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

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

          - 42 CFR Parts 409, 410, 414, 424, 484, 488, and 489
          - [CMS-1780-CN]
          - RIN 0938-AV03

# AGENCY:

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

# ACTION:

Final rule; correction.

# SUMMARY:

                        This document corrects technical errors in the final rule that appeared in the November 13, 2023                         **Federal Register**                         titled “Medicare Program; Calendar Year (CY) 2024 Home Health (HH) Prospective Payment System Rate Update; HH Quality Reporting Program Requirements; HH Value-Based Purchasing Expanded Model Requirements; Home Intravenous Immune Globulin Items and Services; Hospice Informal Dispute Resolution and Special Focus Program Requirements, Certain Requirements for Durable Medical Equipment Prosthetics and Orthotics Supplies; and Provider and Supplier Enrollment Requirements” (referred to hereafter as the “CY 2024 HH PPS final rule”).                    

# DATES:

*Effective date:*                         This correcting document is effective January 31, 2024.                    

# FOR FURTHER INFORMATION CONTACT:

                        For questions about the Home Health Quality Reporting Program (HH QRP), send your inquiry via email to                         *HHQRPquestions@cms.hhs.gov.*

                        For questions about the expanded Home Health Value-Based Purchasing Model, please visit the Expanded HHVBP Model web page at                         *https://innovation.cms.gov/​innovation-models/​expanded-home-health-value-based-purchasing-model;*                         send your inquiry via email to                         *HHVBPquestions@cms.hhs.gov;*                         or call Marcie O'Reilly at (410) 786-9764.                    

                        For questions about the hospice informal dispute resolution send inquiries to                         *QSOG_Hospice@cms.hhs.gov,*                         and for the special focus program, send your inquiry to                         *CMS_HospiceSFP@cms.hhs.gov,*                         or call Thomas Pryor at (410) 786-1332.                    

# SUPPLEMENTARY INFORMATION:

## I. Background

                    This correcting document identifies and corrects errors in FR Doc. 2023-24455 of November 13, 2023 (88 FR 77676). The corrections in this correcting document are effective January 1, 2024, as if they had been included in the document that appeared in the November 13, 2023,                     **Federal Register**                    .                

## II. Summary of Errors

On pages 77680, 77761, 77767, and 77851 in our discussion of the Home Health Quality Reporting Program (HH QRP), we made several typographical errors.

On pages 77778 and 77779, in a table regarding the proposed measures for the Home Health Value-Based Purchasing Model (HHVBP), we made typographical and technical errors.

On pages 77801, 77802, and 77807, in our discussion of the Hospice Informal Dispute Resolution and Special Focus Program, we made several typographical and technical errors.

We are correcting these errors in section IV. of this correcting document.

## 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 Social Security Act (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                           ( print page 6020)                        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 technical errors in the preamble of the CY 2024 HH PPS final rule 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 CY 2024 HH 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 information regarding the relevant Medicare payment policy in as timely a manner as possible, and to ensure that the CY 2024 HH 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 CY 2024 HH 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 for changes effective on January 1, 2024, because it is in the public's interest for providers to receive information regarding the relevant Medicare payment policy in as timely a manner as possible, and to ensure that the CY 2024 HH PPS final rule accurately reflects our policies.

## IV. Correction of Errors

In FR Doc. 2023-24455 of November 13, 2023 (88 FR 77676), make the following corrections:

1. On page 77680, top of the page, the table titled “Table Al: Summary of Costs, Transfers, and Benefits”, second row (HH QRP), third column (Transfers), line 6, the phrase “M2220—Therapy Needs” is corrected to read “M2200—Therapy Need”.

2. On page 77761, first column, second full paragraph, line 6, the date “April 1, 2024” is corrected to read “April 1, 2023”.

3. On page 77767, in the third column,

a. First partial paragraph, line 7, the date “April 1, 2024” is corrected to read “April 1, 2023”.

b. First full paragraph, line 6, the date “April 1, 2024” is corrected to read “April 1, 2023”.

4. On page 77778, in the table titled “TABLE D2: PROPOSED MEASURE SET FOR THE EXPANDED HHVBP MODEL”, columns 3 (Numerator) and 4 (Denominator) for the listed entries are corrected to read as follows:
      ( print page 6021)    
                    5. On page 77779, following the table titled “Table D2: Proposed Measure Set for the Expanded HHVBP Model”, table note 3 “ 3                                         *https://www.cms.gov/​files/​document/​hh-qrp-specificationspotentiallypreventablehospitalizations.pdf*                    ” is corrected to read “ 3                                         *https://www.cms.gov/​files/​document/​home-health-outcome-measures-table-oasis-e2023.pdf*                    ”.                

6. On page 77801, first column, first partial paragraph, line 4, the phrase “the iQIES).” is corrected to read “the iQIES.”.

7. On page 77802,

a. First column, first full paragraph, line 32, the phrase “ `Sometimes';” is corrected to read “ `Sometimes'.”.

b. Second column, first full paragraph, line 11, the phrase “top-box option: 9-10)” is corrected to read “top-box options: 9-10)”.

8. On page 77807, second column, second full paragraph, line 5, the term “BBVs” is corrected to read “bottom-box scores”.

9. On page 77851, top half of the page, first column, sixth full paragraph, lines 6 and 7, the date “April 1, 2024” is corrected to read “April 1, 2023,”.

Elizabeth J. Gramling,

Executive Secretary, Department of Health and Human Services.

BILLING CODE 4120-01-P

[FR Doc. 2024-01094 Filed 1-30-24; 8:45 am]

BILLING CODE 4120-01-C