E9-30967. Medicare Program: Changes to the Hospital Outpatient Prospective Payment System and CY 2010 Payment Rates; Changes to the Ambulatory Surgical Center Payment System and CY 2010 Payment Rates

AGENCY:

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

ACTION:

Correction of final rule with comment period.

SUMMARY:

This document corrects technical errors that appeared in the final rule with comment period found in the Federal Register (FR) on November 20, 2009, entitled “Medicare Program: Changes to the Hospital Outpatient Prospective Payment System and CY 2010 Payment Rates; Changes to the Ambulatory Surgical Center Payment System and CY 2010 Payment Rates.”

DATES:

Effective Date: This correction document is effective January 1, 2010.

FOR FURTHER INFORMATION CONTACT:

Alberta Dwivedi, [phone].

SUPPLEMENTARY INFORMATION:

I. Background

In FR Doc. E9-26499 of November 20, 2009 (74 FR 60316), the final rule with comment period entitled, “Medicare Program: Changes to the Hospital Outpatient Prospective Payment System and CY 2010 Payment Rates; Changes to the Ambulatory Surgical Center Payment System and CY 2010 Payment Rates” (hereinafter referred to as the CY 2010 OPPS/ASC final rule), there were a few technical errors that are identified in the “Summary of Errors” section and corrected in the “Correction of Errors” section below.

The provisions in this correction notice are effective as if they had been included in the CY 2010 OPPS/ASC final rule appearing in the November 20, 2009 Federal Register (74 FR 60316). Accordingly, the corrections are effective January 1, 2010.

II. Summary of Errors

A. Errors in the Preamble

On page 60559, in our response to a comment regarding developing and implementing standards of participation, we erred when we referenced “conditions for coverage” instead of “conditions of participation.” Therefore, we are deleting two references to “conditions for coverage” and replacing them with the phrase “conditions of participation.”

On page 60562, in our response to a comment requesting CMS to remove procedures from the CY 2010 inpatient list, we inadvertently stated that we would remove “5” procedure codes instead of “4” procedure codes. Therefore, we are replacing the reference to “5” with a reference to “4.” In the same paragraph in which the previously described error exists (paragraph one of the first response), we list the procedure codes to be removed from the CY 2010 inpatient list. However, we inadvertently included in the list the procedure described by Healthcare Common Procedure Coding System (HCPCS) code 37215 (Transcatheter placement of intravascular stent(s), cervical carotid artery, percutaneous; with distal embolic protection), which should not have been listed. Therefore, we are deleting from the paragraph the language that states we are removing the procedure described by HCPCS code 37215 from the CY 2010 inpatient list. In addition, in the second paragraph in the same response, we provided the incorrect number of procedures for which the clinical and utilization data did not support the appropriateness of providing the procedures to Medicare beneficiaries in the hospital outpatient department (HOPD). Specifically, we incorrectly cited “11” procedures instead of “12” procedures. Therefore, in the paragraph, we are replacing both references to the number “11” with references to the number “12.”

On page 60563, in the summary paragraph following the comment summaries and responses to comments, we inadvertently stated that we were removing “five” procedures instead of “four” procedures from the CY 2010 inpatient list. Therefore, we are correcting the word “five” to read “four.” In addition, in the same paragraph we listed the procedures to be removed from the CY 2010 inpatient list. However, we inadvertently included the procedure described by HCPCS code 37215, which should not have been listed. Therefore, we are deleting from the paragraph the language that states we are removing that procedure from the CY 2010 inpatient list.

On page 60564, in the summary paragraph at the top of the page which follows the comment summaries and responses to comments on the previous page, we made the statement that we were displaying in Table 56 the final “eight” procedures we are removing from the inpatient list. We should have indicated that we were displaying the final “seven” procedures we are removing from the CY 2010 inpatient list in Table 56. Therefore, we are deleting from the paragraph the reference to “eight” and replacing it with a reference to “seven.” In addition, we inadvertently included a procedure in Table 56 that should not have been included. Specifically, we incorrectly included the procedure described by HCPCS code 37215 in the table. Therefore, we are deleting from Table 56 the procedure described by HCPCS code 37215 as well as all of the information associated with it in the CY 2010 long descriptor column, the Final CY 2010 APC assignment column, and the Final CY 2010 status indicator column.

On page 60566, in our discussion to the legislative changes related to pulmonary rehabilitation, cardiac rehabilitation, and intensive cardiac rehabilitation services, we inadvertently made reference to “section II.G.8.” of the preamble of the CY 2010 Medicare Physician Fee Schedule (MPFS) proposed rule (74 FR 33606) instead of “sections II.G.8. and II.G.9.”. We also inadvertently referenced the citation “(74 FR 33606)” instead of the citation “(74 FR 33606 through 33614).” We are correcting these errors so that the reader can easily find the appropriate sections of that proposed rule. Therefore, we are replacing the phrase “section II.G.8.” with the phrase “sections II.G.8. and II.G.9.” and we are replacing the citation “(74 FR 33606)” with the citation “(74 FR 33606 through 33614).”

On page 60598, in our response to a comment, we inadvertently reference “section XII.E.” of the preamble instead of “section XII.D.” We are correcting this error so that the reader can easily find the appropriate section of the rule to review regarding the final CY 2010 physician supervision requirements for hospital outpatient diagnostic and therapeutic services.

On page 60612, in our discussion of the Ambulatory Surgical Center (ASC) treatment of surgical procedures removed from the OPPS inpatient list for CY 2010, we inadvertently made the statement that we were removing “5” procedures instead of “4” procedures from the OPPS inpatient list for CY 2010. Therefore, in section XV.C.1.d., we are replacing both references to the number “5” with references to the number “4.” In addition, we inadvertently included the procedure described by HCPCS Code 37215 in Table 69. We are correcting this error by removing this procedure code from the table, as well as all of the information associated with it in the CY 2010 long descriptor column.

B. Errors in the Addendum

On page 60789, in Addendum B, we made a typographical error when we listed the letter “T” instead of the letter “C” in the payment status indicator (SI) column for HCPCS code 37215. Therefore, we are replacing the letter “T” with the letter “C” in the SI column for HCPCS code 37215.

On page 60957, in Addendum E, we inadvertently omitted HCPCS code 37215 along with the short descriptor, comment indicator, and status indicator. Therefore, we are correcting this error by including HCPCS code 37215 as well as all of the information associated with it in the addendum.

We are republishing Addenda AA and BB, which were published on pages 60692 through 60752 and pages 60919 through 60943, respectively, to take into account updated CY 2010 MPFS information. As required under § 416.171(d), the revised ASC payment system limits payment for office-based procedures and covered ancillary radiology services to the lesser of the ASC rate or the amount calculated by multiplying the nonfacility practice expense (PE) relative value units (RVUs) for the service by the conversion factor under the MPFS. However, the MPFS conversion factor and PE RVUs listed for some CPT codes in Addendum B to the CY 2010 MPFS final rule with comment period (74 FR 61738) were incorrect due to methodological errors and, consequently, have been corrected in a correction notice to that final rule (74 FR 65449). Since the ASC payment amounts for office-based procedures and covered ancillary services are determined using the amounts in the MPFS final rule, we must correct the CY 2010 payment amounts for ASC procedures and services using the corrected MPFS amounts. The revised rates continue to reflect the negative update to the MPFS for CY 2010 authorized under current law. The corrected payment amounts are reflected in Addenda AA and BB to this correction notice and also are posted on the CMS Web site at: http://www.cms.hhs.gov/​ASCPayment.

III. Correction of Errors

1. On page 60559, in column 1, in the first response to comment, in lines 5 and 10 of the response, the statement “conditions for coverage” is corrected to read, “conditions of participation”.

2. On page 60562—

A. In column 1, in the first response to comment, in line 10, the number “5” is corrected to read number “4”.

B. In column 1, in the first response to comment, in lines 15 through 18, the statement “37215 (Transcatheter placement of intravascular stent(s), cervical carotid artery, percutaneous; with distal embolic protection);” is deleted.

C. In column 1, in the last paragraph of the response to comment, in lines 2 and 7, the number “11” is corrected to read, “12”.

3. On page 60563—

A. In column 3, in the last paragraph, in line 6, the word “five” is corrected to read “four”.

B. In column 3, in the last paragraph, in lines 12 through 15, the statement “37215 (Transcatheter placement of intravascular stent(s), cervical carotid artery, percutaneous; with distal embolic protection);” is deleted.

4. On page 60564—

A. In column 3, in line 1 at the top of the page before the chart, the word “eight” is corrected to read “seven”.

B. In Table 56, in row 4, the HCPCS Code “37215” and all associated information is deleted.

5. On page 60566—

A. In column 2, in line 30 from the top of the page, the reference to “section II.G.8.” is corrected to read “sections II.G.8. and II.G.9.”

B. In column 2, in line 31 from the top of the page, the reference to “(74 FR 33606)” is corrected to read “(74 FR 33606 through 33614)”.

6. On page 60598, in column 3, in line 4 from the top of the page, the reference to “section XII.E.” is corrected to read “section XII.D.”

7. On page 60612—

A. In column 1, in line 5 from the top of the page before the table, the number “5” is corrected to read number “4”.

B. In column 2, in line 4 from the top of the page before the table, the number “5” is corrected to read number “4”.

C. In Table 69, in row 4, the HCPCS Code “37215” and all associated information is deleted.

Corrections to Addenda

Addendum B.—OPPS Payment by HCPCS Code for CY 2010

On page 60789, for HCPCS code 37215, in line 36 of the second chart, in column 4, the status indicator “T” is corrected to read “C”.

Addendum E.—HCPCS Codes That Are Paid Only as Inpatient Procedures for CY 2010

On page 60957, in the second chart, insert between HCPCS Codes 37182 and 37616 the final OPPS CY 2010 entry for HCPCS Code 37215 to read as follows:

HCPCS Code	Short descriptor	SI	CI
37215	Transcath stent, cca w/eps	C

Addendum AA.—Final ASC Covered Surgical Procedures for CY 2010 (Including Surgical Procedures for Which Payment Is Packaged)

We are republishing Addendum AA in its entirety. See attached chart.

Addendum BB.—Final ASC Covered Ancillary Services Integral to Covered Surgical Procedures for CY 2010 (Including Ancillary Services for Which Payment Is Packaged)

We are republishing Addendum BB in its entirety. See attached chart.

IV. Waiver of Proposed Rulemaking and Delay in Effective Date

We ordinarily publish a notice of proposed rulemaking in the Federal Register to provide a period for public comment before the provisions of a notice such as this take effect, in accordance with section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). We also ordinarily provide a 30-day delay in the effective date of the provisions of a notice in accordance with section 553(d) of the APA (5 U.S.C. 553(d)). However, we can waive both the notice and comment procedure and the 30-day delay in effective date if the Secretary finds, for good cause, that it is impracticable, unnecessary or contrary to the public interest to follow the notice and comment procedure or to comply with the 30-day delay in the effective date, and incorporates a statement of the finding and the reasons therefore in the notice. The policies and payment methodologies finalized in the CY 2010 OPPS/ASC final rule with comment period have previously been subjected to notice and comment procedures. This correction notice merely provides technical corrections to the CY 2010 OPPS/ASC final rule with comment period that was promulgated through notice and comment rulemaking, and does not make substantive changes to the policies or payment methodologies that were finalized in the final rule with comment period. For example, in order to conform the document to the final policies of the CY 2010 OPPS/ASC final rule with comment period, this notice makes changes to revise inaccurate tabular information. Therefore, we find it unnecessary to undertake further notice and comment procedures with respect to this correction notice. In addition, we believe it is important for the public to have the correct information as soon as possible and find no reason to delay the dissemination of it. For the reasons stated above, we find that both notice and comment and the 30-day delay in effective date for this correction notice are unnecessary. Therefore, we find there is good cause to waive notice and comment procedures and the 30-day delay in effective date for this correction notice.

(Catalog of Federal Domestic Assistance Program No. 93.774, Medicare— Supplementary Medical Insurance Program)

Dated: December 24, 2009.

Dawn L. Smalls,

Executive Secretary to the Department.