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[Federal Register Volume 89, Number 249 (Monday, December 30, 2024)]
[Rules and Regulations]
[Pages 106362-106364]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-31146]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Part 405

[CMS-4204-F2 & CMS-4174-F2]
RINs 0938-AV16 and 0938-AT27

Medicare Program: Appeal Rights for Certain Changes in Patient 
Status and Changes to the Medicare Claims and Medicare Prescription 
Drug Coverage Determination Appeals Procedures; Correcting Amendment

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

ACTION: Final rules; correcting amendment.

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SUMMARY: This document corrects technical errors in the final rule that 
appeared in the October 15, 2024, Federal Register titled ``Medicare 
Program: Appeal Rights for Certain Changes in Patient Status.'' It also 
corrects technical errors in the final rule that appeared in the May 7, 
2019, Federal Register titled ``Medicare Program; Changes to the 
Medicare Claims and Medicare Prescription Drug Coverage Determination 
Appeals Procedures.''

DATES: This correcting amendment is effective December 30, 2024.

FOR FURTHER INFORMATION CONTACT: Kristy Nishimoto, (206) 615-2367.

SUPPLEMENTARY INFORMATION:

I. Background

    In FR Doc. 2024-23195 of October 15, 2024 (89 FR 83240), the final 
rule titled ``Medicare Program: Appeal Rights for Certain Changes in 
Patient Status,'' there were technical errors associated with the 
regulations text that are identified and corrected in this correcting 
amendment.
    In FR Doc. 2019-09114 of May 7, 2019 (84 FR 19855), the final rule 
titled ``Medicare Program; Changes to the Medicare Claims and Medicare 
Prescription Drug Coverage Determination Appeals Procedures,'' there 
was a technical error associated with the regulation text that is 
identified and corrected in this correcting amendment.

II. Summary of Errors

    For the October 15, 2024, final rule, we are making the following 
corrections:
     In Sec. Sec.  405.932(i)(1), 405.936(d)(1), and 
405.1210(b)(3), we are correcting errors in paragraph numbering.
     In Sec.  405.934(c)(4)(viii), we are correcting a 
grammatical error in the use of the word ``party.''
    For the May 7, 2019, final rule, in Sec.  405.1014(a)(1)(i), we are 
removing the term ``health'' in the phrase ``Medicare health number'' 
because the word ``health'' is not necessary to describe an 
individual's Medicare number. ``Health'' was inadvertently included in 
the regulation text and we are deleting the unnecessary term to avoid 
confusion.

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 usually required to publish a notice of the proposed rule 
in the Federal Register before the provisions of a rule take effect. 
Specifically, 5 U.S.C. 553 requires the agency to publish a notice of 
the proposed rule in the Federal Register that includes a reference to 
the legal authority under which the rule is proposed, and the terms and 
substance of the proposed rule or a description of the subjects and 
issues involved. Further, 5 U.S.C. 553 generally requires the agency to 
give interested parties the opportunity to participate in the 
rulemaking through public comment before a final rule is issued. 
Section 1871(b)(1) of the Social Security Act (the Act) also generally 
requires the Secretary to provide for notice of the proposed rule in 
the Federal Register and provide a period of not less than 60 days for 
public comment for rules to

[[Page 106363]]

carry out the administration of the Medicare program under title XVIII 
of the Act. In addition, section 553(d) of the APA and section 
1871(e)(1)(B)(i) of the Act usually require 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, however, provide for exceptions from the notice 
and comment and delay in effective date APA requirements in some 
limited situations. In cases in which these exceptions apply, sections 
1871(b)(2)(C) and 1871(e)(1)(B)(ii) of the Act also provide exceptions 
from the advanced public notice and 60-day comment period and delay in 
effective date requirements of the Act. Section 553(b)(B) of the APA 
and section 1871(b)(2)(C) of the Act authorize an agency to dispense 
with certain rulemaking requirements for good cause if the agency makes 
a finding that the notice and comment process is impracticable, 
unnecessary, or contrary to the public interest. In addition, both 
section 553(d)(3) of the APA and section 1871(e)(1)(B)(ii) of the Act 
allow the agency to waive the normal 30-day delay in effective date 
where there is good cause or the delay in the effective date would be 
contrary to the public interest and the agency includes an appropriate 
finding to support the rule becoming effective sooner.
    We find there is good cause to issue this technical correction 
final rule without seeking advanced public comments based on the 
``unnecessary'' prong of the good cause exception allowed under section 
553(b)(B) of the APA and which is also expressly incorporated by cross-
reference in section 1871(b)(2)(C) of the Act. The corrections in this 
document are insignificant or technical in nature and impact and will 
largely be inconsequential to the public. CMS periodically issues 
correction notices to implement non-substantive edits to previously 
finalized rules. The non-substantive corrections described herein do 
not require regulated parties to adjust their behavior, and therefore 
are of little impact or consequence for the public. This correcting 
amendment simply corrects paragraph numbering and technical errors in 
the regulatory text of the aforementioned final rules but does not make 
substantive changes to the policies that were adopted in those final 
rules. As a result, this correcting amendment is intended to ensure 
that the regulations at Sec. Sec.  405.932, 405.934, 405.936, 405.1014, 
and 405.1210 accurately reflect the policies adopted in the final 
rules.
    Undertaking further notice and comment procedures to incorporate 
the regulatory text corrections in this document into the final rules 
or delaying the effective date would be unnecessary, as we are not 
altering our policies or regulatory changes, but rather, we are simply 
correcting paragraph numbering and technical errors that do not affect 
the requirements that we previously proposed, requested comment on, and 
subsequently finalized. This final rule correcting amendment is 
intended solely to ensure that the final rules and the Code of Federal 
Regulations (CFR) accurately reflect policies and regulatory changes 
that have been adopted through rulemaking.
    Additionally, we find there is good cause to waive the normal 30-
day delay in effective date for this technical correction final rule 
under section 553(d)(3) of the APA. The purpose of the 30-day delay in 
effective date under section 553(d) of the APA is to ``give affected 
parties a reasonable time to adjust their behavior before the final 
rule takes effect.'' Omnipoint Corp. v. FCC, 78 F.3d 620, 630 (D.C. 
Cir. 1996). These non-substantive, technical corrections do not make 
changes that would require the public to adjust their behavior in any 
manner, rendering a delayed effective date unnecessary. We also note 
that the requirement for a 30-day delay in effective date under section 
1871(e)(1)(B)(i) of the Act applies only to substantive changes; 
because the corrections described herein are non-substantive, the 
requirements of section 1871(e)(1)(B)(i) of the Act are inapplicable. 
Even if the changes could be construed as substantive, we find that 
additional delay would be contrary to the public interest under section 
1871(e)(1)(B)(ii) of the Act. We believe there is no need for the 
public to prepare for the nonsubstantive, technical corrections in this 
rule as they are merely correcting errors in form and designation in 
the regulation text specified in the previous final rules. Moreover, 
since we have announced that we are targeting January 1, 2025 for 
implementation of the retrospective appeals procedures in Sec. Sec.  
405.931 through 405.938, a 30-day delay in the effective date for these 
non-substantive, technical corrections could cause undue hardship for 
eligible parties who are preparing to exercise their right immediately 
once the appeal process is implemented and who may be entitled to 
financial relief following a favorable appeal.
    Therefore, for the reasons state previously, we find good cause to 
waive the notice and comment and effective date requirements.

List of Subjects in 42 CFR Part 405

    Administrative practice and procedure, Diseases, Health facilities, 
Health professions, Medical devices, Medicare, Reporting and 
recordkeeping requirements, Rural areas, X-rays.

    For the reasons set forth in the preamble, the Centers for Medicare 
& Medicaid Services corrects 42 CFR part 405 by making the following 
correcting amendments:

PART 405--FEDERAL HEALTH INSURANCE FOR THE AGED AND DISABLED

0
1. The authority citation for part 405 continues to read as follows:

    Authority: 42 U.S.C. 263a, 405(a), 1302, 1320b-12, 1395x, 
1395y(a), 1395ff, 1395hh, 1395kk, 1395rr, and 1395ww(k).

Sec.  405.932  [Amended]

0
2. Section 405.932 is amended by redesignating paragraphs (i)(1)(A) and 
(B) as paragraphs (i)(1)(i) and (ii).

Sec.  405.934  [Amended]

0
3. Section 405.934 is amended in paragraph (c)(4)(viii) by removing the 
phrase ``an eligible parties' right'' and adding in its place the 
phrase ``an eligible party's right''.

0
4. Section 405.936 is amended by revising paragraph (d)(1) to read as 
follows:

Sec.  405.936  Hearings before an ALJ and decisions by an ALJ or 
Attorney Adjudicator.

* * * * *
    (d) * * *
    (1)(i) If the ALJ or attorney adjudicator determines that the 
inpatient admission, and as applicable, eligible SNF services, 
satisfied the relevant criteria for Part A coverage at the time the 
services were furnished, then the ALJ or attorney adjudicator issues 
notice of the favorable decision to the eligible party (or the party's 
representative).
    (ii) The ALJ or attorney adjudicator also notifies the hospital and 
SNF, as applicable, in the case of a favorable determination for Part A 
coverage.
* * * * *

0
5. Section 405.1014 is amended by revising paragraph (a)(1)(i) to read 
as follows:

Sec.  405.1014  Request for an ALJ hearing or a review of a QIC 
dismissal.

    (a) * * *
    (1) * * *
    (i) The name, address, and Medicare number of the beneficiary whose 
claim is being appealed, and the beneficiary's

[[Page 106364]]

telephone number if the beneficiary is the appealing party and not 
represented.
* * * * *

0
6. Section 405.1210 is amended by adding paragraph (b)(3) to read as 
follows:

Sec.  405.1210  Notifying eligible beneficiaries of appeal rights when 
a beneficiary is reclassified from an inpatient to an outpatient 
receiving observation services.

* * * * *
    (b) * * *
    (3) When delivery of the notice is valid. Delivery of the written 
notice of appeal rights described in this section is valid if--
    (i) The eligible beneficiary (or the eligible beneficiary's 
representative) has signed and dated the notice to indicate that he or 
she has received the notice and can comprehend its contents, except as 
provided in paragraph (b)(4) of this section; and
    (ii) The notice is delivered in accordance with paragraph (b)(1) of 
this section and contains all the elements described in paragraph 
(b)(2) of this section.
* * * * *

Elizabeth J. Gramling,
Executive Secretary to the Department, Department of Health and Human 
Services.
[FR Doc. 2024-31146 Filed 12-27-24; 8:45 am]
BILLING CODE 4120-01-P
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