26546 Federal Register / Vol. 74, No. 105 / Wednesday, June 3, 2009 / Rules and Regulations 

Federalism (64 FR 43255, August 10, 

1999) and Executive Order 13175, 

entitled Consultation and Coordination 

with Indian Tribal Governments (65 FR 

67249, November 9, 2000) do not apply 

to this final rule. In addition, this final 

rule does not impose any enforceable 

duty or contain any unfunded mandate 

as described under Title II of the 

Unfunded Mandates Reform Act of 1995 

(UMRA) (Public Law 104–4). 

This action does not involve any 

technical standards that would require 

Agency consideration of voluntary 

consensus standards pursuant to section 

12(d) of the National Technology 

Transfer and Advancement Act of 1995 

(NTTAA), Public Law 104–113, section 

12(d) (15 U.S.C. 272 note). 

VIII. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report to each House of 

the Congress and to the Comptroller 

General of the United States. EPA will 

submit a report containing this rule and 

other required information to the U.S. 

Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the United States prior to 

publication of this final rule in the 

Federal Register. This final rule is not 

a ‘‘major rule’’ as defined by 5 U.S.C. 

804(2). 

List of Subjects in 40 CFR Part 180 

Environmental protection, 

Administrative practice and procedure, 

Agricultural commodities, Pesticides 

and pests, Reporting and recordkeeping 

requirements. 

Dated: May 20, 2009. 

W. Michael McDavit, 

Acting Director, Biopesticides and Pollution 

Prevention Division, Office of Pesticide 

Programs. 

■ Therefore, 40 CFR chapter I is 

amended as follows: 

PART 180—[AMENDED] 

■ 1. The authority citation for part 180 

continues to read as follows: 

Authority: 21 U.S.C. 321(q), 346a and 371. 

■ 2. Section 180.1206(b) is revised to 

read as follows: 

§ 180.1206 Aspergillus flavus AF36, 

exemption from the requirement of a 

tolerance. 

* * * * * 

(b) Aspergillus flavus AF36 is 

temporarily exempt from the 

requirement of a tolerance on pistachio 

when used in accordance with the 

Experimental Use Permit, EPA File 

Symbol 71693–EUP–1. This temporary 

exemption from tolerance expires on 

December 31, 2011. 

* * * * * 

[FR Doc. E9–12788 Filed 6–2–09; 8:45 am] 

BILLING CODE 6560–50–S 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

42 CFR Part 412 

[CMS–1337–IFC] 

RIN 0938–AP76 

Medicare Program; Revisions to FY 

2009 Medicare Severity-Long-Term 

Care Diagnosis-Related Group (MS– 

LTC–DRG) Weights 

AGENCY: Centers for Medicare & 

Medicaid Services (CMS), HHS. 

ACTION: Interim final rule with comment 

period. 

SUMMARY: This interim final rule with 

comment period implements revised 

Medicare severity long-term care 

diagnosis-related group (MS–LTC–DRG) 

relative weights for payment under the 

long-term care hospital (LTCH) 

prospective payment system (PPS) for 

federal fiscal year (FY) 2009. We are 

revising the MS–LTC–DRG relative 

weights for FY 2009 due to the 

misapplication of our established 

methodology in the calculation of the 

budget neutrality factor. The revised FY 

2009 MS–LTC–DRG relative weights are 

effective for the remainder of FY 2009 

(that is, from June 3, 2009 through 

September 30, 2009). 

DATES: Effective date: These regulations 

are effective on June 3, 2009. 

Comment date: To be assured 

consideration, comments must be 

received at one of the addresses 

provided below, no later than 5 p.m., 

June 29, 2009. 

ADDRESSES: In commenting, please refer 

to file code CMS–1337–IFC. Because of 

staff and resource limitations, we cannot 

accept comments by facsimile (FAX) 

transmission. 

You may submit comments in one of 

four ways (please choose only one of the 

ways listed): 

1. Electronically. You may submit 

electronic comments on this regulation 

to http://www.regulations.gov. Follow 

the instructions under the ‘‘More Search 

Options’’ tab. 

2. By regular mail. You may mail 

written comments to the following 

address ONLY: Centers for Medicare & 

Medicaid Services, Department of 

Health and Human Services, Attention: 

CMS–1337–IFC, P.O. Box 8011, 

Baltimore, MD 21244–8011. 

Please allow sufficient time for mailed 

comments to be received before the 

close of the comment period. 

3. By express or overnight mail. You 

may send written comments to the 

following address only: Centers for 

Medicare & Medicaid Services, 

Department of Health and Human 

Services, Attention: CMS–1337–IFC, 

Mail Stop C4–26–05, 7500 Security 

Boulevard, Baltimore, MD 21244–1850. 

4. By hand or courier. If you prefer, 

you may deliver (by hand or courier) 

your written comments before the close 

of the comment period to either of the 

following addresses: 

a. For delivery in Washington, DC— 

Centers for Medicare & Medicaid 

Services, Department of Health and 

Human Services, Room 445–G, Hubert 

H. Humphrey Building, 200 

Independence Avenue, SW., 

Washington, DC 20201. 

(Because access to the interior of the 

Hubert H. Humphrey Building is not 

readily available to persons without 

Federal government identification, 

commenters are encouraged to leave 

their comments in the CMS drop slots 

located in the main lobby of the 

building. A stamp-in clock is available 

for persons wishing to retain a proof of 

filing by stamping in and retaining an 

extra copy of the comments being filed.) 

b. For delivery in Baltimore, MD— 

Centers for Medicare & Medicaid 

Services, Department of Health and 

Human Services, 7500 Security 

Boulevard, Baltimore, MD 21244–1850. 

If you intend to deliver your 

comments to the Baltimore address, 

please call telephone number (410) 786– 

9994 in advance to schedule your 

arrival with one of our staff members. 

Comments mailed to the addresses 

indicated as appropriate for hand or 

courier delivery may be delayed and 

received after the comment period has 

ended. 

For information on viewing public 

comments, see the beginning of the 

SUPPLEMENTARY INFORMATION section. 

FOR FURTHER INFORMATION CONTACT: Tzvi 

Hefter, (410) 786–4487. 

SUPPLEMENTARY INFORMATION: 

Inspection of Public Comments: All 

comments received before the close of 

the comment period are available for 

viewing by the public, including any 

personally identifiable or confidential 

business information that is included in 

a comment. We post all comments 

received before the close of the 


dwashington3 on PROD1PC60 with RULES
Federal Register / Vol. 74, No. 105 / Wednesday, June 3, 2009 / Rules and Regulations 26547 

comment period on the following Web 

site as soon as possible after they have 

been received: http://regulations.gov. 

Follow the search instructions on that 

Web site to view public comments. 

Comments received timely will be 

also available for public inspection as 

they are received, generally beginning 

approximately 3 weeks after publication 

of a document, at the headquarters of 

the Centers for Medicare & Medicaid 

Services, 7500 Security Boulevard, 

Baltimore, Maryland 21244, Monday 

through Friday of each week from 8:30 

a.m. to 4 p.m. To schedule an 

appointment to view public comments, 

phone 1–800–743–3951. 

I. Background of the LTCH PPS 

A. Legislative and Regulatory Authority 

Section 123 of the Medicare, 

Medicaid, and SCHIP (State Children’s 

Health Insurance Program) Balanced 

Budget Refinement Act of 1999 (BBRA) 

(Pub. L. 106–113) as amended by 

section 307(b) of the Medicare, 

Medicaid, and SCHIP Benefits 

Improvement and Protection Act of 

2000 (BIPA) (Pub. L. 106–554) provides 

for payment for both the operating and 

capital-related costs of hospital 

inpatient stays in long-term care 

hospitals (LTCHs) under Medicare Part 

A based on prospectively set rates. The 

Medicare prospective payment system 

(PPS) for LTCHs applies to hospitals 

that are described in section 

1886(d)(1)(B)(iv) of the Social Security 

Act (the Act), effective for cost reporting 

periods beginning on or after October 1, 

2002. 

In the August 30, 2002 (67 FR 55954) 

Federal Register, we issued a final rule 

that implemented the LTCH PPS 

authorized under the BBRA and BIPA. 

The same final rule established 

regulations for the LTCH PPS under 42 

CFR Part 412, Subpart O. This system 

currently uses information from LTCH 

patient records to classify patients into 

distinct Medicare Severity-long-term 

care diagnosis-related groups (MS–LTC– 

DRGs) based on clinical characteristics 

and expected resource needs. Payments 

are calculated for each MS–LTC–DRG 

and provisions are made for appropriate 

payment adjustments. Payment rates 

under the LTCH PPS are updated 

annually and published in the Federal 

Register. We refer readers to the August 

30, 2002 (67 FR 55954) final rule for a 

comprehensive discussion of the 

research and data that supported the 

establishment of the LTCH PPS. 

B. Annual Updates to the LTCH PPS 

For rate years (RYs) 2004 through 

2009, annual payment rate update and 

policy changes under the LTCH PPS 

were effective beginning on July 1 of 

each year (RY 2009 is the 15-month rate 

period July 1, 2008 through September 

30, 2009 (see § 412.503)). However, the 

annual updates of the LTC–DRG (and, 

beginning in FY 2008, the MS–LTC– 

DRG) classifications and relative 

weights for LTCHs are linked to the 

annual update of the acute care hospital 

inpatient prospective payment system 

(IPPS) DRGs and are effective each 

October 1. 

The most recent annual update to the 

payment rates and policy changes under 

the LTCH PPS was established in the RY 

2009 LTCH PPS final rule (73 FR 26788 

through 26874), and is currently 

effective for the 15-month rate year of 

July 1, 2008 through September 30, 

2009. The most recent annual update to 

the MS–LTC–DRGs was established in 

the FY 2009 IPPS final rule (73 FR 

48528 through 48551), and is currently 

effective October 1, 2008 through 

September 30, 2009. 

Beginning with October 1, 2009, the 

annual updates to the LTCH PPS rates 

and factors, including the relative 

weights, and other payment policy 

changes are effective on October 1. 

II. Provisions of This Interim Final Rule 

With Comment Period 

A. FY 2009 MS–LTC–DRG Relative 

Weights 

Beginning with the FY 2008 update, 

we established a budget neutrality 

requirement for the annual update to the 

MS–LTC–DRG classifications and 

relative weights at § 412.517(b) (in 

conjunction with § 412.503), such that 

estimated aggregate LTCH PPS 

payments would be unaffected, that is, 

would be neither greater than nor less 

than the estimated aggregate LTCH PPS 

payments that would have been made 

without the classification and relative 

weight changes. (See the May 11, 2007 

LTCH PPS final rule (72 FR 26882 

through 26884).) 

Consistent with § 412.517(b), in the 

FY 2009 IPPS final rule (August 19, 

2008, (73 FR 48550 through 48551)), 

using the most recent data available at 

that time (FY 2007 LTCH claims data 

from the March 2008 update of the 

MedPAR files), we established the MS– 

LTC–DRG classifications and relative 

weights for FY 2009 based on the 

application of budget neutrality 

adjustment factors determined using the 

two-step methodology of calculating 

and applying a normalization factor and 

a budget neutrality factor, as initially 

established in the FY 2008 IPPS final 

rule (August 22, 2007, (72 FR 47295 

through 47296)). Specifically, for FY 

2009, under the first step of the 

established two-step budget neutrality 

methodology, after recalibrating the 

MS–LTC–DRG relative weights, we 

calculated and applied a normalization 

factor of 1.03887 to those relative 

weights to ensure that the average casemix index (CMI) is not influenced by 

changes in the composition of case 

types or the changes to the classification 

system, such that the recalibration 

process itself neither increases nor 

decreases the average CMI. In doing so, 

each (recalibrated) MS–LTC–DRG 

relative weight was multiplied by 

1.03887 to produce ‘‘normalized relative 

weights’’. 

Under the second step of the 

established two-step budget neutrality 

methodology, we calculated and applied 

a ‘‘budget neutrality adjustment factor’’ 

to ensure that estimated aggregate LTCH 

PPS payments after reclassification and 

recalibration would be equal to 

estimated aggregate LTCH PPS 

payments before reclassification and 

recalibration. Specifically, as described 

in the FY 2009 IPPS final rule (73 FR 

48551), we calculated a budget 

neutrality factor of 1.04186 by 

comparing estimated total payments 

using the normalized FY 2009 relative 

weights under GROUPER Version 26.0 

to estimated total payments using the 

FY 2008 GROUPER (Version 25.0) and 

FY 2008 MS–LTC–DRG relative weights. 

Then, each of the normalized relative 

weights was multiplied by that budget 

neutrality factor to determine the budget 

neutral relative weight for each MS– 

LTC–DRG for FY 2009. Thus, the FY 

2009 MS–LTC–DRG relative weights 

established in Table 11 of the 

Addendum of the FY 2009 IPPS final 

rule reflect the application of both the 

normalization factor of 1.03887 and the 

budget neutrality factor of 1.04186. 

We have discovered that, in 

determining the published FY 2009 

MS–LTC–DRG relative weights, we did 

not properly apply the established 

methodology for calculating the budget 

neutrality factor (the second step of the 

budget neutrality methodology, as set 

forth in the FY 2009 IPPS final rule (73 

FR 48550 through 48551). Specifically, 

upon recent review of the calculation of 

the budget neutrality factor of 1.04186, 

we found that it was determined using 

the unadjusted recalibrated relative 

weights rather than using the 

normalized relative weights. This is 

inconsistent with our stated 

methodology for the calculation of the 

FY 2009 budget neutrality factor (that is, 

the second step of the budget neutrality 

methodology). As described above and 

as we stated in the FY 2009 IPPS final 

rule (73 FR 48551), the FY 2009 budget 


dwashington3 on PROD1PC60 with RULES
26548 Federal Register / Vol. 74, No. 105 / Wednesday, June 3, 2009 / Rules and Regulations 

neutrality factor is to be determined 

based on estimated total payments using 

the normalized (recalibrated) relative 

weights under GROUPER Version 26.0 

(not the unadjusted recalibrated relative 

weights as were used in calculating the 

budget neutrality factor of 1.04186 

published in the FY 2009 IPPS final 

rule). This misapplication of the rule’s 

established methodology for calculating 

the budget neutrality factors resulted in 

relative weights that are higher, by 

approximately 3.9 percent. We estimate 

aggregate annualized LTCH PPS 

payments in FY 2009 (that is, for 

discharges occurring on or after October 

1, 2008 through September 30, 2009) 

based on the MS–LTC–DRG relative 

weights published in the FY 2009 IPPS 

final rule to be approximately $130 

million greater than what the increase 

would have been had the FY 2009 

budget neutrality factor been calculated 

consistent with the established 

methodology described in that final 

rule. Thus, the FY 2009 MS–LTC–DRG 

relative weights shown in Table 11 of 

the FY 2009 IPPS final rule (73 FR 

49041 through 49062) are inconsistent 

with the established budget neutrality 

methodology used for the annual update 

to the MS–LTC–DRG classifications and 

relative weights. 

Consistent with our general and 

longstanding policy in PPS contexts, we 

do not make retroactive changes to 

correct past errors in PPS rate-setting, 

regardless of whether an error resulted 

in higher payments to providers (as in 

this situation) or lower payments to 

providers; we also do not make 

prospective adjustments to PPS rates to 

account for errors that occurred in prior 

periods, regardless of whether an error 

resulted in higher payments or lower 

payments to providers. In this instance, 

we are, revising the FY 2009 MS–LTC– 

DRG relative weights to ensure proper 

application of the established budget 

neutrality methodology in updating the 

FY 2008 MS–LTC–DRG relative weights 

to FY 2009 during the fiscal year that 

will be effective for the remainder of the 

fiscal year. We note that this prospective 

revision to the FY 2009 MS–LTC–DRG 

relative weights does not reflect a 

change in the established budget 

neutrality methodology itself, but rather, 

reflects the proper calculation of the 

relative weights under the rule’s stated 

methodology. 

In this interim final rule with 

comment period, we have calculated 

revised FY 2009 MS–LTC–DRG relative 

weights (effective prospectively for the 

remainder of FY 2009) based on the 

proper application of the established 

budget neutrality methodology. 

Specifically, using the same data (FY 

2007 LTCH claims data from the March 

2008 update of the MedPAR files) and 

methodology presented in the FY 2009 

IPPS final rule (73 FR 48551) described 

above, we have determined a budget 

neutrality factor of 1.0030401, which 

was applied to the normalized relative 

weights (that is, the recalibrated relative 

weights adjusted by the normalization 

factor of 1.03887, as described above). 

As a result, we are establishing revised 

FY 2009 MS–LTC–DRG relative weights 

(shown in Table 11 of this interim final 

rule with comment period) that are 

effective for LTCH PPS discharges 

occurring on or after June 3, 2009 

through September 30, 2009. The 

revised FY 2009 MS–LTC–DRG relative 

weights in Table 11 of this interim final 

rule with comment period reflect the 

application of the revised FY 2009 

budget neutrality factor 1.0030401 and 

the FY 2009 normalization factor of 

1.03887 (established in the FY 2009 

IPPS final rule (73 FR 48551)). (For the 

convenience of the reader, in addition to 

the revised budget neutral FY 2009 MS– 

LTC–DRG relative weights effective June 

3, 2009 through September 30, 2009, 

Table 11 also includes the geometric 

mean length of stay and five-sixths of 

the geometric mean length of stay 

(Short-Stay Outlier (SSO) Threshold for 

payments under § 412.529) for each 

MS–LTC–DRG for FY 2009. The 

revision to the FY 2009 budget 

neutrality factor did not affect the 

calculation of the geometric mean 

length of stay and the SSO threshold for 

FY 2009 that were presented in Table 11 

of the FY 2009 IPPS final rule.) 

B. Effect on the Proposed RY 2010 MS– 

LTC–DRG Relative Weights and FixedLoss Amount 

As discussed above in section II.A. of 

this interim final rule with comment 

period, we are revising the published 

FY 2009 MS–LTC–DRG relative weights 

(73 FR 49041 through 49062), based on 

the appropriate application of the FY 

2009 budget neutrality factor, consistent 

with the description of our established 

methodology. Because the proposed RY 

2010 MS–LTC–DRG relative weights 

published in the FY 2010 IPPS and RY 

2010 LTCH PPS proposed rule on May 

22, 2009 (74 FR 24589 through 24608) 

were determined based on the 

published FY 2009 MS–LTC–DRG 

relative weights, the revisions to the 

published FY 2009 MS–LTC–DRG 

relative weights discussed in section 

II.A. of this interim final rule with 

comment period affect the 

determination of the proposed RY 2010 

MS–LTC–DRG relative weights. 

Therefore, we are also presenting 

proposed RY 2010 MS–LTC–DRG 

relative weights in a supplemental 

proposed rule published elsewhere in 

this Federal Register. The proposed RY 

2010 MS–LTC–DRG relative weights 

were determined consistent with the 

proposed two-step budget neutrality 

methodology discussed in the FY 2010 

IPPS and RY 2010 LTCH PPS proposed 

rule (74 FR 24226 through 24227). 

We also note that the proposed RY 

2010 HCO fixed-loss amount presented 

in the FY 2010 IPPS and RY 2010 LTCH 

PPS proposed rule (74 FR 24268) was 

determined based on the proposed RY 

2010 MS–LTC–DRG relative weights 

presented in Table 11 of that proposed 

rule. Thus, the supplemental proposed 

rule published elsewhere in this Federal 

Register also determines a proposed RY 

2010 HCO fixed-loss amount based on 

the proposed RY 2010 MS–LTC–DRG 

relative weights presented in that same 

supplemental proposed rule. 

III. Response to Comments 

Because of the large number of public 

comments we normally receive on 

Federal Register documents, we are not 

able to acknowledge or respond to them 

individually. We will consider all 

comments we receive by the date and 

time specified in the DATES section of 

this preamble, and, when we proceed 

with a subsequent document, we will 

respond to the comments in the 

preamble to that document. 

IV. Waiver of Proposed Rulemaking, 

Delay of Effective Date, and 60-Day 

Comment Period 

We ordinarily publish a notice of 

proposed rulemaking in the Federal 

Register to provide a period for public 

comment before provisions of a rule 

such as this take effect. We also 

ordinarily provide a 30-day delay in 

effective date of a rule in accordance 

with section 553(d) of the 

Administrative Procedure Act (APA) (5 

U.S.C. 553(d)), and section 1871 of the 

Act. However, we can waive both the 

prior notice-and-comment procedure or 

the delay in effective date, if the 

Secretary for good cause finds that it is 

impracticable, unnecessary, or contrary 

to the public interest and incorporates a 

statement of the finding and its reasons 

in the notice issued. 

We believe it is unnecessary to 

undertake prior notice and comment 

rulemaking or provide a delay in 

effective date because this interim final 

rule with comment period simply 

reflects the appropriate application of 

the established methodology set forth in 

the FY 2009 IPPS final rule (73 FR 

48550 through 48551). The LTCH 

statute provides for annual updates to 

the LTCH PPS MS–LTC–DRG relative 


dwashington3 on PROD1PC60 with RULES
Federal Register / Vol. 74, No. 105 / Wednesday, June 3, 2009 / Rules and Regulations 26549 

weights, and the methodologies used to 

update the MS–LTC–DRG relative 

weights have been previously subject to 

public comment, and therefore, 

additional comment would be 

unnecessary. 

Moreover, we believe that it is 

impracticable to undertake prior notice 

and comment rulemaking or provide a 

delay in effective date because this 

interim final rule with comment period 

is making a prospective revision to the 

FY 2009 MS–LTC–DRG relative weights 

to reflect proper application of the 

applicable established methodology, 

and therefore should be applied in as 

timely a manner as possible. For the 

reasons set forth above, we find good 

cause to waive notice-and-comment 

procedures, as well as the 30-day delay 

in effective date. 

In addition, we ordinarily publish an 

interim final rule with comment period 

in the Federal Register and permit a 60- 

day comment period, as provided in 

section 1871(b)(1) of the Act. This 

period, however, may be shortened, as 

provided under section 1871(b)(2)(C), 

when the agency finds good cause that 

a 60-day comment period would be 

impracticable, unnecessary, or contrary 

to the public interest and incorporates a 

statement of the finding and its reasons 

in the rule issued. For the reasons set 

forth above, and because we plan to 

finalize the provisions of this interim 

final rule with comment period at the 

same time that the FY 2010 IPPS and RY 

2010 LTCH PPS proposed rule is 

finalized, we are waiving the 60-day 

comment period for good cause and 

allowing a 30-day comment period 

instead. 

V. Collection of Information 

Requirements 

This document does not impose 

information collection and 

recordkeeping requirements. 

Consequently, it need not be reviewed 

by the Office of Management and 

Budget under the authority of the 

Paperwork Reduction Act of 1995 (44 

U.S.C. Chapter 35). 

VI. Regulatory Impact Analysis 

We have examined the impacts of this 

rule as required by Executive Order 

12866 (September 1993, Regulatory 

Planning and Review), the Regulatory 

Flexibility Act (RFA) (September 19, 

1980, Pub. L. 96–354), section 1102(b) of 

the Social Security Act, the Unfunded 

Mandates Reform Act of 1995 (Pub. L. 

104–4), Executive Order 13132 on 

Federalism, and the Congressional 

Review Act (5 U.S.C. 804(2)). 

Executive Order 12866 directs 

agencies to assess all costs and benefits 

of available regulatory alternatives and, 

if regulation is necessary, to select 

regulatory approaches that maximize 

net benefits (including potential 

economic, environmental, public health 

and safety effects, distributive impacts, 

and equity). A regulatory impact 

analysis (RIA) must be prepared for 

major rules with economically 

significant effects ($100 million or more 

in any one year). 

The revision to the FY 2009 MS–LTC– 

DRG relative weights presented in 

section II.A. of this interim final rule 

with comment period will affect LTCH 

PPS payments for discharges occurring 

for approximately the last 4 months of 

FY 2009. Specifically, we estimate that 

the impact of the revision to the FY 

2009 MS–LTC–DRG relative weights 

effective from June 3, 2009 through 

September 30, 2009 would result in an 

aggregate decrease in FY 2009 LTCH 

PPS payments of approximately $43 

million (or approximately 0.9 percent of 

estimated FY 2009 LTCH PPS 

payments). Because the distributional 

effects and estimated changes to the 

Medicare program payments would not 

be greater than $100 million, this 

interim final rule with comment period 

would not be considered a major 

economic rule, as defined in this 

section. 

The RFA requires agencies to analyze 

options for regulatory relief of small 

businesses. For purposes of the RFA, 

small entities include small businesses, 

nonprofit organizations, and small 

government jurisdictions. Most 

hospitals and most other providers and 

suppliers are considered to be small 

entities, either by being nonprofit 

organizations or by meeting the Small 

Business Administration definition of a 

small business (having revenues of 

$34.5 million or less in any 1 year). (For 

details on the latest standards for heath 

care providers, we refer readers to the 

Table of Small Business Size Standards 

for NAIC 622 found on the Small 

Business Administration Office of Size 

Standards Web site at: http:// 

www.sba.gov/contractingopportunities/ 

officials/size/GC-SMALL-BUS-SIZESTANDARDS.html.) For purposes of the 

RFA, all hospitals and other providers 

and suppliers are considered to be small 

entities. Individuals and States are not 

included in the definition of a small 

entity. Because we lack data on 

individual hospital receipts, we cannot 

determine the number of small 

proprietary LTCHs. Therefore, we are 

assuming that all LTCHs are considered 

small entities for the purpose of the 

analysis in this section. Because we 

acknowledge that many of the affected 

entities are small entities, the analysis 

discussed in this section constitutes our 

regulatory flexibility analysis. 

Therefore, we are soliciting public 

comments on our estimates and analysis 

of the impact of the provisions of this 

interim final rule with comment period 

on those small entities. 

In addition, section 1102(b) of the Act 

requires us to prepare a regulatory 

impact analysis if a rule may have a 

significant impact on the operations of 

a substantial number of small rural 

hospitals. This analysis must conform to 

the provisions of section 603 of the 

RFA. For purposes of section 1102(b) of 

the Act, we define a small rural hospital 

as a hospital that is located outside of 

a Metropolitan Statistical Area for 

Medicare payment regulations and has 

fewer than 100 beds. In our database of 

399 LTCHs, we have identified 26 small 

rural hospitals that account for less than 

5 percent of all LTCH cases. As stated 

above, the provisions of this interim 

final rule with comment period will 

result in a decrease in estimated 

aggregate LTCH PPS payments in FY 

2009 of approximately $43 million (or 

approximately 0.9 percent) for all 

LTCHs. Similarly, for the 26 rural 

LTCHs for which data is available, we 

estimate that the provisions of this 

interim final rule with comment period 

will result in a decrease in estimated 

aggregate LTCH PPS payments to rural 

LTCHs in FY 2009 of approximately 0.9 

percent (or about $1.6 million). 

Therefore, we believe this rule will not 

have a significant impact on small rural 

hospitals. Accordingly, the Secretary 

certifies that this interim final rule with 

comment period would not have a 

significant economic impact on the 

operations of a substantial number of 

small rural hospitals. 

Section 202 of the Unfunded 

Mandates Reform Act of 1995 also 

requires that agencies assess anticipated 

costs and benefits before issuing any 

rule whose mandates require spending 

in any 1 year of $100 million in 1995 

dollars, updated annually for inflation. 

In 2009, that threshold level is currently 

approximately $133 million. This 

interim final rule with comment period 

would not mandate any requirements 

for State, local, or tribal governments, 

nor would it result in expenditures by 

the private sector of $133 million or 

more in any one year. 

Executive Order 13132 establishes 

certain requirements that an agency 

must meet when it promulgates a 

proposed rule (and subsequent final 

rule) that imposes substantial direct 

requirement costs on State and local 

governments, preempts State law, or 

otherwise has Federalism implications. 

Since this regulation does not impose 


dwashington3 on PROD1PC60 with RULES
26550 Federal Register / Vol. 74, No. 105 / Wednesday, June 3, 2009 / Rules and Regulations 

any costs on State or local governments, 

the requirements of Executive Order 

13132 are not applicable. 

In accordance with the provisions of 

Executive Order 12866, this regulation 

was reviewed by the Office of 

Management and Budget. 

(Catalog of Federal Domestic Assistance 

Program No. 93.773, Medicare—Hospital 

Insurance; and Program No. 93.774, 

Medicare—Supplementary Medical 

Insurance Program) 

Dated: May 21, 2009. 

Charlene Frizzera, 

Acting Administrator, Centers for Medicare 

& Medicaid Services. 

Approved: May 27, 2009. 

Kathleen Sebelius, 

Secretary. 

[Editorial Note: The following table will 

not appear in the Code of Federal 

Regulations.] 

BILLING CODE 4120–01–P 


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[FR Doc. E9–12911 Filed 5–29–09; 4:15 pm] 

BILLING CODE 4120–01–C 

DEPARTMENT OF HOMELAND 

SECURITY 

Federal Emergency Management 

Agency 

44 CFR Part 64 

[Docket ID FEMA–2008–0020; Internal 

Agency Docket No. FEMA–8077] 

Suspension of Community Eligibility 

AGENCY: Federal Emergency 

Management Agency, DHS. 

ACTION: Final rule. 

SUMMARY: This rule identifies 

communities, where the sale of flood 

insurance has been authorized under 

the National Flood Insurance Program 

(NFIP), that are scheduled for 

suspension on the effective dates listed 

within this rule because of 

noncompliance with the floodplain 

management requirements of the 

program. If the Federal Emergency 

Management Agency (FEMA) receives 

documentation that the community has 

adopted the required floodplain 

management measures prior to the 

effective suspension date given in this 

rule, the suspension will not occur and 

a notice of this will be provided by 

publication in the Federal Register on a 

subsequent date. 

DATES: Effective Dates: The effective 

date of each community’s scheduled 

suspension is the third date (‘‘Susp’’) 

listed in the third column of the 

following tables. 

FOR FURTHER INFORMATION CONTACT: If 

you want to determine whether a 

particular community was suspended 

on the suspension date or for further 

information, contact David Stearrett, 

Mitigation Directorate, Federal 

Emergency Management Agency, 500 C 

Street, SW., Washington, DC 20472, 

(202) 646–2953. 

SUPPLEMENTARY INFORMATION: The NFIP 

enables property owners to purchase 

flood insurance which is generally not 

otherwise available. In return, 

communities agree to adopt and 

administer local floodplain management 

aimed at protecting lives and new 

construction from future flooding. 

Section 1315 of the National Flood 

Insurance Act of 1968, as amended, 42 

U.S.C. 4022, prohibits flood insurance 

coverage as authorized under the NFIP, 

42 U.S.C. 4001 et seq.; unless an 

appropriate public body adopts 

adequate floodplain management 

measures with effective enforcement 

measures. The communities listed in 

this document no longer meet that 

statutory requirement for compliance 

with program regulations, 44 CFR part 

59. Accordingly, the communities will 

be suspended on the effective date in 

the third column. As of that date, flood 

insurance will no longer be available in 

the community. However, some of these 

communities may adopt and submit the 

required documentation of legally 

enforceable floodplain management 

measures after this rule is published but 

prior to the actual suspension date. 

These communities will not be 

suspended and will continue their 

eligibility for the sale of insurance. A 

notice withdrawing the suspension of 

the communities will be published in 

the Federal Register. 

In addition, FEMA has identified the 

Special Flood Hazard Areas (SFHAs) in 

these communities by publishing a 

Flood Insurance Rate Map (FIRM). The 

date of the FIRM, if one has been 

published, is indicated in the fourth 

column of the table. No direct Federal 

financial assistance (except assistance 

pursuant to the Robert T. Stafford 

Disaster Relief and Emergency 

Assistance Act not in connection with a 

flood) may legally be provided for 

construction or acquisition of buildings 

in identified SFHAs for communities 

not participating in the NFIP and 

identified for more than a year, on 

FEMA’s initial flood insurance map of 

the community as having flood-prone 

areas (section 202(a) of the Flood 

Disaster Protection Act of 1973, 42 

U.S.C. 4106(a), as amended). This 

prohibition against certain types of 

Federal assistance becomes effective for 

the communities listed on the date 

shown in the last column. The 

Administrator finds that notice and 

public comment under 5 U.S.C. 553(b) 

are impracticable and unnecessary 

because communities listed in this final 

rule have been adequately notified. 

Each community receives 6-month, 

90-day, and 30-day notification letters 

addressed to the Chief Executive Officer 

stating that the community will be 


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