[Federal Register Volume 82, Number 65 (Thursday, April 6, 2017)]
[Rules and Regulations]
[Pages 16741-16742]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-06903]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Part 495

[CMS-1656-F2]
RIN-0938-AS82


Medicare Program: Hospital Outpatient Prospective Payment and 
Ambulatory Surgical Center Payment Systems and Quality Reporting 
Programs; Organ Procurement Organization Reporting and Communication; 
Transplant Outcome Measures and Documentation Requirements; Electronic 
Health Record (EHR) Incentive Programs; Payment to Nonexcepted Off-
Campus Provider-Based Department of a Hospital; Hospital Value-Based 
Purchasing (VBP) Program; Establishment of Payment Rates Under the 
Medicare Physician Fee Schedule for Nonexcepted Items and Services 
Furnished by an Off-Campus Provider-Based Department of a Hospital; 
Correcting Amendment

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

ACTION: Correcting amendment.

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SUMMARY: In the November 14, 2016 issue of the Federal Register (81 FR 
79562), we published a final rule with comment period entitled 
``Hospital Outpatient Prospective Payment and Ambulatory Surgical 
Center Payment Systems and Quality Reporting Programs; Organ 
Procurement Organization Reporting and Communication; Transplant 
Outcome Measures and Documentation Requirements; Electronic Health 
Record (EHR) Incentive Programs; Payment to Nonexcepted Off-Campus 
Provider-Based Department of a Hospital; Hospital Value-Based 
Purchasing (VBP) Program; Establishment of Payment Rates under the 
Medicare Physician Fee Schedule for Nonexcepted Items and Services 
Furnished by an Off-Campus Provider-Based Department of a Hospital'' 
that made changes to the demonstration of meaningful use criteria under 
Sec.  495.40. This correcting amendment corrects a technical error in 
Sec.  495.40 resulting from an error in that final rule with comment 
period.

DATES: This correcting amendment is effective on April 6, 2017.

FOR FURTHER INFORMATION CONTACT: Electronic Health Record (EHR) 
Incentive Programs, contact Kathleen Johnson (410) 786-3295 or Steven 
Johnson (410) 786-3332.

SUPPLEMENTARY INFORMATION: 

I. Background

    In FR Doc. 2016-26515 of November 14, 2016 (81 FR 79562), 
``Medicare Program: Hospital Outpatient Prospective Payment and 
Ambulatory Surgical Center Payment Systems and Quality Reporting 
Programs; Organ Procurement Organization Reporting and Communication; 
Transplant Outcome Measures and Documentation Requirements; Electronic 
Health Record (EHR) Incentive Programs; Payment to Certain Off-Campus 
Outpatient Departments of a Provider; Hospital Value-Based Purchasing 
(VBP) Program; Establishment of Payment Rates Under the Medicare 
Physician Fee Schedule for Nonexcepted Items and Services Furnished by 
an Off-Campus Provider-Based Department of a Hospital'' (hereinafter 
referred to as the CY 2017 OPPS/ASC final rule with comment period), 
there was a technical error in the regulations text that is identified 
and corrected in this correcting amendment. The provisions of this 
correcting amendment are treated as if they had been included in the CY 
2017 OPPS/ASC final rule with comment period.

II. Summary of Error in the Regulations Text

    On page 79892 of the CY 2017 OPPS/ASC final rule with comment 
period, we made a technical error in an amendatory instruction. 
Accordingly, we are revising Sec.  495.40(b)(2)(i)(G) to accurately 
reflect the language we previously included in the CY 2017 OPPS/ASC 
final rule with comment period (81 FR 79892), but which was not 
codified in the Code of Federal Regulations. Specifically, paragraph 
(b)(2)(i)(G) specifies that for CY 2018, an eligible hospital or 
critical access hospital (CAH) must satisfy certain required objectives 
and associated measures if an eligible hospital or CAH attests to CMS 
or to a State for the Medicaid Electronic Health Record (EHR) Incentive 
Program.

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. 
Similarly, section 1871(b)(1) of 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. In 
addition, section 553(d) of the APA, and section 1871(e)(1)(B)(i) 
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 provide exceptions from 
the notice and 60-day comment period and delay in effective date 
requirements of the Act as well. 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

[[Page 16742]]

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 
rulemaking that would be subject to these requirements. This correcting 
document corrects a technical error in the regulations text included in 
the CY 2017 OPPS/ASC final rule with comment period but does not make 
substantive changes to the policies that were adopted in the final rule 
with comment period. As a result, the corrections made through this 
correcting document are intended to ensure that the information in the 
CY 2017 OPPS/ASC final rule with comment period accurately reflects the 
policies adopted.
    In addition, even if this were a rulemaking 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 with comment period or delaying the 
effective date would be contrary to the public interest because it is 
in the public's interest to ensure that the CY 2017 OPPS/ASC final rule 
with comment period accurately reflects our policies as of the date 
they take effect and are applicable.
    Furthermore, such procedures would be unnecessary, as we are not 
altering our policies, but rather, we are simply correctly implementing 
the policies that we previously proposed, received comment on, and 
subsequently finalized. This correcting document is intended solely to 
ensure that the CY 2017 OPPS/ASC final rule with comment period 
accurately reflects these policies. For these reasons, we believe we 
have good cause to waive the notice and comment and effective date 
requirements.

List of Subjects in 42 CFR Part 495

    Administrative practice and procedure, Health facilities, Health 
maintenance organizations (HMO), Health professions, Health records, 
Medicaid, Medicare, Penalties, Reporting and recordkeeping 
requirements.

    Accordingly, 42 CFR part 495 is corrected by making the following 
correcting amendment:

PART 495--STANDARDS FOR THE ELECTRONIC HEALTH RECORD TECHNOLOGY 
INCENTIVE PROGRAM

0
1. The authority citation for part 495 continues to read as follows:

    Authority: Secs. 1102 and 1871 of the Social Security Act (42 
U.S.C. 1302 and 1395hh).

0
2. Amend Sec.  495.40 by revising paragraph (b)(2)(i)(G) to read as 
follows:


Sec.  495.40  Demonstration of meaningful use criteria.

* * * * *
    (b) * * *
    (2) * * *
    (i) * * *
    (G) For CY 2018:
    (1) For an eligible hospital or CAH attesting to CMS, satisfied the 
required objectives and associated measures under Sec.  495.24(c) for 
meaningful use.
    (2) For an eligible hospital or CAH attesting to a State for the 
Medicaid EHR Incentive Program, satisfied the required objectives and 
associated measures under Sec.  495.24(d) for meaningful use.
* * * * *

    Dated: April 3, 2017.
Ann C. Agnew,
Executive Secretary to the Department, Department of Health and Human 
Services.
[FR Doc. 2017-06903 Filed 4-5-17; 8:45 am]
 BILLING CODE 4120-01-P