2010-10814. Medicare Program; Payment Policies Under the Physician Fee Schedule and Other Revisions to Part B for CY 2010; Corrections

AGENCY:

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

ACTION:

Final rule; corrections.

SUMMARY:

This document corrects several technical and typographical errors in the final rule with comment period that appeared in the November 25, 2009 Federal Register entitled “Medicare Program; Payment Policies Under the Physician Fee Schedule and Other Revisions to Part B for CY 2010; Final Rule” (74 FR 61738), as well as errors in the December 10, 2009 correction notice to the “Medicare Program; Payment Policies Under the Physician Fee Schedule and Other Revisions to Part B for CY 2010; Corrections” (74 FR 65449).

DATES:

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

FOR FURTHER INFORMATION CONTACT:

Rebecca Cole, [phone].

SUPPLEMENTARY INFORMATION:

I. Background

In FR Doc. E9-26502 of November 25, 2009 (74 FR 61738) (hereinafter referred to as the CY 2010 PFS final rule with comment period), there were a number of technical and typographical errors. Some of these errors were corrected in FR Doc. E9-29256 of December 10, 2009 (74 FR 65449) (hereinafter referred to as the December 10, 2009 correction notice).

We note that on December 19, 2009, the Department of Defense Appropriations Act, 2010 (Pub. L. 111-118) was signed into law. Section 1011 of Pub. L. 111-118 provided a 2-month zero percent update to the CY 2010 Medicare physician fee schedule (PFS) effective only for dates of service from January 1, 2010 through February 28, 2010. Further, on March 2, 2010, the Temporary Extension Act of 2010 (Pub. L. 111-144) was signed into law. Section 2 of Pub. L. 111-144 extended through March 31, 2010 the zero percent update to the PFS that was in effect for claims with dates of service from January 1, 2010 through February 28, 2010. In addition, on April 15, 2010, the Continuing Extension Act of 2010 (Pub. L. 111-157) was signed into law. Section 4 of Pub. L. 111-157 extended through May 31, 2010 the zero percent update to the PFS that was in effect for claims with dates of services from January 1, 2010 through March 31, 2010.

The provisions of this notice are effective as if they had been included in the CY 2010 PFS final rule with comment period. Accordingly, the corrections are effective January 1, 2010.

II. The December 10, 2009 Correction Notice

A. Summary of Errors in the December 10, 2009 Correction Notice

On page 65450, we are correcting the figure for the CY 2010 CF by substituting the CF that should have been included in the CY 2010 PFS final rule with comment period. Under the current statute, this CF is effective for services furnished from June 1, 2010 through December 31, 2010. This correction to the CF results from corrections to the practice expense (PE) and malpractice (MP) relative value units (RVUs) to align their values with the final CY 2010 PFS policies for PE and MP RVUs, taking into consideration comments from the public and our further review following display of the final rule with comment period. We are also correcting the note referencing the CF used in Table 1: Calculation of PE RVUs under Methodology for Selected Codes.

On pages 65451 and 65452, we are replacing Table 1: Calculation of PE RVUs under Methodology for Selected Codes.

On page 65453, we are correcting the figures for the CY 2010 PFS CF and national anesthesia CF for the reasons indicated above. We are also correcting the discussion concerning the CY 2010 CF for the reasons indicated above. We are also correcting Table 44 concerning the CY 2010 CF budget neutrality adjustment and CY 2010 CF to reflect the net impact of the RVU changes discussed in this correction notice on the CF. In Table 45, we are correcting the lines concerning the CY 2010 anesthesia adjustment and the CY 2010 anesthesia CF contained in the table for the reasons indicated above. We are replacing Table 50 entitled “Impact of the Final Rule with Comment Period and Estimated Physician Update on 2010 Payment for Selected Procedures” in its entirety to correct the payment amounts for CY 2010. The corrections to Table 50 also reflect the removal of CPT code 78465-26, Heart image (3d), multiple, which was inadvertently included. This is not a procedure commonly furnished by a broad spectrum of physician specialties, the criterion for inclusion in Table 50.

On page 65455, we are correcting the CY 2010 payment amounts associated with CPT code 99203 for the reasons indicated above.

B. Correction of Errors in the December 10, 2009 Correction Notice

In FR Doc. E9-29256 of December 10, 2009 (74 FR 65449), make the following corrections:

1. On page 65450, in the 3rd column,

a. In the 3rd full paragraph, line 5, the figure “$28.3895” is corrected to read “$28.3868.”

b. In the 4th full paragraph, line 4, the figure “$36.0666” is corrected to read “$36.0791.”

2. On pages 65451 and 65452, Table 1 is corrected to read as follows:

3. On page 65453,

a. Middle of the page,

(1) In the 2nd column, 2nd full paragraph, line 2, the figure “$28.3895” is corrected to read “$28.3868”.

(2) In the 3rd column,

(a) Second paragraph, line 2, the figure $16.6108” is corrected to read “$16.6058”.

(b) Fourth paragraph, line 3, the figure “1.000445” is corrected to read “1.000347”.

b. Bottom 3rd of the page,

(1) In Table 44: Calculation of the CY 2010 PFS CF the last two lines are corrected to read as follows:

Table 44—Calculation of the CY 2010 PFS CF

CY 2010 CF Budget Neutrality Adjustment	0.0347 percent (1.000347)
CY 2010 Conversion Factor		$28.3868

(2) In Table 45: Calculation of the CY 2010 Anesthesia Conversion Factor, the last two lines are corrected to read as follows:

Table 45—Calculation of the CY 2010 Anesthesia Conversion Factor

CY 2010 Anesthesia Adjustment	0.91 percent (1.0091)
CY 2010 Anesthesia Conversion Factor		$16.6058

4. On pages 65453 through 65455, in Table 50: Impact of the Final Rule with Comment Period and Physician Update on 2010 Payment for Selected Procedures, table is corrected to read as follows:

5. On page 65455, in the bottom 3rd of the page, in the 2nd column, the partial paragraph,

a. Line 7, the figure “$76.94” is corrected to read “$76.93”

b. Line 9, the figure “$15.38” is corrected to read “$15.39”

III. The CY 2010 PFS Final Rule With Comment Period

A. Summary of Errors in the CY 2010 PFS Final Rule With Comment Period

On page 61760, we are correcting typographical errors in the list of codes that have the surgical risk factor assigned for CY 2010.

On page 61808, we are removing reference to Medicare Part A.

On pages 61822 through 61826, we are correcting typographical errors in the titles of six Physician Quality Reporting Initiative (PQRI) measures listed in Table 11: 2010 Measures Selected from the 2009 PQRI Quality Measure Set Available for Either Claims-based Reporting or Registry-based Reporting.

On page 61827, we are correcting a typographical error in the title of one PQRI measure listed in Table 12: 2010 Measures Selected from the 2009 PQRI Quality Measure Set Available for Registry-based Reporting Only.

On page 61842, we are correcting a typographical error in the title of one PQRI measure and the Measure Developer for two PQRI measures listed in Table 28: Measures for Physician Groups Participating in the 2010 PQRI Group Practice Reporting Option.

On page 61883, in the first column in the second paragraph, we are correcting a typographical error in the third response.

On page 61956, we are adding a discussion of CPT code 92520, Laryngeal function studies, that was inadvertently omitted.

On page 61957, we are correcting Table 31: Additions to the Physician Self-Referral List of CPT¹/HCPCS Codes to include CPT code 92520, Laryngeal function studies.

On pages 61983 and 61984, we are replacing Table 49: CY 2010 Total Allowed Charge Impact for Work, Practice Expense, and Malpractice Changes in its entirety to correct the impacts for CY 2010.

On pages 62017 through 62146, technical errors result in corrections to the work and/or PE and/or MP RVUs for certain existing and new and revised CY 2010 CPT codes in both Addendum B: Relative Value Units and Related Information Used in Determining Medicare Payments for 2010 and Addendum C: Codes With Interim RVUs. The PE corrections are made to ensure that the values are consistent with our interim acceptance of the American Medical Association (AMA) Relative (Value) Update Committee (RUC) recommendations for these codes as stated in the CY 2010 PFS final rule with comment period (74 FR 61955). We are also correcting the budget neutrality factor associated with the elimination of the use of the facility consultation codes to reflect the final rule policy. These include the following:

• CY 2010 New and Revised Codes: PE Corrections—The PE RVUs for 27 CPT codes are corrected due to technical errors. In the CY 2010 final rule with comment period, we provided interim acceptance of the RUC PE recommendations for the following CPT codes: 14301, 51728, 51728-TC, 51729, 51729-TC, 64490, 64491, 64492, 64493, 64494, 64495, 75571, 75571-TC, 75572, 75572-TC, 75573, 75573-TC, 75574, 75574-TC, 78451, 78451-TC, 78452, 78452-TC, 78453, 78453-TC, 78454, and 78454-TC. However, due to technical errors, we did not apply the correct PE values to these codes in Addendum B. The PE RVUs in Addendum B reflect these corrections.
• Malpractice Corrections—There were technical errors in the MP RVUs for certain codes, primarily due to the assignment of risk factors associated with technical component (TC) services and the assignment of risk factors to selected codes that were inconsistent with the policies described in the CY 2010 PFS final rule with comment period or the prior policies left unchanged by the final rule. The MP RVUs in Addendum B reflect these corrections.
• Other Corrections—

++ On pages 62017 through 62143 we are correcting a typographical error in the title of the last column in Addendum B.

++ On pages 62017 through 62143 we are correcting typographical errors in the global period information for CPT¹/HCPCS codes 0016T through 23472.

++ On page 62023, the work RVUs for CPT code 19340 are corrected due to a technical error.

++ On page 62059, the work RVUs for CPT code 42145 are corrected due to a technical error.

On pages 62150, 62151, 62153, 62156, 62159, 62161, and 62170 of Addendum G: CY 2010 ESRD Wage Index for Urban Areas Based on CBSA Labor Market Areas, the wage index values for eight CBSAs are corrected. In order to be consistent with the accurate CY 2010 wage index values provided in the ESRD PRICER, we have corrected the CY 2010 wage index table values in this correction notice.

On page 62178 of Addendum I: List of CPT¹/HCPCS used to Define Certain Designated Health Categories² under Section 1877 of the Social Security Act, we are adding CPT 92520, Laryngeal function studies.

B. Correction of Errors in the CY 2010 PFS Final Rule With Comment Period

In FR Doc. E9-26502 of November 25, 2009 (74 FR 61738), make the following corrections:

1. On page 61746, in the 3rd column, the last paragraph, line 4, the date “January 1, 2010” is corrected to read “January 1, 2009.”

2. On page 61760, in the 3rd column, the 1st full paragraph, lines 5 through 12, the phrase beginning “ranges: Surgery” and ending “(all other CPT codes)” is corrected to read “ranges: Surgery (CPT code range 10000 through 69999; 92973 through 92975; 92980 through 92998; 93501 through 93533; 93580 through 93581; 93600 through 93613; 93618 through 93641; 93650 through 93652); and nonsurgery (all other CPT codes).”

3. On page 61808, in the 3rd column, in the 2nd paragraph, in the 3rd bullet, lines 1 and 2, the phrase “Medicare Part A and Part B” is corrected to read “Medicare Part B.”

4. On pages 61822 through 61826, in Table 11: 2010 Measures Selected From the 2009 PQRI Quality Measure Set Available for Either Claims-based Reporting or Registry-based Reporting, the measure title for the listed entries are corrected to read as follows:

Measure No.	Measure title	Measure developer
91	Acute Otitis Externa (AOE): Topical Therapy	AMA-PCPI
92	Acute Otitis Externa (AOE): Pain Assessment	AMA-PCPI
93	Acute Otitis Externa (AOE): Systemic Antimicrobial Therapy—Avoidance of Inappropriate Use	AMA-PCPI
100	Colorectal Cancer Resection Pathology Reporting: pT Category (Primary Tumor) and pN Category (Regional Lymph Nodes) with Histologic Grade	AMA-PCPI/CAP
109	Osteoarthritis (OA): Function and Pain Assessment	AMA-PCPI
141	Primary Open-Angle Glaucoma (POAG): Reduction of Intraocular Pressure (IOP) by 15% OR Documentation of a Plan of Care	AMA-PCPI/NCQA

5. On page 61827, Table 12: 2010 Measures Selected From the 2009 PQRI Quality Measure Set Available for Registry-based Reporting Only, the measure title for the listed entry (measure number 118) is corrected to read as follows:

Measure No.	Measure title	Measure developer
118	Coronary Artery Disease (CAD): Angiotensin-Converting Enzyme (ACE) Inhibitor or Angiotensin Receptor Blocker (ARB) Therapy for Patients with CAD and Diabetes and/or Left Ventricular Systolic Dysfunction (LVSD)	AMA-PCPI

6. On page 61842, Table 28: Measures for Physician Groups Participating in the 2010 PQRI Group Practice Reporting Option, the listed entries are corrected to read as follows:

Measure No.	Measure title	Measure developer
2	Diabetes Mellitus: Low Density Lipoprotein (LDL-C) Control in Diabetes Mellitus	NCQA
113	Preventive Care and Screening: Colorectal Cancer Screening	NCQA
TBD	Hypertension (HTN): Blood Pressure Control	NCQA

7. On page 61883, in the 1st column, in the 7th paragraph, lines 1 through 7, the sentence that begins with the phrase “'(B) provides at least the following” and ends “(Emphasis Added)” is corrected to read “ “(B) provides at least the following comprehensive outpatient rehabilitative (i) physicians' services (rendered by physicians, as defined in section 1861 (r)(1) of the Act who are available at the facility on a full or part-time basis;” (Emphasis added).”

8. On page 61956:

a. In the 2nd column, last partial paragraph, line 5, that begins with the phrase “We are also adding” is corrected to read “We also are adding HCPCS codes G0416 through G0419 and CPT code 92520. HCPCS codes G0416 through G0419 represent pathology codes for prostate needle saturation biopsy sampling that we are adding to the “Clinical Laboratory Services” category of the Code List.”

b. In the 3rd column, the 1st partial paragraph, at the end of the last sentence, the paragraph is corrected by adding the following sentences: “Additionally, we are adding CPT code 92520 that represents laryngeal function studies to the “Physical Therapy, Occupational Therapy and Outpatient Speech-Language Pathology” category of the Code List. The addition of this code reflects Medicare's recognition of this service on the Therapy List issued for 2010 (see CMS Internet-Only Manual, Pub 100-04, Chapter 5, section 20 or http://www.cms.hhs.gov/​TherapyServices/​05_​Annual_​Therapy_​Update.asp).”

9. On page 61957, Table 31: Additions to the Physician Self-Referral List of CPT¹/HCPCS Codes, under the heading of “Physical Therapy, Occupational Therapy, and Outpatient Speech-Language Pathology Services”, the entry “[no additions]” is corrected to read “92520 Laryngeal function studies.”

10. On pages 61983 through 61984, in Table 49: CY 2010 Total Allowed Charge Impact for Work, Practice Expense, and Malpractice Changes, the table is corrected to read as follows:

11. On pages 62017 through 62143 and as corrected in the December 10, 2009 correction notice (74 FR 65455 through 65457), in Addendum B: Relative Value Units and Related Information Used in Determining Medicare Payments for 2010, the addendum is corrected to read as follows:

12. On pages 620144 through 620147 and as corrected in the December 10, 2009 correction notice (74 FR 65457), in Addendum C: Codes With Interim RVUs is corrected to read as follows:

13. On pages 62150, 62151, 62153, 62156, 62159, 62161, and 62170, Addendum G: CY 2010 ESRD Wage Index for Urban Areas Based on CBSA Labor Market Areas, we are correcting the following wage index values:

CBSA Code	Wage index
11340	0.9544
12580	1.0804
16020	0.9569
16180	1.1139
21500	0.9286
27860	0.8168
31140	0.9482
47300	1.0811

14. On page 62178, Addendum I: List of CPT ¹/HCPCS Used To Define Certain Designated Health Categories² Under Section 1877 of the Social Security Act, the addendum is corrected by adding the following entry in numerical order after the entry “92508 Speech/hearing therapy”:

92520	Laryngeal function studies

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 rule take effect in accordance with section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). However, we can waive the notice and comment procedure if the Secretary finds, for good cause, that the notice and comment process is impracticable, unnecessary, or contrary to the public interest, and incorporates a statement of the finding and the reasons for it in the rule.

Section 553(d) of the APA ordinarily requires a 30-day delay in the effective date of final rules after the date of their publication. This 30-day delay in effective date can be waived, however, if an agency finds for good cause that the delay is impracticable, unnecessary, or contrary to the public interest, and the agency incorporates a statement of the findings and its reasons in the rule issued.

This document merely corrects typographical and technical errors made in FR Doc. E9-26502, the CY 2010 PFS final rule with comment period (74 FR 61738) and in FR Doc. E9-29256, the December 10, 2009 correction notice (74 FR 65449), and is (with limited exceptions not relevant to these corrections, but noted in the rule), effective on January 1, 2010. The provisions of the final rule with comment period have been subjected previously to notice and comment procedures. The corrections contained in this document are consistent with, and do not make substantive changes to, the payment methodologies and policies adopted in the CY 2010 PFS final rule with comment period. As such, these corrections are being made to ensure the CY 2010 PFS final rule with comment period accurately reflects the policies adopted in that rule. Therefore, we find for good cause that it is unnecessary and would be contrary to the public interest to undertake further notice and comment procedures to incorporate these corrections into the CY 2010 PFS final rule with comment period.

For the same reasons, we are also waiving the 30-day delay in effective date for these corrections. We believe that it is in the public interest to ensure that the CY 2010 PFS final rule with comment period accurately states our policies as of the date they take effect. Therefore, we find that delaying the effective date of these corrections beyond the effective date of the final rule with comment period would be contrary to the public interest. In so doing, we find good cause to waive the 30-day delay in the effective date.

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

Dated: May 3, 2010.

Dawn L. Smalls,

Executive Secretary to the Department.