[Federal Register Volume 73, Number 193 (Friday, October 3, 2008)]
[Rules and Regulations]
[Pages 57541-57543]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-23082]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Parts 411, 412, 413, 422, and 489

[CMS-1390-CN; CMS-1531-CN; CMS-1385-CN2]
RIN 0938-AP15; RIN 0938-AO35; RIN 0938-AO65


Medicare Program; Changes to the Hospital Inpatient Prospective 
Payment Systems and Fiscal Year 2009 Rates; Payments for Graduate 
Medical Education in Certain Emergency Situations; Changes to 
Disclosure of Physician Ownership in Hospitals and Physician Self-
Referral Rules; Updates to the Long-Term Care Prospective Payment 
System; Updates to Certain IPPS-Excluded Hospitals; and Collection of 
Information Regarding Financial Relationships Between Hospitals; 
Correction

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

ACTION: Correction of final rules.

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SUMMARY: This document corrects technical and typographical errors that 
appeared in the final rule published in the Federal Register on August 
19, 2008, entitled ``Medicare Program; Changes to the Hospital 
Inpatient Prospective Payment Systems and Fiscal Year 2009 Rates; 
Payments for Graduate Medical Education in Certain Emergency 
Situations; Changes to Disclosure of Physician Ownership in Hospitals 
and Physician Self-Referral Rules; Updates to the Long-Term Care 
Prospective Payment System; Updates to Certain IPPS-Excluded Hospitals; 
and Collection of Information Regarding Financial Relationships Between 
Hospitals.''

DATES: Effective Date: Except for the items listed in section IV.B.3.a. 
through e. of this notice, the items listed in this correction notice 
are effective on October 1, 2008. The items listed in section IV.B.3.a. 
through e. of this notice are effective on October 1, 2009.

FOR FURTHER INFORMATION CONTACT: Tzvi Hefter (410) 786-4487, 
Corrections to the preamble and addendum. Donald Romano, (410) 786-1401 
or Lisa Ohrin, (410) 786-4565, Corrections to the regulations text for 
part 411.

SUPPLEMENTARY INFORMATION: 

I. Background

    In FR Doc. E8-17914 of August 19, 2008 (73 FR 48434), the final 
rule entitled Medicare Program; Changes to the Hospital Inpatient 
Prospective Payment Systems and Fiscal Year 2009 Rates; Payments for 
Graduate Medical Education in Certain Emergency Situations; Changes to 
Disclosure of Physician Ownership in Hospitals and Physician Self-
Referral Rules; Updates to the Long-Term Care Prospective Payment 
System; Updates to Certain IPPS-Excluded Hospitals; and Collection of 
Information Regarding Financial Relationships Between Hospitals'' 
(hereinafter referred to as the FY 2009 IPPS final rule) there were a 
number of technical and typographical errors that are identified and 
corrected in the Correction of Errors section below. We note that the 
FY 2009 IPPS final rule had several effective dates (see 73 FR 48343); 
and therefore, we are conforming the effective dates of the items 
listed in this notice with the effective dates specified in the FY 2009 
IPPS final rule.

II. Summary of Errors

A. Errors in the Preamble

    On page 48434, in the effective dates section of the final rule, we 
specified that Sec.  411.357(p)(1)(i)(A) and (B) are effective on 
October 1, 2009. However, we made a technical error in codifying these 
paragraphs (see sections II.B. and IV.B.3.e.(B). of this notice). To 
ensure that the cross-reference is consistent with the regulations in 
Sec.  411.357(p), we are correcting the cross-reference in section 
IV.A.1 of this notice.
    On pages 48491, 48497, and 48773, we made inadvertent typographical 
errors in two figures and a date. We correct these errors in section 
IV.A.2, 3, and 8 of this notice.
    On page 48509, we stated that we were finalizing several codes and 
that these codes will be added to the MCE edit for males only. However, 
through an inadvertent error the codes were not included in the final 
FY 2009 MCE edits. Therefore, in section IV.A.4. of this notice, we 
correct this discussion by adding language to note that the codes for 
MCE edit for males only will be added to the MCE codes for FY 2010.
    On page 48566, we discuss the analysis conducted by Acumen 
comparing MedPAC's recommended wage indices to the current CMS wage 
index. In section IV.A.5 of this notice, we correct this discussion by 
adding a parenthetical statement to clarify that the wage index data 
that we provided did not include the effects of sections 505 and 508 of 
the Medicare Prescription Drug, Improvement, and Modernization Act of 
2003 (MMA).
    On page 48646, we discuss the deadline for submission of emergency 
Medicare graduate medical education (GME) affiliation agreements. In 
our example, we incorrectly stated the date by which hospitals are 
permitted to submit an emergency Medicare GME Affiliation agreement for 
the period from March 1, 2009, to June 30, 2009, and the period from 
July 1, 2009, to June 30, 2010. The dates referenced were August 28, 
2009, and August 28, 2010, respectively. In section IV.A.6 of this 
correction notice, we corrected these inadvertent errors.
    On page 48648, we discuss the rolling average and cap adjustments 
for FTE residents. In this discussion, we incorrectly stated that FTE 
residents training in new teaching hospitals and in new residency 
programs at existing teaching hospitals are excluded from the rolling 
average for the minimum accredited length of the program. In section 
IV.A.7. of this notice, we have corrected this error by revising this 
sentence to clarify that, in accordance with the regulations at Sec.  
413.79(d)(5), the exclusion from the rolling average applies for new 
programs that qualify for the cap adjustment under Sec.  413.79(e).

[[Page 57542]]

B. Errors in the Regulation Text

    On page 48751, in the regulations text for Sec.  411.353(c)(1)(ii) 
and (iii) and (g)(1), we made grammatical and typographical errors. We 
are correcting these errors in section IV.B.1. of this notice.
    On page 48752, in the regulations text for Sec.  411.354(c)(1)(ii), 
we inadvertently omitted the quotation marks for the phrase ``stand in 
the shoes''. In section IV.B.2. of this notice, we are correcting this 
error.
    On pages 48752 and 48753, in the regulations text for Sec.  
411.357, we note the following errors:
    <bullet> In paragraphs (a)(5)(ii)(B), (b)(4)(ii)(B), (l)(3)(ii), 
and (p)(1)(i)(B) regarding rental of office space, rental of equipment, 
fair market value compensation, and indirect compensation arrangements, 
respectively, we inadvertently included the phrase ``between the 
parties'' instead of the phrase ``by the lessor to the lessee''. 
Therefore, our regulations text for these paragraphs do not accurately 
reflect our policy in the FY 2009 IPPS final rule (see 73 FR 48713 
through 48714). We are correcting these errors in section IV.B.3., a., 
c., d., and e.D. of this notice.
    <bullet> In paragraph (b)(4)(ii)(A) regarding rental changes, we 
made a grammatical error in using the term ``by'' instead of 
``through''. We are correcting this error in section IV.B.3.b. of this 
notice.
    <bullet> In paragraph (p)(1)(i), we inadvertently included the last 
sentence as part of this paragraph instead of making that sentence the 
beginning of paragraph (p)(1)(ii). In section IV.B.3.e.B.., we are 
correcting this error by redesignating this language as paragraph 
(p)(1)(ii).
    <bullet> In paragraph (p)(1)(i)(A) (redesignated as paragraph 
(p)(1)(ii)(A)) (see section IV.B.3.e.C. of this notice) regarding 
compensation for the rental of office space or equipment, we 
inadvertently omitted the term ``on'' from the phrase ``performed or 
business generated through''. We are correcting this omission in 
section III.B.3.e.(3). of this notice.
    <bullet> In paragraphs (p)(1)(ii) and (iii), we inadvertently 
included regulatory text that also appears in paragraphs (p)(2) and (3) 
and is applicable to paragraph (p) in its entirety. In section 
IV.B.3.e.A. of this notice, we are correcting these errors by removing 
paragraphs (p)(1)(ii) and (iii).
    <bullet> In paragraph (r)(2)(ii) regarding remuneration of 
obstetrical malpractice insurance subsidies, we made grammatical errors 
when using the term ``payments''. In section IV.B.3.f.A. of this 
notice, we are correcting the term to read ``payment''.
    <bullet> In paragraph (r)(3)(ii)(B) regarding the cost of 
malpractice insurance premiums, we inadvertently included the phrase 
``rural area or'' which does not conform to the policy in the FY 2009 
IPPS final rule (see 73 FR 48734). In section IV.B.3.f.B. of this 
notice, we are correcting this error by removing the phrase.

C. Errors in the Addendum

    On pages 48827 and 48881, in Tables 2 and 3, we had erroneous wage 
data for provider number 300005 and rural New Hampshire, respectively. 
Therefore, we are correcting these errors in sections IV.C.1. and 2. of 
this notice. We note that the corrections to the wage data for the New 
Hampshire provider specified in this notice are consistent with our 
regulations at 42 CFR 412.64(k)(2)(ii). We also note that wage data 
corrections for this provider are also reflected in the FY 2009 final 
rates, wage indices, budget neutrality factors and tables included in 
the notice subsequent to the FY 2009 IPPS final rule published 
elsewhere in this Federal Register.
    On pages 49044, 49046, and 49060, we made technical errors in the 
MS-LTC-DRG titles for several MS-LTC-DRGs (that is, MS-LTC-DRGs 154 
through 156, 250, 251 and 864). We need to correct these titles so that 
they are consistent with the MS-DRG titles presented in Table 5 of the 
FY 2009 IPPS final rule since the patient classification system 
utilized under the LTCH PPS uses the same diagnosis-related groups 
(DRGs) as those used under the IPPS. Therefore, we are correcting these 
errors in section IV.C.3. of this notice.

III. 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. Therefore, we are waiving proposed rulemaking and the 30-
day delayed effective date for the technical corrections in this 
notice. This notice merely corrects typographical and technical errors 
in the preamble, regulations text, and addendum of the FY 2009 IPPS 
final rule and does not make substantive changes to the policies or 
payment methodologies that were adopted in the final rule. As a result, 
this notice is intended to ensure that the FY 2009 IPPS final rule 
accurately reflects the policies adopted in the final rule. Therefore, 
we find that undertaking further notice and comment procedures to 
incorporate these corrections into the final rule or delaying the 
effective date of these changes is unnecessary and contrary to the 
public interest.

IV. Correction of Errors

    In FR Doc. E8-17914 of August 19, 2008 (73 FR 48434), make the 
following corrections:

A. Corrections to the Preamble

    1. On page 48434, second column, third full paragraph, line 8, the 
cross-reference ``(p)(1)(i)(A) and (B)'' is corrected to read 
``(p)(1)(ii)''.
    2. On page 48491, top half of the page, in the untitled table, 
second column (CC/MCC (ICD-9-CM codes)), line 25, the figures ``81.31-
81.83'' are corrected to read ``81.31-81.38''.
    3. On page 48497, first column, fourth full paragraph, last line, 
the phrase ``October 1, 2009'' is corrected to read ``October 1, 
2008''.
    4. On page 48509, first column, fifth full paragraph, last line is 
corrected by adding the following sentences:
    ``However, there was an inadvertent omission of these codes from 
the MCE product. Therefore, we will add these codes in the MCE for FY 
2010.''
    5. On page 48566, third column, first full paragraph, line 11, 
after the phrase ``FY 2007.'' and before the word ``Acumen's'', the 
text is corrected by adding the following parenthetical sentence:
    ``(Note that the CMS final wage index Acumen analyzed excludes or 
removes the effects of sections 505 and 508 of MMA.)''
    6. On page 48646, first column, first paragraph
    a. Line 36, the date ``August 28, 2009'' is corrected to read 
``December 29, 2009''.
    b. Line 43, the date ``August 28, 2010'' is corrected to read 
``December 29, 2010''.

[[Page 57543]]

    7. On page 48648, third column, first paragraph, line 7, the 
sentence ``However, FTE residents training in new teaching hospitals 
and in new residency programs at existing teaching hospitals are 
excluded from the rolling average for the minimum accredited length of 
the program (dental and podiatry residents are always exempt from the 
rolling average.'' is corrected to read ``However, FTE residents 
training in new residency training programs that qualify for cap 
adjustments under Sec.  413.79(e) are excluded from the rolling average 
for the minimum accredited length of the program.''
    8. On page 48773, second column, last paragraph, line 8, the figure 
``0.09'' is corrected to read ``0.9''.

B. Corrections to the Regulation Text


Sec.  411.353  [Corrected]

0
1. Section 411.353 is corrected by--
0
a. On page 48751, in the second column, in paragraphs (c)(1)(ii) and 
(iii), removing the second and third commas.
0
b. On the same page, in the third column, in paragraph (g)(1)(i), 
removing the word ``complied' and adding the word ``complies'' in its 
place.
0
c. On same page in the same column, in paragraph (g)(1)(ii)(A), 
removing the phrase ``Inadvertent, and the parties obtain the required 
signature(s) within 90 consecutive calendar days immediately following 
the date on which the compensation arrangement becomes'' and adding the 
phrase ``Inadvertent and the parties obtain the required signature(s) 
within 90 consecutive calendar days immediately following the date on 
which the compensation arrangement became'' in its place.
0
d. On the same page, in the same column, in paragraph (g)(1)(ii)(B), 
removing the phrase ``Not inadvertent, and the parties obtain the 
required signature(s) within 30 consecutive calendar days immediately 
following the date on which the compensation arrangement becomes'' and 
adding the phrase ``Not inadvertent and the parties obtain the required 
signature(s) within 30 consecutive calendar days immediately following 
the date on which the compensation arrangement became'' in its place.


Sec.  411.354  [Corrected]

0
2. On page 48752, in the first columne, Sec.  411.354(c)(1)(ii) 
introductory text is corrected by adding quotation marks to the phrase 
``stand in the shoes''.


Sec.  411.357  [Corrected]

0
3. Section 411.357 is corrected by--
0
a. On page 45752, in the third column, in paragraph (a)(5)(ii)(B), 
removing the phrase ``between the parties'' and adding the phrase ``by 
the lessor to the lessee'' in its place.
0
b. On the same page, in the same column, in paragraph (b)(4)(ii)(A), 
removing the word ``by'' and adding the word ``through'' in its place.
0
c. On the same page, in the same column, in paragraph (b)(4)(ii)(B), 
removing the phrase ``between the parties'' and adding the phrase ``by 
the lessor to the lessee'' in its place.
0
d. On page 48753, in the first column, in paragraph (l)(3)(ii), 
removing the phrase ``between the parties'' and adding the phrase ``by 
the lessor to the lessee'' in its place.
0
e. On the same page, in the second column, in paragraph (p)(1)--
0
A. Removing paragraphs (p)(1)(ii) and (iii).
0
B. Redesignating the last sentence of paragraph (p)(1)(i) as paragraph 
(p)(1)(ii).
0
C. In newly redesignated paragraph (p)(1)(ii)(A), removing the phrase 
``performed or business generated through'' and adding the phrase 
``performed on or business generated through'' in its place.
0
D. In newly redesignated paragraph (p)(1)(ii)(B), removing the phrase 
``between the parties'' and adding the phrase ``by the lessor to the 
lessee'' in its place.
0
f. In paragraph (r)--
0
A. On the same page, in the third column, in paragraph (r)(2)(ii), 
removing the phrase ``specifies the payments to be made by the 
hospital, federally qualified health center, or rural health clinic and 
the terms under which the payments are'' and adding the phrase 
``specifies the payment to be made by the hospital, federally qualified 
health center, or rural health clinic and the terms under which the 
payment is'' in its place.
0
B. On page 48754, in the first column, in paragraph (r)(3)(ii)(B), 
removing the phrase ``rural area or''.

C. Corrections to the Addendum

    1. On page 48827, in Table 2.--Hospital Case-Mix Indexes for 
Discharges Occurring in Federal Fiscal Year 2007; Hospital Wage Indexes 
for Federal Fiscal Year 2009; Hospital Average Hourly Wages for Federal 
Fiscal Years 2007 (2003 Wage Data), 2008 (2004 Wage Data), and 2009 
(2005 Wage Data); and 3-Year Average of Hospital Average Hourly Wages, 
the FY 2009 average hourly wage and the 3-year average hourly wage for 
provider number 300005 are corrected to read as follows:

------------------------------------------------------------------------
                                                    Average     Average
                                                    hourly      hourly
                  Provider No.                     wage  FY    wage** (3
                                                   2009 \1\     years)
------------------------------------------------------------------------
300005..........................................    28.2602     28.8266
------------------------------------------------------------------------

    2. On page 48881, in Table 3B.--FY 2009 and 3-Year* Average Hourly 
Wage for Rural Areas by CBSA, the FY 2009 Average Hourly Wage and 3-
Year Average Hourly wage for the CBSA Code 30 are corrected to read as 
follows:

------------------------------------------------------------------------
                                                    FY 2009     3-Year
                                                    average     average
     CBSA code              Nonurban area           hourly      hourly
                                                     wage        wage
------------------------------------------------------------------------
30.................  New Hampshire..............    33.1415     32.7814
------------------------------------------------------------------------

    3. On pages 49044, 49046, and 49060, in Table 11.--FY 2009 MS-LTC-
DRGs, Relative Weights, Geometric Average Length of Stay, and Short-
Stay Outlier (SSO) Threshold, the MS-LTC-DRGs titles for the listed MS-
LTC-DRGs are corrected as follows:

------------------------------------------------------------------------
            MS-LTC-DRG                        MS-LTC-DRG Title
------------------------------------------------------------------------
154...............................  Other ear, nose, mouth, and throat
                                     diagnoses w MCC.
155...............................  Other ear, nose, mouth, and throat
                                     diagnoses w CC.
156...............................  Other ear, nose, mouth, and throat
                                     diagnoses w/o CC/MCC.
250...............................  Perc cardiovasc proc w/o coronary
                                     artery stent w MCC.
251...............................  Perc cardiovasc proc w/o coronary
                                     artery stent w/o MCC.
864...............................  Fever.
------------------------------------------------------------------------

(Catalog of Federal Domestic Assistance Program No. 93.773, 
Medicare--Hospital Insurance; and Program No. 93.774, Medicare--
Supplementary Medical Insurance Program)

    Dated: September 25, 2008.
Ann C. Agnew,
Executive Secretary to the Department.
[FR Doc. E8-23082 Filed 9-29-08; 11:15 am]
BILLING CODE 4120-01-P