Medicare Program; Explanation of Federal Fiscal Year (FY) 2004, 2005, and 2006 Outlier Fixed-Loss Thresholds as Required by Court Rulings, 26360-26363 [2019-11796]
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[FR Doc. 2019–11895 Filed 6–5–19; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF HEALTH AND
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42 CFR Part 412
[CMS–1708–N]
Medicare Program; Explanation of
Federal Fiscal Year (FY) 2004, 2005,
and 2006 Outlier Fixed-Loss
Thresholds as Required by Court
Rulings
Centers for Medicare &
Medicaid Services (CMS), HHS.
ACTION: Clarification.
AGENCY:
In accordance with court
rulings in cases that challenge the
federal fiscal year (FY) 2004, 2005, and
2006 outlier fixed-loss threshold (FLT)
rulemakings, this document provides
further explanation of certain
methodological choices made in the
FLT determinations for those years.
DATES: June 6, 2019.
FOR FURTHER INFORMATION CONTACT: Don
Thompson, (410) 786–6504.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Background
On May 19, 2015, in District Hospital
Partners v. Burwell, 786 F.3d 46 (D.C.
Cir. 2015), the Court of Appeals for the
District of Columbia Circuit held that
the FY 2004 fixed-loss threshold (FLT)
was inadequately explained in the
federal fiscal year (FY) 2004 hospital
inpatient prospective payment systems
(IPPS) final rule. The court of appeals
ordered the district court to remand to
CMS for further explanation of the
handling of data pertaining to 123
hospitals the agency had identified as
likely to have engaged in
‘‘turbocharging,’’ that is, manipulating
their charges to obtain greater outlier
payments. The United States District
Court for the District of Columbia then
remanded to the Secretary in
accordance with the decision of the
Court of Appeals. Order, Dist. Hosp.
Partners, L.P. v. Burwell, Civil Action
No. 11–0116 (ESH) (D.D.C. August 13,
2015).
On September 2, 2015, the District
Court issued an order in a separate case,
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Banner Health v. Burwell, No. 10–1638
(ECF Nos. 149 and 150), 126 F. Supp.
3d 28 (D.D.C. 2015), remanding for
additional explanation of the FLT from
the FY 2004 final rule consistent with
the D.C. Circuit’s decision in District
Hospital Partners. The court stated that
the agency should explain further why
it did not exclude data from the 123
hospitals from the outlier charge
inflation calculation used to produce
estimates of future Medicare payments
for FY 2004.
In the January 22, 2016 Federal
Register (81 FR 3727), we published an
additional explanation in response to
these court orders. In the October 14,
2016 Federal Register (81 FR 70980), we
published a minor, non-substantive
correction to the January 2016
document.
In Banner Health v. Price, 867 F.3d
1323 (D.C. Cir. 2017), the court of
appeals reviewed the January 2016
document and found that the agency
still had not adequately explained why
the agency, in the FY 2004 rulemaking,
did not exclude the charge data from the
123 hospitals it had identified as likely
turbochargers when calculating the
charge inflation factor used to transform
historical charges into future charges for
purposes of the agency’s projections.
The court of appeals also found that the
agency had not adequately explained
why it did not apply a downward
adjustment to hospitals’ cost-to-charge
ratios when determining the FLTs for
FYs 2004, 2005, and 2006, an issue not
addressed in the Court of Appeals
decision in District Hospital Partners.
The court in Banner Health ordered the
district court to remand to CMS to
provide additional explanation on these
two points. The district court issued a
remand order on April 12, 2018. The
district court also entered a similar
order with respect to the FY 2004
determination in another case, District
Hospital Partners, L.P. v. Azar, 320 F.
Supp. 3d 42 (D.D.C. 2018).
We are issuing this document to
provide the additional explanation
required by these decisions.
II. Provisions of the Explanation
A. Inclusion of Data Pertaining to 123
Hospitals Identified as Likely
Turbochargers in the Calculation of
Estimated Charge Inflation for FY 2004
The first issue pertains to the use of
data pertaining to 123 hospitals whom
we described in a March 5, 2003
proposed rule (68 FR 10420), as
hospitals likely to have engaged in
turbocharging. We chose to calculate the
FY 2004 charge inflation adjustment
using data that incorporated data
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Federal Register / Vol. 84, No. 109 / Thursday, June 6, 2019 / Rules and Regulations
pertaining to the 123 hospitals, instead
of choosing to omit data pertaining to
those hospitals.
As we discussed in our earlier
publications, the 123 hospitals were
identified through an analysis of
Medicare Provider Analysis and Review
(MedPAR) file data from FY 1999 to FY
2001. We singled out hospitals whose
percentage of outlier payments relative
to total diagnosis-related group (DRG)
payments increased by at least 5
percentage points over that period, and
whose case-mix (the average DRG
relative weight value for all of a
hospital’s Medicare cases) adjusted
charges increased at a rate at or above
the 95th percentile rate of charge
increase for all hospitals over the same
period. We note that we conducted this
analysis primarily for the purpose of
assessing and diagnosing the problem of
turbocharging, not for the purpose of
making adjustments to our projections
for the FY 2004 rulemaking.
We identified the 123 hospitals based
on data from the interval from FY 1999
to FY 2001. Our charge inflation
calculation for FY 2004 was based on
data covering a more recent interval,
from FY 2000 to FY 2002. We were
attempting to project charge increases
over a third period, from FY 2002 to FY
2004.
The hypothesis underlying the
suggestion that the 123 hospitals should
have been omitted is that charge
inflation for those 123 hospitals was
likely to begin slowing in FY 2004 in
response to the adoption of the June 9,
2003 Outlier final rule (68 FR 34494),
while charge inflation for other
hospitals would remain in line with
historical patterns between FY 2002 and
2004. Consequently, according to this
hypothesis, an estimate computed from
FY 2000 to 2002 charge data that
included the 123 hospitals would likely
overstate FY 2004 hospital charges for
the entire population of hospitals. But
this hypothesis depends on assumptions
that, at the time of the FY 2004
rulemaking, we did not find appreciably
more credible than the alternative
assumptions we ultimately relied upon.
The hypothesis that the 123 hospitals
identified in our analysis should have
been dropped from the charge inflation
computation treats the removal of the
123 hospitals as synonymous with
accounting for turbocharging. It
presumes that removing the 123
hospitals from the measure of charge
inflation would have accounted for the
end of turbocharging, without otherwise
introducing error or bias, and that,
conversely, including the 123 hospitals
introduced systematic error. But that
assumes both that all of the 123
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hospitals were in fact engaged in
turbocharging, and that the population
of turbocharging hospitals remained for
the most part unchanged over all three
intervals from FY 1999 through the end
of FY 2003—that is, that those 123
hospitals continued to engage in
turbocharging after FY 2001, that they
did not materially increase their rate of
turbocharging during that period, and
that no other hospitals started to
turbocharge or otherwise increase their
rate of charge inflation. We did not feel
sufficiently confident that such an
assumption would enhance the
accuracy of the outlier threshold
calculation to incorporate it into our
projections for FY 2004.
While our analysis confirmed that
turbocharging was a problem, and that
rule changes were warranted along the
lines of the changes we adopted in June
2003, we did not otherwise have a
confident grasp on which hospitals were
turbocharging at what times. Our
analysis suggested that the 123 hospitals
that we identified were likely engaging
in turbocharging during the FY 1999 to
FY 2001 interval, but it did not tell us
whether the population of turbocharging
hospitals remained unchanged through
the end of FY 2003, with all 123
hospitals continuing to engage in
turbocharging and no other hospitals
starting to turbocharge.
There was also good reason to
question the assumption that the
population of turbocharging hospitals
and the behavior of turbocharging
hospitals did not change between FYs
2001 and 2003. Industry knowledge of
turbocharging may have become more
widespread late in calendar year (CY)
2002 after publication of an investment
analyst report on the subject. As we
previously explained in our March 2003
and June 2003 documents (68 FR 10426
and 10427 and 68 FR 34505,
respectively), we believed that it was
possible that, before the June 2003 final
rule took effect, hospitals that had not
previously engaged in turbocharging
would take advantage of this new
knowledge and increase their charges to
catch up to the charging practices of
their competitors. Likewise, we had
reason to believe that turbocharging
hospitals, in anticipation of CMS’s
regulatory action curbing the effects of
turbocharging, would accelerate their
turbocharging, either so that they could
gain as much as they could from the
practice before CMS’s regulatory
changes took effect or because the
hospitals now had less reason to keep
turbocharging limited to avoid
detection. For these reasons, HHS could
not necessarily count on the assumption
that aggregate charge inflation between
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FYs 2002 and 2004 would be
significantly lower than predicted by
the FY 2000 to FY 2002 data.
In sum, in evaluating how to handle
the 123 hospitals in estimating charge
growth, we were faced with choices
among various uncertain assumptions.
We understand the intuitive appeal
behind the suggestion that we could
have imputed the phenomenon of
turbocharging strictly and exclusively to
those 123 hospitals, and accordingly
assumed that dropping those 123
hospitals’ charge data from the charge
inflation estimate would remove a
source of distortion. But that suggestion
itself rests on a set of assumptions.
Ultimately, we were faced with a choice
between those assumptions and the
alternative assumption that, by and
large, charge inflation between FYs 2000
and 2002 would adequately predict
charge inflation between FYs 2002 and
2004 overall. We did not see reason to
conclude that those other assumptions
were superior.
We note also that there was only a
very limited time interval between the
finalization of the June 2003 rule and
the publication of the FY 2004 final rule
on August 1, 2003, so we had very little
time to analyze the potential impact of
the June 2003 rule, as finally adopted,
on our projections. In addition, the June
2003 rule did not take effect upon
publication. Instead, some parts of the
rule were to take effect August 8, 2003,
and the rest were to take effect October
1, 2003. Consequently, at the time of the
FY 2004 final rule, we did not yet have
any actual data on hospital charging
behavior under the June 2003 rule. We
did take several measures designed to
adapt the FY 2004 estimates in light of
the adoption of the final 2003 rule, and
those measures resulted in a
significantly lower fixed-loss threshold.
But the timing of our efforts constrained
our ability to explore additional avenues
of analysis we might have otherwise
explored.
B. Adjustments to Cost-to-Charge Ratios
To Simulate Updates When More Recent
Cost Reports Are Tentatively Settled
The court rulings also call for
additional explanation of a second issue
with respect to each of the FY 2004,
2005, and 2006 IPPS rulemakings.
Specifically, the court questioned why,
in simulating future DRG payments and
outlier payments, we did not apply a
downward adjustment to hospitals’ costto-charge ratios to account for the
possibility that, after a more recent cost
report is tentatively settled during the
coming fiscal year, a given hospital’s
outlier payments will be calculated
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based on an updated, and possibly
lower, cost-to-charge ratio.
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1. FY 2004
We acknowledge that, by the time of
the FY 2004 rulemaking, we had reason
to believe that the posited phenomenon
was real. The cost-to-charge ratio used
to compute a hospital’s outlier
payments was likely to change at some
point during the year once a new cost
report was tentatively settled.
Furthermore, we had reason to believe
that, by and large, a given hospital’s
updated cost-to-charge ratio would
likely be lower than its earlier cost-tocharge ratio, because we had long
observed that hospital charges generally
increased faster than costs. We also
acknowledge that the methods we
employed did not include an
adjustment to account for this specific
phenomenon, though they did account
for other effects associated with the
general phenomenon of charges
increasing faster than costs and the
general pattern of decline in cost-tocharge ratios. Our reasons for not
incorporating such an adjustment relate
to the uncertainty and complexity
associated with the task of devising and
implementing such an adjustment.
The problem of projecting changes in
cost-to-charge ratios over time is
qualitatively different from the problem
of estimating charge inflation over time.
Hospital charges—like hospital costs—
are a simple scalar quantity, reflecting
tangible real-world activity and
measured in dollar values greater than
zero. Measuring and projecting changes
in dollar quantities of this kind is a
relatively common problem, both in the
administration of the Medicare program
in particular and in business- and
finance-related fields more generally.
Calculating projected future figures by
calculating an estimated percentage
change from aggregate figures, and then
applying that estimated percentage
change to a past measurement, is a
familiar approach to that problem.
With respect to outlier threshold
projections specifically, at the time of
the FY 2004 rulemaking in 2003, we had
a great deal of experience estimating
changes in quantities of this kind using
inflation factors computed from changes
in aggregate costs or charges for all
hospitals. From 1993 to 2001 (the IPPS
rules for FYs 1994 to 2002), we had
incorporated a measure of cost inflation
to account for year-to-year changes in
hospital costs. In 2002 (67 FR 50124),
we began accounting for inflation based
on year-to-year changes in charges
instead of costs. This was not a drastic
leap, given that charges and costs are
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similar quantities measured in the same
units.
A cost-to-charge ratio is different in
kind. A cost-to-charge ratio does not
correspond to a tangible real-world
dollar quantity; instead, it is a unitless
measure that represents the proportional
relationship between two quantities
(costs and charges). Charges and costs
are virtually always positive values, and
charges virtually always exceed costs.
Consequently, cost-to-charge ratios
virtually always fall between 0 and 1
(instead of ranging from 0 on up as costs
and charges do). Within that range
between 0 and 1, there is considerable
variation in cost-to-charge ratios among
individual hospitals, among different
types of hospitals, and among
geographic areas. This variation is
evident in the data we typically make
available in connection with our annual
IPPS rulemaking (including the impact
files and Tables 8A and 8B published in
the Federal Register).
As discussed previously, computing
an update factor from aggregate figures
and applying that estimated percentage
change to a dollar figure is a familiar
method of projecting future dollar
amounts. But it was not evident at the
time of the FY 2004 rulemaking that the
same approach would translate well to
the task of projecting updates to cost-tocharge ratios. If we knew that all
hospitals’ cost-to-charge ratios were
fairly uniform and tended to move in
similar ways over time, then we could
be fairly confident that applying a
uniform update factor based on
aggregate changes in costs and aggregate
changes in charges would be a
satisfactory way to compute projected
cost-to-charge ratios. But, as noted
previously, we knew there was
substantial variation in cost-to-charge
ratios across hospitals. We also did not
have a solid understanding of whether
there was variation across hospitals in
how cost-to-charge ratios change over
time. Given these factors, at the time of
the FY 2004 rulemaking, it was not yet
clear to us that it would be appropriate
to compute a uniform adjustment factor
from aggregate changes in costs and
aggregate changes in charges and then
apply that same uniform adjustment
factor to the cost-to-charge ratios of all
hospitals across the board.
At the time of the FY 2004
rulemaking, we also had not yet
developed any more complex method
that might avoid some of the potential
pitfalls of a uniform adjustment factor.
A more complex method piling
adjustments on top of adjustments could
introduce uncertainties of its own,
especially when done in the limited
time we have to project the annual
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outlier threshold each year. It is
incorrect to assume that adding to the
complexity of a simulation method, or
increasing the number of factors it
purports to take into account, will
necessarily improve results.
Even if a clearly sound technique had
been available to us for estimating
updates to hospitals’ historical cost-tocharge ratios, applying such a technique
in FY 2004 would have involved an
additional complication. As explained
in our August 1, 2003 document, (68 FR
45476 through 45477), to account for
our change from the use of settled cost
reports to the use of tentatively settled
cost reports, we elected not to employ
actual historical hospital cost-to-charge
ratios in estimating FY 2004 payments.
Instead, for most hospitals, we used cost
and charge data from the most recent
cost reporting year to compute
estimated cost-to-charge ratios, and we
used a different method to calculate
estimated cost-to-charge ratios for 50
hospitals identified as likely to have
their cost reports reconciled. Thus, even
if we had had a method for projecting
future cost-to-charge ratios (CCRs) from
historical CCRs, we would have had to
further modify that method for use with
the estimated CCRs we computed for FY
2004.
Perhaps it might have been acceptable
to incorporate a cost-to-charge ratio
adjustment despite all these
uncertainties (and we have done so in
more recent years). But at the time of the
FY 2004 rulemaking, we did not believe
the case for such an adjustment was so
compelling as to make such an
adjustment essential.
Our decisions are also affected by the
limited time we have to devise and
implement adjustments to our methods
in each year’s annual outlier
rulemaking. At the time of the FY 2004
rulemaking, we had recently made
significant changes to our outlier
policies in the June 2003 rule, and we
recognized that those changes would
have a significant effect on Medicare
outlier payments. In making
adjustments to our methods, we chose
to focus our efforts on those issues we
judged most likely to have the most
significant relative impact on our
projections, while deferring fuller
analysis of other issues we judged less
likely to have a significant impact,
including the effect of updates to CCRs.
We strive to make the best possible
estimates, but estimation, by definition,
involves approximation, and perfect
accuracy is unattainable in our payment
projections. Adding additional layers to
an estimation technique does not
necessarily improve the estimates. And
adding complexity to an estimation
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method can simply create an illusion of
accuracy instead of actual
improvements in accuracy.
In light of all these complexities, it
was not evident to us in the FY 2004
calculation that any particular
adjustment to cost-to-charge ratios
would improve our projections. Since
we believe we acted appropriately and
in accordance with statutory
requirements, we are not recalculating
the FY 2004 threshold.
2. FY 2005
In our FY 2005 projections, we again
chose not to introduce a new adjustment
to attempt to account for the updating
of cost-to-charge ratios during the year
as new tentative cost reports were
settled. Most of the factors discussed
previously were still present: The
fundamental differences in the nature
and properties of charges and cost-tocharge ratios; the complexity of
simulating the updating of cost-tocharge ratios through either application
of a uniform update factor or a more
complex adjustment; and our lack of
experience with that task.
Also, at the time of the FY 2005
rulemaking, we were still focusing our
efforts on the task that we believed had
the most significant potential impact on
our projections: Monitoring the effects
of the June 2003 rule changes and
related changes in hospital behavior. We
again chose to defer closer examination
of the possibility of an adjustment to
capture the effect of updates to cost-tocharge ratios.
Also, again, it is important not to
overestimate the likely impact of
updates to cost-to-charge ratios on the
overall robustness of our projections.
First, the effect typically comes into
play only for part of the year. In our FY
2005 projections, we did not use
estimated cost-to-charge ratios as we
had done in the FY 2004 rulemaking.
Rather, for the FY 2005 final rule, we
used CCRs from the March 2004 update
of the Provider Specific File, the latest
data available (the proposed FY 2005
IPPS rule refers to the same data as the
‘‘April 2004’’ update (69 FR 49277)).
CCRs are typically in use for 1 year or
more, so, for many hospitals, the CCR in
the March 2004 update of the Provider
Specific File would be the same CCR
used for payment at the beginning of FY
2005, which began in October 2004.
Also, the effect of updates to cost-tocharge ratios is just one of many
factors—many of them highly
unpredictable—that affect our
projections. We note that several
commenters on the proposed FY 2005
IPPS rule (69 FR 49276 and 49277)
advocated for adjustments to account for
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CCR updates. Three commenters in
particular provided us with analyses
that purported to include such
adjustments. One of these commenters
advocated for a FY 2005 threshold of
$26,600, another commenter suggested a
threshold of $28,455, and a third
advocated for a threshold ‘‘no higher
than $27,000.’’ In other words, each of
these three commenters purported to
incorporate adjustments designed to
account for the effect of updated CCRs,
among many other factors, yet each
arrived at a fixed-loss threshold estimate
considerably higher than the $25,800
level we ultimately set.
Because we believe we acted
appropriately and in accordance with
statutory requirements, we are not
recalculating the FY 2005 threshold.
3. FY 2006
The factors discussed previously were
all still present for FY 2006: (1) The
fundamental differences in the nature
and properties of charges and cost-tocharge ratios; (2) the complexity of
simulating the updating of cost-tocharge ratios; and (3) our desire to focus
on monitoring the aftermath of the 2003
rule changes.
While we carefully analyzed
comments suggesting we make a
separate adjustment to the CCRs, we
again declined to do so, noting that the
CCRs we were using from the March
2005 Provider-Specific File were the
most recent available, were the CCRs
that in many instances Medicare
contractors would be using to make
outlier payments in FY 2006, and were
approximately 3 percent lower than the
CCRs used in the FY 2006 proposed rule
(70 FR 47494).
As had been the case in FY 2005, two
commenters submitted
recommendations based on an analysis
that purported to account for updates to
CCRs, and those recommendations were
in turn endorsed by many other
comments. These commenters
advocated for a threshold of $24,050,
higher than the $23,600 level that we
computed. This lent further support to
our decision to defer closer study of the
effect of updates to cost-to-charge ratios.
Because we believe we acted
appropriately and in accordance with
statutory requirements, we are not
recalculating the FY 2006 threshold.
III. Collection of Information
Requirements
This document does not impose
information collection requirements,
that is, reporting, recordkeeping or
third-party disclosure requirements.
Consequently, there is no need for
review by the Office of Management and
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26363
Budget under the authority of the
Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.).
Dated: May 14, 2019.
Seema Verma,
Administrator, Centers for Medicare &
Medicaid Services.
Dated: May 28, 2019.
Alex M. Azar II,
Secretary, Department of Health and Human
Services.
[FR Doc. 2019–11796 Filed 6–3–19; 11:15 am]
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Service Rules for Advanced Wireless
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Section 6401 of the Middle-Class Tax
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Related to the 1915–1920 MHz and
1995–2000 MHz Bands
Federal Communications
Commission.
ACTION: Notification of order on
reconsideration.
AGENCY:
The Commission denied in
part and dismissed in part the Petition
for Reconsideration filed by the Rural
Wireless Association, Inc. on September
16, 2013.
DATES: June 6, 2019.
FOR FURTHER INFORMATION CONTACT: Paul
Malmud at the Wireless
Telecommunication Bureau, at (202)
418–0006 or paul.malmud@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s Order on
Reconsideration, FCC 19–29, adopted
on April 10, 2019 and released on April
12, 2019. The complete text of this
document is available for public
inspection and copying from 8 a.m. to
4:30 p.m. Eastern Time (ET) Monday
through Thursday or from 8 a.m. to
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Reference Information Center, 445 12th
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Washington, DC 20554. The complete
text is also available on the
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are available to persons with disabilities
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SUMMARY:
Synopsis
1. In 2013, the Commission released
the H Block Report and Order 78 FR
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[Federal Register Volume 84, Number 109 (Thursday, June 6, 2019)]
[Rules and Regulations]
[Pages 26360-26363]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-11796]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Medicare & Medicaid Services
42 CFR Part 412
[CMS-1708-N]
Medicare Program; Explanation of Federal Fiscal Year (FY) 2004,
2005, and 2006 Outlier Fixed-Loss Thresholds as Required by Court
Rulings
AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS.
ACTION: Clarification.
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SUMMARY: In accordance with court rulings in cases that challenge the
federal fiscal year (FY) 2004, 2005, and 2006 outlier fixed-loss
threshold (FLT) rulemakings, this document provides further explanation
of certain methodological choices made in the FLT determinations for
those years.
DATES: June 6, 2019.
FOR FURTHER INFORMATION CONTACT: Don Thompson, (410) 786-6504.
SUPPLEMENTARY INFORMATION:
I. Background
On May 19, 2015, in District Hospital Partners v. Burwell, 786 F.3d
46 (D.C. Cir. 2015), the Court of Appeals for the District of Columbia
Circuit held that the FY 2004 fixed-loss threshold (FLT) was
inadequately explained in the federal fiscal year (FY) 2004 hospital
inpatient prospective payment systems (IPPS) final rule. The court of
appeals ordered the district court to remand to CMS for further
explanation of the handling of data pertaining to 123 hospitals the
agency had identified as likely to have engaged in ``turbocharging,''
that is, manipulating their charges to obtain greater outlier payments.
The United States District Court for the District of Columbia then
remanded to the Secretary in accordance with the decision of the Court
of Appeals. Order, Dist. Hosp. Partners, L.P. v. Burwell, Civil Action
No. 11-0116 (ESH) (D.D.C. August 13, 2015).
On September 2, 2015, the District Court issued an order in a
separate case, Banner Health v. Burwell, No. 10-1638 (ECF Nos. 149 and
150), 126 F. Supp. 3d 28 (D.D.C. 2015), remanding for additional
explanation of the FLT from the FY 2004 final rule consistent with the
D.C. Circuit's decision in District Hospital Partners. The court stated
that the agency should explain further why it did not exclude data from
the 123 hospitals from the outlier charge inflation calculation used to
produce estimates of future Medicare payments for FY 2004.
In the January 22, 2016 Federal Register (81 FR 3727), we published
an additional explanation in response to these court orders. In the
October 14, 2016 Federal Register (81 FR 70980), we published a minor,
non-substantive correction to the January 2016 document.
In Banner Health v. Price, 867 F.3d 1323 (D.C. Cir. 2017), the
court of appeals reviewed the January 2016 document and found that the
agency still had not adequately explained why the agency, in the FY
2004 rulemaking, did not exclude the charge data from the 123 hospitals
it had identified as likely turbochargers when calculating the charge
inflation factor used to transform historical charges into future
charges for purposes of the agency's projections. The court of appeals
also found that the agency had not adequately explained why it did not
apply a downward adjustment to hospitals' cost-to-charge ratios when
determining the FLTs for FYs 2004, 2005, and 2006, an issue not
addressed in the Court of Appeals decision in District Hospital
Partners. The court in Banner Health ordered the district court to
remand to CMS to provide additional explanation on these two points.
The district court issued a remand order on April 12, 2018. The
district court also entered a similar order with respect to the FY 2004
determination in another case, District Hospital Partners, L.P. v.
Azar, 320 F. Supp. 3d 42 (D.D.C. 2018).
We are issuing this document to provide the additional explanation
required by these decisions.
II. Provisions of the Explanation
A. Inclusion of Data Pertaining to 123 Hospitals Identified as Likely
Turbochargers in the Calculation of Estimated Charge Inflation for FY
2004
The first issue pertains to the use of data pertaining to 123
hospitals whom we described in a March 5, 2003 proposed rule (68 FR
10420), as hospitals likely to have engaged in turbocharging. We chose
to calculate the FY 2004 charge inflation adjustment using data that
incorporated data
[[Page 26361]]
pertaining to the 123 hospitals, instead of choosing to omit data
pertaining to those hospitals.
As we discussed in our earlier publications, the 123 hospitals were
identified through an analysis of Medicare Provider Analysis and Review
(MedPAR) file data from FY 1999 to FY 2001. We singled out hospitals
whose percentage of outlier payments relative to total diagnosis-
related group (DRG) payments increased by at least 5 percentage points
over that period, and whose case-mix (the average DRG relative weight
value for all of a hospital's Medicare cases) adjusted charges
increased at a rate at or above the 95th percentile rate of charge
increase for all hospitals over the same period. We note that we
conducted this analysis primarily for the purpose of assessing and
diagnosing the problem of turbocharging, not for the purpose of making
adjustments to our projections for the FY 2004 rulemaking.
We identified the 123 hospitals based on data from the interval
from FY 1999 to FY 2001. Our charge inflation calculation for FY 2004
was based on data covering a more recent interval, from FY 2000 to FY
2002. We were attempting to project charge increases over a third
period, from FY 2002 to FY 2004.
The hypothesis underlying the suggestion that the 123 hospitals
should have been omitted is that charge inflation for those 123
hospitals was likely to begin slowing in FY 2004 in response to the
adoption of the June 9, 2003 Outlier final rule (68 FR 34494), while
charge inflation for other hospitals would remain in line with
historical patterns between FY 2002 and 2004. Consequently, according
to this hypothesis, an estimate computed from FY 2000 to 2002 charge
data that included the 123 hospitals would likely overstate FY 2004
hospital charges for the entire population of hospitals. But this
hypothesis depends on assumptions that, at the time of the FY 2004
rulemaking, we did not find appreciably more credible than the
alternative assumptions we ultimately relied upon.
The hypothesis that the 123 hospitals identified in our analysis
should have been dropped from the charge inflation computation treats
the removal of the 123 hospitals as synonymous with accounting for
turbocharging. It presumes that removing the 123 hospitals from the
measure of charge inflation would have accounted for the end of
turbocharging, without otherwise introducing error or bias, and that,
conversely, including the 123 hospitals introduced systematic error.
But that assumes both that all of the 123 hospitals were in fact
engaged in turbocharging, and that the population of turbocharging
hospitals remained for the most part unchanged over all three intervals
from FY 1999 through the end of FY 2003--that is, that those 123
hospitals continued to engage in turbocharging after FY 2001, that they
did not materially increase their rate of turbocharging during that
period, and that no other hospitals started to turbocharge or otherwise
increase their rate of charge inflation. We did not feel sufficiently
confident that such an assumption would enhance the accuracy of the
outlier threshold calculation to incorporate it into our projections
for FY 2004.
While our analysis confirmed that turbocharging was a problem, and
that rule changes were warranted along the lines of the changes we
adopted in June 2003, we did not otherwise have a confident grasp on
which hospitals were turbocharging at what times. Our analysis
suggested that the 123 hospitals that we identified were likely
engaging in turbocharging during the FY 1999 to FY 2001 interval, but
it did not tell us whether the population of turbocharging hospitals
remained unchanged through the end of FY 2003, with all 123 hospitals
continuing to engage in turbocharging and no other hospitals starting
to turbocharge.
There was also good reason to question the assumption that the
population of turbocharging hospitals and the behavior of turbocharging
hospitals did not change between FYs 2001 and 2003. Industry knowledge
of turbocharging may have become more widespread late in calendar year
(CY) 2002 after publication of an investment analyst report on the
subject. As we previously explained in our March 2003 and June 2003
documents (68 FR 10426 and 10427 and 68 FR 34505, respectively), we
believed that it was possible that, before the June 2003 final rule
took effect, hospitals that had not previously engaged in turbocharging
would take advantage of this new knowledge and increase their charges
to catch up to the charging practices of their competitors. Likewise,
we had reason to believe that turbocharging hospitals, in anticipation
of CMS's regulatory action curbing the effects of turbocharging, would
accelerate their turbocharging, either so that they could gain as much
as they could from the practice before CMS's regulatory changes took
effect or because the hospitals now had less reason to keep
turbocharging limited to avoid detection. For these reasons, HHS could
not necessarily count on the assumption that aggregate charge inflation
between FYs 2002 and 2004 would be significantly lower than predicted
by the FY 2000 to FY 2002 data.
In sum, in evaluating how to handle the 123 hospitals in estimating
charge growth, we were faced with choices among various uncertain
assumptions. We understand the intuitive appeal behind the suggestion
that we could have imputed the phenomenon of turbocharging strictly and
exclusively to those 123 hospitals, and accordingly assumed that
dropping those 123 hospitals' charge data from the charge inflation
estimate would remove a source of distortion. But that suggestion
itself rests on a set of assumptions. Ultimately, we were faced with a
choice between those assumptions and the alternative assumption that,
by and large, charge inflation between FYs 2000 and 2002 would
adequately predict charge inflation between FYs 2002 and 2004 overall.
We did not see reason to conclude that those other assumptions were
superior.
We note also that there was only a very limited time interval
between the finalization of the June 2003 rule and the publication of
the FY 2004 final rule on August 1, 2003, so we had very little time to
analyze the potential impact of the June 2003 rule, as finally adopted,
on our projections. In addition, the June 2003 rule did not take effect
upon publication. Instead, some parts of the rule were to take effect
August 8, 2003, and the rest were to take effect October 1, 2003.
Consequently, at the time of the FY 2004 final rule, we did not yet
have any actual data on hospital charging behavior under the June 2003
rule. We did take several measures designed to adapt the FY 2004
estimates in light of the adoption of the final 2003 rule, and those
measures resulted in a significantly lower fixed-loss threshold. But
the timing of our efforts constrained our ability to explore additional
avenues of analysis we might have otherwise explored.
B. Adjustments to Cost-to-Charge Ratios To Simulate Updates When More
Recent Cost Reports Are Tentatively Settled
The court rulings also call for additional explanation of a second
issue with respect to each of the FY 2004, 2005, and 2006 IPPS
rulemakings. Specifically, the court questioned why, in simulating
future DRG payments and outlier payments, we did not apply a downward
adjustment to hospitals' cost-to-charge ratios to account for the
possibility that, after a more recent cost report is tentatively
settled during the coming fiscal year, a given hospital's outlier
payments will be calculated
[[Page 26362]]
based on an updated, and possibly lower, cost-to-charge ratio.
1. FY 2004
We acknowledge that, by the time of the FY 2004 rulemaking, we had
reason to believe that the posited phenomenon was real. The cost-to-
charge ratio used to compute a hospital's outlier payments was likely
to change at some point during the year once a new cost report was
tentatively settled. Furthermore, we had reason to believe that, by and
large, a given hospital's updated cost-to-charge ratio would likely be
lower than its earlier cost-to-charge ratio, because we had long
observed that hospital charges generally increased faster than costs.
We also acknowledge that the methods we employed did not include an
adjustment to account for this specific phenomenon, though they did
account for other effects associated with the general phenomenon of
charges increasing faster than costs and the general pattern of decline
in cost-to-charge ratios. Our reasons for not incorporating such an
adjustment relate to the uncertainty and complexity associated with the
task of devising and implementing such an adjustment.
The problem of projecting changes in cost-to-charge ratios over
time is qualitatively different from the problem of estimating charge
inflation over time. Hospital charges--like hospital costs--are a
simple scalar quantity, reflecting tangible real-world activity and
measured in dollar values greater than zero. Measuring and projecting
changes in dollar quantities of this kind is a relatively common
problem, both in the administration of the Medicare program in
particular and in business- and finance-related fields more generally.
Calculating projected future figures by calculating an estimated
percentage change from aggregate figures, and then applying that
estimated percentage change to a past measurement, is a familiar
approach to that problem.
With respect to outlier threshold projections specifically, at the
time of the FY 2004 rulemaking in 2003, we had a great deal of
experience estimating changes in quantities of this kind using
inflation factors computed from changes in aggregate costs or charges
for all hospitals. From 1993 to 2001 (the IPPS rules for FYs 1994 to
2002), we had incorporated a measure of cost inflation to account for
year-to-year changes in hospital costs. In 2002 (67 FR 50124), we began
accounting for inflation based on year-to-year changes in charges
instead of costs. This was not a drastic leap, given that charges and
costs are similar quantities measured in the same units.
A cost-to-charge ratio is different in kind. A cost-to-charge ratio
does not correspond to a tangible real-world dollar quantity; instead,
it is a unitless measure that represents the proportional relationship
between two quantities (costs and charges). Charges and costs are
virtually always positive values, and charges virtually always exceed
costs. Consequently, cost-to-charge ratios virtually always fall
between 0 and 1 (instead of ranging from 0 on up as costs and charges
do). Within that range between 0 and 1, there is considerable variation
in cost-to-charge ratios among individual hospitals, among different
types of hospitals, and among geographic areas. This variation is
evident in the data we typically make available in connection with our
annual IPPS rulemaking (including the impact files and Tables 8A and 8B
published in the Federal Register).
As discussed previously, computing an update factor from aggregate
figures and applying that estimated percentage change to a dollar
figure is a familiar method of projecting future dollar amounts. But it
was not evident at the time of the FY 2004 rulemaking that the same
approach would translate well to the task of projecting updates to
cost-to-charge ratios. If we knew that all hospitals' cost-to-charge
ratios were fairly uniform and tended to move in similar ways over
time, then we could be fairly confident that applying a uniform update
factor based on aggregate changes in costs and aggregate changes in
charges would be a satisfactory way to compute projected cost-to-charge
ratios. But, as noted previously, we knew there was substantial
variation in cost-to-charge ratios across hospitals. We also did not
have a solid understanding of whether there was variation across
hospitals in how cost-to-charge ratios change over time. Given these
factors, at the time of the FY 2004 rulemaking, it was not yet clear to
us that it would be appropriate to compute a uniform adjustment factor
from aggregate changes in costs and aggregate changes in charges and
then apply that same uniform adjustment factor to the cost-to-charge
ratios of all hospitals across the board.
At the time of the FY 2004 rulemaking, we also had not yet
developed any more complex method that might avoid some of the
potential pitfalls of a uniform adjustment factor. A more complex
method piling adjustments on top of adjustments could introduce
uncertainties of its own, especially when done in the limited time we
have to project the annual outlier threshold each year. It is incorrect
to assume that adding to the complexity of a simulation method, or
increasing the number of factors it purports to take into account, will
necessarily improve results.
Even if a clearly sound technique had been available to us for
estimating updates to hospitals' historical cost-to-charge ratios,
applying such a technique in FY 2004 would have involved an additional
complication. As explained in our August 1, 2003 document, (68 FR 45476
through 45477), to account for our change from the use of settled cost
reports to the use of tentatively settled cost reports, we elected not
to employ actual historical hospital cost-to-charge ratios in
estimating FY 2004 payments. Instead, for most hospitals, we used cost
and charge data from the most recent cost reporting year to compute
estimated cost-to-charge ratios, and we used a different method to
calculate estimated cost-to-charge ratios for 50 hospitals identified
as likely to have their cost reports reconciled. Thus, even if we had
had a method for projecting future cost-to-charge ratios (CCRs) from
historical CCRs, we would have had to further modify that method for
use with the estimated CCRs we computed for FY 2004.
Perhaps it might have been acceptable to incorporate a cost-to-
charge ratio adjustment despite all these uncertainties (and we have
done so in more recent years). But at the time of the FY 2004
rulemaking, we did not believe the case for such an adjustment was so
compelling as to make such an adjustment essential.
Our decisions are also affected by the limited time we have to
devise and implement adjustments to our methods in each year's annual
outlier rulemaking. At the time of the FY 2004 rulemaking, we had
recently made significant changes to our outlier policies in the June
2003 rule, and we recognized that those changes would have a
significant effect on Medicare outlier payments. In making adjustments
to our methods, we chose to focus our efforts on those issues we judged
most likely to have the most significant relative impact on our
projections, while deferring fuller analysis of other issues we judged
less likely to have a significant impact, including the effect of
updates to CCRs.
We strive to make the best possible estimates, but estimation, by
definition, involves approximation, and perfect accuracy is
unattainable in our payment projections. Adding additional layers to an
estimation technique does not necessarily improve the estimates. And
adding complexity to an estimation
[[Page 26363]]
method can simply create an illusion of accuracy instead of actual
improvements in accuracy.
In light of all these complexities, it was not evident to us in the
FY 2004 calculation that any particular adjustment to cost-to-charge
ratios would improve our projections. Since we believe we acted
appropriately and in accordance with statutory requirements, we are not
recalculating the FY 2004 threshold.
2. FY 2005
In our FY 2005 projections, we again chose not to introduce a new
adjustment to attempt to account for the updating of cost-to-charge
ratios during the year as new tentative cost reports were settled. Most
of the factors discussed previously were still present: The fundamental
differences in the nature and properties of charges and cost-to-charge
ratios; the complexity of simulating the updating of cost-to-charge
ratios through either application of a uniform update factor or a more
complex adjustment; and our lack of experience with that task.
Also, at the time of the FY 2005 rulemaking, we were still focusing
our efforts on the task that we believed had the most significant
potential impact on our projections: Monitoring the effects of the June
2003 rule changes and related changes in hospital behavior. We again
chose to defer closer examination of the possibility of an adjustment
to capture the effect of updates to cost-to-charge ratios.
Also, again, it is important not to overestimate the likely impact
of updates to cost-to-charge ratios on the overall robustness of our
projections. First, the effect typically comes into play only for part
of the year. In our FY 2005 projections, we did not use estimated cost-
to-charge ratios as we had done in the FY 2004 rulemaking. Rather, for
the FY 2005 final rule, we used CCRs from the March 2004 update of the
Provider Specific File, the latest data available (the proposed FY 2005
IPPS rule refers to the same data as the ``April 2004'' update (69 FR
49277)). CCRs are typically in use for 1 year or more, so, for many
hospitals, the CCR in the March 2004 update of the Provider Specific
File would be the same CCR used for payment at the beginning of FY
2005, which began in October 2004.
Also, the effect of updates to cost-to-charge ratios is just one of
many factors--many of them highly unpredictable--that affect our
projections. We note that several commenters on the proposed FY 2005
IPPS rule (69 FR 49276 and 49277) advocated for adjustments to account
for CCR updates. Three commenters in particular provided us with
analyses that purported to include such adjustments. One of these
commenters advocated for a FY 2005 threshold of $26,600, another
commenter suggested a threshold of $28,455, and a third advocated for a
threshold ``no higher than $27,000.'' In other words, each of these
three commenters purported to incorporate adjustments designed to
account for the effect of updated CCRs, among many other factors, yet
each arrived at a fixed-loss threshold estimate considerably higher
than the $25,800 level we ultimately set.
Because we believe we acted appropriately and in accordance with
statutory requirements, we are not recalculating the FY 2005 threshold.
3. FY 2006
The factors discussed previously were all still present for FY
2006: (1) The fundamental differences in the nature and properties of
charges and cost-to-charge ratios; (2) the complexity of simulating the
updating of cost-to-charge ratios; and (3) our desire to focus on
monitoring the aftermath of the 2003 rule changes.
While we carefully analyzed comments suggesting we make a separate
adjustment to the CCRs, we again declined to do so, noting that the
CCRs we were using from the March 2005 Provider-Specific File were the
most recent available, were the CCRs that in many instances Medicare
contractors would be using to make outlier payments in FY 2006, and
were approximately 3 percent lower than the CCRs used in the FY 2006
proposed rule (70 FR 47494).
As had been the case in FY 2005, two commenters submitted
recommendations based on an analysis that purported to account for
updates to CCRs, and those recommendations were in turn endorsed by
many other comments. These commenters advocated for a threshold of
$24,050, higher than the $23,600 level that we computed. This lent
further support to our decision to defer closer study of the effect of
updates to cost-to-charge ratios.
Because we believe we acted appropriately and in accordance with
statutory requirements, we are not recalculating the FY 2006 threshold.
III. Collection of Information Requirements
This document does not impose information collection requirements,
that is, reporting, recordkeeping or third-party disclosure
requirements. Consequently, there is no need for review by the Office
of Management and Budget under the authority of the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501 et seq.).
Dated: May 14, 2019.
Seema Verma,
Administrator, Centers for Medicare & Medicaid Services.
Dated: May 28, 2019.
Alex M. Azar II,
Secretary, Department of Health and Human Services.
[FR Doc. 2019-11796 Filed 6-3-19; 11:15 am]
BILLING CODE 4120-01-P
