appropriations Act, 

2018 makes certain changes to the 

payment adjustment for low-volume 

hospitals for FYs 2011 through 2017 

relating to the application of the mileage 

criterion for IHS and non-IHS hospitals. 

B. Overall Impact Statement 

We have examined the impacts of this 

document as required by Executive 

Order 12866 on Regulatory Planning 

and Review (September 30, 1993), 

Executive Order 13563 on Improving 

Regulation and Regulatory Review 

(January 18, 2011), the Regulatory 

Flexibility Act (RFA) (September 19, 

1980, Pub. L. 96–354), section 1102(b) of 

the Social Security Act, section 202 of 

the Unfunded Mandates Reform Act of 

1995 (March 22, 1995; Pub. L. 104–4), 

Executive Order 13132 on Federalism 

(August 4, 1999), the Congressional 

Review Act (5 U.S.C. 804(2)), and 

Executive Order 13771 on Reducing 

Regulation and Controlling Regulatory 

Costs (January 30, 2017). 

Executive Orders 12866 and 13563 

direct agencies to assess all costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). Section 3(f) of Executive Order 

12866 defines a ‘‘significant regulatory 

action’’ as an action that is likely to 

result in a rule: (1) Having an annual 

effect on the economy of $100 million 

or more in any 1 year, or adversely and 

materially affecting a sector of the 

economy, productivity, competition, 

jobs, the environment, public health or 

safety, or state, local or tribal 

governments or communities (also 

referred to as ‘‘economically 

significant’’); (2) creating a serious 

inconsistency or otherwise interfering 

with an action taken or planned by 

another agency; (3) materially altering 

the budgetary impacts of entitlement 

grants, user fees, or loan programs or the 

rights and obligations of recipients 

thereof; or (4) raising novel legal or 

policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the Executive 

Order. 

A regulatory impact analysis (RIA) 

must be prepared for regulatory actions 

with economically significant effects 

($100 million or more in any 1 year). 

Although we do not consider this 

document to constitute a substantive 

rule or regulatory action, the monetary 

impact of the changes announced in this 

document is approximately a $40 

million increase in low-volume hospital 

payments total for FYs 2011 through 

2017 relative to the estimates included 

in the respective FY IPPS/LTCH PPS 

final rules. 

C. Anticipated Effects 

The RFA requires agencies to analyze 

options for regulatory relief of small 

businesses, if a rule has a significant 

impact on a substantial number of small 

entities. For purposes of the RFA, small 

entities include small businesses, 

nonprofit organizations, and small 

government jurisdictions. We estimate 

that most hospitals and most other 

providers and suppliers are small 

entities as that term is used in the RFA. 

The great majority of hospitals and most 

other health care providers and 

suppliers are small entities, either by 

being nonprofit organizations or by 

meeting the SBA definition of a small 

business (having revenues of less than 

$7.5 to $34.5 million in any 1 year). (For 

details on the latest standard for health 

care providers, we refer readers to page 

33 of the Table of Small Business Size 

Standards for NAIC 622 at the Small 

Business Administration’s website at 

https://www.sba.gov/sites/default/files/ 

files/Size_Standards_Table.pdf.) For 

purposes of the RFA, all hospitals and 

other providers and suppliers are 

considered to be small entities. 

Individuals and States are not included 

in the definition of a small entity. We 

note that we expect the effects of the 

changes announced in this document to 

impact only approximately 15 

providers. 

In addition, section 1102(b) of the Act 

requires us to prepare a regulatory 

impact analysis if a rule may have a 

significant impact on the operations of 

a substantial number of small rural 

hospitals. This analysis must conform to 

the provisions of section 604 of the 

RFA. With the exception of hospitals 

located in certain New England 

counties, for purposes of section 1102(b) 

of the Act, we now define a small rural 

hospital as a hospital that is located 

outside of an urban area and has fewer 


daltland on DSKBBV9HB2PROD with RULES
42600 Federal Register / Vol. 83, No. 164 / Thursday, August 23, 2018 / Rules and Regulations 

than 100 beds. Section 601(g) of the 

Social Security Amendments of 1983 

(Pub. L. 98–21) designated hospitals in 

certain New England counties as 

belonging to the adjacent urban area. 

Thus, for purposes of the IPPS, we 

continue to classify these hospitals as 

urban hospitals. As noted previously, 

we expect the effects of the changes 

announced in this document to impact 

only approximately 15 providers. 

Section 202 of the Unfunded 

Mandates Reform Act of 1995 (UMRA) 

(Pub. L. 104–4) also requires that 

agencies assess anticipated costs and 

benefits before issuing any rule whose 

mandates require spending in any 1 year 

of $100 million in 1995 dollars, updated 

annually for inflation. In 2018, that 

threshold is approximately $150 

million. The changes announced in this 

document will not mandate any 

requirements for State, local, or tribal 

governments, nor will it affect private 

sector costs. 

Executive Order 13132 establishes 

certain requirements that an agency 

must meet when it promulgates a 

proposed rule (and subsequent final 

rule) that imposes substantial direct 

requirement costs on State and local 

governments, preempts State law, or 

otherwise has Federalism implications. 

The changes announced in this 

document will not have a substantial 

effect on State and local governments. 

Executive Order 13771, entitled 

‘‘Reducing Regulation and Controlling 

Regulatory Costs,’’ was issued on 

January 30, 2017, and requires that the 

costs associated with significant new 

regulations ‘‘shall, to the extent 

permitted by law, be offset by the 

elimination of existing costs associated 

with at least two prior regulations.’’ It 

has been determined that the provisions 

announced in this document are actions 

that primarily result in transfers, and 

thus are not a regulatory or deregulatory 

action for the purposes of Executive 

Order 13771. 

V. Waiver of Proposed Rulemaking and 

Delay of Effective Date 

We ordinarily publish a notice of 

proposed rulemaking in the Federal 

Register and invite public comment 

prior to a rule taking effect in 

accordance with section 553(b) of the 

Administrative Procedure Act (APA) 

and section 1871 of the Act. In addition, 

in accordance with section 553(d) of the 

APA and section 1871(e)(1)(B)(i) of the 

Act, we ordinarily provide a 30 day 

delay to a substantive rule’s effective 

date. For substantive rules that 

constitute major rules, in accordance 

with 5 U.S.C. 801, we ordinarily provide 

a 60-day delay in the effective date. 

None of the processes or effective date 

requirements apply, however, when the 

rule in question is interpretive, a general 

statement of policy, or a rule of agency 

organization, procedure or practice. 

They also do not apply when the statute 

establishes rules that are to be applied, 

leaving no discretion or gaps for an 

agency to fill in through rulemaking. 

In addition, an agency may waive 

notice and comment rulemaking, as well 

as any delay in effective date, when the 

agency for good cause finds that notice 

and public comment on the rule as well 

the effective date delay are 

impracticable, unnecessary, or contrary 

to the public interest. In cases where an 

agency finds good cause, the agency 

must incorporate a statement of this 

finding and its reasons in the rule 

issued. 

The policies being publicized in this 

document do not constitute agency 

rulemaking. Rather, the statute, as 

amended by the Consolidated 

Appropriations Act, 2018, has already 

required that the agency make these 

changes, and we are simply notifying 

the public of the changes to the payment 

adjustment for low-volume hospitals for 

FYs 2011 through 2017 relating to the 

application of the mileage criterion for 

IHS and non-IHS hospitals. As this 

document merely informs the public of 

these changes, it is not a rule and does 

not require any notice and comment 

rulemaking. To the extent any of the 

policies articulated in this document 

constitute interpretations of the statute’s 

requirements or procedures that will be 

used to implement the statute’s 

directive, they are interpretive rules, 

general statements of policy, and rules 

of agency procedure or practice, which 

are not subject to notice and comment 

rulemaking or a delayed effective date. 

However, to the extent that notice and 

comment rulemaking, a delay in 

effective date, or both would otherwise 

apply, we find good cause to waive such 

requirements. Specifically, we find it 

unnecessary to undertake notice and 

comment rulemaking in this instance as 

this document does not propose to make 

any substantive changes to the policies 

or methodologies already in effect as a 

matter of law, but simply applies 

payment adjustments under the 

Consolidated Appropriations Act, 2018 

to these existing policies and 

methodologies. As the changes outlined 

in this document have already taken 

effect, it would also be impracticable to 

undertake notice and comment 

rulemaking. For these reasons, we also 

find that a waiver of any delay in 

effective date, if it were otherwise 

applicable, is necessary to comply with 

the requirements of the Consolidated 

Appropriations Act, 2018. Therefore, we 

find good cause to waive notice and 

comment procedures as well as any 

delay in effective date, if such 

procedures or delays are required at all. 

Dated: August 16, 2018. 

Seema Verma, 

Administrator, Centers for Medicare & 

Medicaid Services. 

[FR Doc. 2018–18271 Filed 8–22–18; 8:45 am] 

BILLING CODE 4120–01–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Federal Emergency Management 

Agency 

44 CFR Part 64 

[Docket ID FEMA–2018–0002; Internal 

Agency Docket No. FEMA–8543] 

Suspension of Community Eligibility 

AGENCY: Federal Emergency 

Management Agency, DHS. 

ACTION: Final rule. 

SUMMARY: This rule identifies 

communities where the sale of flood 

insurance has been authorized under 

the National Flood Insurance Program 

(NFIP) that are scheduled for 

suspension on the effective dates listed 

within this rule because of 

noncompliance with the floodplain 

management requirements of the 

program. If the Federal Emergency 

Management Agency (FEMA) receives 

documentation that the community has 

adopted the required floodplain 

management measures prior to the 

effective suspension date given in this 

rule, the suspension will not occur and 

a notice of this will be provided by 

publication in the Federal Register on a 

subsequent date. Also, information 

identifying the current participation 

status of a community can be obtained 

from FEMA’s Community Status Book 

(CSB). The CSB is available at https:// 

www.fema.gov/national-floodinsurance-program-community-statusbook. 

DATES: The effective date of each 

community’s scheduled suspension is 

the third date (‘‘Susp.’’) listed in the 

third column of the following tables. 

FOR FURTHER INFORMATION CONTACT: If 

you want to determine whether a 

particular community was suspended 

on the suspension date or for further 

information, contact Adrienne L. 

Sheldon, PE, CFM, Federal Insurance 

and Mitigation Administration, Federal 

Emergency Management Agency, 400 C 


daltland on DSKBBV9HB2PROD with RULES