Medicare Program; Prospective Payment System and Consolidated Billing for Skilled Nursing Facilities; Updates to the Quality Reporting Program and Value-Based Purchasing Program for Federal Fiscal Year 2024; Correction

AGENCY:

Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services (HHS).

ACTION:

Final rule; correction.

SUMMARY:

This document corrects technical errors in the final rule that appeared in the August 7, 2023 Federal Register , entitled “Medicare Program; Prospective Payment System and Consolidated Billing for Skilled Nursing Facilities; Updates to the Quality Reporting Program and Value-Based Purchasing Program for Federal Fiscal Year 2024” (referred to hereafter as the “FY 2024 SNF final rule”). The effective date of the FY 2024 SNF final rule is October 1, 2023.

DATES:

This document is effective October 1, 2023.

FOR FURTHER INFORMATION CONTACT:

John Kane, (410) 786–0557, for information related to the SNF PPS.

Kia Burwell, (410) 786–7816, for information related to the SNF wage index.

Tammy Luo, (410) 786–4325, for information related to the PDPM ICD–10 mappings.

SUPPLEMENTARY INFORMATION:

I. Background

In FR Doc. 2023–16249 of August 7, 2023 (88 FR 53200), there were technical errors that are identified and corrected in this correcting document. These corrections are effective as if they had been included in the FY 2024 SNF final rule. Accordingly, the corrections are effective October 1, 2023.

II. Summary of Errors

A. Summary of Errors in the Preamble

A technical error in the calculation of the final FY 2024 SNF PPS wage indexes required us to recalculate the wage index budget neutrality factor; the unadjusted SNF PPS Federal per diem rates provided on page 53209 in Tables 3 and 4; the case-mix adjusted SNF PPS rates provided on pages 53210 through 53211 in Tables 5 and 6; figures on pages 53214, 53215; Tables 8 and 9 on page 53215; Table 10 on pages 53215 through 53216; a figure on page 53333; and the impact analysis provided on pages 53333 through 53334 in Table 30. Further discussions of these errors are found in section IV. of this document.

On page 53333, we made a typographical error in a percent increase.

B. Summary of Errors and Corrections Posted on the CMS Website

1. SNF Wage Index

As discussed in the FY 2024 SNF PPS final rule (88 FR 53211 through 53214), in developing the wage index to be applied to SNFs under the SNF PPS, we use the updated, pre-reclassified, pre-rural floor hospital inpatient PPS (IPPS) wage data, exclusive of the occupational mix adjustment. For FY 2024, the updated, unadjusted, pre-reclassified, pre-rural floor IPPS wage data used under the SNF PPS are for cost reporting periods beginning on or after October 1, 2019, and before October 1, 2020 (FY 2020 cost report data), as discussed in the final rule entitled “Medicare Program; Hospital Inpatient Prospective Payment Systems for Acute Care Hospitals and the Long-Term Care Hospital Prospective Payment System and Policy Changes and Fiscal Year 2024 Rates; Quality Programs and Medicare Promoting Interoperability Program Requirements for Eligible Hospitals and Critical Access Hospitals; Rural Emergency Hospital and Physician-Owned Hospital Requirements; and Provider and Supplier Disclosure of Ownership; and Medicare Disproportionate Share Hospital (DSH) Payments: Counting Certain Days Associated with Section 1115 Demonstrations in the Medicaid Fraction” (88 FR 58640) (hereinafter referred to as the FY 2024 IPPS final rule). In calculating the wage index under the FY 2024 IPPS final rule, we made an inadvertent error related to the calculation of the wage index. This error is identified, discussed, and corrected in the document entitled “Medicare Program; Hospital Inpatient Prospective Payment Systems for Acute Care Hospitals and the Long-Term Care Hospital Prospective Payment System and Policy Changes and Fiscal Year 2024 Rates; Quality Programs and Medicare Promoting Interoperability Program Requirements for Eligible Hospitals and Critical Access Hospitals; Rural Emergency Hospital and Physician-Owned Hospital Requirements; and Provider and Supplier Disclosure of Ownership; and Medicare Disproportionate Share Hospital (DSH) Payments: Counting Certain Days Associated with Section 1115 Demonstrations in the Medicaid Fraction; Correction,” published elsewhere in this issue of the Federal Register . The error that affects the unadjusted, pre-reclassified, pre-rural floor IPPS wage data and thereby affects the SNF PPS wage data was an error in the wage data collected from the Medicare cost reports of one hospital (CMS Certification Number (CCN) 340064—Core-Based Statistical Area (CBSA) 34 rural North Carolina).

As discussed previously in this section, we use the updated, pre-reclassified, unadjusted IPPS wage data in developing the wage index used under the SNF PPS. Due to the technical errors described previously in this section, the published FY 2024 SNF PPS wage indexes were incorrect. Thus, the use of the corrected wage data for the one hospital in CBSA 34 required us to recalculate the final FY 2024 SNF PPS wage indexes. Additionally, as discussed in the FY 2024 SNF PPS final rule, section 1888(e)(4)(G)(ii) of the Social Security Act requires that we apply the wage index in a manner that does not result in aggregate payments under the SNF PPS that are greater or less than would otherwise be made if the wage index adjustment had not been made (88 FR 53214). To achieve this, we apply a budget neutrality factor to the unadjusted SNF PPS Federal per diem base rates. This revision of the final FY 2024 SNF PPS wage indexes requires us to recalculate wage index budget neutrality factor; the unadjusted SNF PPS Federal per diem rates provided in Tables 3 and 4 of the FY 2024 SNF PPS final rule (88 FR 53209); the case-mix adjusted SNF PPS rates provided in Tables 5 and 6 in the FY 2024 SNF PPS final rule (88 FR 53210 through 53211); and the impact analysis provided in Table 30 of the FY 2024 SNF PPS final rule (88 FR 53333 through 53334). The corrections to these errors are found in section IV. of this document.

We are correcting the wage index in Table B setting forth the wage indexes for rural areas based on CBSA labor market areas (Table B), which is available exclusively on the CMS website at https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/SNFPPS/WageIndex.html. Table B has been updated to reflect the error discussed in this correcting document, and we are republishing the wage indexes in Tables A and B accordingly on the CMS website at https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/SNFPPS/WageIndex.html.

2. PDPM ICD–10 Mappings

We are correcting the following errors to the FY 2024 Patient Driven Payment Model (PDPM) ICD–10–CM mappings (hereinafter referred to as PDPM ICD–10 code mappings) that were made available on the CMS website at https://www.cms.gov/medicare/medicare-fee-for-service-payment/snfpps/pdpm in conjunction with the release of the FY 2024 SNF PPS final rule. The FY 2024 PDPM ICD–10 code mappings file may be accessed from the list of items under the “PDPM Resources” section of the website with an effective date of “10–01–2023.” The preamble language of FY 2024 SNF PPS final rule discussing ICD–10 mappings is unaffected by these errors.

The first table in the FY 2024 PDPM ICD–10 code mappings file displays the list of ICD–10 codes that are recorded in Item I0020B ICD Code of the Minimum Data Set (MDS) assessment to determine a patient's clinical category assignment under PDPM. First, we are correcting errors in the clinical category assignment of 332 codes ranging from C00.0 through C49.6 to reinstate their prior year's assignments from the FY 2023 SNF PPS final rule, as we proposed no changes in clinical categories in this code range in the FY 2024 SNF PPS proposed rule nor finalized them in the FY 2024 SNF PPS final rule. Second, we are correcting errors in the clinical category assignments of D75.84, F43.81, F43.89, G90.A, and K76.82 to reflect the changes finalized in the FY 2024 SNF PPS final rule (88 FR 53220 through 53221).

The second table in the FY 2024 PDPM ICD–10 code mappings file displays a list of ICD–10 codes associated with comorbidities included in the Speech-Language Pathology (SLP) component under PDPM. Specifically, we are removing the following new ICD–10 codes effective October 1, 2023, that were erroneously added, noting the addition of any ICD–10 code to the SLP comorbidity list would amount to a change in policy that would first need to undergo notice and comment rulemaking: G20.A1, G20.A2, G20.B1, G20.B2, G20.C, G11.6, G23.3, G31.80, G31.86, G37.81, G40.C01, G40.C09, G40.C11, G40.C19, G90.B, G93.42, G93.43, G93.44.

Given these errors, we are republishing the PDPM ICD–10 code mappings accordingly on the CMS website at https://www.cms.gov/medicare/medicare-fee-for-service-payment/snfpps/pdpm effective October 1, 2023.

III. Waiver of Proposed Rulemaking

Under section 553(b) of the Administrative Procedure Act (the APA) (5 U.S.C. 553(b)), the agency is required to publish a notice of proposed rulemaking 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 FY 2024 SNF 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 FY 2024 SNF 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 FY 2024 SNF 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 the Preamble

In FR Doc. 2023–16249 of August 7, 2023 (88 FR 53200), make the following corrections:

1. On page 53209, middle of the page:

a. TABLE 3—FY 2024 UNADJUSTED FEDERAL RATE PER DIEM—URBAN is corrected to read as follows:

b. TABLE 4—FY 2024 UNADJUSTED FEDERAL RATE PER DIEM—RURAL is corrected to read as follows:

2. On page 53210, bottom of the page, TABLE 5—PDPM CASE-MIX ADJUSTED FEDERAL RATES AND ASSOCIATED INDEXES—URBAN (INCLUDING THE PARITY ADJUSTMENT RECALIBRATION) is corrected to read as follows:

3. On page 53211, top of the page, TABLE 6—PDPM CASE-MIX ADJUSTED FEDERAL RATES AND ASSOCIATED INDEXES—RURAL (INCLUDING THE PARITY ADJUSTMENT RECALIBRATION) is corrected to read as follows:

4. On page 53214, first column, first full paragraph, line 27, the figure “0.9997” is corrected to read “0.9996”.

5. On page 53215, above Table 8, third column, first partial paragraph, line 7, the figure “$21,717.98” is corrected to read “$21,715.82”.

6. On page 53215, middle of the page, TABLE 8—PDPM CASE-MIX ADJUSTED RATE COMPUTATION EXAMPLE is corrected to read as follows:

7. On page 53215, middle of the page, TABLE 9—WAGE INDEX ADJUSTED RATE COMPUTATION EXAMPLE is corrected to read as follows:

8. On pages 53215 through 53216, TABLE 10—ADJUSTED RATE COMPUTATION EXAMPLE is corrected to read as follows:

9. On page 53333, third column, fourth full paragraph, line 6, the figure “3.0” is corrected to read “3.3”.

10. On pages 53333 through 53334, TABLE 30—IMPACT TO THE SNF PPS FOR FY 2024 is corrected to read as follows: