SUPPLEMENTARY INFORMATION:

I. Background

In FR Doc. 2024-23195 of October 15, 2024 (89 FR 83240), the final rule titled “Medicare Program: Appeal Rights for Certain Changes in Patient Status,” there were technical errors associated with the regulations text that are identified and corrected in this correcting amendment.

In FR Doc. 2019-09114 of May 7, 2019 (84 FR 19855), the final rule titled “Medicare Program; Changes to the Medicare Claims and Medicare Prescription Drug Coverage Determination Appeals Procedures,” there was a technical error associated with the regulation text that is identified and corrected in this correcting amendment.

II. Summary of Errors

For the October 15, 2024, final rule, we are making the following corrections:

• In §§ 405.932(i)(1), 405.936(d)(1), and 405.1210(b)(3), we are correcting errors in paragraph numbering.
• In § 405.934(c)(4)(viii), we are correcting a grammatical error in the use of the word “party.”

For the May 7, 2019, final rule, in § 405.1014(a)(1)(i), we are removing the term “health” in the phrase “Medicare health number” because the word “health” is not necessary to describe an individual's Medicare number. “Health” was inadvertently included in the regulation text and we are deleting the unnecessary term to avoid confusion.

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 usually required to publish a notice of the proposed rule in the Federal Register before the provisions of a rule take effect. Specifically, 5 U.S.C. 553 requires the agency to publish a notice of the proposed rule in the Federal Register that includes a reference to the legal authority under which the rule is proposed, and the terms and substance of the proposed rule or a description of the subjects and issues involved. Further, 5 U.S.C. 553 generally requires the agency to give interested parties the opportunity to participate in the rulemaking through public comment before a final rule is issued. Section 1871(b)(1) of the Social Security Act (the Act) also generally 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 for rules to ( printed page 106363) carry out the administration of the Medicare program under title XVIII of the Act. In addition, section 553(d) of the APA and section 1871(e)(1)(B)(i) of the Act usually require 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, however, provide for exceptions from the notice and comment and delay in effective date APA requirements in some limited situations. In cases in which these exceptions apply, sections 1871(b)(2)(C) and 1871(e)(1)(B)(ii) of the Act also provide exceptions from the advanced public notice and 60-day comment period and delay in effective date requirements of the Act. Section 553(b)(B) of the APA and section 1871(b)(2)(C) of the Act authorize an agency to dispense with certain rulemaking requirements for good cause if the agency makes a finding that the notice and comment process is 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 waive the normal 30-day delay in effective date where there is good cause or the delay in the effective date would be contrary to the public interest and the agency includes an appropriate finding to support the rule becoming effective sooner.

We find there is good cause to issue this technical correction final rule without seeking advanced public comments based on the “unnecessary” prong of the good cause exception allowed under section 553(b)(B) of the APA and which is also expressly incorporated by cross-reference in section 1871(b)(2)(C) of the Act. The corrections in this document are insignificant or technical in nature and impact and will largely be inconsequential to the public. CMS periodically issues correction notices to implement non-substantive edits to previously finalized rules. The non-substantive corrections described herein do not require regulated parties to adjust their behavior, and therefore are of little impact or consequence for the public. This correcting amendment simply corrects paragraph numbering and technical errors in the regulatory text of the aforementioned final rules but does not make substantive changes to the policies that were adopted in those final rules. As a result, this correcting amendment is intended to ensure that the regulations at §§ 405.932, 405.934, 405.936, 405.1014, and 405.1210 accurately reflect the policies adopted in the final rules.

Undertaking further notice and comment procedures to incorporate the regulatory text corrections in this document into the final rules or delaying the effective date would be unnecessary, as we are not altering our policies or regulatory changes, but rather, we are simply correcting paragraph numbering and technical errors that do not affect the requirements that we previously proposed, requested comment on, and subsequently finalized. This final rule correcting amendment is intended solely to ensure that the final rules and the Code of Federal Regulations (CFR) accurately reflect policies and regulatory changes that have been adopted through rulemaking.

Additionally, we find there is good cause to waive the normal 30-day delay in effective date for this technical correction final rule under section 553(d)(3) of the APA. The purpose of the 30-day delay in effective date under section 553(d) of the APA is to “give affected parties a reasonable time to adjust their behavior before the final rule takes effect.” Omnipoint Corp. v. FCC, 78 F.3d 620, 630 (D.C. Cir. 1996). These non-substantive, technical corrections do not make changes that would require the public to adjust their behavior in any manner, rendering a delayed effective date unnecessary. We also note that the requirement for a 30-day delay in effective date under section 1871(e)(1)(B)(i) of the Act applies only to substantive changes; because the corrections described herein are non-substantive, the requirements of section 1871(e)(1)(B)(i) of the Act are inapplicable. Even if the changes could be construed as substantive, we find that additional delay would be contrary to the public interest under section 1871(e)(1)(B)(ii) of the Act. We believe there is no need for the public to prepare for the nonsubstantive, technical corrections in this rule as they are merely correcting errors in form and designation in the regulation text specified in the previous final rules. Moreover, since we have announced that we are targeting January 1, 2025 for implementation of the retrospective appeals procedures in §§ 405.931 through 405.938, a 30-day delay in the effective date for these non-substantive, technical corrections could cause undue hardship for eligible parties who are preparing to exercise their right immediately once the appeal process is implemented and who may be entitled to financial relief following a favorable appeal.

Therefore, for the reasons state previously, we find good cause to waive the notice and comment and effective date requirements.

For the reasons set forth in the preamble, the Centers for Medicare & Medicaid Services corrects 42 CFR part 405 by making the following correcting amendments: