Document Headings

                    Document headings vary by document type but may contain                    the following:                  
                -                       the agency or agencies that issued and signed a document                    
                -                       the number of the CFR title and the number of each part                      the document amends, proposes to amend, or is directly                      related to                    
                -                       the agency docket number / agency internal file number                    
                -                       the RIN which identifies each regulatory action listed in                      the Unified Agenda of Federal Regulatory and Deregulatory                      Actions                    

                    See the                                          Document Drafting Handbook                                        for more details.                  

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

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

          - 42 CFR Parts 447 and 455
          - [CMS-2198-F2]
          - RIN-0938-AN09

# AGENCY:

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

# ACTION:

Final rule; correcting amendment.

# SUMMARY:

                        This correcting amendment corrects a technical error in the regulations text in the final rule published in the                         **Federal Register**                         on December 19, 2008 (73 FR 77904) entitled, “Disproportionate Share Hospital Payments.” In that final rule, we set forth data elements necessary to                               ( print page 18657)                            comply with the requirements of section 1923(j) of the Social Security Act (the Act) related to auditing and reporting of disproportionate share hospital payments under State Medicaid programs. The effective date was January 19, 2009.                    

# DATES:

*Effective Date:*                         This correcting amendment is effective April 24, 2009.                    

# FOR FURTHER INFORMATION CONTACT:

Venesa Day, (410) 786-8281.

Rory Howe, (410) 786-4878.

Rob Weaver, (410) 786-5914.

# SUPPLEMENTARY INFORMATION:

## I. Background

In FR Doc. E8-30000 issued on December 19, 2008 (73 FR 77904), there was a technical error that is identified and corrected in this correcting amendment. The correction in this document is effective April 24, 2009.

## II. Summary of Error in the Regulations Text

On page 77950 of the final rule, we made a technical error in the regulation text of § 447.299(c)(16). In this paragraph, the text provides a narrative description of how “total annual uncompensated care costs” are to be calculated from component data elements. The first sentence accurately names the component data elements and correctly describes the calculation. The last sentence attempts to condense the previous sentence by substituting references for component data elements as identified in previous paragraphs of § 447.299(c). However, the references are unintentionally incorrect.

The last sentence of the original final text indicates that the sum of paragraphs (c)(11) and (c)(15) should be subtracted from (c)(9), (c)(12), and (c)(13). This calculation would sum Medicaid uncompensated care costs and total uninsured inpatient and outpatient uncompensated care costs, then subtract this total from the sum of total Medicaid inpatient and outpatient payments, uninsured inpatient and outpatient revenue, and total applicable Section 1011 payments. This calculation is incorrect and could not be interpreted reasonably to result in “total annual uncompensated care costs”. Additionally, it erroneously contradicts section 1923(g) of the Social Security Act (the Act), § 447.299 and § 455 subpart D, and longstanding CMS policy.

The corrected text of the last sentence should read as follows: “This should equal the sum of paragraphs (c)(9), (c)(12), and (c)(13) subtracted from the sum of paragraphs (c)(10) and (c)(14) of this section.” This correction includes the correct references necessary to calculate accurately “total uncompensated care costs” consistent with section 1923(g) of the Act, § 447.299 and § 455 Subpart D, and longstanding CMS policy.

## 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 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.                

This action merely corrects a technical error in the December 19, 2008 final rule. We are not changing the policy contained in that rule, and further public comment is unnecessary. Therefore, we find there is good cause to waive notice and comment procedures and the 30-day delay in effective date for this action.

# List of Subjects in 42 CFR Part 447

      - Accounting
      - Administrative practice and procedure
      - Drugs
      - Grant programs-health
      - Health facilities
      - Health professions
      - Medicaid
      - Reporting and recordkeeping requirements, and Rural areas

Accordingly, 42 CFR chapter IV is corrected by making the following correcting amendment to part 447:

# PART 447—PAYMENTS FOR SERVICES

1. The authority citation for part 447 continues to read as follows: 

Authority:  Secs. 1102 of the Social Security Act (42 U.S.C. 1302).

2. Section 447.299 is amended by revising paragraph (c)(16) to read as follows: 

§ 447.299 

(c) * * *

                            (16)                             *Total annual uncompensated care costs.*                             The total annual uncompensated care cost equals the total cost of care for furnishing inpatient hospital and outpatient hospital services to Medicaid eligible individuals and to individuals with no source of third party coverage for the hospital services they receive less the sum of regular Medicaid FFS rate payments, Medicaid managed care organization payments, supplemental/enhanced Medicaid payments, uninsured revenues, and Section 1011 payments for inpatient and outpatient hospital services. This should equal the sum of paragraphs (c)(9),(c)(12), and (c)(13) subtracted from the sum of paragraphs (c)(10) and (c)(14) of this section.                        

(Catalog of Federal Domestic Assistance Program No. 93.778, Medical Assistance Program)

Dated: April 13, 2009.

Ashley Files Flory,

Acting Executive Secretary to the Department.

[FR Doc. E9-9232 Filed 4-23-09; 8:45 am]

BILLING CODE 4120-01-P