```

[Federal Register Volume 75, Number 249 (Wednesday, December 29, 2010)]
[Rules and Regulations]
[Pages 81885-81887]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-32861]

=======================================================================
-----------------------------------------------------------------------

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 e-prescribing 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 
Sec.  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 
hospital-based 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 Sec.  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 Sec.  
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 Sec.  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 Sec.  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 Sec.  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 Sec.  495.6(e)(1) by referencing this exclusion in 
accordance with Sec.  495.6(a)(2) ``Implement drug-formulary checks.''
    On page 44587, in Sec.  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 ``hospital-
based.''
    On page 44588, in Sec.  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 Sec.  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:

[[Page 81886]]

    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 Sec.  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 Sec.  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.

0
For the reasons set forth in the preamble, the Centers for Medicare & 
Medicare Services amends 42 CFR part 495 as follows:

[[Page 81887]]

PART 495--STANDARDS FOR THE ELECTRONIC HEALTH RECORD TECHNOLOGY 
INCENTIVE PROGRAM

0
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).

0
2. Section 495.6 is amended as follows:
0
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.
0
B. Add paragraph (e)(1)(iii) to read as follows:

Sec.  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.
* * * * *

Sec.  495.366  [Amended]

0
3. Amend Sec.  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.

Sec.  495.368  [Amended]

0
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
```