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                    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                    
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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

# AGENCY:

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

# ACTION:

Final rules; correcting amendment.

# 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 §§ 405.932(i)(1), 405.936(d)(1), and 405.1210(b)(3), we are correcting errors in paragraph numbering.
    - In § 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 § 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                           ( print 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 §§ 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 §§ 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

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).

§ 405.932

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

§ 405.934

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”. 

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

§ 405.936

* * * * *

(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.

* * * * *

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

§ 405.1014

(a) * * *

(1) * * *

                            (i) The name, address, and Medicare number of the beneficiary whose claim is being appealed, and the beneficiary's                                   ( print page 106364)                                telephone number if the beneficiary is the appealing party and not represented.                        

* * * * *

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

§ 405.1210

* * * * *

(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