[Federal Register Volume 86, Number 119 (Thursday, June 24, 2021)]
[Rules and Regulations]
[Pages 33135-33136]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-13324]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Parts 510

[CMS-5529-CN]
RIN 0938-AU01


Medicare Program: Comprehensive Care for Joint Replacement Model 
Three Year Extension and Changes to Episode Definition and Pricing; 
Medicare and Medicaid Programs; Policy and Regulatory Revisions in 
Response to the COVID-19 Public Health Emergency; Additional Policy and 
Regulatory Revisions in Response to the COVID-19 Public Health 
Emergency; Correction

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

ACTION: Final rule; correction.

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SUMMARY: This document corrects technical errors that appeared in the 
final rule published in the May 3, 2021, Federal Register, titled 
``Medicare Program: Comprehensive Care for Joint Replacement Model 
Three Year Extension and Changes to Episode Definition and Pricing; 
Medicare and Medicaid Programs; Policy and Regulatory Revisions in 
Response to the COVID-19 Public Health Emergency; Additional Policy and 
Regulatory Revisions in Response to the COVID-19 Public Health 
Emergency.''

DATES: This correction is effective on July 2, 2021.

FOR FURTHER INFORMATION CONTACT: Heather Holsey, (410) 786-0028.

SUPPLEMENTARY INFORMATION:

I. Background

    In FR Doc. 2021-09097 of May 3, 2021 (86 FR 23496), there were 
technical errors in the preamble that are identified and corrected in 
this correcting document. The provisions in this correction document 
apply as if they had been included in the document published May 3, 
2021.

II. Summary of Errors

    On page 23553, we stated that all Comprehensive Care for Joint 
Replacement (CJR) model procedures, as of CY 2021, could be performed 
in ambulatory surgical centers (ASCs), erroneously indicating that they 
would all be paid for by Medicare. We failed to note the exception to 
the ASC covered procedure list policy that excludes procedures that had 
been on

[[Page 33136]]

the inpatient only (IPO) list as of December 31, 2020, which is 
codified at 42 CFR 416.166(b)(2)(ii)(A). Therefore, we erroneously 
suggested that total ankle replacement (TAR) is on the list of ASC 
covered surgical procedures and can be paid for by Medicare when 
performed in the ASC, whereas TAR is actually subject to the exception 
at Sec.  416.166(b)(2)(ii)(A) and is not paid for by Medicare when 
performed in the ASC. We are revising that paragraph in the preamble to 
state that total knee arthroplasty (TKA) and total hip arthroplasty 
(THA) are both on the ASC covered surgical procedures list, and we are 
deleting the reference to TAR.

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 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 requires the agency to give 
interested parties the opportunity to participate in the rulemaking 
through public comment before the provisions of the 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 rule in 
the Federal Register and provide a period of not less than 60 days for 
public comment for rulemaking to 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 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, also provide exceptions from the 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 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 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 correcting document does not constitute a rule 
that would be subject to the notice and comment or delayed effective 
date requirements of the APA or section 1871 of the Act. This 
correcting document corrects technical errors in the preamble of the 
final rule but does not make substantive changes to the policies that 
were adopted in the final rule. As a result, this correcting document 
is intended to ensure that the information in the final rule accurately 
reflects the policies adopted in that final rule.
    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 to ensure that the final rule accurately reflects our 
policies. Furthermore, such procedures would be unnecessary, as we are 
not altering payment eligibility or benefit methodologies or policies, 
but rather, simply correcting the preamble description of policies that 
we previously proposed, received comment on, and subsequently 
finalized. This correcting document is intended solely to ensure that 
the final rule accurately reflects these policies. Therefore, we 
believe we have good cause to waive the requirements for notice and 
comment and delay of effective date.

IV. Correction of Errors

    In FR Doc. 2021-09097 of May 3, 2021 (86 FR 23496), make the 
following corrections:
    1. On page 23553, second column, first partial paragraph,
    a. Lines 6 through 11, the phrase ``remove TAR and certain other 
orthopedic procedures from the IPO list and allow all procedures not on 
the IPO list to be paid when furnished in both the outpatient hospital 
and ASC settings'' is corrected to read ``add THAs to the ASC covered 
procedures list''.
    b. Lines 11 through 13, the phrase ``all procedures included in the 
CJR model can, as of CY 2021, be performed in the ASC setting'' is 
corrected to read ``both TKA and THA may, as of CY 2021, be paid for by 
Medicare when furnished in the ASC setting''.
    c. Line 15, the phrase ``hospital setting is corrected to read 
``hospital settings.''

Karuna Seshasai,
Executive Secretary to the Department, Department of Health and Human 
Services.
[FR Doc. 2021-13324 Filed 6-23-21; 8:45 am]
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