Medicare and Medicaid Programs; Minimum Staffing Standards for Long-Term Care Facilities and Medicaid Institutional Payment Transparency Reporting; Correction

<RULE> DEPARTMENT OF HEALTH AND HUMAN SERVICES <SUBAGY>Centers for Medicare & Medicaid Services</SUBAGY> <CFR>42 CFR Parts 438, 442, and 483</CFR> <DEPDOC>[CMS-3442-F; CMS-3442-CN]</DEPDOC> <RIN>RIN 0938-AV25</RIN> <SUBJECT>Medicare and Medicaid Programs; Minimum Staffing Standards for Long-Term Care Facilities and Medicaid Institutional Payment Transparency Reporting; Correction</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services (HHS). <HD SOURCE="HED">ACTION:</HD> Final rule; correction. <SUM> <HD SOURCE="HED">SUMMARY:</HD> This document corrects typographical and technical errors in the final rule that appeared in the May 10, 2024 <E T="04">Federal Register</E> , entitled “Medicare and Medicaid Programs; Minimum Staffing Standards for Long-Term Care Facilities and Medicaid Institutional Payment Transparency Reporting (referred to hereafter as the “Minimum Staffing final rule”). The effective date of the Minimum Staffing final rule is June 21, 2024. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This document is effective June 21, 2024. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> The Clinical Standard Group's Long Term Care Team at <E T="03">HealthandSafetyInquiries@cms.hhs.gov</E> for information related to the minimum staffing standards. Anne Blackfield, (410) 786-8518, for information related to Medicaid institutional payment transparency reporting. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Background</HD> In FR Doc. 2024-08273 of May 10, 2024 (89 FR 40876), there were typographical and technical errors that are identified and corrected in this correcting document. These corrections are effective as if they had been included in the Minimum Staffing final rule. Accordingly, the corrections are effective June 21, 2024. <HD SOURCE="HD1">II. Summary of Errors</HD> <HD SOURCE="HD2">A. Summary of Errors in the Preamble</HD> On page 40876, we made a typographical error in the implementation date for §§ 438.72(a) and 442.43 that must be implemented by all States and territories with Medicaid-certified nursing facilities and intermediate care facilities for individuals with intellectual disabilities. On page 40895, we included an incorrect citation at footnote number 62. On page 40898, Table 2: Requirements for the LTC Staffing Statutory Waivers by Facility Type, portions of the table content were omitted. On page 40901, we included incorrect links for the Bureau of Labor Statistic's Occupational Employment and Wage Statistics Query System and the data source used to calculate the population for each MSA or non-MSA using population estimates from the United States Census Bureau. On page 40909 we included an incorrect citation at footnote number 67. On page 40911, we made an error in describing the Census Bureau definition of “urban” as one that used “counties” for the unit of measure. On pages 40919, 40920, 40923, and 40929, we made typographical errors in regulatory citations. On page 40930, we made a typographical error in a reference to page numbers in the <E T="04">Federal Register</E> . On pages 40931 and 40932, we made typographical errors in regulatory citations. On page 40934, we made typographical errors in the summary of regulatory language changes. On page 40935, we included an incorrect link for the May 2022 National Occupational Employment and Wage Statistics. On page 40948, we included an incorrect citation at footnote number 96. On page 40949, we included an incorrect table number reference. On page 40992, we included incorrect links for the May 2022 National Occupational Employment and Wage Statistics. <HD SOURCE="HD2">B. Summary of Errors in the Regulation Text</HD> On page 40995, in the regulation text for § 442.43(b), we made a reference to “State directed payments as defined in § 438.6(c) of this chapter”. However, this definition of State directed payments was moved to § 438.2 in the Managed Care Access, Finance, and Quality final rule (89 FR 41002). We are correcting this error. On page 40998, in the regulation text for § 483.35(h)(2)(iv), we made an incorrect cross-reference to § 483.71(b)(4), which does not exist. <HD SOURCE="HD1">III. Waiver of Proposed Rulemaking</HD> Under 5 U.S.C. 553(b) of the Administrative Procedure Act (the APA), the agency is required to publish a notice of the proposed rule in the <E T="04">Federal Register</E> before the provisions of a rule take effect. In addition, section 553(d) of the APA mandates a 30-day delay in effective date after issuance or publication of a substantive rule. Sections 553(b)(B) and 553(d)(3) of the APA provide for exceptions from the APA notice and comment, and delay in effective date requirements. Section 553(b)(B) of the APA authorizes an agency to dispense with normal notice and comment rulemaking procedures for good cause if the agency makes a finding that the notice and comment process is impracticable, unnecessary, or contrary to the public interest, and includes a statement of the finding and the reasons for it in the rule. Similarly, section 553(d)(3) of the APA allows the agency to avoid the 30-day delay in effective date where good cause is found and the agency includes in the rule a statement of the finding and the reasons for it. In our view, this correcting document does not constitute a rulemaking that would be subject to these requirements. This document merely corrects technical errors in the Minimum Staffing final rule. The corrections contained in this document are consistent with, and do not make substantive changes to, the policies that were proposed, subject to notice and comment procedures, and adopted in the Minimum Staffing final rule. As a result, the corrections made through this correcting document are intended to resolve inadvertent errors so that the rule accurately reflects the policies adopted in the final rule. Even if this were a rulemaking to which the notice and comment 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 Minimum Staffing final rule or delaying the effective date of the corrections would be contrary to the public interest because it is in the public interest to ensure that the rule accurately reflects our policies as of the date they take effect. Further, such procedures would be unnecessary because we are not making any substantive revisions to the final rule, but rather, we are simply correcting the <E T="04">Federal Register</E> document to reflect the policies that we previously proposed, received public comment on, and subsequently finalized in the final rule. For these reasons, we believe there is good cause to waive the requirements for notice and comment and delay in effective date. <HD SOURCE="HD1">IV. Correction of Errors in the Preamble</HD> In FR Doc. 2024-08273 of May 10, 2024 (89 FR 40876), make the following corrections: <HD SOURCE="HD2">A. Correction of Errors in the Preamble</HD> 1. On page 40876, first column, sixth paragraph under the heading <E T="02">DATES</E> , lines 1 through 7, the sentence that reads “The regulations at §§ 438.72(a) and 442.43 must be implemented by all States and territories with Medicaid-certified nursing facilities and intermediate care facilities for individuals with intellectual disabilities beginning May 10, 2028.” is corrected to read “The regulations at §§ 438.72(a) and 442.43 must be implemented by all States and territories with Medicaid-certified nursing facilities and intermediate care facilities for individuals with intellectual disabilities beginning June 21, 2028.”. 2. On page 40895, footnote number 62 that reads “42 CFR 483.35, <E T="03">https://www.whitehouse.gov/briefing-room/statements-releases/2022/02/28/factsheet-protecting-seniors-and-people-withdisabilities-by-improving-safety-and-quality-of-carein-the-nations-nursing-homes/.</E> ” is corrected to read “42 CFR 483.35(b)(1)”. 3. On page 40898, Table 2, is corrected to read: <GPH SPAN="3" DEEP="563"> <GID>ER24JN24.400</GID> </GPH> <GPH SPAN="3" DEEP="301"> <GID>ER24JN24.401</GID> </GPH> 4. On page 40901, third column, first partial paragraph, a. Lines 19 and 20, the parenthetical that reads “(available at <E T="03">https://data.bls.gov/oes/#/home</E> )” is corrected to read “(available at <E T="03">https://www.bls.gov/oes/tables.htm</E> )”. b. Lines 26 through 29, the parenthetical that reads “(available at <E T="03">https://www.census.gov/data/tables/timeseries/demo/popest/2020s-countiestotal.html#v2022</E> )” is corrected to read “(available at <E T="03">https://www.census.gov/data/tables/time-series/demo/popest/2020s-counties-total.html</E> )”. 5. On page 40909, footnote number 67 that reads “ <E T="03">https://www.osha.gov/sites/default/files/publications/OSHA3905.pdf</E> ” is corrected to read “Recommended Practices for Anti-Retaliation Programs. OSHA, OSHA 3905-01/2017. Accessed at <E T="03">www.https://www.osha.gov/sites/default/files/publications/OSHA3905.pdf.</E> Accessed on March 1, 2024.” 6. On page 40911, second column, first partial paragraph, lines 8 through 14, the sentence that reads “For example, if we were to use the Census Bureau's definition of `urban', 2,645 counties would be classified as urban, <SU>73</SU> while if we were to use OMB's definition of `urban', 1,252 counties would be considered `urban.'  <SU>74</SU> ” is corrected to read “For example, if we were to use the Census Bureau's definition of `urban', 2,645 areas (combination of counties, cities, census designated areas) would be classified as urban, <SU>73</SU> while if we were to use ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 16k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━