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 2025; Correction

SUPPLEMENTARY INFORMATION:

I. Background

In FR Doc. 2024-16907 of August 6, 2024 (89 FR 64048), there were a number of technical errors that are identified and corrected in this correcting document. These corrections are effective as if they had been included in the FY 2025 SNF final rule. Accordingly, the corrections are effective October 1, 2024.

II. Summary of Errors

A. Summary of Errors in the Preamble

On page 64120, we inadvertently omitted language in regard to when we would apply the 2 percentage point penalty if the SNF fails to submit medical records within 45 days of the date on the initial request.

Additionally, a technical error in the calculation of the final FY 2025 SNF prospective payment system (PPS) wage indexes required us to recalculate the impact analysis provided on page 64152 in Table 39. Further discussions of these errors are found in section IV. of this document.

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

As discussed in the FY 2025 SNF final rule (89 FR 64058 through 64061), 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 2025, 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, 2020, and before October 1, 2021 (FY 2021 cost report data), as discussed in the final rule titled “Medicare and Medicaid Programs and the Children's Health Insurance 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 2025 Rates; Quality Programs Requirements; and Other Policy Changes” (89 FR 68986) (hereinafter referred to as the FY 2025 IPPS final rule). In calculating the wage index in the FY 2025 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 titled “Medicare and Medicaid Programs and the Children's Health Insurance 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 2025 Rates; Quality Programs Requirements; and Other Policy Changes; 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 resulting from the inadvertent exclusion of the Medicare cost report wage data for a hospital (CMS Certification Number (CCN) 260163), which caused a change in the wage index for rural Missouri. The wage data for this hospital has been restored and included in the wage index.

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 error described previously in this section, the published FY 2025 SNF PPS wage indexes were incorrect. Thus, the use of the corrected wage data for rural Missouri required us to recalculate the final FY 2025 SNF PPS wage indexes. While correcting this wage data had no impact on the FY 2025 SNF PPS Federal per diem rates published in the FY 2025 SNF final rule, it did cause a slight change in certain results found in the impact analysis provided in Table 39 of the FY 2025 SNF final rule (89 FR 64152). The corrections to these errors are found in section IV. of this document. We are also 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/payment/prospective-payment-systems/skilled-nursing-facility-snf/wage-index. 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/payment/prospective-payment-systems/skilled-nursing-facility-snf/wage-index.

III. Waiver of Proposed Rulemaking and Delay in Effective Date

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 2025 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 2025 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 2025 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 FR Doc. 2024-16907 of August 6, 2024 (89 FR 64048), make the following corrections:

1. On page 64120, third column, second full paragraph, lines 9 and 10, the sentence “If the SNF fails to submit those medical records within 45 days of the date on the initial request, then we would apply the 2 percentage point penalty to FY 2027 SNF payments.” is corrected to read “If the SNF fails to submit those medical records within 45 days of the date on the initial request, then we would apply the 2 percentage point penalty to the SNF's PPS payments for the applicable program determination year.”

2. On page 64152, TABLE 39: Impact to the SNF PPS for FY 2025 is corrected to read as follows: