[Federal Register Volume 83, Number 116 (Friday, June 15, 2018)]
[Rules and Regulations]
[Pages 27912-27915]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-12843]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Parts 405, 417, 422, 423, 460, and 498

[CMS-4182-CN2]
RIN 0938-AT08


Medicare Program; Medicare Program; Contract Year 2019 Policy and 
Technical Changes to the Medicare Advantage, Medicare Cost Plan, 
Medicare Fee-for-Service, the Medicare Prescription Drug Benefit 
Programs, and the PACE Program; Correction

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

ACTION: Final rule; correction.

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SUMMARY: This document corrects technical and typographical errors that 
appeared in the final rule published in the Federal Register on April 
16, 2018 titled ``Medicare Program; Contract Year 2019 Policy and 
Technical Changes to the Medicare Advantage, Medicare Cost Plan, 
Medicare Fee-for-Service, the Medicare Prescription Drug Benefit 
Programs, and the PACE Program.''

DATES: Effective Date: This correcting document is effective June 15, 
2018.

FOR FURTHER INFORMATION CONTACT: Marie Manteuffel, (410) 786-3447. 
Lucia Patrone, (410) 786-8621.

SUPPLEMENTARY INFORMATION: 

I. Background

    In FR Doc. 2018-07179 of April 16, 2018 (83 FR 16440), there were a 
number of technical and typographical errors that are identified and 
corrected in the Correction of Errors section of this correcting 
document. The provisions in this correction document are effective as 
if they had been included in the document that appeared in the April 
16, 2018 Federal Register. Accordingly, these corrections are effective 
June 15, 2018.

II. Summary of Errors

A. Summary of Errors in the Preamble

    On page 16498, in our response to a comment regarding default 
enrollment, we made and error in referencing the Medicare and Medicaid 
programs.
    On page 16503, in our response to a comment on passive enrollment 
eligibility, we included footnote that contains a hyperlink to the 
document by Health Management Associates titled ``Value Assessment of 
the Senior Care Options (SCO) Program'' that is no longer valid.
    On pages 16679 through 16684, we made technical and typographical 
errors in the table numbering and references of the stop-loss insurance 
deductible tables.
    On page 16684, in summarizing a comment and response regarding 
stop-loss coverage, we inadvertently included a response as part of the 
comment and excluded a sentence from part of a response.
    On page 16703, in the regulatory impact analysis section, we 
erroneously stated the percentages of Medicare health plan 
organizations and Part D sponsors that are not-for-profit. In addition, 
we made factual and typographical errors in our discussion of the 
percentage of Medicare Advantage organizations (MAOs) that meet the 
minimum threshold for classification as small businesses.
    On page 16710, in our discussion of the percentage of enrollees 
that are receiving services under capitated arrangements, we made 
technical and typographical errors in an assumption and our 
terminology.

B. Summary of Errors in the Regulations Text

    On pages 16731 and 16732, in the regulations text changes for Sec.  
422.208, we made technical and typographical errors in the table 
numbering and references of the stop-loss insurance deductible tables.
    On pages 16735 and 16754, in the regulations text for Sec. Sec.  
422.2260 and 423.2260, respectively, we made technical errors in the 
language and paragraph designations for the definitions of 
``marketing,'' ``marketing materials,'' and ``materials that do not 
include the following are not considered marketing materials.''
    On page 16735, in the regulations text for Sec.  422.2268 we 
erroneously indicated that we were revising two paragraphs instead of 
indicating that we were revising the entire section.
    On page 16738, in the regulations text for Sec.  423.120, we made 
an inadvertent typographical error in punctuating the end of the 
paragraph.
    On page 16755, in the regulations text for Sec.  423.2262, we 
inadvertently omitted the asterisks before paragraph (d), indicating 
that paragraphs (a) through (c) are retained without change.

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

[[Page 27913]]

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) 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 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 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 and typographic errors in the 
preamble and regulation text 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 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 implementing correctly the 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 notice and comment and effective date requirements.

IV. Correction of Errors

    In FR Doc. 2018-07179 of April 16, 2018 (83 FR 16440), make the 
following corrections:

A. Corrections of Errors in the Preamble

    1. On page 16498, third column, first full paragraph, line 19, the 
phrase ``Medicare or Medicare is issued'' is corrected to read 
``Medicaid or Medicare is issued''.
    2. On page 16503, third column, footnote paragraphs (footnote 29), 
first bulleted paragraph, lines 3 through 5, the hyperlink ``http://
www.mahp.com/unify-files/HMAFinalSCOWhitePaper_2015_07_21.pdf'' is 
corrected to read ``http://www.mahp.com/wp-content/uploads/2017/04/SCO-White-Paper-HMA-2015_07_20-Final.pdf.''
    3. On page 16677, third column, first partial paragraph, lines 26 
and 27, the parenthetical reference, ``(Table PIP-11)'' is corrected to 
read ``(Table 1)''.
    4. On page 16679,
    a. Top two-thirds of the page, third column, partial paragraph--
    (1) Lines 22 and 23, the parenthetical reference, ``(Table PIP-
11)'' is corrected to read ``(Table 1)''.
    (2) Line 27, the reference, ``Table PIP-11'' is corrected to read 
``Table PIP-1''.
    (3) Line 29, the reference, ``Table PIP-11'' is corrected to read 
``Table PIP-1''.
    (4) Line 36, the reference, ``Table PIP-11'' is corrected to read 
``Table PIP-1''.
    b. Lower third of the page--
    (1) In the table titled ``TABLE PIP-11--COMBINED STOP-LOSS 
INSURANCE DEDUCTIBLES'', the table title is corrected to read as 
follows: ``TABLE PIP-1--COMBINED STOP-LOSS INSURANCE DEDUCTIBLES''
    (2) After the table, first column, partial paragraph, line 2, the 
reference ``Table 1'' is corrected to read ``Table PIP-1''.
    5. On page 16680,
    a. First column--
    (1) First partial paragraph, line 11, the reference ``Table 1'' is 
corrected to read ``Table PIP-1''.
    (2) Second partial paragraph, line 4, the phrase ``proposed Table 
1'' is corrected to read ``proposed Table PIP-1''.
    b. Second column,
    (1) Line 6, the parenthetical reference, ``(Table PIP-12)'' is 
corrected to read ``(Table PIP-2)''.
    (2) Line 15, the reference, ``Table PIP-12'' is corrected to read 
``Table PIP-2''.
    (3) Line 17, the reference, ``Table PIP-11'' is corrected to read 
``Table PIP-1''.
    (4) Line 19, the reference, ``Table PIP-12'' is corrected to read 
``Table PIP-2''.
    c. Third column, partial paragraph--
    (1) Line 2, the reference, ``Table PIP-11'' is corrected to read 
``Table PIP-1''.
    (2) Line 4, the reference, ``Table PIP-12'' is corrected to read 
``Table PIP-2''.
    (3) Line 8, the reference, ``Table PIP-11'' is corrected to read 
``Table PIP-1''.
    (4) Lines 13 and 14, the reference, ``Table PIP-12'' is corrected 
to read ``Table PIP-2''.
    (5) Line 16, the reference, ``Table PIP-12'' is corrected to read 
``Table PIP-2''.
    6. On pages 16681 and 16682,
    a. Top of the page, in the table titled ``TABLE PIP-12--SEPARATE 
STOP-LOSS INSURANCE DEDUCTIBLES'', the table title is corrected to read 
as follows: ``TABLE PIP-2--SEPARATE STOP-LOSS INSURANCE DEDUCTIBLES''
    b. Bottom of the page,
    (1) Second column, partial paragraph, line 2, the reference, 
``Table PIP-12'' is corrected to read ``Table PIP-2''.
    (2) Third column, partial paragraph, line 2, the reference, ``Table 
PIP-11'' is corrected to read ``Table PIP-1''.
    7. On page 16683,
    a. First column,
    (1) First partial paragraph,
    (a) Lines 4 and 5, the reference, ``Table PIP-11'' is corrected to 
read ``Table PIP-1''.
    (b) Line 5, the reference, ``Table PIP-12'' is corrected to read 
``Table PIP-2''.
    (c) Line 14, the reference, ``Table PIP-12'' is corrected to read 
``Table PIP-2''.
    (d) Lines 18 and 19, the reference, ``Table PIP-12'' is corrected 
to read ``Table PIP-2''.
    b. Third column--
    (1) Second full paragraph, lines 12 and 13, the parenthetical 
reference, ``(Tables PIP-11 and PIP-12)'' is corrected to read 
``(Tables PIP-1 and PIP-2)''.
    (2) Fourth full paragraph, lines 5 and 6, the parenthetical 
reference, ``(Table PIP-11)'' is corrected to read ``(Table PIP-1)''.
    (3) Fifth full paragraph, lines 3 and 4 the parenthetical 
reference, ``(Table PIP-11 and Table PIP-12)'' is corrected to read 
``(Tables PIP-1 and PIP-2)''.
    8. On page 16684, lower two-thirds of the page (following the 
equation), first column--
    a. Third full paragraph, the paragraph, ``Comment: We received a 
comment recommending that CMS consult with stop loss coverage experts 
in developing this regulation. We believe that this regulation, as 
finalized, is consistent with the applicable actuarial principles and 
practices.'' is corrected to read ``Comment: We received a comment 
recommending that CMS consult with

[[Page 27914]]

stop-loss coverage experts in developing this regulation.''
    b. Fourth full paragraph, the paragraph ``Response: Over the years, 
CMS has had numerous discussions with qualified actuaries regarding our 
method of determining stop-loss insurance requirements.'' is corrected 
to read ``Response: We believe that this regulation, as finalized, is 
consistent with the applicable actuarial principles and practices. Over 
the years, CMS has had numerous discussions with qualified actuaries 
regarding our method of determining stop-loss insurance requirements.''
    c. Last paragraph--
    (1) Line 23, the parenthetical reference, ``(Table PIP-11)'' is 
corrected to read ``(Table PIP-1)''.
    (2) Line 25, the parenthetical reference, ``(Table PIP-12)'' is 
corrected to read ``(Table PIP-2)''.
    9. On page 16703, first column--
    a. Second full paragraph, lines 5 through 8, the sentence ``42% of 
all Medicare health plan organizations are not-for-profit and 32% of 
all Part D sponsors and MA plans are not for profit'' is corrected to 
read ``Forty-three percent of all Medicare health plan organizations 
are not-for-profit and 31 percent of all Part D sponsors and MA plans 
are not-for-profit.''.
    b. Third full paragraph, lines 14 through 16, ``which we have 
actual data on MAO net worth, also shows that 32 percent of all MAO 
falls'' is corrected to read, ``which we have complete data on MAO net 
worth, shows that 33 percent of all MAOs fall.''
    10. On page 16710, first column, last paragraph--
    a. Lines 4 through 8, the phrase ``based on CMS observation of 
managed care industry trends, we believe that the percentage is now 
higher, and we assume that 11 percent'' is corrected to read ``based on 
CMS observation of managed care industry trends, we assume that 11 
percent''.
    b. Line 9, the phrase ``now paid under'' is corrected to read ``now 
receiving services under''.
    c. Line 13, the phrase ``MA members are paid under'' is corrected 
to read ``MA members are receiving services under''.
    d. Line 21, the phrase ``beneficiaries paid under'' is corrected to 
read ``beneficiaries receiving services under''.

B. Correction of Errors in the Regulations Text


Sec.  422.208   [Corrected]

0
1. On page 16731, third column, amendatory instruction 23a, lines 3 and 
4, the parenthetical reference ``(Table PIP-11)'' is corrected to read 
``(Table PIP-1)''.


Sec.  422.208   [Corrected]

0
2. On page 16732,
0
a. First column--
    (1) First full paragraph, line 2, the parenthetical reference 
``(Table PIP-11)'' is corrected to read ``(Table PIP-1)''.
    (2) Second full paragraph, line 9, the reference ``Tables PIP-11 
and PIP-12'' is corrected to read ``Tables PIP-1 and PIP-2''.
    (3) Third full paragraph,
    (a) Line 6, the reference ``Table PIP-11'' is corrected to read 
``Table PIP-1''.
    (b) Line 8, the reference ``Table PIP-12'' is corrected to read 
``Table PIP-2''.
    (4) Sixth full paragraph--
    (a) Lines 12 and 13, the reference ``Table PIP-11'' is corrected to 
read ``Table PIP-1''.
    (b) Line 14, the reference ``Table PIP-11'' is corrected to read 
``Table PIP-1''.
    (c) Line 15, the reference ``Table PIP-12'' is corrected to read 
``Table PIP-2''.
0
b. Second column,
    (1) First partial paragraph, line 3, the reference ``Tables PIP-11 
and PIP-12'' is corrected to read ``Tables PIP-1 and PIP-2''
    (2) First full paragraph, line 1, the reference ``Table PIP-11'' is 
corrected to ``Table PIP-1''.
    (3) Fourth full paragraph--
    (a) Line 1, the reference ``Table 1'' is corrected to read ``Table 
PIP-1''.
    (b) Line 3, the reference ``Table PIP-11'' is corrected to ``Table 
PIP-1''.
    (4) Fifth full paragraph, line 25, the reference ``Table PIP-11'' 
is corrected to ``Table PIP-1''.
    (5) Last partial paragraph, line 2, the reference ``Table PIP-11'' 
is corrected to ``Table PIP-1''.
0
c. Third column,
    (1) First partial paragraph, line 3, the parenthetical reference 
``(Table PIP-12)'' is corrected to read ``(Table PIP-2).''
    (2) Second full paragraph, line 6, the reference ``Table 2'' is 
corrected to read ``Table PIP-2''.
    (3) Third full paragraph--
0
a. Line 5, the reference ``Table PIP-11'' is corrected to read ``Table 
PIP-1''.
0
b. Line 6, the reference ``Table PIP-12'' is corrected to read ``Table 
PIP-2''.
0
c. Line 9, the reference ``Table PIP-12'' is corrected to read ``Table 
PIP-2''.
0
d. Line 11, the reference ``Table PIP-11'' is corrected to read ``Table 
PIP-1''.
0
e. Line 13, the reference ``Table PIP-12'' is corrected to read ``Table 
PIP-2''.
0
f. Lines 15 and 16, the reference ``Table PIP-11'' is corrected to read 
``Table PIP-1''.
    (4) Fourth full paragraph--
0
a. Line 1, the reference ``Table PIP-12'' is corrected to read ``Table 
PIP-2''.
0
b. Lines 2 and 3, the reference ``Table PIP-11'' is corrected to read 
``Table PIP-1''.
    (5) Eighth full paragraph, line 5, the reference ``Table PIP-11 and 
PIP-12'' is corrected to read ``Table PIP-1 and PIP-2.''

0
3. On page 16735, in the first column, Sec.  422.2260 is corrected to 
read as follows:


Sec.  422.2260   Definitions.

    As used in this subpart--
    Communications means activities and use of materials to provide 
information to current and prospective enrollees.
    Communication materials means all information provided to current 
and prospective enrollees. Marketing materials are a subset of 
communication material.
    Marketing means activities and use of materials that meet the 
following:
    (1) Conducted by the MA organization or downstream entities.
    (2) Intended to draw a beneficiary's attention to a MA plan or 
plans.
    (3) Intended to influence a beneficiary's decision-making process 
when selecting a MA plan for enrollment or deciding to stay enrolled in 
a plan (that is, retention-based marketing).
    Marketing materials--(1) Include, but are not limited to following:
    (i) Materials such as brochures; posters; advertisements in media 
such as newspapers, magazines, television, radio, billboards, or the 
internet; and social media content.
    (ii) Materials used by marketing representatives such as scripts or 
outlines for telemarketing or other presentations.
    (iii) Presentation materials such as slides and charts.
    (2) Marketing materials exclude materials that--
    (i) Do not include information about the plan's benefit structure 
or cost sharing;
    (ii) Do not include information about measuring or ranking 
standards (for example, star ratings);
    (iii) Mention benefits or cost sharing, but do not meet the 
definition of marketing in this section;
    (iv) Are required under Sec.  422.111, unless otherwise specified 
by CMS based on their use or purpose; or
    (v) Are specifically designated by CMS as not meeting the 
definition of the marketing definition based on their use or purpose.''


Sec.  422.2268   [Corrected]

0
4. On page 16735, in the second column, amendatory instruction 47, the 
instructions beginning with the phrase

[[Page 27915]]

``a. Revising the section'' and ending with the phrase ``read as 
follows:'' are corrected to read as follows:
    ``Section 422.2268 is revised to read as follows:''


Sec.  423.120   [Corrected]

0
5. On page 16738, in the third column, sixth full paragraph (Sec.  
423.120(b)(5)(C)(2)), line 7, the phrase ``423.578; and'' is corrected 
to read ``423.578.''.


Sec.  423.160   [Corrected]

0
6. On page 16743, first column, eighth full paragraph (Sec.  
423.160(b)(1)(iv)), line 1, the date ``October 31, 2019'' is corrected 
to read ``December 31, 2019''.


Sec.  423.2260   [Corrected]

0
7. Beginning on page 16754, in the third column fourth full paragraph, 
Sec.  423.2260 is corrected to read as follows:''


Sec.  423.2260  Definitions.

    As used in this subpart--
    Communications means activities and use of materials to provide 
information to current and prospective enrollees.
    Communication materials means all information provided to current 
and prospective enrollees. Marketing materials are a subset of 
communication materials.
    Marketing means activities and use of materials that meet the 
following:
    (1) Conducted by the MA organization or downstream entities.
    (2) Intended to draw a beneficiary's attention to a MA plan or 
plans.
    (3) Intended to influence a beneficiary's decision-making process 
when selecting a MA plan for enrollment or deciding to stay enrolled in 
a plan (that is, retention-based marketing).
    Marketing materials--(1) Include, but are not limited to following:
    (i) Materials such as brochures; posters; advertisements in media 
such as newspapers, magazines, television, radio, billboards, or the 
internet; and social media content.
    (ii) Materials used by marketing representatives such as scripts or 
outlines for telemarketing or other presentations.
    (iii) Presentation materials such as slides and charts.
    (2) Marketing materials exclude materials that--
    (i) Do not include information about the plan's benefit structure 
or cost sharing;
    (ii) Do not include information about measuring or ranking 
standards (for example, star ratings);
    (iii) Mention benefits or cost sharing, but do not meet the 
definition of marketing in this section;
    (iv) Are required under Sec.  423.128, unless otherwise specified 
by CMS based on their use or purpose; or
    (v) Are specifically designated by CMS as not meeting the 
definition of the marketing definition based on their use or purpose.''


Sec.  423.2430   [Corrected]

0
8. On page 16756, first column, amendatory instruction 113b, line 1, 
the words ``republishing the'' are corrected to read ``adding a new''.

    Dated: June 11, 2018.
Ann C. Agnew,
Executive Secretary to the Department, Department of Health and Human 
Services.
[FR Doc. 2018-12843 Filed 6-14-18; 8:45 am]
 BILLING CODE 4120-01-P