2010-33264. Medicare Program; Payment Policies Under the Physician Fee Schedule and Other Revisions to Part B for CY 2011; Corrections

AGENCY:

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

ACTION:

Correction of final rule with comment period.

SUMMARY:

This document corrects several technical and typographical errors in the final rule with comment period that appeared in the November 29, 2010 Federal Register entitled “Medicare Program; Payment Policies Under the Physician Fee Schedule and Other Revisions to Part B for CY 2011; Final Rule” (75 FR 73170).

DATES:

Effective Date: This correction is effective January 1, 2011.

FOR FURTHER INFORMATION CONTACT:

Rebecca Cole or Erin Smith, [phone].

SUPPLEMENTARY INFORMATION:

I. Background

In FR Doc. 2010-27969 of November 29, 2010 (75 FR 73170) (hereinafter referred to as the Calendar Year (CY) 2011 Physician Fee Schedule (PFS) final rule with comment period), there were a number of technical and typographical errors that are identified and corrected in the Correction of Errors section of this notice. The provisions of this notice are effective as if they had been included in the CY 2011 PFS final rule with comment period. Accordingly, the corrections are effective January 1, 2011.

On November 30, 2010, the Physician Payment and Therapy Relief Act of 2010 (Pub. L. 111-286) was signed into law. Section 3 of Public Law 111-286 changed the policy finalized in the CY 2011 PFS final rule with comment period regarding payment reductions applied to multiple therapy services provided to the same patient on the same day and paid for under the PFS effective January 1, 2011.

Further, on December 15, 2010, the Medicare and Medicaid Extenders Act of 2010 (Pub. L. 111-309) was signed into law. Section 101 of Public Law 111-309 provides for a 1-year zero-percent update to the Medicare physician fee schedule (PFS) for CY 2011.

As this correction notice corrects the CY 2011 physician fee schedule final rule with comment period that was released prior to enactment of the statutory changes contained in the two laws noted above, the statutory changes to PFS payments for CY 2011 are not reflected in this correction notice. Payment files reflecting current law as of January 1, 2011 will be made available through usual CMS notices and data files.

II. Summary of Errors

A. Errors in the Preamble

1. Errors in the Budget Neutrality, Conversion, Anesthesia, and Other Factors

On page 73276, we are correcting the adjustments to the PE and malpractice RVUs to match the proportions of the RVU shares to the rebased and revised Medicare Economic Index (MEI), resulting from the corrections of work, PE, and malpractice RVUs discussed in this section. We are making the corresponding changes to Table 45—Calculation of the CY 2011 PFS CF.

On pages 73283 and 73284, we are correcting the figures for the CY 2011 budget neutrality factors, conversion factor (CF), and anesthesia CF to reflect the updated values resulting from the corrections to the work, PE, and malpractice RVUs discussed in this section.

On page 73388, we are correcting Table 60—CY 2011 RVUs for CPT code 77080 to reflect the corrected CF.

2. Errors in Work RVUs

On page 73328, we are correcting the count of AMA RUC work RVU recommendations with which we agreed or disagreed. Due to a typographical error, the published count was incorrect.

On page 73340, we are correcting the CY 2011 Interim Final Work RVU value for CPT code 52332 that was listed incorrectly due to a typographical error.

On page 73341, we are correcting the CY 2011 Interim Final Work RVU value for CPT code 77427 that was incorrect due to a technical error.

On pages 73342 through 73349, we are correcting Table 53: AMA RUC Recommendations and Interim Final Work RVUs for CY 2011 New, Revised, and Potentially Misvalued Codes to reflect the corrections previously listed for CPT codes 52332 and 77427, and to make these additional corrections:

• The AMA RUC-Recommended Work RVU value for CPT code 77427 was incorrect due to a typographical error.
• The CMS Decision and CY 2011 Interim Final Work RVU fields for CPT code 64483 were incorrect due to typographical errors.

3. Errors in the PE RVUs

On pages 73352 and 73353, in Table 54—CPT Codes With Accepted AMA RUC Direct PE Recommendations for CY 2011 Codes, we listed codes for which we accepted on an interim final basis the AMA RUC direct PE recommendations. However, due to technical errors, we did not apply the correct inputs when calculating the PE values for the following CPT codes: 31296, 31297, 37223, 90945, 95800, and 95801. Similar technical errors in the creation of the direct practice expense database resulted in incorrect direct PE inputs for five other CPT codes: 77750, 92506, 93224, 93225, and 93226. The corrections to these direct PE inputs are included in the corrected final CY 2011 direct PE database available under downloads for the CY 2011 PFS final rule with comment period on the CMS Web site at: http://www.cms.gov/​PhysicianFeeSched/​PFSFRN/​list.asp#TopOfPage.

Changes to the PE RVUs resulting from the corrections to the direct PE inputs and the work RVU corrections previously noted are reflected in changes to Addendum B and Addendum C. We also note that because work RVUs factor into the calculation for both the malpractice (MP) and practice expense (PE) RVUs, those values for these CPT codes may have also changed, and these subsequent changes are reflected in Addenda B and C. In addition, on page 73188, we are correcting errors in Table 2—Calculation of PE RVUs Under Methodology for Selected Codes (we are correcting the table in its entirety) as a result of changed values for PE RVUs that indirectly resulted from the changes to work RVUs.

Finally, we note that changes in the RVUs for these codes affect additional codes due to various factors related to the relativity of the system including budget neutrality and adjustments to maintain PE RVU shares.

4. Errors in the Malpractice RVUs

In section II.B.2 of the preamble to the CY 2011 PFS final rule with comment period, we discussed malpractice RVUs for new and revised services. These codes are listed on pages 73209 through 73213 in Table 8: Source Codes for CY 2011 New/Revised Codes Used to Set the Malpractice RVUs, and their MP RVU values are listed in Addendum B and Addendum C. Due to a technical error in the application of the methodology used to calculate the MP RVUs as described in the CY 2011 PFS final rule with comment period, the MP RVU values listed for the following CPT codes were incorrect: 92606, 92607, 92608, 92609, 93452, 93452TC, 93453, 93453TC, 93454, 93454TC, 93457, 93457TC, 93458, 93458TC, 93459, 93459TC, 93460, 93460TC, 93461, 93461TC.

Additionally, changes to the MP RVUs resulting from the correction to the work RVUs for CPT codes 77427 and 52332 as previously described are also reflected in Addendum B and Addendum C. Finally, we note that changes in RVUs previously described affect MP RVUs for additional codes due to various factors related to the relativity of the system.

Due to the changes previously noted, we are correcting errors on pages 73595 through 73596 in Table 101: CY 2011 PFS Final Rule Total Allowed Charge Estimated Impact for RVU, MPPR, and MEI Rebasing Changes and on pages 73598 through 73600 in Table 102: Impact of Final Rule with Comment Period and Estimated Physician Update on CY 2011 Payment for Selected Procedures by replacing the tables in their entirety.

B. Errors in the Addenda

On pages 73630 through 73809 and 73810 through 73815, in Addendum B: CY 2011—Relative Value Units and Related Information Used in Determining Medicare Payments and Addendum C: Codes with Interim RVUs, respectively, we need to correct errors in the work, PE, or MP RVUs (or combinations of these RVUs) for certain existing new and revised CY 2011 CPT codes. These errors are a result of the technical and typographical errors identified and summarized in section II.A. of this correction notice. We note that we are providing these addenda in their entirety.

On page 73831 in Addendum J: List of CPT ¹/HCPCS Codes Used to Define Certain Designated Health Service Categories ² under Section 1877 of the Social Security Act Effective January 1, 2011 we are correcting a technical error in the short descriptor for HCPCS code G0431.

On pages 73841 through 73859, in Addendum K: CY 2011 ESRD Wage Index for Urban Areas Based on CBSA Labor Market Areas, we made technical and typographical errors in the composite rate wage index for CBSA codes 11540, 12060, 19060, 27740, and 35380, and in the ESRD PPS wage index for CBSA codes 40980 and 43780. On page 73848, we also made a typographical error in the CBSA code for Houston-Sugar Land-Baytown, TX.

On page 73859, in Addendum L: CY 2011 ESRD Wage Index for Rural Areas Based on CBSA Labor Market Areas, we made a technical error in the composite wage index for the nonurban area of Alaska.

III. Correction of Errors

In FR Doc. 2010-27969 of November 29, 2010 make the following corrections:

A. Corrections to the Preamble

1. On page 73188, in Table 2—Calculation of PE RVUs Under Methodology for Selected Codes, the table is corrected to read as follows:

Table 2—Calculation of PE RVUS Under Methodology for Selected Codes

	Step	Source	Formula	99213 Office visit, est nonfacility	33533 CABG, arterial, single facility	71020 Chest x-ray nonfacility	71020-TC	71020-26 Chest xray nonfacility	93000 ECG, complete nonfacility	93005 ECG, tracing nonfacility	93010 ECG, report nonfacility
(1) Labor cost (Lab)	Step 1	AMA		13.32	77.52	5.74	5.74	0.00	6.12	6.12	0.00
(2) Supply cost (Sup)	Step 1	AMA		2.98	7.34	3.39	3.39	0.00	1.19	1.19	0.00
(3) Equipment cost (Eqp.)	Step 1	AMA		0.19	0.65	8.17	8.17	0.00	0.12	0.12	0.00
(4) Direct cost (Dir)	Step 1		=(1)+(2)+(3)	16.50	85.51	17.31	17.31	0.00	7.43	7.43	0.00
(5) Direct adjustment (Dir. Adj)	Steps 2-4	See footnote*		0.50	0.50	0.50	0.50	0.50	0.50	0.50	0.50
(6) Adjusted Labor	Steps 2-4	=Lab * Dir Adj	=(1)*(5)	6.65	38.68	2.86	2.86	0.00	3.05	3.05	0.00
(7) Adjusted Supplies	Steps 2-4	= Sup * Dir Adj	=(2)*(5)	1.49	3.66	1.69	1.69	0.00	0.60	0.60	0.00
(8) Adjusted Equipment	Steps 2-4	= Eqp * Dir Adj	=(3)*(5)	0.10	0.33	4.08	4.08	0.00	0.06	0.06	0.00
(9) Adjusted direct	Steps 2-4		=(6)+(7)+(8)	8.23	42.67	8.64	8.64	0.00	3.71	3.71	0.00
(10) Conversion Factor (CF)	Step 5	PFS		36.87	36.87	36.87	36.87	36.87	36.87	36.87	36.87
(11) Adj. labor cost converted	Step 5	=(Lab * Dir Adj)/CF	=(6)/(10)	0.18	1.05	0.08	0.08	0.00	0.08	0.08	0.00
(12) Adj. supply cost converted	Step 5	=(Sup * Dir Adj)/CF	=(7)/(10)	0.04	0.10	0.05	0.05	0.00	0.02	0.02	0.00
(13) Adj. equipment cost converted	Step 5	=(Eqp * Dir Adj)/CF	=(8)/(10)	0.00	0.01	0.11	0.11	0.00	0.00	0.00	0.00
(14) Adj. direct cost converted	Step 5		=(11)+(12)+(13)	0.22	1.16	0.23	0.23	0.00	0.10	0.10	0.00
(15) Work RVU	Setup File	PFS		0.97	33.75	0.22	0.00	0.22	0.17	0.00	0.17
(16) Dir_pct	Steps 6, 7	Surveys		0.26	0.18	0.29	0.29	0.29	0.29	0.29	0.29
(17) Ind_pct	Steps 6, 7	Surveys		0.74	0.82	0.71	0.71	0.71	0.71	0.71	0.71
(18) Ind. Alloc. Formula (1st part)	Step 8	See Step 8		((14)/(16)) * (17)	((14)/(16)) * (17)	((14)/(16)) * (17)	((14)/(16)) * (17)	((14)/(16)) * (17)	((14)/(16)) * (17)	((14)/(16)) * (17)	((14)/(16)) * (17)
(19) Ind. Alloc. (1st part)	Step 8		See (18)	0.65	5.27	0.58	0.58	0.00	0.25	0.25	0.00
(20) Ind. Alloc. Formulas (2nd part)	Step 8	See Step 8		(15)	(15)	(15)+(11)	(11)	(15)	(15)+(11)	(11)	(15)
(21) Ind. Alloc. (2nd part)	Step 8		See (20)	0.97	33.75	0.30	0.08	0.22	0.25	0.08	0.17
(22) Indirect Allocator (1st + 2nd)	Step 8		=(19)+(21)	1.62	39.02	0.88	0.66	0.22	0.50	0.33	0.17
(23) Indirect Adjustment (Ind. Adj.)	Steps 9-11	See footnote**		0.37	0.37	0.37	0.37	0.37	0.37	0.37	0.37
(24) Adjusted indirect allocator	Steps 9-11	=Ind Alloc * Ind Adj		0.60	14.46	0.32	0.24	0.08	0.19	0.12	0.06
(25) Ind. Practice Cost Index (IPCI)	Steps 12-16	See Steps 12-16		1.11	0.83	0.89	0.89	0.89	0.92	0.92	0.92
(26) Adjusted Indirect	Step 17	= Adj.Ind Alloc * PCI	=(24) * (25)	0.67	12.05	0.29	0.22	0.07	0.17	0.11	0.06
(27) MEI Rebasing Adjustment	Step 18	PFS		1.18	1.18	1.18	1.18	1.18	1.18	1.18	1.18
(28) MPPR Adjustment	Step 18	PFS		1.01	1.01	1.01	1.01	1.01	1.01	1.01	1.01
(29) PE RVU	Step 18	=(Adj Dir + Adj Ind) * budn * MEI Adj * MPPR Adj	=((14)+(26)) * budn * (27) * (28)	1.06	15.69	0.62	0.53	0.09	0.32	0.25	0.07
Note: PE RVUs in table 2, row 29, may not match Addendum B due to rounding.
* The direct adj = [current pe rvus * CF * avg dir pct]/[sum direct inputs] = [Step 2]/[Step 3].
** The indirect adj = [current pe rvus * avg ind pct]/[sum of ind allocators] = [Step 9]/[Step 10].

2. On page 73276, third column,

a. Second full paragraph,

(1) Line 23, the figure “1.181” is corrected to read “1.182.”

(2) Line 24, the figure “1.358” is corrected to read “1.361.”

(3) Line 28, the figure “1.358” is corrected to read “1.361.”

b. Last partial paragraph,

(1) Line 10, the figure “0.9181” is corrected to read “0.9175.”

(2) Line 11, the figure “1.181” is corrected to read “1.182.”

(3) Line 12, the figure “1.358” is corrected to read “1.361.”

3. On page 73283,

a. Top half of the page,

(1) First column, first full paragraph,

(a) Line 1, the figure “$25.5217” is corrected to read “$25.4999.”

(b) Line 3, the figure “$15.8085” is corrected to read “$15.7999.”

(2) Second column, second partial paragraph, last line, the figure “1.0045” is corrected to read “1.0043.”

(3) Third column, first partial paragraph,

(a) Line 6, the figure “0.9181” is corrected to read “0.9175.”

(b) Line 15, the figure “$25.5217” is corrected to read “$25.4999”

b. Bottom half of the page, in Table 45—Calculation of the CY 2011 PFS CF, the listed entries are corrected to read as follows:

CY 2011 RVU Budget Neutrality Adjustment	0.4 percent (1.0043).
CY 2011 Rescaling to Match MEI Weights Budget Neutrality Adjustment	−8.3 percent (0.9175).
CY 2011 Conversion Factor		$25.4999

4. On pages 73283 and 73284, top of the page, in Table 46—Calculation of the CY 2011 Anesthesia Conversion Factor, the listed entries are corrected to read as follows:

CY 2011 Anesthesia Adjustment	−2.4 percent (0.9760).
CY 2011 Anesthesia Conversion Factor		$15.7999

5. On page 73328, first column, last paragraph,

a. Line 4, the figure “207” is corrected to read “206.”

b. Line 7, the figure “84” is corrected to read “85.”

6. On page 73340, first column, first full paragraph,

a. Line 9, the number “1.47” is corrected to read “2.60.”

b. Line 10, the phrase “25th percentile” is corrected to read “low value.”

c. Line 14, the number “1.47” is corrected to read “2.60.”

7. On page 73341, third column, last paragraph, line 12, the figure “2.92” is corrected to read “3.37.”

8. On pages 73342 through 73349, in Table 53—AMA RUC Recommendations and Interim Final Work RVUs for CY 2011 New, Revised, and Potentially Misvalued Codes the listed entries are corrected to read as follows:

CPT code	Short descriptor	Valued in relation to a potentially misvalued code screen	AMA RUC- recommended work RVUs	CMS decision	CY 2011 interim final work RVUs
52332	Cystoscopy and treatment	x	2.83	Disagree	2.60
64483	Inj foramen epidural l/s	x	1.90	Disagree	1.75
77427	Radiation tx management x5	x	3.45	Disagree	3.37

9. On page 73388, lower third of the page,

a. First column, first paragraph, last line, the figure “$25.5217” is corrected to read “$25.4999.”

b. Table 60—CY 2011 RVUs for CPT Code 77080, the table is corrected to read as follows:

Table 60—CY 2011 RVUs for CPT Code 77080

[Note: Calculated using the current law CY 2011 CF of $25.4999]

CY 2011 CPT code	Mod	CY 2011 physician work RVUs	CY 2011 nonfacility PE RVUs	CY 2011 facility PE RVUs	CY 2011 malpractice RVUs
77080	26	0.31	0.10	0.10	0.01
77080	TC	0.00	3.23	NA	0.18
77080		0.31	3.33	NA	0.19

10. On pages 73595 and 73596, in Table 101—CY 2011 PFS Final Rule Total Allowed Charge Estimate Impact for RVU, MPPR, and MEI Rebasing Changes, the table is corrected to read as follows:

11. On pages 73598 through 73600, in Table 102—Impact of Final Rule with Comment Period and Estimated Physician Update on CY 2011 Payment for Selected Procedures, the table is corrected to read as follows:

B. Corrections to the Addenda

1. On pages 73630 through 73809, in Addendum B: CY 2011-Relative Value Units and Related Information Used in Determining Medicare Payments, the addendum is corrected to read as follows:

3. On page 73831, in Addendum J: List of CPT ¹/HCPCS Codes Used to Define Certain Designated Health Service Categories ² under Section 1877 of the Social Security Act Effective January 1, 2011, the listed entry is corrected to read as follows:

4. On pages 73841 through 73859, in Addendum K: CY 2011 ESRD Wage Index for Urban Areas Based on CBSA Labor Market Areas, the listed entries are corrected to read as follows:

4. On page 73859, in Addendum L: CY 2011 ESRD Wage Index for Rural Areas Based on CBSA Labor Market Areas, the listed entry is corrected to read as follows:

III. 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 the CY 2011 PFS final rule with comment period, which appeared in the November 29, 2010 Federal Register (75 FR 73170), and is (with limited exceptions not relevant to these corrections, but noted in the rule), effective January 1, 2011. 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 2011 PFS final rule with comment period. As such, these corrections are being made to ensure the CY 2011 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 2011 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 2011 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: December 29, 2010.

Dawn L. Smalls,

Executive Secretary to the Department.