AGENCY:

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

ACTION:

Correction of final rule.

SUMMARY:

This document corrects technical errors that appeared in the final rule published in the Federal Register on November 23, 2018 entitled “Medicare Program; Revisions to Payment Policies under the Physician Fee Schedule and Other Revisions to Part B for CY 2019; Medicare Shared Savings Program Requirements; Quality Payment Program; Medicaid Promoting Interoperability Program; Quality Payment Program—Extreme and Uncontrollable Circumstance Policy for the 2019 MIPS Payment Year; provisions from the Medicare Shared Savings Program—Accountable Care Organizations Pathways to Success; and Expanding the Use of Telehealth Services for the Treatment of Opioid Use Disorder under the Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment (SUPPORT) for Patients and Communities Act.”

DATES:

This correcting document is effective January 31, 2019, and is applicable beginning January 1, 2019.

FOR FURTHER INFORMATION CONTACT:

Benjamin Chin, (410) 786-0679, Alesia Hovatter (410) 786-6861 or Molly MacHarris, (410) 786-4461.

SUPPLEMENTARY INFORMATION:

I. Background

In FR Doc. 2018-24170 of November 23, 2018 (83 FR 59452 through 60303), there were a number of technical errors that are identified and corrected in the Correction of Errors section below. These corrections are effective January 1, 2019.

II. Summary of Errors

A. Summary of Errors in the Regulation Text

On page 60090, in regulation text regarding § 414.1415, we made a typographical error in identifying the year in the effective date.

B. Summary of Errors in the Appendix

On page 60151, we inadvertently omitted Table B.6. Internal Medicine (Removal Table), Table B.7. Emergency Medicine, Table B.8. Obstetrics/Gynecology, Table B.9. Ophthalmology, Table B.10. Orthopedic Surgery, Table B.11. Otolaryngology, Table B.12. Pathology, and Table B.13 Pediatrics.

III. Waiver of Proposed Rulemaking

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 Federal Register before the provisions of a rule take effect. Similarly, section 1871(b)(1) of the Social Security Act (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 APA notice and comment, and delay in effective date 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 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. In addition, section 553(d)(3) of the APA and section 1871(e)(1)(B)(ii) allow the agency to avoid the 30-day delay in effective date where such delay is contrary to the public interest 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 CY 2019 PFS final rule. The corrections contained in this document are consistent with, and do not make substantive changes to, the policies and payment methodologies that were proposed, subject to notice and comment procedures, and adopted in the CY 2019 PFS 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 CY 2019 PFS 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 Federal Register 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.

IV. Correction of Errors

In FR Doc. 2018-24170 of November 23, 2018 (83 FR 59452 through 60303), make the following corrections:

1. On page 60090, in the second column; in amendatory instruction 41, in line 2, the parenthetical “(effective January 1, 2010)” is corrected to read “(effective January 1, 2020)”.

2. On page 60151, Table B.6. Internal Medicine (Removal Table), Table B.7. Emergency Medicine, Table B.8. Obstetrics/Gynecology, Table B.9. Ophthalmology, Table B.10. Orthopedic Surgery, Table B.11. Otolaryngology, Table B.12. Pathology, and Table B.13 Pediatrics should be added in their entirety.