Medicare Program: Hospital Outpatient Prospective Payment and Ambulatory Surgical Center Payment Systems; Quality Reporting Programs; Payment for Intensive Outpatient Services in Rural Health Clinics, Federally Qualified Health Centers, and Opioid Treatment Programs; Hospital Price Transparency; Changes to Community Mental Health Centers Conditions of Participation, Proposed Changes to the Inpatient Prospective Payment System Medicare Code Editor; Rural Emergency Hospital Conditions of Participation Technical Correction, 49552-49921 [2023-14768]
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Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Centers for Medicare & Medicaid
Services
42 CFR Parts 405, 410, 416, 419, 424,
485, 488, 489
Office of the Secretary
45 CFR Part 180
[CMS–1786–P]
RIN 0938–AV09
Medicare Program: Hospital Outpatient
Prospective Payment and Ambulatory
Surgical Center Payment Systems;
Quality Reporting Programs; Payment
for Intensive Outpatient Services in
Rural Health Clinics, Federally
Qualified Health Centers, and Opioid
Treatment Programs; Hospital Price
Transparency; Changes to Community
Mental Health Centers Conditions of
Participation, Proposed Changes to
the Inpatient Prospective Payment
System Medicare Code Editor; Rural
Emergency Hospital Conditions of
Participation Technical Correction
Centers for Medicare &
Medicaid Services (CMS), Department
of Health and Human Services (HHS).
ACTION: Proposed rule.
AGENCY:
This proposed rule would
revise the Medicare hospital outpatient
prospective payment system (OPPS) and
the Medicare ambulatory surgical center
(ASC) payment system for calendar year
2024 based on our continuing
experience with these systems. In this
proposed rule, we describe the changes
to the amounts and factors used to
determine the payment rates for
Medicare services paid under the OPPS
and those paid under the ASC payment
system. This proposed rule also would
update and refine the requirements for
the Hospital Outpatient Quality
Reporting (OQR) Program, the ASC
Quality Reporting (ASCQR) Program,
and the Rural Emergency Hospital
Quality Reporting (REHQR) Program.
This proposed rule would also establish
payment for certain intensive outpatient
services under Medicare, beginning
January 1, 2024. In addition, this
proposed rule would update and refine
requirements for hospitals to make
public their standard charge information
and enforcement of hospital price
transparency. We also propose to codify
provisions of the Consolidated
Appropriations Act, 2023, in
Community Mental Health Centers
Conditions of Participation (CoPs). We
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propose to revise the personnel
qualifications of Mental Health
Counselors and add personnel
qualifications for Marriage and Family
Therapists in the CMHC CoPs. We also
seek comment on separate payment
under the Inpatient Prospective
Payment System (IPPS) for establishing
and maintaining access to a buffer stock
of essential medicines to foster a more
reliable, resilient supply of these
medicines. Finally, we propose to
address any future revisions to the IPPS
Medicare Code Editor (MCE), including
any additions or deletions of claims
edits, as well as the addition or deletion
of ICD–10 diagnosis and procedure
codes to the applicable MCE edit code
lists, outside of the annual IPPS
rulemakings. Additionally, we propose
a technical correction to the Rural
Emergency Hospital Conditions of
Participation.
To be assured consideration,
comments must be received at one of
the addresses provided below, by
September 11, 2023.
ADDRESSES: In commenting, please refer
to file code CMS–1786–P.
Comments, including mass comment
submissions, must be submitted in one
of the following three ways (please
choose only one of the ways listed):
1. Electronically. You may submit
electronic comments on this regulation
to https://www.regulations.gov. Follow
the ‘‘Submit a comment’’ instructions.
2. By regular mail. You may mail
written comments to the following
address ONLY: Centers for Medicare &
Medicaid Services, Department of
Health and Human Services, Attention:
CMS–1786–P, P.O. Box 8010, Baltimore,
MD 21244–1810.
Please allow sufficient time for mailed
comments to be received before the
close of the comment period.
3. By express or overnight mail. You
may send written comments to the
following address ONLY: Centers for
Medicare & Medicaid Services,
Department of Health and Human
Services, Attention: CMS–1786–P, Mail
Stop C4–26–05, 7500 Security
Boulevard, Baltimore, MD 21244–1850.
For information on viewing public
comments, see the beginning of the
SUPPLEMENTARY INFORMATION section.
FOR FURTHER INFORMATION CONTACT:
Elise Barringer, Elise.Barringer@
cms.hhs.gov or 410–786–9222.
Advisory Panel on Hospital
Outpatient Payment (HOP Panel),
contact the HOP Panel mailbox at
APCPanel@cms.hhs.gov.
Ambulatory Surgical Center (ASC)
Payment System, contact Scott Talaga
via email at Scott.Talaga@cms.hhs.gov
DATES:
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or Mitali Dayal via email at
Mitali.Dayal2@cms.hhs.gov.
Ambulatory Surgical Center Quality
Reporting (ASCQR) Program policies,
contact Anita Bhatia via email at
Anita.Bhatia@cms.hhs.gov.
Ambulatory Surgical Center Quality
Reporting (ASCQR) Program measures,
contact Marsha Hertzberg via email at
marsha.hertzberg@cms.hhs.gov.
Biosimilars Packaging Exception,
contact Gil Ngan via email at gil.ngan@
cms.hhs.gov.
Blood and Blood Products, contact
Josh McFeeters via email at
Joshua.McFeeters@cms.hhs.gov.
Cancer Hospital Payments, contact
Scott Talaga via email at Scott.Talaga@
cms.hhs.gov.
Cardiac Rehabilitation, Intensive
Cardiac Rehabilitation and Pulmonary
Rehabilitation Services, contact Nate
Vercauteren via email at
Nathan.Vercauteren@cms.hhs.gov.
CMS Web Posting of the OPPS and
ASC Payment Files, contact Chuck
Braver via email at Chuck.Braver@
cms.hhs.gov.
Community Mental Health Centers
(CMHC) Conditions of Participation,
contact Mary Rossi-Coajou via email at
Mary.RossiCoajou@cms.hhs.gov or Cara
Meyer via email at Cara.Meyer@
cms.hhs.gov.
Composite APCs (Multiple Imaging
and Mental Health), via email at Mitali
Dayal via email at Mitali.Dayal2@
cms.hhs.gov.
Comprehensive APCs (C–APCs),
contact Mitali Dayal via email at
Mitali.Dayal2@cms.hhs.gov.
COVID–19 Final Rules, contact Elise
Barringer via email at Elise.Barringer@
cms.hhs.gov.
Hospital Outpatient Quality Reporting
(OQR) Program policies, contact
Kimberly Go via email Kimberly.Go@
cms.hhs.gov.
Hospital Outpatient Quality Reporting
(OQR) Program measures, contact Janis
Grady via email Janis.Grady@
cms.hhs.gov.
Hospital Outpatient Visits (Emergency
Department Visits and Critical Care
Visits), contact Elise Barringer via email
at Elise.Barringer@cms.hhs.gov.
Hospital Price Transparency (HPT),
contact Terri Postma via email at
PriceTransparencyHospitalCharges@
cms.hhs.gov.
Inpatient Only (IPO) Procedures List,
contact Abigail Cesnik via email at
Abigail.Cesnik@cms.hhs.gov.
Inpatient Prospective Payment System
(IPPS) Medicare Code Editor, contact
Mady Hue via email at Marilu.Hue@
cms.hhs.gov.
Mental Health Services Furnished
Remotely by Hospital Staff to
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Beneficiaries in Their Homes, contact
Emily Yoder via email at Emily.Yoder@
cms.hhs.gov.
Method to Control Unnecessary
Increases in the Volume of Clinic Visit
Services Furnished in Excepted OffCampus Provider-Based Departments
(PBDs), contact Elise Barringer via email
at Elise.Barringer@cms.hhs.gov.
New Technology Intraocular Lenses
(NTIOLs), contact Scott Talaga via email
at Scott.Talaga@cms.hhs.gov.
No Cost/Full Credit and Partial Credit
Devices, contact Scott Talaga via email
at Scott.Talaga@cms.hhs.gov.
Opioid Treatment Program (OTP)
Intensive Outpatient Services (IOP)
contact Lindsey Baldwin via email at
Lindsey.Baldwin@cms.hhs.gov and
Ariana Pitcher at Ariana.Pitcher@
cms.hhs.gov.
OPPS Brachytherapy, contact Scott
Talaga via email at Scott.Talaga@
cms.hhs.gov.
OPPS Data (APC Weights, Conversion
Factor, Copayments, Cost-to-Charge
Ratios (CCRs), Data Claims, Geometric
Mean Calculation, Outlier Payments,
and Wage Index), contact Erick Chuang
via email at Erick.Chuang@cms.hhs.gov,
or Scott Talaga via email at
Scott.Talaga@cms.hhs.gov, or Josh
McFeeters via email at
Joshua.McFeeters@cms.hhs.gov.
OPPS Dental Policy, contact Nicole
Marcos via email at Nicole.Marcos@
cms.hhs.gov.
OPPS Drugs, Radiopharmaceuticals,
Biologicals, and Biosimilar Products,
contact Josh McFeeters via email at
Joshua.McFeeters@cms.hhs.gov, or Gil
Ngan via email at Gil.Ngan@
cms.hhs.gov, or Cory Duke via email at
Cory.Duke@cms.hhs.gov, or Au’Sha
Washington via email at
Ausha.Washington@cms.hhs.gov.
OPPS New Technology Procedures/
Services, contact the New Technology
APC mailbox at
NewTechAPCapplications@
cms.hhs.gov.
OPPS Packaged Items/Services,
contact Mitali Dayal via email at
Mitali.Dayal2@cms.hhs.gov or Cory
Duke via email at Cory.Duke@
cms.hhs.gov.
OPPS Pass-Through Devices, contact
the Device Pass-Through mailbox at
DevicePTapplications@cms.hhs.gov.
OPPS Status Indicators (SI) and
Comment Indicators (CI), contact
Marina Kushnirova via email at
Marina.Kushnirova@cms.hhs.gov.
Partial Hospitalization Program (PHP),
Intensive Outpatient (IOP), and
Community Mental Health Center
(CMHC) Issues, contact the PHP
Payment Policy Mailbox at
PHPPaymentPolicy@cms.hhs.gov.
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Request for Public Comments on
Potential Payment under the IPPS for
Establishing and Maintaining Access to
Essential Medicines, contact DAC@
cms.hhs.gov.
Rural Emergency Hospital Conditions
of Participation, contact Kianna Banks
via email Kianna.Banks@cms.hhs.gov.
Rural Emergency Hospital Quality
Reporting (REHQR) Program policies,
contact Anita Bhatia via email at
Anita.Bhatia@cms.hhs.gov.
Rural Emergency Hospital Quality
Reporting (REHQR) Program measures,
contact Melissa Hager via email
Melissa.Hager@cms.hhs.gov.
Rural Health Clinic (RHC) and
Federally Qualified Health Center
(FQHC) Intensive Outpatient Services
(IOP), contact Michele Franklin via
email at Michele.Franklin@cms.hhs.gov.
Separate Payment for High-Cost Drugs
Provided by Indian Health Service and
Tribally-Owned Facilities, contact Elise
Barringer via email at Elise.Barringer@
cms.hhs.gov.
Skin Substitutes, contact Josh
McFeeters via email at
Joshua.McFeeters@cms.hhs.gov.
All Other Issues Related to Hospital
Outpatient Payments Not Previously
Identified, contact the OPPS mailbox at
OutpatientPPS@cms.hhs.gov.
All Other Issues Related to the
Ambulatory Surgical Center Payments
Not Previously Identified, contact the
ASC mailbox at ASCPPS@cms.hhs.gov.
SUPPLEMENTARY INFORMATION:
Inspection of Public Comments: All
comments received before the close of
the comment period are available for
viewing by the public, including any
personally identifiable or confidential
business information that is included in
a comment. We post all comments
received before the close of the
comment period on the following
website as soon as possible after they
have been received: https://
www.regulations.gov. Follow the search
instructions on that website to view
public comments. CMS will not post on
Regulations.gov public comments that
make threats to individuals or
institutions or suggest that the
individual will take actions to harm the
individual. CMS continues to encourage
individuals not to submit duplicative
comments. We will post acceptable
comments from multiple unique
commenters even if the content is
identical or nearly identical to other
comments.
Addenda Available Only Through the
Internet on the CMS Website
In the past, a majority of the Addenda
referred to in our OPPS/ASC proposed
and final rules were published in the
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49553
Federal Register as part of the annual
rulemakings. However, beginning with
the CY 2012 OPPS/ASC proposed rule,
all of the Addenda no longer appear in
the Federal Register as part of the
annual OPPS/ASC proposed and final
rules to decrease administrative burden
and reduce costs associated with
publishing lengthy tables. Instead, these
Addenda are published and available
only on the CMS website. The Addenda
relating to the OPPS are available at:
https://www.cms.gov/Medicare/
Medicare-Fee-for-Service-Payment/
HospitalOutpatientPPS/HospitalOutpatient-Regulations-and-Notices.
The Addenda relating to the ASC
payment system are available at: https://
www.cms.gov/Medicare/Medicare-Feefor-Service-Payment/ASCPayment/ASCRegulations-and-Notices.
Current Procedural Terminology (CPT)
Copyright Notice
Throughout this proposed rule, we
use CPT codes and descriptions to refer
to a variety of services. We note that
CPT codes and descriptions are
copyright 2021 American Medical
Association (AMA). All Rights
Reserved. CPT is a registered trademark
of the AMA. Applicable Federal
Acquisition Regulations and Defense
Federal Acquisition Regulations apply.
Table of Contents
I. Executive Summary of This Document
II. Proposed Updates Affecting OPPS
Payments
A. Recalibration of APC Relative Payment
Weights
B. Conversion Factor Update
C. Proposed Wage Index Changes
D. Proposed Statewide Average Default
Cost-to-Charge Ratios (CCRs)
E. Proposed Adjustment for Rural Sole
Community Hospitals (SCHs) and
Essential Access Community Hospitals
(EACHs) Under Section 1833(t)(13)(B) of
the Act for CY 2024
F. Proposed Payment Adjustment for
Certain Cancer Hospitals for CY 2024
G. Proposed Hospital Outpatient Outlier
Payments
H. Proposed Calculation of an Adjusted
Medicare Payment From the National
Unadjusted Medicare Payment
I. Proposed Beneficiary Copayments
III. Proposed OPPS Ambulatory Payment
Classification (APC) Group Policies
A. Proposed OPPS Treatment of New and
Revised HCPCS Codes
B. Proposed OPPS Changes—Variations
Within APCs
C. Proposed New Technology APCs
D. Universal Low Volume APC Policy for
Clinical and Brachytherapy APCs
E. Proposed APC-Specific Policies
IV. Proposed OPPS Payment for Devices
A. Proposed Pass-Through Payment for
Devices
B. Proposed Device-Intensive Procedures
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V. Proposed OPPS Payment for Drugs,
Biologicals, and Radiopharmaceuticals
A. Proposed OPPS Transitional PassThrough Payment for Additional Costs of
Drugs, Biologicals, and
Radiopharmaceuticals
B. Proposed OPPS Payment for Drugs,
Biologicals, and Radiopharmaceuticals
Without Pass-Through Payment Status
C. Requirement in the Physician Fee
Schedule CY 2024 Proposed Rule for
HOPDs and ASCs To Report Discarded
Amounts of Certain Single-Dose or
Single-Use Package Drugs
VI. Proposed Estimate of OPPS Transitional
Pass-Through Spending for Drugs,
Biologicals, Radiopharmaceuticals, and
Devices
A. Amount of Additional Payment and
Limit on Aggregate Annual Adjustment
B. Proposed Estimate of Pass-Through
Spending for CY 2024
VII. Proposed OPPS Payment for Hospital
Outpatient Visits and Critical Care
Services
VIII. Payment for Partial Hospitalization and
Intensive Outpatient Services
A. Partial Hospitalization
B. Intensive Outpatient Program Services
C. Coding and Billing for PHP and IOP
Services Under the OPPS
D. Proposed Payment Rate Methodology for
PHP and IOP
E. Proposed Outlier Policy for CMHCs
F. Rural Health Clinics (RHCs) and
Federally Qualified Health Centers
(FQHCs)
G. Modifications Related to Medicare
Coverage for Opioid Use Disorder (OUD)
Treatment Services Furnished by Opioid
Treatment Programs (OTPs)
H. Payment Rates Under the Medicare
Physician Fee Schedule for Nonexcepted
Items and Services Furnished by
Nonexcepted Off-Campus ProviderBased Departments of a Hospital
IX. Services That Will Be Paid Only as
Inpatient Services
A. Background
B. Changes to the Inpatient Only (IPO) List
C. Solicitation of Public Comments on the
Services Described by CPT Codes 43775,
43644, 43645, and 44204
X. Proposed Nonrecurring Policy Changes
A. Supervision by Nurse Practitioners,
Physician Assistants and Clinical Nurse
Specialists of Cardiac Rehabilitation,
Intensive Cardiac Rehabilitation and
Pulmonary Rehabilitation Services
Furnished to Outpatients
B. Payment for Intensive Cardiac
Rehabilitation Services (ICR) Provided
by an Off-Campus, Non-Excepted
Provider Based Department (PBD) of a
Hospital
C. OPPS Payment for Specimen Collection
for COVID–19 Tests
D. Remote Services
E. OPPS Payment for Dental Services
F. Use of Claims and Cost Report Data for
CY 2024 OPPS and ASC Payment System
Ratesetting Due to the PHE
G. Comment Solicitation on Payment for
High-Cost Drugs Provided by Indian
Health Service and Tribally-Owned
Facilities
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XI. Proposed CY 2024 OPPS Payment Status
and Comment Indicators
A. Proposed CY 2024 OPPS Payment
Status Indicator Definitions
B. Proposed CY 2024 Comment Indicator
Definitions
XII. MedPAC Recommendations
A. OPPS Payment Rates Update
B. Medicare Safety Net Index
C. ASC Cost Data
XIII. Proposed Updates to the Ambulatory
Surgical Center (ASC) Payment System
A. Background, Legislative History,
Statutory Authority, and Prior
Rulemaking for the ASC Payment System
B. Proposed ASC Treatment of New and
Revised Codes
C. Payment Policies Under the ASC
Payment System
D. Proposed Additions to ASC Covered
Surgical Procedures and Covered
Ancillary Services Lists
E. ASC Payment Policy for Non-Opioid
Post-Surgery Pain Management Drugs,
Biologicals, and Devices
F. Comment Solicitation on Access to NonOpioid Treatments for Pain Relief Under
the OPPS and ASC Payment System
G. Proposed New Technology Intraocular
Lenses (NTIOLs)
H. Proposed Calculation of the ASC
Payment Rates and the ASC Conversion
Factor
XIV. Hospital Outpatient Quality Reporting
(OQR) Program Requirements, Proposals,
and Requests for Comment
A. Background
B. Hospital OQR Program Quality
Measures
C. Hospital OQR Program Quality Measure
Topics for Potential Future
Consideration
D. Administrative Requirements
E. Form, Manner, and Timing of Data
Submitted for the Hospital OQR Program
F. Payment Reduction for Hospitals That
Fail To Meet the Hospital OQR Program
Requirements for the CY 2024 Payment
Determination
XV. Requirements for the Ambulatory
Surgical Center Quality Reporting
(ASCQR) Program
A. Background
B. ASCQR Program Quality Measure
C. Administrative Requirements
D. Form, Manner, and Timing of Data
Submitted for the ASCQR Program
E. Payment Reduction for ASCs That Fail
To Meet the ASCQR Program
Requirements
XVI. Proposed Requirements for the Rural
Emergency Hospital Quality Reporting
(REHQR) Program
A. Background
B. REHQR Program Quality Measures
C. Administrative Requirements
D. Form, Manner, and Timing of Data
Submitted for the REHQR Program
XVII. Changes to Community Mental Health
Center (CMHC) Conditions of
Participation (CoPs)
A. Background and Statutory Authority
B. Provisions of the Proposed Rule
XVIII. Proposed Updates to Requirements for
Hospitals To Make Public a List of Their
Standard Charges
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A. Introduction and Overview
B. Proposal To Modify the Requirements
for Making Public Hospital Standard
Charges at 45 CFR 180.50
C. Proposals To Improve and Enhance
Enforcement
D. Seeking Comment on ConsumerFriendly Displays and Alignment With
Transparency in Coverage and No
Surprises Act
XIX. Proposed Changes to the Inpatient
Prospective Payment System Medicare
Code Editor
XX. Proposed Technical Edits for REH
Conditions of Participation
XXI. Rural Emergency Hospitals (REHs):
Proposal Regarding Payment For Rural
Emergency Hospitals (REHs)
A. Background on Rural Emergency
Hospitals
B. REH Payment Methodology
C. Background on the IHS Outpatient AllInclusive Rate (AIR) for Tribal and IHS
Hospitals
D. Proposal To Pay IHS and Tribal
Hospitals That Convert to an REH Under
the AIR
E. Exclusion of REHs From the OPPS
XXII. Request for Public Comments on
Potential Payment Under the IPPS and
OPPS for Establishing and Maintaining
Access to Essential Medicines
A. Overview
B. Establishing and Maintaining a Buffer
Stock of Essential Medicines
C. Potential Separate Payment Under IPPS
and OPPS for Establishing and
Maintaining Access to a Buffer Stock
Essential Medicines
D. Comment Solicitation on Additional
Considerations
XXIII. Files Available to the Public via the
internet
XXIV. Collection of Information
Requirements
A. ICRs Related to Proposed Intensive
Outpatient Physician Certification
Requirements
B. ICRs Related to the Hospital OQR
Program
C. ICRs Related to the ASCQR Program
D. ICRs Related to the REHQR Program
E. ICRs Related to Conditions of
Participation (CoPs): Admission, Initial
Evaluation, Comprehensive Assessment,
and Discharge or Transfer of the Client
(§ 485.914)
F. ICR’s Related to Conditions of
Participation (CoPs): Treatment Team,
Person-Centered Active Treatment Plan,
and Coordination of Services (§ 485.916)
G. ICR’s Related to Conditions of
Participation (CoPs): Organization,
Governance, Administration of Services,
Partial Hospitalization Services
(§ 485.918)
H. ICRs Related to Hospital Price
Transparency
XXV. Response to Comments
XXVI. Economic Analyses
A. Statement of Need
B. Overall Impact of Provisions of This
Proposed Rule
C. Detailed Economic Analyses
D. Regulatory Review Cost Estimation
E. Regulatory Flexibility Act (RFA)
Analysis
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F. Unfunded Mandates Reform Act
Analysis
G. Federalism
H. Conclusion
I. Summary and Background
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A. Executive Summary of This
Document
1. Purpose
In this proposed rule, we propose to
update the payment policies and
payment rates for services furnished to
Medicare beneficiaries in hospital
outpatient departments (HOPDs) and
ambulatory surgical centers (ASCs),
beginning January 1, 2024. Section
1833(t) of the Social Security Act (the
Act) requires us to annually review and
update the payment rates for services
payable under the Hospital Outpatient
Prospective Payment System (OPPS).
Specifically, section 1833(t)(9)(A) of the
Act requires the Secretary of the
Department of Health and Human
Services (the Secretary) to review
certain components of the OPPS not less
often than annually, and to revise the
groups, the relative payment weights,
and the wage and other adjustments that
take into account changes in medical
practice, changes in technology, and the
addition of new services, new cost data,
and other relevant information and
factors. In addition, under section
1833(i)(D)(v) of the Act, we annually
review and update the ASC payment
rates. This proposed rule also includes
additional policy changes made in
accordance with our experience with
the OPPS and the ASC payment system
and recent changes in our statutory
authority. We describe these and
various other statutory authorities in the
relevant sections of this proposed rule.
In addition, this proposed rule would
update and refine the requirements for
the Hospital Outpatient Quality
Reporting (OQR) Program, the ASC
Quality Reporting (ASCQR) Program,
and Rural Emergency Hospital Quality
Reporting (REHQR) Program. In
addition, this proposed rule would
establish payment for intensive
outpatient services under Medicare,
beginning January 1, 2024. This
proposed rule would also update and
refine the requirements for hospitals to
make public their standard charges and
CMS enforcement of hospital price
transparency regulations. In addition,
this proposed rulemaking would also
update the Community Mental Health
Center (CMHC) Conditions of
Participation (CoPs). We propose to
revise the personnel qualifications of
Mental Health Counselor’s (MHCs) and
add personnel qualifications for
Marriage and Family Therapists (MFTs)
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in the CMHC CoP. Finally, we propose
to remove discussion of the IPPS
Medicare Code Editor (MCE) from the
annual IPPS rulemakings, beginning
with the FY 2025 rulemaking.
Additionally, we propose a technical
correction to the Rural Emergency
Hospital (REH) CoPs under the standard
for the designation and certification of
REHs.
2. Summary of the Major Provisions
• OPPS Update: For 2024, we
propose to increase the payment rates
under the OPPS by an Outpatient
Department (OPD) fee schedule increase
factor of 2.8 percent. This proposed
increase factor is based on the proposed
inpatient hospital market basket
percentage increase of 3.0 percent for
inpatient services paid under the
hospital inpatient prospective payment
system (IPPS) reduced by a proposed
productivity adjustment of 0.2
percentage point. Based on this update,
we estimate that total payments to OPPS
providers (including beneficiary cost
sharing and estimated changes in
enrollment, utilization, and case mix)
for calendar year (CY) 2024 would be
approximately $88.6 billion, an increase
of approximately $6.0 billion compared
to estimated CY 2023 OPPS payments.
We propose to continue to implement
the statutory 2.0 percentage point
reduction in payments for hospitals that
fail to meet the hospital outpatient
quality reporting requirements by
applying a reporting factor of 0.9805 to
the OPPS payments and copayments for
all applicable services.
• Data used in Proposed CY 2024
OPPS/ASC Ratesetting: To set proposed
OPPS and ASC payment rates, we
normally use the most updated claims
and cost report data available. The best
available claims data is the most recent
set of data which would be from 2 years
prior to the calendar year that is the
subject of rulemaking. Cost report data
usually lags the claims data by a year
and we believe that using the most
updated cost report extract available
from the Healthcare Cost Report
Information System (HCRIS) is
appropriate for CY 2024 OPPS
ratesetting. Therefore, we propose to
resume our typical data process of using
the most updated cost reports and
claims data available for CY 2024 OPPS
ratesetting.
• Partial Hospitalization Update: For
CY 2024, we propose changes to our
methodology used to calculate the
Community Mental Health Center
(CMHC) and hospital-based PHP (HB
PHP) geometric mean per diem costs, as
well as proposing changes to expand
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PHP payment from two APCs to four
APCs.
• Proposed Medicare Payment for
Intensive Outpatient Programs:
Beginning in CY 2024, we propose to
establish payment for intensive
outpatient programs (IOPs) under
Medicare. We propose the scope of
benefits, physician certification
requirements, coding and billing, and
payment rates under the IOP benefit.
IOP services may be furnished in
hospital outpatient departments,
community mental health centers
(CMHCs), federally qualified health
centers (FQHC), and rural health clinics
(RHC). We also propose to establish
payment for intensive outpatient
services provided by opioid treatment
programs (OTPs) under the existing OTP
benefit.
• Changes to the Inpatient Only (IPO)
List: For 2024, we are not proposing to
remove any services from the IPO list.
• 340B-Acquired Drugs: For CY 2024,
we propose to continue to apply the
default rate, generally average sales
price (ASP) plus 6 percent, to 340B
acquired drugs and biologicals.
Therefore, drugs and biologicals
acquired under the 340B program would
be paid at the same payment rate as
those drugs and biologicals not acquired
under the 340B program.
• Biosimilar Packaging Exception:
For CY 2024, we propose to except
biosimilars from the OPPS threshold
packaging policy when their reference
biologicals are separately paid. In
addition, if a reference product’s perday cost falls below the threshold
packaging policy, we propose that all
the biosimilars related to the reference
product would be similarly packaged.
• Proposal to Pay IHS and Tribal
Hospitals that Convert to a Rural
Emergency Hospital (REH) Under the
IHS All-Inclusive Rate (AIR): For CY
2024, we propose that IHS and tribal
hospitals that convert to an REH be paid
for hospital outpatient services under
the same all-inclusive rate that would
otherwise apply if these services were
performed by an IHS or tribal hospital
that is not an REH. We also propose that
IHS and tribal hospitals that convert to
an REH would receive the REH monthly
facility payment consistent with how
this payment is applied to REHs that are
not tribally or IHS operated.
• Device Pass-Through Payment
Applications: For CY 2024, we received
6 applications for device pass-through
payments. We solicit public comment
on these applications and will make
final determinations on these
applications in the CY 2024 OPPS/ASC
final rule with comment period.
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• Cancer Hospital Payment
Adjustment: For CY 2024, we propose to
continue providing additional payments
to cancer hospitals so that a cancer
hospital’s payment-to-cost ratio (PCR)
after the additional payments is equal to
the weighted average PCR for the other
OPPS hospitals using the most recently
submitted or settled cost report data.
Section 16002(b) of the 21st Century
Cures Act requires that this weighted
average PCR be reduced by 1.0
percentage point. In light of the PHE
impact on claims and cost data used to
calculate the target PCR, we have
maintained the CY 2021 target PCR of
0.89 through CYs 2022 and 2023. In this
proposed rule, we propose to reduce the
target PCR by 1.0 percentage point each
calendar year until the target PCR equals
the PCR of non-cancer hospitals using
the most recently submitted or settled
cost report data. For CY 2024, we
propose to use a target PCR of 0.88 to
determine the CY 2024 cancer hospital
payment adjustment to be paid at cost
report settlement. That is, the payment
adjustments will be the additional
payments needed to result in a PCR
equal to 0.88 for each cancer hospital.
• ASC Payment Update: For CYs
2019 through 2023, we adopted a policy
to update the ASC payment system
using the hospital market basket update.
In light of the impact of the COVID–19
PHE on healthcare utilization, we
propose to extend our policy to update
the ASC payment system using the
hospital market basket update an
additional two years—through CYs 2024
and 2025. Using the hospital market
basket methodology, for CY 2024, we
propose to increase payment rates under
the ASC payment system by 2.8 percent
for ASCs that meet the quality reporting
requirements under the ASCQR
Program. This increase is based on a
hospital market basket percentage
increase of 3.0 percent reduced by a
productivity adjustment of 0.2
percentage point. Based on this
proposed update, we estimate that total
payments to ASCs (including
beneficiary cost sharing and estimated
changes in enrollment, utilization, and
case-mix) for CY 2024 will be
approximately $6.0 billion, an increase
of approximately $170 million
compared to estimated CY 2023
Medicare payments.
• Changes to the List of ASC Covered
Surgical Procedures: For CY 2024, we
propose to add 26 dental surgical
procedures to the ASC covered
procedures list (CPL) based upon
existing criteria at § 416.166.
• Hospital Outpatient Quality
Reporting (OQR) Program: For the
Hospital OQR Program measure set, we
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propose to: (1) remove the Left Without
Being Seen measure beginning with the
CY 2024 reporting period/2026 payment
determination; (2) modify the COVID–
19 Vaccination Coverage Among
Healthcare Personnel (HCP) measure
beginning with the CY 2024 reporting
period/CY 2026 payment determination;
(3) modify the Cataracts: Improvement
in Patient’s Visual Function Within 90
Days Following Cataract Surgery
measure beginning with the voluntary
CY 2024 reporting period; (4) modify
the Appropriate Follow-Up Interval for
Normal Colonoscopy in Average Risk
Patients measure beginning with the CY
2024 reporting period/CY 2026 payment
determination; (5) re-adopt with
modification the Hospital Outpatient
Volume Data on Selected Outpatient
Procedures measure beginning with the
voluntary CY 2025 reporting period and
mandatory reporting beginning with the
CY 2026 reporting period/CY 2028
payment determination; (6) adopt the
Risk-Standardized Patient-Reported
Outcome-Based Performance Measure
(PRO–PM) Following Elective Primary
Total Hip Arthroplasty (THA) and/or
Total Knee Arthroplasty (TKA) in the
HOPD Setting (THA/TKA PRO–PM)
beginning with the voluntary CYs 2025
and 2026 reporting periods, and
mandatory reporting beginning with the
CY 2027 reporting period/CY 2030
payment determination; (7) adopt the
Excessive Radiation Dose or Inadequate
Image Quality for Diagnostic Computed
Tomography (CT) in Adults (Hospital
Level—Outpatient) measure, beginning
with the voluntary CY 2025 reporting
period and mandatory reporting
beginning with the CY 2026 reporting
period/CY 2028 payment determination;
and (8) amend multiple codified
regulations to replace references to
‘‘QualityNet’’ with ‘‘CMS-designated
information system’’ or ‘‘CMS website,’’
and to make other conforming technical
edits, to accommodate recent and future
systems requirements and mitigate
confusion for program participants. We
are also requesting public comment on:
(1) patient and workforce safety
(including sepsis); (2) behavioral health
(including suicide prevention); and (3)
telehealth as potential future
measurement topic areas in the Hospital
OQR Program.
• Ambulatory Surgical Center Quality
Reporting (ASCQR) Program: For the
ASCQR Program measure set, we
propose to: (1) modify the COVID–19
Vaccination Coverage Among Health
Care Personnel (HCP) measure
beginning with the CY 2024 Reporting
Period/CY 2026 payment determination;
(2) modify the Cataracts: Improvement
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in Patient’s Visual Function Within 90
Days Following Cataract Surgery
measure beginning with the voluntary
CY 2024 reporting period; (3) modify
the Endoscopy/Polyp Surveillance:
Appropriate Follow-Up Interval for
Normal Colonoscopy in Average Risk
Patients measure beginning with the CY
2024 reporting period/CY 2026 payment
determination; (4) re-adopt with
modification the ASC Facility Volume
Data on Selected ASC Surgical
Procedures measure beginning with the
voluntary CY 2025 reporting period and
mandatory reporting beginning with the
CY 2026 reporting period/CY 2028
payment determination; (5) adopt the
Risk Standardized Patient-Reported
Outcome-Based Performance Measure
(PRO–PM) Following Elective Primary
Total Hip Arthroplasty (THA) and/or
Total Knee Arthroplasty (TKA) in the
ASC Setting (THA/TKA PRO–PM)
beginning with the voluntary CYs 2025
and 2026 reporting periods, and
mandatory reporting beginning with the
CY 2027 reporting period/CY 2030
payment determination; and (6) amend
multiple codified regulations to replace
references to ‘‘QualityNet’’ with ‘‘CMSdesignated information system’’ or
‘‘CMS website,’’ and to make other
conforming technical edits, to
accommodate recent and future systems
requirements and mitigate confusion for
program participants.
• Rural Emergency Hospital Quality
Reporting (REHQR) Program: For the
REHQR Program, we propose to: (1)
codify the statutory authority for the
REHQR Program; (2) adopt and codify
policies related to measure retention,
measure removal, and measure
modification; (3) adopt one chartabstracted measure and three claimsbased measures for the REHQR Program
measure set and establish related
reporting requirements beginning with
the CY 2024 reporting period; (4) adopt
and codify policies related to public
reporting of data; (5) codify
foundational requirements related to
REHQR Program participation; (6) adopt
and codify policies related to the form,
manner, and timing of data submission
under the REHQR Program; (7) adopt
and codify a review and corrections
period for submitted data; and (8) adopt
and codify an Extraordinary
Circumstances Exception (ECE) process
for data submission requirements. We
are also requesting comment on the
following potential measures and
approaches for implementing quality
reporting under the REHQR Program: (1)
electronic clinical quality measures
(eCQMs); (2) care coordination
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measures; and (3) a tiered quality
measure approach.
• Mental Health Services Furnished
Remotely by Hospital Staff to
Beneficiaries in Their Homes: For CY
2024, we propose technical refinements
to the existing coding for remote mental
health services to allow for multiple
units to be billed daily. We also propose
to create a new, untimed code to
describe group psychotherapy. Finally,
we propose to delay any in-person visit
requirements until the end of CY 2024.
Proposed OPPS Payment for Dental
Services: For CY 2024, we propose to
assign 229 HCPCS codes describing
dental services to various clinical APCs
to align with Medicare payment
provisions regarding dental services in
the CY 2023 PFS final rule.
Comment Solicitation on Payment for
High-Cost Drugs Provided by Indian
Health Service and Tribally-Owned
Facilities: We are seeking comment on
whether Medicare should pay separately
for high-cost drugs provided by IHS and
tribally-owned facilities.
• Supervision by Nurse Practitioners,
Physician Assistants and Clinical Nurse
Specialists of Cardiac, Intensive Cardiac
and Pulmonary Rehabilitation Services
Furnished to Outpatients: For CY 2024,
to comply with section 51008 of the
Bipartisan Budget Act of 2018 and to
ensure consistency with proposed
revisions to § 410.47 and § 410.49 in the
CY 2024 PFS proposed rule, we propose
to revise § 410.27(a)(1)(iv)(B)(1) to
expand the practitioners who may
supervise cardiac rehabilitation (CR),
intensive cardiac rehabilitation (ICR),
and pulmonary rehabilitation (PR)
services to include nurse practitioners
(NPs), physician assistants (PAs), and
clinical nurse specialists (CNSs). We
also propose to allow for the direct
supervision requirement for CR, ICR,
and PR to include virtual presence of
the physician through audio-video realtime communications technology
(excluding audio-only) through
December 31, 2024 and extend this
policy to the nonphysician
practitioners, that is NPs, PAs, and
CNSs, who are eligible to supervise
these services in CY 2024. Payment for
Intensive Cardiac Rehabilitation
Services (ICR) Provided by an OffCampus, Non-Excepted Provider Based
Department (PBD) of a Hospital: For CY
2024, to address an unintended
reimbursement disparity created by
application of the off-campus, nonexcepted payment rate to intensive
cardiac rehabilitation services (ICR), we
propose to pay for ICR services
furnished by an off-campus, nonexcepted PBD of a hospital at 100
percent of the OPPS rate, which is the
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amount paid for these services under
the PFS.
• Proposed Updates to Requirements
for Hospitals to Make Public a List of
Their Standard Charges: We propose to
amend several of our hospital price
transparency (HPT) requirements in
order to improve our monitoring and
enforcement capabilities by way of
improving access to, and the usability
of, hospital standard charge
information; reduce the compliance
burden on hospitals by providing CMS
templates and technical guidance for
display of hospital standard charge
information; align, where feasible,
certain hospital price transparency
requirements and processes with
requirements and processes we have
implemented in the Transparency in
Coverage (TIC) initiative; and make
other modifications to our monitoring
and enforcement capabilities that will,
among other things, increase its
transparency to the public. Specifically,
we propose to: (1) add definitions for
‘‘CMS template’’, ‘‘consumer-friendly
expected allowed charges’’, ‘‘encode’’,
and ‘‘machine-readable file’’ (MRF); (2)
require hospitals to affirm the accuracy
and completeness of data in their MRF;
(3) revise and expand the data elements
hospitals must include in the MRF; (4)
require hospitals to conform to a CMS
template layout and other technical
specifications for encoding standard
charge information in the MRF; (5)
require hospitals to establish and
maintain a txt file and footer as
specified by CMS; and (6) revise our
enforcement process by updating our
methods to assess hospital compliance,
requiring hospitals to acknowledge
receipt of warning notices, working with
health system officials to address
noncompliance issues in one or more
hospitals that are part of a health
system, and publicizing more
information about CMS enforcement
activities related to individual hospital
compliance. Additionally, we are
seeking comment on additional
considerations for improving
compliance and aligning consumerfriendly policies and requirements with
other federal price transparency
initiatives.
• Community Mental Health Center
(CMHC) Conditions of Participation
(CoPs): We propose to update the CMHC
CoPs to implement the provisions of the
Consolidated Appropriations Act
(CAA), 2023 (Pub. L. 117–238) by
establishing coverage of intensive
outpatient services (IOP) in CMHCs. The
CAA, 2023 also established a new
Medicare benefit category for services
furnished and directly billed by Mental
Health Counselors (MHCs) and Marriage
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and Family Therapists (MFTs). We
propose to revise the personnel
qualifications of MHCs and add
personnel qualifications for MFTs in the
CMHC CoPs.
• Proposed Changes to the Inpatient
Prospective Payment System Medicare
Code Editor: Consistent with the process
that is used for updates to the Integrated
Outpatient Code Editor (I/OCE) and
other Medicare claims editing systems,
we propose to remove discussion of the
IPPS Medicare Code Editor (MCE) from
the annual IPPS rulemakings, beginning
with the FY 2025 rulemaking, and to
generally address future changes or
updates to the MCE through instruction
to the MACs.
• Request for Public Comments on
Potential Payment under the IPPS and
OPPS for Establishing and Maintaining
Access to Essential Medicines: We are
seeking comment on, and may consider
finalizing based on the review of
comments received, as early as for cost
reporting periods beginning on or after
January 1, 2024, separate payment
under IPPS, for establishing and
maintaining access to a buffer stock of
essential medicines to foster a more
reliable, resilient supply of these
medicines. An adjustment under OPPS
could be considered for future years.
• Rural Emergency Hospital (REH)
Conditions of Participation (CoPs): We
propose a technical correction to the
REH CoPs under the standard for the
‘‘Designation and certification of REHs.
3. Summary of Costs and Benefits
In section XXVI of this proposed rule,
we set forth a detailed analysis of the
regulatory and federalism impacts that
the changes would have on affected
entities and beneficiaries. Key estimated
impacts are described below.
a. Impacts of all OPPS Changes
Table 100 in section XXVI.C of this
proposed rule displays the
distributional impact of all the OPPS
changes on various groups of hospitals
and CMHCs for CY 2024 compared to all
estimated OPPS payments in CY 2023.
We estimate that the proposed policies
in this proposed rule would result in a
2.9 percent overall increase in OPPS
payments to providers. We estimate that
total OPPS payments for CY 2024,
including beneficiary cost-sharing, to
the approximately 3,600 facilities paid
under the OPPS (including general
acute care hospitals, children’s
hospitals, cancer hospitals, and CMHCs)
would increase by approximately $1.9
billion compared to CY 2023 payments,
excluding our estimated changes in
enrollment, utilization, and case-mix.
We estimated the isolated impact of our
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OPPS policies on CMHCs because
CMHCs have historically only been paid
for partial hospitalization services under
the OPPS. Beginning in CY 2024, they
will also be paid for new intensive
outpatient program (IOP) services under
the OPPS. Continuing the providerspecific structure we adopted beginning
in CY 2011, and basing payment fully
on the type of provider furnishing the
service, we estimate a 5.8 percent
increase in CY 2024 payments to
CMHCs relative to their CY 2023
payments.
3.0 percent, and major teaching
hospitals would experience an increase
in payments of 2.4 percent. We also
classified hospitals by the type of
ownership. We estimate that hospitals
with voluntary ownership would
experience an increase of 3.0 percent in
payments, while hospitals with
government ownership would
experience an increase of 2.8 percent in
payments. We estimate that hospitals
with proprietary ownership would
experience an increase of 3.4 percent in
payments.
b. Impacts of the Updated Wage Indexes
We estimate that our update of the
wage indexes based on the fiscal year
(FY) 2024 IPPS proposed rule wage
indexes would result in no change for
urban hospitals under the OPPS and a
1.4 percent increase for rural hospitals.
These wage indexes include the
continued implementation of the Office
of Management and Budget (OMB) labor
market area delineations based on 2010
Decennial Census data, with updates, as
discussed in section II.C of this
proposed rule.
e. Impacts of the Proposed ASC
Payment Update
For impact purposes, the surgical
procedures on the ASC covered surgical
procedure list are aggregated into
surgical specialty groups using CPT and
HCPCS code range definitions. The
percentage change in estimated total
payments by specialty groups under the
CY 2024 payment rates, compared to
estimated CY 2023 payment rates,
generally ranges between a decrease of
6 percent and an increase of 7 percent,
depending on the service, with some
exceptions. We estimate the impact of
applying the proposed inpatient
hospital market basket update to ASC
payment rates would increase payments
by $170 million under the ASC payment
system in CY 2024.
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c. Impacts of the Rural Adjustment and
the Cancer Hospital Payment
Adjustment
We are implementing the reduction to
the cancer hospital payment adjustment
for CY 2024 required by section
1833(t)(18)(C) of the Act, as added by
section 16002(b) of the 21st Century
Cures Act, and the proposed target
payment-to-cost ratio (PCR) for CY 2024
cancer hospital adjustment of 0.89.
However, as Section 16002 requires that
we reduce the target PCR by 0.01, that
brings the proposed target PCR to 0.88
instead. This is 0.01 less than the target
PCR of 0.89 from CY 2021 through CY
2023, which was previously held at the
pre-PHE target.
d. Impacts of the OPD Fee Schedule
Increase Factor
For the CY 2024 OPPS/ASC, we
propose an OPD fee schedule increase
factor of 2.8 percent and applying that
proposed increase factor to the
conversion factor for CY 2024. As a
result of the OPD fee schedule increase
factor and other budget neutrality
adjustments, we estimate that urban
hospitals would experience an increase
in payments of approximately 2.8
percent and that rural hospitals would
experience an increase in payments of
4.4 percent. Classifying hospitals by
teaching status, we estimate nonteaching hospitals would experience an
increase in payments of 3.5 percent,
minor teaching hospitals would
experience an increase in payments of
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f. Impacts of Hospital Price
Transparency
We propose to enhance automated
access to hospital MRFs and aggregation
and use of MRF data are estimated to
increase burden on hospitals, including
a one-time mean of $2,787 per hospital,
and a total national cost of $19,784,539
($2,787 × 7,098 hospitals). The cost
estimate reflects estimated costs ranging
from $1,274 and $4,181 per hospital,
and a total national cost ranging from
$9,040,620 to $29,676,809. As discussed
in detail in section XXVI of this
proposed rule, we believe that the
benefits to the public (and to hospitals
themselves) outweigh the burden
imposed on hospitals.
B. Legislative and Regulatory Authority
for the Hospital OPPS
When Title XVIII of the Act was
enacted, Medicare payment for hospital
outpatient services was based on
hospital-specific costs. In an effort to
ensure that Medicare and its
beneficiaries pay appropriately for
services and to encourage more efficient
delivery of care, the Congress mandated
replacement of the reasonable costbased payment methodology with a
prospective payment system (PPS). The
Balanced Budget Act of 1997 (BBA)
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(Pub. L. 105–33) added section 1833(t)
to the Act, authorizing implementation
of a PPS for hospital outpatient services.
The OPPS was first implemented for
services furnished on or after August 1,
2000. Implementing regulations for the
OPPS are located at 42 CFR parts 410
and 419.
The Medicare, Medicaid, and SCHIP
Balanced Budget Refinement Act of
1999 (BBRA) (Pub. L. 106–113) made
major changes in the hospital OPPS.
The following Acts made additional
changes to the OPPS: the Medicare,
Medicaid, and SCHIP Benefits
Improvement and Protection Act of
2000 (BIPA) (Pub. L. 106–554); the
Medicare Prescription Drug,
Improvement, and Modernization Act of
2003 (MMA) (Pub. L. 108–173); the
Deficit Reduction Act of 2005 (DRA)
(Pub. L. 109–171), enacted on February
8, 2006; the Medicare Improvements
and Extension Act under Division B of
Title I of the Tax Relief and Health Care
Act of 2006 (MIEA–TRHCA) (Pub. L.
109–432), enacted on December 20,
2006; the Medicare, Medicaid, and
SCHIP Extension Act of 2007 (MMSEA)
(Pub. L. 110–173), enacted on December
29, 2007; the Medicare Improvements
for Patients and Providers Act of 2008
(MIPPA) (Pub. L. 110–275), enacted on
July 15, 2008; the Patient Protection and
Affordable Care Act (Pub. L. 111–148),
enacted on March 23, 2010, as amended
by the Health Care and Education
Reconciliation Act of 2010 (Pub. L. 111–
152), enacted on March 30, 2010 (these
two public laws are collectively known
as the Affordable Care Act); the
Medicare and Medicaid Extenders Act
of 2010 (MMEA, Pub. L. 111–309); the
Temporary Payroll Tax Cut
Continuation Act of 2011 (TPTCCA,
Pub. L. 112–78), enacted on December
23, 2011; the Middle Class Tax Relief
and Job Creation Act of 2012
(MCTRJCA, Pub. L. 112–96), enacted on
February 22, 2012; the American
Taxpayer Relief Act of 2012 (Pub. L.
112–240), enacted January 2, 2013; the
Pathway for SGR Reform Act of 2013
(Pub. L. 113–67) enacted on December
26, 2013; the Protecting Access to
Medicare Act of 2014 (PAMA, Pub. L.
113–93), enacted on March 27, 2014; the
Medicare Access and CHIP
Reauthorization Act (MACRA) of 2015
(Pub. L. 114–10), enacted April 16,
2015; the Bipartisan Budget Act of 2015
(Pub. L. 114–74), enacted November 2,
2015; the Consolidated Appropriations
Act, 2016 (Pub. L. 114–113), enacted on
December 18, 2015, the 21st Century
Cures Act (Pub. L. 114–255), enacted on
December 13, 2016; the Consolidated
Appropriations Act, 2018 (Pub. L. 115–
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141), enacted on March 23, 2018; the
Substance Use Disorder- Prevention that
Promotes Opioid Recovery and
Treatment for Patients and Communities
Act (Pub. L. 115–271), enacted on
October 24, 2018; the Further
Consolidated Appropriations Act, 2020
(Pub. L. 116–94), enacted on December
20, 2019; the Coronavirus Aid, Relief,
and Economic Security Act (Pub. L.
116–136), enacted on March 27, 2020;
the Consolidated Appropriations Act,
2021 (Pub. L. 116–260), enacted on
December 27, 2020; the Inflation
Reduction Act, 2022 (Pub. L. 117–169),
enacted on August 16, 2022; and
Consolidated Appropriations Act
(CAA), 2023 (Pub. L. 117–238), enacted
December 29, 2022.
Under the OPPS, we generally pay for
hospital Part B services on a rate-perservice basis that varies according to the
APC group to which the service is
assigned. We use the Healthcare
Common Procedure Coding System
(HCPCS) (which includes certain
Current Procedural Terminology (CPT)
codes) to identify and group the services
within each APC. The OPPS includes
payment for most hospital outpatient
services, except those identified in
section I.C of this proposed rule. Section
1833(t)(1)(B) of the Act provides for
payment under the OPPS for hospital
outpatient services designated by the
Secretary (which includes partial
hospitalization services furnished by
CMHCs), and certain inpatient hospital
services that are paid under Medicare
Part B.
The OPPS rate is an unadjusted
national payment amount that includes
the Medicare payment and the
beneficiary copayment. This rate is
divided into a labor-related amount and
a nonlabor-related amount. The laborrelated amount is adjusted for area wage
differences using the hospital inpatient
wage index value for the locality in
which the hospital or CMHC is located.
All services and items within an APC
group are comparable clinically and
with respect to resource use, as required
by section 1833(t)(2)(B) of the Act. In
accordance with section 1833(t)(2)(B) of
the Act, subject to certain exceptions,
items and services within an APC group
cannot be considered comparable with
respect to the use of resources if the
highest median cost (or mean cost, if
elected by the Secretary) for an item or
service in the APC group is more than
2 times greater than the lowest median
cost (or mean cost, if elected by the
Secretary) for an item or service within
the same APC group (referred to as the
‘‘2 times rule’’). In implementing this
provision, we generally use the cost of
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the item or service assigned to an APC
group.
For new technology items and
services, special payments under the
OPPS may be made in one of two ways.
Section 1833(t)(6) of the Act provides
for temporary additional payments,
which we refer to as ‘‘transitional passthrough payments,’’ for at least 2 but not
more than 3 years for certain drugs,
biological agents, brachytherapy devices
used for the treatment of cancer, and
categories of other medical devices. For
new technology services that are not
eligible for transitional pass-through
payments, and for which we lack
sufficient clinical information and cost
data to appropriately assign them to a
clinical APC group, we have established
special APC groups based on costs,
which we refer to as New Technology
APCs. These New Technology APCs are
designated by cost bands which allow
us to provide appropriate and consistent
payment for designated new procedures
that are not yet reflected in our claims
data. Similar to pass-through payments,
an assignment to a New Technology
APC is temporary; that is, we retain a
service within a New Technology APC
until we acquire sufficient data to assign
it to a clinically appropriate APC group.
C. Excluded OPPS Services and
Hospitals
Section 1833(t)(1)(B)(i) of the Act
authorizes the Secretary to designate the
hospital outpatient services that are
paid under the OPPS. While most
hospital outpatient services are payable
under the OPPS, section
1833(t)(1)(B)(iv) of the Act excludes
payment for ambulance, physical and
occupational therapy, and speechlanguage pathology services, for which
payment is made under a fee schedule.
It also excludes screening
mammography, diagnostic
mammography, and effective January 1,
2011, an annual wellness visit providing
personalized prevention plan services.
The Secretary exercises the authority
granted under the statute to also exclude
from the OPPS certain services that are
paid under fee schedules or other
payment systems. Such excluded
services include, for example, the
professional services of physicians and
nonphysician practitioners paid under
the Medicare Physician Fee Schedule
(MPFS); certain laboratory services paid
under the Clinical Laboratory Fee
Schedule (CLFS); services for
beneficiaries with end-stage renal
disease (ESRD) that are paid under the
ESRD prospective payment system; and
services and procedures that require an
inpatient stay that are paid under the
hospital IPPS. In addition, section
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1833(t)(1)(B)(v) of the Act does not
include applicable items and services
(as defined in subparagraph (A) of
paragraph (21)) that are furnished on or
after January 1, 2017, by an off-campus
outpatient department of a provider (as
defined in subparagraph (B) of
paragraph (21)). We set forth the
services that are excluded from payment
under the OPPS in regulations at 42 CFR
419.22.
Under § 419.20(b) of the regulations,
we specify the types of hospitals that are
excluded from payment under the
OPPS. These excluded hospitals are:
• Critical access hospitals (CAHs);
• Hospitals located in Maryland and
paid under Maryland’s All-Payer or
Total Cost of Care Model;
• Hospitals located outside of the 50
States, the District of Columbia, and
Puerto Rico; and
• Indian Health Service (IHS)
hospitals.
D. Prior Rulemaking
On April 7, 2000, we published in the
Federal Register a final rule with
comment period (65 FR 18434) to
implement a prospective payment
system for hospital outpatient services.
The hospital OPPS was first
implemented for services furnished on
or after August 1, 2000. Section
1833(t)(9)(A) of the Act requires the
Secretary to review certain components
of the OPPS, not less often than
annually, and to revise the groups, the
relative payment weights, and the wage
and other adjustments to take into
account changes in medical practices,
changes in technology, the addition of
new services, new cost data, and other
relevant information and factors.Since
initially implementing the OPPS, we
have published final rules in the
Federal Register annually to implement
statutory requirements and changes
arising from our continuing experience
with this system. These rules can be
viewed on the CMS website at: https://
www.cms.gov/Medicare/Medicare-Feefor-Service-Payment/Hospital
OutpatientPPS/Hospital-OutpatientRegulations-and-Notices.html.
E. Advisory Panel on Hospital
Outpatient Payment (the HOP Panel or
the Panel)
1. Authority of the Panel
Section 1833(t)(9)(A) of the Act, as
amended by section 201(h) of Public
Law 106–113, and redesignated by
section 202(a)(2) of Public Law 106–113,
requires that we consult with an expert
outside advisory panel composed of an
appropriate selection of representatives
of providers to annually review (and
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advise the Secretary concerning) the
clinical integrity of the payment groups
and their weights under the OPPS. In
CY 2000, based on section 1833(t)(9)(A)
of the Act, the Secretary established the
Advisory Panel on Ambulatory Payment
Classification Groups (APC Panel) to
fulfill this requirement. In CY 2011,
based on section 222 of the Public
Health Service Act (the PHS Act), which
gives discretionary authority to the
Secretary to convene advisory councils
and committees, the Secretary expanded
the panel’s scope to include the
supervision of hospital outpatient
therapeutic services in addition to the
APC groups and weights. To reflect this
new role of the panel, the Secretary
changed the panel’s name to the
Advisory Panel on Hospital Outpatient
Payment (the HOP Panel). The HOP
Panel is not restricted to using data
compiled by CMS, and in conducting its
review, it may use data collected or
developed by organizations outside the
Department.
2. Establishment of the Panel
On November 21, 2000, the Secretary
signed the initial charter establishing
the Panel, and, at that time, named the
APC Panel. This expert panel is
composed of appropriate representatives
of providers (currently employed fulltime, not as consultants, in their
respective areas of expertise) who
review clinical data and advise CMS
about the clinical integrity of the APC
groups and their payment weights.
Since CY 2012, the Panel also is charged
with advising the Secretary on the
appropriate level of supervision for
individual hospital outpatient
therapeutic services. The Panel is
technical in nature, and it is governed
by the provisions of the Federal
Advisory Committee Act (FACA). The
current charter specifies, among other
requirements, that the Panel—
• May advise on the clinical integrity
of Ambulatory Payment Classification
(APC) groups and their associated
weights;
• May advise on the appropriate
supervision level for hospital outpatient
services;
• May advise on OPPS APC rates for
ASC covered surgical procedures;
• Continues to be technical in nature;
• Is governed by the provisions of the
FACA;
• Has a Designated Federal Official
(DFO); and
• Is chaired by a Federal Official
designated by the Secretary.
The Panel’s charter was amended on
November 15, 2011, renaming the Panel
and expanding the Panel’s authority to
include supervision of hospital
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outpatient therapeutic services and to
add critical access hospital (CAH)
representation to its membership. The
Panel’s charter was also amended on
November 6, 2014 (80 FR 23009), and
the number of members was revised
from up to 19 to up to 15 members. The
Panel’s current charter was approved on
November 21, 2022, for a 2-year period.
The current Panel membership and
other information pertaining to the
Panel, including its charter, Federal
Register notices, membership, meeting
dates, agenda topics, and meeting
reports, can be viewed on the CMS
website at: https://www.cms.gov/
Regulations-and-Guidance/Guidance/
FACA/AdvisoryPanelonAmbulatory
PaymentClassificationGroups.html.
3. Panel Meetings and Organizational
Structure
The Panel has held many meetings,
with the last meeting taking place on
August 22, 2022. Prior to each meeting,
we publish a notice in the Federal
Register to announce the meeting, new
members, and any other changes of
which the public should be aware.
Beginning in CY 2017, we have
transitioned to one meeting per year (81
FR 31941). In CY 2018, we published a
Federal Register notice requesting
nominations to fill vacancies on the
Panel (83 FR 3715). CMS is currently
accepting nominations at: https://
mearis.cms.gov.
In addition, the Panel has established
an administrative structure that, in part,
currently includes the use of three
subcommittee workgroups to provide
preparatory meeting and subject support
to the larger panel. The three current
subcommittees include the following:
• APC Groups and Status Indicator
Assignments Subcommittee, which
advises and provides recommendations
to the Panel on the appropriate status
indicators to be assigned to HCPCS
codes, including but not limited to
whether a HCPCS code or a category of
codes should be packaged or separately
paid, as well as the appropriate APC
assignment of HCPCS codes regarding
services for which separate payment is
made;
• Data Subcommittee, which is
responsible for studying the data issues
confronting the Panel and for
recommending options for resolving
them; and
• Visits and Observation
Subcommittee, which reviews and
makes recommendations to the Panel on
all technical issues pertaining to
observation services and hospital
outpatient visits paid under the OPPS.
Each of these workgroup
subcommittees was established by a
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majority vote from the full Panel during
a scheduled Panel meeting, and the
Panel recommended at the August 22,
2022, meeting that the subcommittees
continue. We accepted this
recommendation.
For discussions of earlier Panel
meetings and recommendations, we
refer readers to previously published
OPPS/ASC proposed and final rules, the
CMS website mentioned earlier in this
section, and the FACA database at
https://facadatabase.gov.
F. Public Comments Received on the CY
2023 OPPS/ASC Final Rule With
Comment Period
We received approximately 12 timely
pieces of correspondence on the CY
2023 OPPS/ASC final rule with
comment period that appeared in the
Federal Register on November 4, 2022
(87 FR 71748). In-scope comments
related to the interim APC assignments
and/or status indicators of new or
replacement Level II HCPCS codes
(identified with comment indicator
‘‘NI’’ in OPPS Addendum B, ASC
Addendum AA, and ASC Addendum
BB to that final rule).
II. Proposed Updates Affecting OPPS
Payments
A. Recalibration of APC Relative
Payment Weights
1. Database Construction
a. Database Source and Methodology
Section 1833(t)(9)(A) of the Act
requires that the Secretary review not
less often than annually and revise the
relative payment weights for
Ambulatory Payment Classifications
(APCs). In the April 7, 2000 OPPS final
rule with comment period (65 FR
18482), we explained in detail how we
calculated the relative payment weights
that were implemented on August 1,
2000 for each APC group.
For the CY 2024 OPPS, we propose to
recalibrate the APC relative payment
weights for services furnished on or
after January 1, 2024, and before January
1, 2025 (CY 2024), using the same basic
methodology that we described in the
CY 2023 OPPS/ASC final rule with
comment period (86 FR 63466), using
CY 2022 claims data. That is, we
propose to recalibrate the relative
payment weights for each APC based on
claims and cost report data for hospital
outpatient department (HOPD) services
to construct a database for calculating
APC group weights. For the purpose of
recalibrating the proposed APC relative
payment weights for CY 2024, we began
with approximately 180 million final
action claims (claims for which all
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disputes and adjustments have been
resolved and payment has been made)
for HOPD services furnished on or after
January 1, 2022, and before January 1,
2023, before applying our exclusionary
criteria and other methodological
adjustments. After the application of
those data processing changes, we used
approximately 93 million final action
claims to develop the proposed CY 2024
OPPS payment weights. For exact
numbers of claims used and additional
details on the claims accounting
process, we refer readers to the claims
accounting narrative under supporting
documentation for this proposed rule on
the CMS website at: https://
www.cms.gov/Medicare/Medicare-Feefor-Service-Payment/Hospital
OutpatientPPS/.
Addendum N to this proposed rule
(which is available via the internet on
the CMS website at: https://
www.cms.gov/Medicare/MedicareFeefor-Service-Payment/Hospital
OutpatientPPS/Hospital-OutpatientRegulations-and-Notices.html) includes
the proposed list of bypass codes for CY
2024. The proposed list of bypass codes
contains codes that are reported on
claims for services in CY 2022 and,
therefore, includes codes that were in
effect in CY 2022 and used for billing.
We propose to retain deleted bypass
codes on the proposed CY 2024 bypass
list because these codes existed in CY
2022 and were covered OPD services in
that period, and CY 2022 claims data
were used to calculate proposed CY
2024 payment rates. Keeping these
deleted bypass codes on the bypass list
potentially allows us to create more
‘‘pseudo’’ single procedure claims for
ratesetting purposes. ‘‘Overlap bypass
codes’’ that are members of the
proposed multiple imaging composite
APCs are identified by asterisks (*) in
the third column of Addendum N to the
proposed rule. HCPCS codes that we
propose to add for CY 2024 are
identified by asterisks (*) in the fourth
column of Addendum N.
b. Proposed Calculation and Use of
Cost-to-Charge Ratios (CCRs)
For CY 2024, we propose to continue
to use the hospital-specific overall
ancillary and departmental cost-tocharge ratios (CCRs) to convert charges
to estimated costs through application
of a revenue code-to-cost center
crosswalk. To calculate the APC costs
on which the proposed CY 2024 APC
payment rates are based, we calculated
hospital-specific departmental CCRs for
each hospital for which we had CY 2022
claims data by comparing these claims
data to the most recently available
hospital cost reports, which, in most
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cases, are from CY 2021. For the
proposed CY 2024 OPPS payment rates,
we used the set of claims processed
during CY 2022. We applied the
hospital-specific CCR to the hospital’s
charges at the most detailed level
possible, based on a revenue code-tocost center crosswalk that contains a
hierarchy of CCRs used to estimate costs
from charges for each revenue code. To
ensure the completeness of the revenue
code-to-cost center crosswalk, we
reviewed changes to the list of revenue
codes for CY 2022 (the year of claims
data we used to calculate the proposed
CY 2024 OPPS payment rates) and
updates to the National Uniform Billing
Committee (NUBC) 2022 Data
specifications Manual. That crosswalk is
available for review and continuous
comment on the CMS website at https://
www.cms.gov/Medicare/Medicare-Feefor-Service-Payment/Hospital
OutpatientPPS/.
In the CY 2023 OPPS/ASC final rule
with comment period, a few
commenters recommended that we
revise our revenue code-to-cost center
crosswalk to provide consistency with
the NUBC definitions and to improve
the accuracy of cost data for OPPS
ratesetting with respect to chimeric
antigen receptor therapy (CAR–T)
administration services (87 FR 71758).
In that final rule with comment period,
we stated that we intend to explore the
implications of this recommendation
further and may consider such changes
in future rulemaking. For this CY 2024
OPPS/ASC proposed rule, we explored
the impacts of the commenters’
recommendation from the CY 2023
OPPS/ASC final rule with comment
period that we assign primary cost
centers to certain CAR–T-related
revenue codes that were not previously
assigned cost centers. Specifically, for
this CY 2024 OPPS/ASC proposed rule,
we explored the commenter’s
recommendations regarding changes to
the revenue code-to-cost center
crosswalk, which included:
• Revising revenue codes 0870 (Cell/
Gene Therapy General Classification)
and 0871 (Cell Collection) to be mapped
to a primary cost center of 9000 (Clinic);
• Revising revenue codes 0872
(Specialized Biologic Processing and
Storage—Prior to Transport) and 0873
(Storage and Processing After Receipt of
Cells from Manufacturer) to be mapped
to a primary cost center of 3350
(Hematology);
• Revising revenue codes 0874
(Infusion of Modified Cells) and 0875
(Injection of Modified Cells) to be
mapped to a primary cost center of 6400
(Intravenous Therapy), and;
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• Revising revenue codes 0891
(Special Processed Drugs—FDA
Approved Cell Therapy) and 0892
(Special Processed Drugs—FDA
Approved Gene Therapy) to be mapped
to a primary cost center of 7300 (Drugs
Charged to Patients).
After reviewing the impact of these
crosswalk revisions on our proposed CY
2024 OPPS APC geometric mean costs,
we only observed an increase in the
geometric mean cost of CPT code 0540T
(Chimeric antigen receptor t-cell (car-t)
therapy; car-t cell administration,
autologous)—from $148.31 to $294.17
for this proposed rule—as a result of the
revenue code for CPT code 0540T being
assigned to a new cost center and the
new corresponding cost-to-charge ratio.
We did not observe any significant
impact on APC geometric mean costs or
payment as a result of these revisions.
We believe these revisions would
provide greater consistency with the
NUBC definitions (which already
adopted these revenue code revisions)
and more accurately account for the
costs of CAR–T administration services
under the OPPS. Therefore, for CY 2024
and subsequent years, we propose to
adopt the aforementioned revisions to
revenue codes 0870, 0871 0872, 0873,
0874, 0875, 0891, and 0892 in our
revenue code-to-cost center crosswalk.
We solicit comment on our proposed
changes to the revenue code-to-cost
center crosswalk for CY 2024. In
accordance with our longstanding
policy, similar to our finalized policy
for CY 2023 OPPS ratesetting, we
propose to calculate CCRs for the
standard cost centers—cost centers with
a predefined label—and nonstandard
cost centers—cost centers defined by a
hospital—accepted by the electronic
cost report database. In general, the
most detailed level at which we
calculate CCRs is the hospital-specific
departmental level.
While we generally view the use of
additional cost data as improving our
OPPS ratesetting process, we have
historically not included cost report
lines for certain nonstandard cost
centers in the OPPS ratesetting database
construction when hospitals have
reported these nonstandard cost centers
on cost report lines that do not
correspond to the cost center number.
We believe it is important to further
investigate the accuracy of these cost
report data before including such data
in the ratesetting process. Further, we
believe it is appropriate to gather
additional information from the public
as well before including them in OPPS
ratesetting. For CY 2024, we propose not
to include the nonstandard cost centers
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reported in this way in the OPPS
ratesetting database construction.
2. Proposed Data Development and
Calculation of Costs Used for Ratesetting
In this section of this proposed rule,
we discuss the use of claims to calculate
the OPPS payment rates for CY 2024.
The Hospital OPPS page on the CMS
website on which this proposed rule is
posted (https://www.cms.gov/Medicare/
Medicare-Fee-for-Service-Payment/
HospitalOutpatientPPS/)
provides an accounting of claims used
in the development of the proposed
payment rates. That accounting
provides additional detail regarding the
number of claims derived at each stage
of the process. In addition, later in this
section we discuss the file of claims that
comprises the data set that is available
upon payment of an administrative fee
under a CMS data use agreement. The
CMS website, https://www.cms.gov/
Medicare/Medicare-Fee-for-ServicePayment/HospitalOutpatientPPS/
index.html, includes information about
obtaining the ‘‘OPPS Limited Data Set,’’
which now includes the additional
variables previously available only in
the OPPS Identifiable Data Set,
including ICD–10–CM diagnosis codes
and revenue code payment amounts.
This file is derived from the CY 2022
claims that are used to calculate the
proposed payment rates for this
proposed rule.
Previously, the OPPS established the
scaled relative weights on which
payments are based using APC median
costs, a process described in the CY
2012 OPPS/ASC final rule with
comment period (76 FR 74188).
However, as discussed in more detail in
section II.A.2.f of the CY 2013 OPPS/
ASC final rule with comment period (77
FR 68259 through 68271), we finalized
the use of geometric mean costs to
calculate the relative weights on which
the CY 2013 OPPS payment rates were
based. While this policy changed the
cost metric on which the relative
payments are based, the data process in
general remained the same under the
methodologies that we used to obtain
appropriate claims data and accurate
cost information in determining
estimated service cost.
We used the methodology described
in sections II.A.2.a through II.A.2.c of
this proposed rule to calculate the costs
we used to establish the proposed
relative payment weights used in
calculating the OPPS payment rates for
CY 2024 shown in Addenda A and B to
this proposed rule (which are available
via the internet on the CMS website at:
https://www.cms.gov/Medicare/
Medicare-Feefor-Service-Payment/
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HospitalOutpatientPPS/HospitalOutpatient-Regulations-andNotices.html). We refer readers to
section II.A.4 of this proposed rule for
a discussion of the conversion of APC
costs to scaled payment weights.
We note that under the OPPS, CY
2019 was the first year in which the
claims data used for setting payment
rates (CY 2017 data) contained lines
with the modifier ‘‘PN,’’ which
indicates nonexcepted items and
services furnished and billed by offcampus provider-based departments
(PBDs) of hospitals. Because
nonexcepted items and services are not
paid under the OPPS, in the CY 2019
OPPS/ASC final rule with comment
period (83 FR 58832), we finalized a
policy to remove those claim lines
reported with modifier ‘‘PN’’ from the
claims data used in ratesetting for the
CY 2019 OPPS and subsequent years.
For the CY 2024 OPPS, we propose to
continue to remove claim lines with
modifier ‘‘PN’’ from the ratesetting
process.
For details of the claims accounting
process used in this CY 2024 OPPS/ASC
proposed rule, we refer readers to the
claims accounting narrative under
supporting documentation for this
proposed rule on the CMS website at:
https://www.cms.gov/Medicare/
Medicare-Fee-for-Service-Payment/
HospitalOutpatientPPS/.
a. Proposed Calculation of Single
Procedure APC Criteria-Based Costs
(1) Blood and Blood Products
Since the implementation of the OPPS
in August 2000, we have made separate
payments for blood and blood products
through APCs rather than packaging
payment for them into payments for the
procedures with which they are
administered. Hospital payments for the
costs of blood and blood products, as
well as for the costs of collecting,
processing, and storing blood and blood
products, are made through the OPPS
payments for specific blood product
APCs.
We propose to continue to establish
payment rates for blood and blood
products using our blood-specific CCR
methodology, which utilizes actual or
simulated CCRs from the most recently
available hospital cost reports to convert
hospital charges for blood and blood
products to costs. This methodology has
been our standard ratesetting
methodology for blood and blood
products since CY 2005. It was
developed in response to data analysis
indicating that there was a significant
difference in CCRs for those hospitals
with and without blood-specific cost
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centers and past public comments
indicating that the former OPPS policy
of defaulting to the overall hospital CCR
for hospitals not reporting a bloodspecific cost center often resulted in an
underestimation of the true hospital
costs for blood and blood products. To
address the differences in CCRs and to
better reflect hospitals’ costs, our
methodology simulates blood CCRs for
each hospital that does not report a
blood cost center by calculating the ratio
of the blood-specific CCRs to hospitals’
overall CCRs for those hospitals that do
report costs and charges for blood cost
centers and applies this mean ratio to
the overall CCRs of hospitals not
reporting costs and charges for blood
cost centers on their cost reports. We
propose to calculate the costs upon
which the proposed payment rates for
blood and blood products are based
using the actual blood-specific CCR for
hospitals that reported costs and charges
for a blood cost center and a hospitalspecific, simulated, blood-specific CCR
for hospitals that did not report costs
and charges for a blood cost center.
Because this proposed hospitalspecific, simulated, blood-specific CCR
methodology takes into account the
unique charging and cost accounting
structure of each hospital, it better
responds to the absence of a bloodspecific CCR for a hospital than
alternative methodologies, such as
defaulting to the overall hospital CCR or
applying an average blood-specific CCR
across hospitals. This methodology also
yields more accurate estimated costs for
these products and results in payment
rates for blood and blood products that
appropriately reflect the relative
estimated costs of these products for
hospitals without blood cost centers and
for these blood products in general.
We refer readers to Addendum B to
this proposed rule (which is available
via the internet on the CMS website at
https://www.cms.gov/Medicare/
Medicare-Fee-for-Service-Payment/
HospitalOutpatientPPS/HospitalOutpatient-Regulations-and-Notices) for
the proposed CY 2024 payment rates for
blood and blood products (which are
generally identified with status
indicator ‘‘R’’).
For a more detailed discussion of
payments for blood and blood products
through APCs, we refer readers to:
• the CY 2005 OPPS proposed rule (69
FR 50524 through 50525) for a more
comprehensive discussion of the bloodspecific CCR methodology;
• the CY 2008 OPPS/ASC final rule
with comment period (72 FR 66807
through 66810) for a detailed history of
the OPPS payment for blood and blood
products; and
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• the CY 2015 OPPS/ASC final rule
with comment period (79 FR 66795
through 66796) for additional
discussion of our policy not to make
separate payments for blood and blood
products when they appear on the same
claims as services assigned to a C–APC.
We propose to continue to establish
payment rates for blood and blood
products using our blood-specific CCR
methodology.
(2) Brachytherapy Sources
Section 1833(t)(2)(H) of the Act
mandates the creation of additional
groups of covered OPD services that
classify devices of brachytherapy—
cancer treatment through solid source
radioactive implants—consisting of a
seed or seeds (or radioactive source)
(‘‘brachytherapy sources’’) separately
from other services or groups of
services. The statute provides certain
criteria for the additional groups. For
the history of OPPS payment for
brachytherapy sources, we refer readers
to prior OPPS final rules, such as the CY
2012 OPPS/ASC final rule with
comment period (77 FR 68240 through
68241). As we have stated in prior OPPS
updates, we believe that adopting the
general OPPS prospective payment
methodology for brachytherapy sources
is appropriate for a number of reasons
(77 FR 68240). The general OPPS
methodology uses costs based on claims
data to set the relative payment weights
for hospital outpatient services. This
payment methodology results in more
consistent, predictable, and equitable
payment amounts per source across
hospitals by averaging the extremely
high and low values, in contrast to
payment based on hospitals’ charges
adjusted to costs. We believe that the
OPPS methodology, as opposed to
payment based on hospitals’ charges
adjusted to cost, also would provide
hospitals with incentives for efficiency
in the provision of brachytherapy
services to Medicare beneficiaries.
Moreover, this approach is consistent
with our payment methodology for the
vast majority of items and services paid
under the OPPS. We refer readers to the
CY 2016 OPPS/ASC final rule with
comment period (80 FR 70323 through
70325) for further discussion of the
history of OPPS payment for
brachytherapy sources.
For CY 2024, except where otherwise
indicated, we propose to use the costs
derived from CY 2022 claims data to set
the proposed CY 2024 payment rates for
brachytherapy sources because CY 2022
is the year of data we propose to use to
set the proposed payment rates for most
other items and services that would be
paid under the CY 2024 OPPS. We
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proposed this methodology for CY 2024
and subsequent years. With the
exception of the proposed payment rate
for brachytherapy source C2645
(Brachytherapy planar source,
palladium-103, per square millimeter)
and the proposed payment rates for lowvolume brachytherapy APCs discussed
in section III.D of this proposed rule, we
propose to base the payment rates for
brachytherapy sources on the geometric
mean unit costs for each source,
consistent with the methodology that
we propose for other items and services
paid under the OPPS, as discussed in
section II.A.2 of this proposed rule. We
also propose for CY 2024 and
subsequent years, to continue the other
payment policies for brachytherapy
sources that we finalized and first
implemented in the CY 2010 OPPS/ASC
final rule with comment period (74 FR
60537). For CY 2024 and subsequent
years, we propose to pay for the
stranded and nonstranded not otherwise
specified (NOS) codes, HCPCS codes
C2698 (Brachytherapy source, stranded,
not otherwise specified, per source) and
C2699 (Brachytherapy source, nonstranded, not otherwise specified, per
source), at a rate equal to the lowest
stranded or nonstranded prospective
payment rate for such sources,
respectively, on a per-source basis (as
opposed to, for example, per mCi),
which is based on the policy we
established in the CY 2008 OPPS/ASC
final rule with comment period (72 FR
66785). For CY 2024 and subsequent
years, we also propose to continue the
policy we first implemented in the CY
2010 OPPS/ASC final rule with
comment period (74 FR 60537)
regarding payment for new
brachytherapy sources for which we
have no claims data, based on the same
reasons we discussed in the CY 2008
OPPS/ASC final rule with comment
period (72 FR 66786; which was
delayed until January 1, 2010, by
section 142 of Pub. L. 110–275).
Specifically, this policy is intended to
enable us to assign new HCPCS codes
for new brachytherapy sources to their
own APCs, with prospective payment
rates set based on our consideration of
external data and other relevant
information regarding the expected
costs of the sources to hospitals. The
proposed CY 2024 payment rates for
brachytherapy sources are included on
Addendum B to this proposed rule
(which is available via the internet on
the CMS website) and identified with
status indicator ‘‘U.’’
For CY 2018, we assigned status
indicator ‘‘U’’ (Brachytherapy Sources,
Paid under OPPS; separate APC
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payment) to HCPCS code C2645
(Brachytherapy planar source,
palladium-103, per square millimeter)
in the absence of claims data and
established a payment rate using
external data (invoice price) at $4.69 per
mm2 for the brachytherapy source’s
APC—APC 2648 (Brachytx planar, p103). For CY 2019, in the absence of
sufficient claims data, we continued to
establish a payment rate for C2645 at
$4.69 per mm2 for APC 2648 (Brachytx
planar, p-103). Our CY 2018 claims data
available for the CY 2020 OPPS/ASC
final rule with comment period
included two claims with a geometric
mean cost for HCPCS code C2645 of
$1.02 per mm2. In response to
comments from interested parties, we
agreed that, given the limited claims
data available and a new outpatient
indication for C2645, a payment rate for
HCPCS code C2645 based on the
geometric mean cost of $1.02 per mm2
may not adequately reflect the cost of
HCPCS code C2645. In the CY 2020
OPPS/ASC final rule with comment
period, we finalized our policy to use
our equitable adjustment authority
under section 1833(t)(2)(E) of the Act,
which states that the Secretary shall
establish, in a budget neutral manner,
other adjustments as determined to be
necessary to ensure equitable payments,
to maintain the CY 2019 payment rate
of $4.69 per mm2 for HCPCS code
C2645 for CY 2020. Similarly, in the
absence of sufficient claims data to
establish an APC payment rate, in the
CY 2021, CY 2022, and CY 2023 OPPS/
ASC final rules with comment period
(85 FR 85879 through 85880, 86 FR
63469, and 87 FR 71760 through 71761),
we finalized our policy to use our
equitable adjustment authority under
section 1833(t)(2)(E) of the Act to
maintain the CY 2019 payment rate of
$4.69 per mm2 for HCPCS code C2645
for CY 2021, for CY 2022, and for CY
2023.
After reviewing CY 2022 claims data
available for this proposed rule, we
observed three claims that reported
HCPCS code C2645. Each claim
reported one unit of HCPCS code C2645
and the geometric mean unit cost from
these three claims yielded $168.67. We
are unable to use these claims for
ratesetting purposes given the reporting
of only one unit per claim and the high
geometric mean cost. Therefore, we
propose to use our equitable adjustment
authority under section 1833(t)(2)(E) of
the Act to maintain the CY 2023
payment rate of $4.69 per mm2 for
HCPCS code C2645, which is assigned
to APC 2648 (Brachytx planar, p-103),
for CY 2024.
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Additionally, for CY 2022 and
subsequent calendar years, we adopted
a Universal Low Volume APC policy for
clinical and brachytherapy APCs. As
discussed in further detail in section
X.C of the CY 2022 OPPS/ASC final rule
with comment period (86 FR 63743
through 63747), we adopted this policy
to mitigate wide variation in payment
rates that occur from year to year for
APCs with low utilization. Such
volatility in payment rates from year to
year can result in even lower utilization
and potential barriers to access.
Brachytherapy APCs that have fewer
than 100 single claims used for
ratesetting purposes are designated as
Low Volume APCs unless an alternative
payment rate is applied, such as the use
of our equitable adjustment authority
under Section 1833(t)(2)(E) of the Act in
the case of APC 2648 (Brachytx planar,
p-103), for which HCPCS code C2645
(Brachytherapy planar source,
palladium-103, per square millimeter) is
the only code assigned as discussed
previously in this section.
For CY 2024, we propose to designate
five brachytherapy APCs as Low
Volume APCs as these APCs meet our
criteria to be designated as a Low
Volume APC. For more information on
the brachytherapy APCs we propose to
designate as Low Volume APCs, see
section III.D of this proposed rule.
We invite interested parties to submit
recommendations for new codes to
describe new brachytherapy sources.
Such recommendations should be
directed via email to outpatientpps@
cms.hhs.gov or by mail to the Division
of Outpatient Care, Mail Stop C4–01–26,
Centers for Medicare and Medicaid
Services, 7500 Security Boulevard,
Baltimore, MD 21244. We will continue
to add new brachytherapy source codes
and descriptors to our systems for
payment on a quarterly basis.
b. Comprehensive APCs (C–APCs) for
CY 2024
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(1) Background
In the CY 2014 OPPS/ASC final rule
with comment period (78 FR 74861
through 74910), we finalized a
comprehensive payment policy that
packages payment for adjunctive and
secondary items, services, and
procedures into the most costly primary
procedure under the OPPS at the claim
level. The policy was finalized in CY
2014 but the effective date was delayed
until January 1, 2015, to allow
additional time for further analysis,
opportunity for public comment, and
systems preparation. The
comprehensive APC (C–APC) policy
was implemented effective January 1,
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2015, with modifications and
clarifications in response to public
comments received regarding specific
provisions of the C–APC policy (79 FR
66798 through 66810).
A C–APC is defined as a classification
for the provision of a primary service
and all adjunctive services provided to
support the delivery of the primary
service. We established C–APCs as a
category broadly for OPPS payment and
implemented 25 C–APCs beginning in
CY 2015 (79 FR 66809 through 66810).
We have gradually added new C–APCs
since the policy was implemented
beginning in CY 2015, with the number
of C–APCs now totaling 70 (80 FR
70332; 81 FR 79584 through 79585; 83
FR 58844 through 58846; 84 FR 61158
through 61166; 85 FR 85885; 86 FR
63474; and 87 FR 71769).
Under our C–APC policy, we
designate a service described by a
HCPCS code assigned to a C–APC as the
primary service when the service is
identified by OPPS status indicator
‘‘J1’’. When such a primary service is
reported on a hospital outpatient claim,
taking into consideration the few
exceptions that are discussed below, we
make payment for all other items and
services reported on the hospital
outpatient claim as being integral,
ancillary, supportive, dependent, and
adjunctive to the primary service
(hereinafter collectively referred to as
‘‘adjunctive services’’) and representing
components of a complete
comprehensive service (78 FR 74865
and 79 FR 66799). Payments for
adjunctive services are packaged into
the payments for the primary services.
This results in a single prospective
payment for each of the primary,
comprehensive services based on the
costs of all reported services at the claim
level. One example of a primary service
would be a partial mastectomy and an
example of a secondary service
packaged into that primary service
would be a radiation therapy procedure.
Services excluded from the C–APC
policy under the OPPS include services
that are not covered OPD services,
services that cannot by statute be paid
for under the OPPS, and services that
are required by statute to be separately
paid. This includes certain
mammography and ambulance services
that are not covered OPD services in
accordance with section
1833(t)(1)(B)(iv) of the Act;
brachytherapy seeds, which also are
required by statute to receive separate
payment under section 1833(t)(2)(H) of
the Act; pass-through payment drugs
and devices, which also require separate
payment under section 1833(t)(6) of the
Act; self-administered drugs (SADs) that
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are not otherwise packaged as supplies
because they are not covered under
Medicare Part B under section
1861(s)(2)(B) of the Act; and certain
preventive services (78 FR 74865 and 79
FR 66800 through 66801). A list of
services excluded from the C–APC
policy is included in Addendum J to
this proposed rule (which is available
via the internet on the CMS website at
https://www.cms.gov/Medicare/
Medicare-Fee-for-Service-Payment/
HospitalOutpatientPPS/HospitalOutpatient-Regulations-and-Notices). If
a service does not appear on this list of
excluded services, payment for it will be
packaged into the payment for the
primary C–APC service when it appears
on an outpatient claim with a primary
C–APC service.
The C–APC policy payment
methodology set forth in the CY 2014
OPPS/ASC final rule with comment
period and modified and implemented
beginning in CY 2015 is summarized as
follows (78 FR 74887 and 79 FR 66800):
Basic Methodology. As stated in the
CY 2015 OPPS/ASC final rule with
comment period, we define the C–APC
payment policy as including all covered
OPD services on a hospital outpatient
claim reporting a primary service that is
assigned to status indicator ‘‘J1,’’ 1
excluding services that are not covered
OPD services or that cannot by statute
be paid for under the OPPS. Services
and procedures described by HCPCS
codes assigned to status indicator ‘‘J1’’
are assigned to C–APCs based on our
usual APC assignment methodology by
evaluating the geometric mean costs of
the primary service claims to establish
resource similarity and the clinical
characteristics of each procedure to
establish clinical similarity within each
APC.
In the CY 2016 OPPS/ASC final rule
with comment period, we expanded the
C–APC payment methodology to
qualifying extended assessment and
management encounters through the
‘‘Comprehensive Observation Services’’
C–APC (C–APC 8011). Services within
this APC are assigned status indicator
‘‘J2.’’ 2 Specifically, we make a payment
through C–APC 8011 for a claim that:
• Does not contain a procedure
described by a HCPCS code to which we
have assigned status indicator ‘‘T’’;
• Contains 8 or more units of services
described by HCPCS code G0378
1 Status indicator ‘‘J1’’ denotes Hospital Part B
Services Paid Through a Comprehensive APC.
Further information can be found in CY 2024
Addendum D1.
2 Status indicator ‘‘J2’’ denotes Hospital Part B
Services That May Be Paid Through a
Comprehensive APC. Further information can be
found in CY 2024 Addendum D1.
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(Hospital observation services, per
hour);
• Contains services provided on the
same date of service or one day before
the date of service for HCPCS code
G0378 that are described by one of the
following codes: HCPCS code G0379
(Direct admission of patient for hospital
observation care) on the same date of
service as HCPCS code G0378; CPT code
99281 (Emergency department visit for
the evaluation and management of a
patient (Level 1)); CPT code 99282
(Emergency department visit for the
evaluation and management of a patient
(Level 2)); CPT code 99283 (Emergency
department visit for the evaluation and
management of a patient (Level 3)); CPT
code 99284 (Emergency department
visit for the evaluation and management
of a patient (Level 4)); CPT code 99285
(Emergency department visit for the
evaluation and management of a patient
(Level 5)) or HCPCS code G0380 (Type
B emergency department visit (Level 1));
HCPCS code G0381 (Type B emergency
department visit (Level 2)); HCPCS code
G0382 (Type B emergency department
visit (Level 3)); HCPCS code G0383
(Type B emergency department visit
(Level 4)); HCPCS code G0384 (Type B
emergency department visit (Level 5));
CPT code 99291 (Critical care,
evaluation and management of the
critically ill or critically injured patient;
first 30–74 minutes); or HCPCS code
G0463 (Hospital outpatient clinic visit
for assessment and management of a
patient); and
• Does not contain services described
by a HCPCS code to which we have
assigned status indicator ‘‘J1.’’
The assignment of status indicator
‘‘J2’’ to a specific set of services
performed in combination with each
other allows for all other OPPS payable
services and items reported on the claim
(excluding services that are not covered
OPD services or that cannot by statute
be paid for under the OPPS) to be
deemed adjunctive services representing
components of a comprehensive service
and resulting in a single prospective
payment for the comprehensive service
based on the costs of all reported
services on the claim (80 FR 70333
through 70336).
Services included under the C–APC
payment packaging policy, that is,
services that are typically adjunctive to
the primary service and provided during
the delivery of the comprehensive
service, include diagnostic procedures,
laboratory tests, and other diagnostic
tests and treatments that assist in the
delivery of the primary procedure; visits
and evaluations performed in
association with the procedure;
uncoded services and supplies used
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during the service; durable medical
equipment as well as prosthetic and
orthotic items and supplies when
provided as part of the outpatient
service; and any other components
reported by HCPCS codes that represent
services that are provided during the
complete comprehensive service (78 FR
74865 and 79 FR 66800).
In addition, payment for hospital
outpatient department services that are
similar to therapy services, such as
speech language pathology, and
delivered either by therapists or
nontherapists is included as part of the
payment for the packaged complete
comprehensive service. These services
that are provided during the
perioperative period are adjunctive
services and are deemed not to be
therapy services as described in section
1834(k) of the Act, regardless of whether
the services are delivered by therapists
or other nontherapist health care
workers. We have previously noted that
therapy services are those provided by
therapists under a plan of care in
accordance with section 1835(a)(2)(C)
and section 1835(a)(2)(D) of the Act and
are paid for under section 1834(k) of the
Act, subject to annual therapy caps as
applicable (78 FR 74867 and 79 FR
66800). However, certain other services
similar to therapy services are
considered and paid for as hospital
outpatient department services.
Payment for these nontherapy
outpatient department services that are
reported with therapy codes and
provided with a comprehensive service
is included in the payment for the
packaged complete comprehensive
service. We note that these services,
even though they are reported with
therapy codes, are hospital outpatient
department services and not therapy
services. We refer readers to the July
2016 OPPS Change Request 9658
(Transmittal 3523) for further
instructions on reporting these services
in the context of a C–APC service.
Items included in the packaged
payment provided in conjunction with
the primary service also include all
drugs, biologicals, and
radiopharmaceuticals, regardless of cost,
except those drugs with pass-through
payment status and SADs, unless they
function as packaged supplies (78 FR
74868 through 74869, and 74909, and
79 FR 66800). We refer readers to
Section 50.2M, Chapter 15, of the
Medicare Benefit Policy Manual for a
description of our policy on SADs
treated as hospital outpatient supplies,
including lists of SADs that function as
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supplies and those that do not function
as supplies.3
We define each hospital outpatient
claim reporting a single unit of a single
primary service assigned to status
indicator ‘‘J1’’ as a single ‘‘J1’’ unit
procedure claim (78 FR 74871 and 79
FR 66801). Line item charges for
services included on the C–APC claim
are converted to line item costs, which
are then summed to develop the
estimated APC costs. These claims are
then assigned one unit of the service
with status indicator ‘‘J1’’ and later used
to develop the geometric mean costs for
the C–APC relative payment weights.
(We note that we use the term
‘‘comprehensive’’ to describe the
geometric mean cost of a claim reporting
‘‘J1’’ service(s) or the geometric mean
cost of a C–APC, inclusive of all of the
items and services included in the C–
APC service payment bundle.) Charges
for services that would otherwise be
separately payable are added to the
charges for the primary service. This
process differs from our traditional cost
accounting methodology only in that all
such services on the claim are packaged
(except certain services as described
above). We apply our standard data
trims, which exclude claims with
extremely high primary units or extreme
costs.
The comprehensive geometric mean
costs are used to establish resource
similarity and, along with clinical
similarity, dictate the assignment of the
primary services to the C–APCs. We
establish a ranking of each primary
service (single unit only) to be assigned
to status indicator ‘‘J1’’ according to its
comprehensive geometric mean costs.
For the minority of claims reporting
more than one primary service assigned
to status indicator ‘‘J1’’ or units thereof,
we identify one ‘‘J1’’ service as the
primary service for the claim based on
our cost-based ranking of primary
services. We then assign these multiple
‘‘J1’’ procedure claims to the C–APC to
which the service designated as the
primary service is assigned. If the
reported ‘‘J1’’ services on a claim map
to different C–APCs, we designate the
‘‘J1’’ service assigned to the C–APC with
the highest comprehensive geometric
mean cost as the primary service for that
claim. If the reported multiple ‘‘J1’’
services on a claim map to the same C–
APC, we designate the most costly
service (at the HCPCS code level) as the
primary service for that claim. This
process results in initial assignments of
claims for the primary services assigned
3 https://www.cms.gov/Regulations-andGuidance/Guidance/Manuals/Downloads/
bp102c15.pdf.
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to status indicator ‘‘J1’’ to the most
appropriate C–APCs based on both
single and multiple procedure claims
reporting these services and clinical and
resource homogeneity.
Complexity Adjustments. We use
complexity adjustments to provide
increased payment for certain
comprehensive services. We apply a
complexity adjustment by promoting
qualifying paired ‘‘J1’’ service code
combinations or paired code
combinations of ‘‘J1’’ services and
certain add-on codes (as described
further below) from the originating C–
APC (the C–APC to which the
designated primary service is first
assigned) to the next higher paying C–
APC in the same clinical family of C–
APCs. We apply this type of complexity
adjustment when the paired code
combination represents a complex,
costly form or version of the primary
service according to the following
criteria:
• Frequency of 25 or more claims
reporting the code combination
(frequency threshold); and
• Violation of the 2 times rule, as
stated in section 1833(t)(2) of the Act
and section III.B.2 of this proposed rule,
in the originating C–APC (cost
threshold).
These criteria identify paired code
combinations that occur commonly and
exhibit materially greater resource
requirements than the primary service.
The CY 2017 OPPS/ASC final rule with
comment period (81 FR 79582) included
a revision to the complexity adjustment
eligibility criteria. Specifically, we
finalized a policy to discontinue the
requirement that a code combination
(that qualifies for a complexity
adjustment by satisfying the frequency
and cost criteria thresholds described
above) also not create a 2 times rule
violation in the higher level or receiving
APC.
After designating a single primary
service for a claim, we evaluate that
service in combination with each of the
other procedure codes reported on the
claim assigned to status indicator ‘‘J1’’
(or certain add-on codes) to determine if
there are paired code combinations that
meet the complexity adjustment criteria.
For a new HCPCS code, we determine
initial C–APC assignment and
qualification for a complexity
adjustment using the best available
information, crosswalking the new
HCPCS code to a predecessor code(s)
when appropriate.
Once we have determined that a
particular code combination of ‘‘J1’’
services (or combinations of ‘‘J1’’
services reported in conjunction with
certain add-on codes) represents a
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complex version of the primary service
because it is sufficiently costly,
frequent, and a subset of the primary
comprehensive service overall
according to the criteria described
above, we promote the claim including
the complex version of the primary
service as described by the code
combination to the next higher cost C–
APC within the clinical family, unless
the primary service is already assigned
to the highest cost APC within the C–
APC clinical family or assigned to the
only C–APC in a clinical family. We do
not create new APCs with a
comprehensive geometric mean cost
that is higher than the highest geometric
mean cost (or only) C–APC in a clinical
family just to accommodate potential
complexity adjustments. Therefore, the
highest payment for any claim including
a code combination for services
assigned to a C–APC would be the
highest paying C–APC in the clinical
family (79 FR 66802).
We package payment for all add-on
codes into the payment for the C–APC.
However, certain primary service addon combinations may qualify for a
complexity adjustment. As noted in the
CY 2016 OPPS/ASC final rule with
comment period (80 FR 70331), all addon codes that can be appropriately
reported in combination with a base
code that describes a primary ‘‘J1’’
service are evaluated for a complexity
adjustment.
To determine which combinations of
primary service codes reported in
conjunction with an add-on code may
qualify for a complexity adjustment for
CY 2024, we apply the frequency and
cost criteria thresholds discussed above,
testing claims reporting one unit of a
single primary service assigned to status
indicator ‘‘J1’’ and any number of units
of a single add-on code for the primary
‘‘J1’’ service. If the frequency and cost
criteria thresholds for a complexity
adjustment are met and reassignment to
the next higher cost APC in the clinical
family is appropriate (based on meeting
the criteria outlined above), we make a
complexity adjustment for the code
combination; that is, we reassign the
primary service code reported in
conjunction with the add-on code to the
next higher cost C–APC within the same
clinical family of C–APCs. As
previously stated, we package payment
for add-on codes into the C–APC
payment rate. If any add-on code
reported in conjunction with the ‘‘J1’’
primary service code does not qualify
for a complexity adjustment, payment
for the add-on service continues to be
packaged into the payment for the
primary service and is not reassigned to
the next higher cost C–APC. We list the
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complexity adjustments for ‘‘J1’’ and
add-on code combinations for CY 2024,
along with all of the other proposed
complexity adjustments, in Addendum J
to this proposed rule (which is available
via the internet on the CMS website at
https://www.cms.gov/Medicare/
Medicare-Fee-for-Service-Payment/
HospitalOutpatientPPS/HospitalOutpatient-Regulations-and-Notices).
Addendum J to this proposed rule
includes the cost statistics for each code
combination that would qualify for a
complexity adjustment (including
primary code and add-on code
combinations). Addendum J to this
proposed rule also contains summary
cost statistics for each of the paired code
combinations that describe a complex
code combination that would qualify for
a complexity adjustment and be
reassigned to the next higher cost C–
APC within the clinical family. The
combined statistics for all proposed
reassigned complex code combinations
are represented by an alphanumeric
code with the first four digits of the
designated primary service followed by
a letter. For example, the proposed
geometric mean cost listed in
Addendum J for the code combination
described by complexity adjustment
assignment 3320R, which is assigned to
C–APC 5224 (Level 4 Pacemaker and
Similar Procedures), includes all paired
code combinations that will be
reassigned to C–APC 5224 when CPT
code 33208 is the primary code.
Providing the information contained in
Addendum J to this proposed rule
allows interested parties the
opportunity to better assess the impact
associated with the assignment of
claims with each of the paired code
combinations eligible for a complexity
adjustment.
(2) Exclusion of Procedures Assigned to
New Technology APCs From the C–APC
Policy
Services that are assigned to New
Technology APCs are typically new
procedures that do not have sufficient
claims history to establish an accurate
payment for them. Beginning in CY
2002, we retain services within New
Technology APC groups until we gather
sufficient claims data to enable us to
assign the service to an appropriate
clinical APC. This policy allows us to
move a service from a New Technology
APC in less than 2 years if sufficient
data are available. It also allows us to
retain a service in a New Technology
APC for more than 2 years if sufficient
data upon which to base a decision for
reassignment have not been collected
(82 FR 59277).
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The C–APC payment policy packages
payment for adjunctive and secondary
items, services, and procedures into the
most costly primary procedure under
the OPPS at the claim level. Prior to CY
2019, when a procedure assigned to a
New Technology APC was included on
the claim with a primary procedure,
identified by OPPS status indicator
‘‘J1,’’ payment for the new technology
service was typically packaged into the
payment for the primary procedure.
Because the new technology service was
not separately paid in this scenario, the
overall number of single claims
available to determine an appropriate
clinical APC for the new service was
reduced. This was contrary to the
objective of the New Technology APC
payment policy, which is to gather
sufficient claims data to enable us to
assign the service to an appropriate
clinical APC.
To address this issue and ensure that
there are sufficient claims data for
services assigned to New Technology
APCs, in the CY 2019 OPPS/ASC final
rule with comment period (83 FR
58847), we finalized excluding payment
for any procedure that is assigned to a
New Technology APC (APCs 1491
through 1599 and APCs 1901 through
1908) from being packaged when
included on a claim with a ‘‘J1’’ service
assigned to a C–APC. In the CY 2020
OPPS/ASC final rule with comment
period, we finalized that beginning in
CY 2020, payment for services assigned
to a New Technology APC would be
excluded from being packaged into the
payment for comprehensive observation
services assigned status indicator ‘‘J2’’
when they are included on a claim with
a ‘‘J2’’ service (84 FR 61167).
(3) Exclusion of Drugs and Biologicals
Described by HCPCS Code C9399
(Unclassified Drugs or Biologicals) From
the C–APC Policy
Section 1833(t)(15) of the Act, as
added by section 621(a)(1) of the
Medicare Prescription Drug,
Improvement, and Modernization Act of
2003 (Pub. L. 108–173), provides for
payment under the OPPS for new drugs
and biologicals until HCPCS codes are
assigned. Under this provision, we are
required to make payment for a covered
outpatient drug or biological that is
furnished as part of covered outpatient
department services but for which a
HCPCS code has not yet been assigned
in an amount equal to 95 percent of
average wholesale price (AWP) for the
drug or biological.
In the CY 2005 OPPS/ASC final rule
with comment period (69 FR 65805), we
implemented section 1833(t)(15) of the
Act by instructing hospitals to bill for a
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drug or biological that is newly
approved by the FDA and that does not
yet have a HCPCS code by reporting the
National Drug Code (NDC) for the
product along with the newly created
HCPCS code C9399 (Unclassified drugs
or biologicals). We explained that when
HCPCS code C9399 appears on a claim,
the Outpatient Code Editor (OCE)
suspends the claim for manual pricing
by the Medicare Administrative
Contractor (MAC). The MAC prices the
claim at 95 percent of the drug or
biological’s AWP, using Red Book or an
equivalent recognized compendium,
and processes the claim for payment.
We emphasized that this approach
enables hospitals to bill and receive
payment for a new drug or biological
concurrent with its approval by the
FDA. The hospital does not have to wait
for the next quarterly release or for
approval of a product specific HCPCS
code to receive payment for a newly
approved drug or biological or to
resubmit claims for adjustment. We
instructed that hospitals would
discontinue billing HCPCS code C9399
and the NDC upon implementation of a
product specific HCPCS code, status
indicator, and appropriate payment
amount with the next quarterly update.
We also note that HCPCS code C9399 is
paid in a similar manner in the ASC
setting, as 42 CFR 416.171(b) outlines
that certain drugs and biologicals for
which separate payment is allowed
under the OPPS are considered covered
ancillary services for which the OPPS
payment rate, which is 95 percent of
AWP for HCPCS code C9399, applies.
Since the implementation of the C–APC
policy in 2015, payment for drugs and
biologicals described by HCPCS code
C9399 has been included in the C–APC
payment when these products appear on
a claim with a primary C–APC service.
Packaging payment for these drugs and
biologicals that appear on a hospital
outpatient claim with a primary C–APC
service is consistent with our C–APC
packaging policy under which we make
payment for all items and services,
including all non-pass-through drugs,
reported on the hospital outpatient
claim as being integral, ancillary,
supportive, dependent, and adjunctive
to the primary service and representing
components of a complete
comprehensive service, with certain
limited exceptions (78 FR 74869). It has
been our position that the total payment
for the C–APC with which payment for
a drug or biological described by HCPCS
code C9399 is packaged includes
payment for the drug or biological at 95
percent of its AWP.
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However, we have determined that in
certain instances, drugs and biologicals
described by HCPCS code C9399 are not
being paid at 95 percent of their AWPs
when payment for them is packaged
with payment for a primary C–APC
service. In order to ensure payment for
new drugs, biologicals, and
radiopharmaceuticals described by
HCPCS code C9399 at 95 percent of
their AWP, for CY 2023 and subsequent
years, we finalized our proposal to
exclude any drug, biological, or
radiopharmaceutical described by
HCPCS code C9399 from packaging
when the drug, biological, or
radiopharmaceutical is included on a
claim with a ‘‘J1’’ service, which is the
status indicator assigned to a C–APC,
and a claim with a ‘‘J2’’ service, which
is the status indicator assigned to
comprehensive observation services.
Please see Addendum J for the CY 2024
comprehensive APC payment policy
exclusions.
In the CY 2023 OPPS/ASC final rule
with comment period, we finalized the
proposal in section XI ‘‘CY 2023 OPPS
Payment Status and Comment
Indicators’’ to add a new definition to
status indicator ‘‘A’’ to include
unclassified drugs and biologicals that
are reportable with HCPCS code C9399
(87 FR 72051). The definition, found in
Addendum D1, would ensure the MAC
prices claims for drugs, biologicals or
radiopharmaceuticals billed with
HCPCS code C9399 at 95 percent of the
drug or biological’s AWP and pays
separately for the drug, biological, or
radiopharmaceutical under the OPPS
when it appears on the same claim as a
primary C–APC service.
(4) Additional C–APCs for CY 2024
For CY 2024 and subsequent years,
we propose to continue to apply the C–
APC payment policy methodology. We
refer readers to the CY 2017 OPPS/ASC
final rule with comment period (81 FR
79583) for a discussion of the C–APC
payment policy methodology and
revisions. Each year, in accordance with
section 1833(t)(9)(A) of the Act, we
review and revise the services within
each APC group and the APC
assignments under the OPPS. As a result
of our annual review of the services and
the APC assignments under the OPPS,
we are not proposing to convert any
standard APCs to C–APCs in CY 2024,
but we are creating two new APCs that
will both be C–APCs. Thus, we propose
that the number of C–APCs for CY 2024
would be 72 C–APCs.
For this proposed rule, we propose to
split the Level 2 Intraocular APC (APC
5492) into two and assign the higher
cost procedures previously within this
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APC to a new Level 3 Intraocular APC
(APC 5493). The previous Level 3, Level
4, and Level 5 Intraocular APCs (APCs
5493, 5494, and 5495) will be renamed
the Level 4, Level 5, and Level 6
Intraocular APC (APCs 5494, 5495, and
5496), respectively. We refer readers to
section III.E of this proposed rule for
more information regarding this
proposal.
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We also propose to add a new Level
2 Abdominal/Peritoneal/Biliary and
Related Procedures APC (APC 5342) to
improve clinical and resource
homogeneity in the Level 1 Abdominal/
Peritoneal/Biliary and Related
Procedures APC (APC 5341).
Table 1 lists the proposed C–APCs for
CY 2024. All C–APCs are displayed in
Addendum J to this proposed rule
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(which is available via the internet on
the CMS website). Addendum J to this
proposed rule also contains all the data
related to the C–APC payment policy
methodology, including the list of
complexity adjustments and other
information for CY 2024.
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c. Calculation of Composite APC
Criteria-Based Costs
As discussed in the CY 2008 OPPS/
ASC final rule with comment period (72
FR 66613), we believe it is important
that the OPPS enhance incentives for
hospitals to provide necessary, high
quality care as efficiently as possible.
For CY 2008, we developed composite
APCs to provide a single payment for
groups of services that are typically
performed together during a single
clinical encounter and that result in the
provision of a complete service.
Combining payment for multiple,
independent services into a single OPPS
payment in this way enables hospitals
to manage their resources with
maximum flexibility by monitoring and
adjusting the volume and efficiency of
services themselves. An additional
advantage to the composite APC model
is that we can use data from correctly
coded multiple procedure claims to
calculate payment rates for the specified
combinations of services, rather than
relying upon single procedure claims
which may be low in volume and/or
incorrectly coded. Under the OPPS, we
currently have composite policies for
mental health services and multiple
imaging services. We refer readers to the
CY 2008 OPPS/ASC final rule with
comment period (72 FR 66611 through
66614 and 66650 through 66652) for a
full discussion of the development of
the composite APC methodology, and
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the CY 2012 OPPS/ASC final rule with
comment period (76 FR 74163) and the
CY 2018 OPPS/ASC final rule with
comment period (82 FR 59241 through
59242 and 59246 through 52950) for
more recent background.
(1) Mental Health Services Composite
APC
We propose to continue our
longstanding policy of limiting the
aggregate payment for specified less
resource-intensive mental health
services furnished on the same date to
the payment for a day of partial
hospitalization services provided by a
hospital, which we consider to be the
most resource-intensive of all outpatient
mental health services. We refer readers
to the April 7, 2000 OPPS final rule
with comment period (65 FR 18452
through 18455) for the initial discussion
of this longstanding policy and the CY
2012 OPPS/ASC final rule with
comment period (76 FR 74168) for more
recent background.
In the CY 2018 OPPS/ASC proposed
rule and final rule with comment period
(82 FR 33580 through 33581 and 59246
through 59247, respectively), we
proposed and finalized the policy for
CY 2018 and subsequent years that,
when the aggregate payment for
specified mental health services
provided by one hospital to a single
beneficiary on a single date of service,
based on the payment rates associated
with the APCs for the individual
services, exceeds the maximum per
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diem payment rate for partial
hospitalization services provided by a
hospital, those specified mental health
services will be paid through composite
APC 8010 (Mental Health Services
Composite). In addition, we set the
payment rate for composite APC 8010
for CY 2018 at the same payment rate
that will be paid for APC 5863, which
is the maximum partial hospitalization
per diem payment rate for a hospital,
and finalized a policy that the hospital
will continue to be paid the payment
rate for composite APC 8010. Under this
policy, the Integrated OCE (I/OCE) will
continue to determine whether to pay
for these specified mental health
services individually, or to make a
single payment at the same payment
rate established for APC 5863 for all of
the specified mental health services
furnished by the hospital on that single
date of service. We continue to believe
that the costs associated with
administering a partial hospitalization
program at a hospital represent the most
resource intensive of all outpatient
mental health services.
We propose that when the aggregate
payment for specified mental health
services provided by one hospital to a
single beneficiary on a single date of
service, based on the payment rates
associated with the APCs for the
individual services, exceeds the per
diem payment rate for 3 partial
hospitalization services provided in a
day by a hospital, those specified
mental health services would be paid
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through composite APC 8010 for CY
2024. In addition, we propose to set the
payment rate for composite APC 8010 at
the same payment rate that we propose
for APC 5863, which is a partial
hospitalization per diem payment rate
for 3 partial hospitalization services
furnished in a day by a hospital, and
that the hospital continue to be paid the
proposed payment rate for composite
APC 8010. While APC 5863 is no longer
the maximum partial hospitalization per
diem payment rate for a hospital, due to
proposed APC 5864, which is 4 or more
hospital-based PHP services per day,
discussed in section VIII.B of this
proposed rule, we believe it is still
appropriate to apply the APC 5863 per
diem payment amount as the upper
limit on payment per day for individual
OPPS mental health services. This is
because the daily mental health cap
would not be expected to reach a level
of intensity beyond 3 services per day,
as described by APC 5863. The PHP is
meant to be the most intensive mental
health services program, requiring
inpatient care if PHP is not received. We
would not anticipate more than three
services per patient on a given day, as
patients needing additional services in
one day would potentially require an
inpatient admission., as described by
APC 5863. Thus, setting the mental
health cap at APC 5863, rather than the
4 service per day APC 5864, is more
consistent with our longstanding policy,
which has been for the 3 service per day
APC. We note that the proposed CY
2024 payment amount for APC 5863
would be comparable to the CY 2023
payment amount for APC 5863, which
is the PHP APC used to set the daily
mental health cap for CY 2023.
However, as we have historically set
the daily mental health cap for
composite APC 8010 at the maximum
partial hospitalization per diem
payment rate for a hospital, we are also
soliciting comment on whether the next
higher level APC, proposed APC 5864,
which is for four hospital-based PHP
services per day, would be appropriate
to use as the daily mental health cap.
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(2) Multiple Imaging Composite APCs
(APCs 8004, 8005, 8006, 8007, and
8008)
Effective January 1, 2009, we provide
a single payment each time a hospital
submits a claim for more than one
imaging procedure within an imaging
family on the same date of service, to
reflect and promote the efficiencies
hospitals can achieve when performing
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multiple imaging procedures during a
single session (73 FR 41448 through
41450). We utilize three imaging
families based on imaging modality for
purposes of this methodology: (1)
ultrasound; (2) computed tomography
(CT) and computed tomographic
angiography (CTA); and (3) magnetic
resonance imaging (MRI) and magnetic
resonance angiography (MRA). The
HCPCS codes subject to the multiple
imaging composite policy and their
respective families are listed in Table 2
below.
While there are three imaging
families, there are five multiple imaging
composite APCs due to the statutory
requirement under section 1833(t)(2)(G)
of the Act that we differentiate payment
for OPPS imaging services provided
with and without contrast. While the
ultrasound procedures included under
the policy do not involve contrast, both
CT/CTA and MRI/MRA scans can be
provided either with or without
contrast. The five multiple imaging
composite APCs established in CY 2009
are:
• APC 8004 (Ultrasound Composite);
• APC 8005 (CT and CTA without
Contrast Composite);
• APC 8006 (CT and CTA with
Contrast Composite);
• APC 8007 (MRI and MRA without
Contrast Composite); and
• APC 8008 (MRI and MRA with
Contrast Composite).
We define the single imaging session
for the ‘‘with contrast’’ composite APCs
as having at least one or more imaging
procedures from the same family
performed with contrast on the same
date of service. For example, if the
hospital performs an MRI without
contrast during the same session as at
least one other MRI with contrast, the
hospital will receive payment based on
the payment rate for APC 8008, the
‘‘with contrast’’ composite APC.
We make a single payment for those
imaging procedures that qualify for
payment based on the composite APC
payment rate, which includes any
packaged services furnished on the
same date of service. The standard
(noncomposite) APC assignments
continue to apply for single imaging
procedures and multiple imaging
procedures performed across families.
For a full discussion of the development
of the multiple imaging composite APC
methodology, we refer readers to the CY
2009 OPPS/ASC final rule with
comment period (73 FR 68559 through
68569).
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For CY 2024, we propose to continue
to pay for all multiple imaging
procedures within an imaging family
performed on the same date of service
using the multiple imaging composite
APC payment methodology. We
continue to believe that this policy
would reflect and promote the
efficiencies hospitals can achieve when
performing multiple imaging procedures
during a single session.
For CY 2024, except where otherwise
indicated, we propose to use the costs
derived from CY 2022 claims data to set
the proposed CY 2024 payment rates.
Therefore, for CY 2024, the payment
rates for the five multiple imaging
composite APCs (APCs 8004, 8005,
8006, 8007, and 8008) are based on
proposed geometric mean costs
calculated from CY 2022 claims
available for this proposed rule that
qualify for composite payment under
the current policy (that is, those claims
reporting more than one procedure
within the same family on a single date
of service). To calculate the proposed
geometric mean costs, we have used the
same methodology that we use to
calculate the geometric mean costs for
these composite APCs since CY 2014, as
described in the CY 2014 OPPS/ASC
final rule with comment period (78 FR
74918). The imaging HCPCS codes
referred to as ‘‘overlap bypass codes’’
that we removed from the bypass list for
purposes of calculating the proposed
multiple imaging composite APC
geometric mean costs, in accordance
with our established methodology as
stated in the CY 2014 OPPS/ASC final
rule with comment period (78 FR
74918), are identified by asterisks in
Addendum N to this proposed rule
(which is available via the internet on
the CMS website) and are discussed in
more detail in section II.A.1.b of this
proposed rule.
For CY 2024, we were able to identify
approximately 0.95 million ‘‘single
session’’ claims out of an estimated 2.0
million potential claims for payment
through composite APCs from our
ratesetting claims data, which
represents approximately 47.5 percent
of all eligible claims, to calculate the
proposed CY 2024 geometric mean costs
for the multiple imaging composite
APCs. Table 2 of this proposed rule lists
the proposed HCPCS codes that would
be subject to the multiple imaging
composite APC policy and their
respective families and approximate
composite APC proposed geometric
mean costs for CY 2024.
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3. Proposed Changes to Packaged Items
and Services
a. Background and Rationale for
Packaging in the OPPS
Like other prospective payment
systems, the OPPS relies on the concept
of averaging to establish a payment rate
for services. The payment may be more
or less than the estimated cost of
providing a specific service or a bundle
of specific services for a particular
beneficiary. The OPPS packages
payments for multiple interrelated items
and services into a single payment to
create incentives for hospitals to furnish
services most efficiently and to manage
their resources with maximum
flexibility. Our packaging policies
support our strategic goal of using larger
payment bundles in the OPPS to
maximize hospitals’ incentives to
provide care in the most efficient
manner. For example, where there are a
variety of devices, drugs, items, and
supplies that could be used to furnish
a service, some of which are more costly
than others, packaging encourages
hospitals to use the most cost-efficient
item that meets the patient’s needs,
rather than to routinely use a more
expensive item, which may occur if
separate payment is provided for the
item.
Packaging also encourages hospitals
to effectively negotiate with
manufacturers and suppliers to reduce
the purchase price of items and services
or to explore alternative group
purchasing arrangements, thereby
encouraging the most economical health
care delivery. Similarly, packaging
encourages hospitals to establish
protocols that ensure that necessary
services are furnished, while
scrutinizing the services ordered by
practitioners to maximize the efficient
use of hospital resources. Packaging
payments into larger payment bundles
promotes the predictability and
accuracy of payment for services over
time. Finally, packaging may reduce the
importance of refining service-specific
payment because packaged payments
include costs associated with higher
cost cases requiring many ancillary
items and services and lower cost cases
requiring fewer ancillary items and
services. Because packaging encourages
efficiency and is an essential component
of a prospective payment system,
packaging payments for items and
services that are typically integral,
ancillary, supportive, dependent, or
adjunctive to a primary service has been
a fundamental part of the OPPS since its
implementation in August 2000. As we
continue to develop larger payment
groups that more broadly reflect services
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provided in an encounter or episode of
care, we have expanded the OPPS
packaging policies. Most, but not
necessarily all, categories of items and
services currently packaged in the OPPS
are listed in 42 CFR 419.2(b). Our
overarching goal is to make payments
for all services under the OPPS more
consistent with those of a prospective
payment system and less like those of a
per-service fee schedule, which pays
separately for each coded item. As a part
of this effort, we have continued to
examine the payment for items and
services provided under the OPPS to
determine which OPPS services can be
packaged to further achieve the
objective of advancing the OPPS toward
a more prospective payment system.
b. Proposal and Comment Solicitation
on Packaged Items and Services
For CY 2024, we examined the items
and services currently provided under
the OPPS, reviewing categories of
integral, ancillary, supportive,
dependent, or adjunctive items and
services for which we believe payment
would be appropriately packaged into
payment for the primary service that
they support. Specifically, we examined
the HCPCS code definitions (including
CPT code descriptors) and hospital
outpatient department billing patterns
to determine whether there were
categories of codes for which packaging
would be appropriate according to
existing OPPS packaging policies or a
logical expansion of those existing
OPPS packaging policies.
For CY 2024, we do not propose any
changes to the overall packaging policy
previously discussed. We propose to
continue to conditionally package the
costs of selected newly identified
ancillary services into payment for a
primary service where we believe that
the packaged item or service is integral,
ancillary, supportive, dependent, or
adjunctive to the provision of care that
was reported by the primary service
HCPCS code.
While we do not propose any changes
to the overall packaging policy above,
we solicit comments on potential
modifications to our packaging policy as
described in the following sections.
c. Comment Solicitation on Access to
Non-Opioid Treatments for Pain Relief
The Consolidated Appropriations Act
(CAA), 2023 (Pub. L. 117–328), was
signed into law on December 29, 2022.
Section 4135(a) and (b) of the CAA,
2023, titled Access to Non-Opioid
Treatments for Pain Relief, amended
sections 1833(t)(16) and 1833(i) of the
Social Security Act, respectively, to
provide for temporary additional
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payments for non-opioid treatments for
pain relief (as that term is defined in
section 1833(t)(16)(G)(i) of the Act). In
particular, section 1833(t)(16)(G) of the
Act provides that with respect to a nonopioid treatment for pain relief
furnished on or after January 1, 2025,
and before January 1, 2028, the
Secretary shall not package payment for
the non-opioid treatment for pain relief
into payment for a covered OPD service
(or group of services) and shall make an
additional payment for the non-opioid
treatment for pain relief as specified in
clause (ii) of that section. Clauses (ii)
and (iii) of section 1833(t)(16)(G) of the
Act provide for the amount of additional
payment and set a limitation on that
amount, respectively. Because the
additional payments are required to
begin on January 1, 2025, we will
include our proposals to implement the
CAA, 2023 section 4135 amendments in
the CY 2025 OPPS/ASC proposed rule.
We discuss section 4135 of CAA, 2023
at length in section XIII.F of this
proposed rule, where we solicit
comment on numerous aspects of this
future policy. While we expect this
policy to operate similarly in the ASC
and HOPD settings, we welcome
comment on whether there are any
HOPD specific payment issues we
should take into consideration as we
plan to implement section
1833(t)(16)(G) of the Act for CY 2025.
d. Comment Solicitation on OPPS
Packaging Policy for Diagnostic
Radiopharmaceuticals
(i) Background on OPPS Packaging
Policy for Diagnostic
Radiopharmaceuticals
Under the OPPS, we package several
categories of nonpass-through drugs,
biologicals, and radiopharmaceuticals,
regardless of the cost of the products. As
the products are packaged according to
the policies in § 419.2(b), we refer to
these packaged drugs, biologicals, and
radiopharmaceuticals as ‘‘policypackaged’’ drugs, biologicals, and
radiopharmaceuticals. In particular,
under § 419.2(b)(15), payment for drugs,
biologicals, and radiopharmaceuticals
that function as supplies when used in
a diagnostic test or procedure is
packaged with the payment for the
related procedure or service. Packaging
costs into a single aggregate payment for
a service, encounter, or episode of care
is a fundamental principle that
distinguishes a prospective payment
system from a fee schedule. In general,
packaging the costs of supportive items
and services into the payment for the
primary procedure or service with
which they are associated encourages
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hospital efficiencies and enables
hospitals to manage their resources with
maximum flexibility.
Diagnostic radiopharmaceuticals,
which include contrast agents, stress
agents, and other products, are one
specific type of product that is policy
packaged under the category described
by § 419.2(b)(15). Since we
implemented this policy in CY 2008,
interested parties have raised concerns
regarding policy packaging of diagnostic
radiopharmaceuticals. In previous
rulemaking (87 FR 71962 through
71963), commenters recommended that
CMS always pay separately for
diagnostic radiopharmaceuticals paid
under the OPPS, not just when the
products have pass-through payment
status. Many of these commenters
mentioned that pass-through payment
status helps the diffusion of new
diagnostic radiopharmaceuticals into
the market. However, commenters
believe the packaged payment rate is
often inadequate after pass-through
status expires, especially in cases where
the diagnostic radiopharmaceutical is
high-cost and has low utilization.
CMS has previously heard from
interested parties regarding alternative
payment methodologies, such as
subjecting diagnostic
radiopharmaceuticals to the drug
packaging threshold and creating
separate APC payments for diagnostic
radiopharmaceuticals with a per-day
cost greater than $500. Interested parties
have also recommended that we analyze
our nuclear medicine APC structure and
consider establishing additional nuclear
medicine APCs to more accurately
reflect the costs of diagnostic
radiopharmaceuticals. Historically,
commenters opposed incorporating the
cost of diagnostic radiopharmaceuticals
into the associated nuclear medicine
APC as the nuclear medicine APCs are
sometimes paid at a lower rate than the
payment rate for the diagnostic
radiopharmaceutical itself when it has
pass-through payment status (87 FR
71962 through 71963).
Importantly, commenters historically
have also been concerned that
packaging payment for precision
diagnostic radiopharmaceuticals in the
outpatient setting creates barriers to
beneficiary access for safety net
hospitals serving a high proportion of
Medicare beneficiaries and hospitals
serving underserved communities (87
FR 71962 through 71963). Commenters
specified that certain populations, such
as those with Alzheimer’s disease,
depend on the use of certain high-cost
diagnostic radiopharmaceuticals.
Commenters discussed difficulties
enrolling hospitals in clinical studies
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due to OPPS packaging policies.
Commenters also suggested that CMS
pay separately under the OPPS
specifically for radiopharmaceuticals
that are used for Alzheimer’s disease.
Additionally, commenters have
recommended that CMS continue to
apply radiolabeled product edits to the
nuclear medicine procedures to ensure
that all packaged costs are included on
nuclear medicine claims in order to
establish appropriate payment rates in
the future. Many of these comments and
our responses have been discussed in
rulemaking since the policy to package
diagnostic radiopharmaceuticals was
adopted. We refer readers to the CY
2023 OPPS/ASC final rule with
comment period (87 FR 71962 through
71963) for the most recent discussion of
this subject.
We continue to believe that diagnostic
radiopharmaceuticals are an integral
component of many nuclear medicine
and imaging procedures and charges
associated with them should be reported
on hospital claims to the extent they are
used. Accordingly, the payment for the
radiopharmaceuticals should be
reflected within the payment for the
primary procedure. We note that
ratesetting uses the geometric mean of
reported procedure costs based on data
submitted to CMS from all hospitals
paid under the OPPS to set the payment
rate for the service. The costs that are
calculated by Medicare reflect the
average costs of items and services that
are packaged into a primary procedure
and will not necessarily equal the sum
of the cost of the primary procedure and
the average sales price of the specific
items and services used in the
procedure in each case. Furthermore,
the costs are based on the reported costs
submitted to Medicare by the hospitals
and not the list price established by the
manufacturer. Claims data that include
the radiopharmaceutical packaged with
the associated procedure reflect the
combined cost of the procedure and the
radiopharmaceutical used in the
procedure.
As CMS has reiterated over the years,
we believe these packaging policies are
inherent principles of the OPPS and are
essential to a prospective payment
system. We are also committed to
ensuring beneficiary access to
diagnostic radiopharmaceuticals while
also ensuring the availability of new and
innovative diagnostic tools for Medicare
beneficiaries. Therefore, we are seeking
public comments on potential
modifications to our packaging policy
for diagnostic radiopharmaceuticals in
order to ensure equitable payment and
continued beneficiary access.
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Depending on the comments we
receive in response to this comment
solicitation, we may adopt as final
alternative payment mechanisms for
radiopharmaceuticals for CY 2024 in the
CY 2024 OPPS/ASC final rule with
comment period.
(ii) Comment Solicitation on Potential
Issues Caused by Current Payment of
Diagnostic Radiopharmaceuticals Under
the OPPS
We are soliciting comment on how
the OPPS packaging policy for
diagnostic radiopharmaceuticals has
impacted beneficiary access, including
whether there are specific patient
populations or clinical disease states for
whom this issue is especially critical.
We seek information on specific costprohibitive diagnostic
radiopharmaceuticals that commenters
believe are superior to alternative
diagnostic modalities. We are interested
to learn the specific clinical scenarios
that exist for which it is only clinically
appropriate to use the more expensive
diagnostic radiopharmaceutical, rather
than a lower cost alternative, as well as
what clinical scenarios exist in which
the only diagnostic modality is a highcost radiopharmaceutical. We are
seeking information or evidence that
these high-cost diagnostic
radiopharmaceuticals have unique
clinical value, and access has been
negatively impacted by our packaging
policy. We are also seeking information
about whether commenters believe
these high-cost and low-utilization
diagnostic radiopharmaceuticals are
being appropriately utilized according
to their clinical treatment algorithm,
meaning the stepwise procedures
generally accepted by the medical
community for diagnosis, or clinical
practice guidelines.
We are also interested in learning
more about whether there is a difference
in outcomes for patients, or patient
quality of care, based on the
radiopharmaceutical used as well as
whether there is a difference for
hospitals, such as in terms of financial
outcomes, based on the
radiopharmaceutical that used.
(iii) Comment Solicitation on New
Approaches to Payment of Diagnostic
Radiopharmaceuticals Under the OPPS
In addition, we are soliciting
comment on the following potential
approaches that would enhance
beneficiary access, while also
maintaining the principles of the
outpatient prospective payment system.
These approaches include: (1) paying
separately for diagnostic
radiopharmaceuticals with per-day costs
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above the OPPS drug packaging
threshold of $140; (2) establishing a
specific per-day cost threshold that may
be greater or less than the OPPS drug
packaging threshold; (3) restructuring
APCs, including by adding nuclear
medicine APCs for services that utilize
high-cost diagnostic
radiopharmaceuticals; (4) creating
specific payment policies for diagnostic
radiopharmaceuticals used in clinical
trials; and (5) adopting codes that
incorporate the disease state being
diagnosed or a diagnostic indication of
a particular class of diagnostic
radiopharmaceuticals.
To expand upon the first listed option
on which we solicit comments, we are
specifically seeking comments about
whether we should use our statutory
authority for separately payable drugs,
biologicals, and radiopharmaceuticals
under 1833(t)(14)(A)(iii)(II) of the Act in
order to pay separately for diagnostic
radiopharmaceuticals and subject those
diagnostic radiopharmaceuticals to the
longstanding OPPS drug packaging
threshold policy, proposed to be $140
for CY 2023. Or said another way,
payment for diagnostic
radiopharmaceuticals with per-day costs
greater than $140 would not be
packaged and would be paid separately
based on available average sales price
(ASP), wholesale acquisition cost
(WAC), or average wholesale price
(AWP) data with the applicable add-on.
This would be similar to payment for
therapeutic radiopharmaceuticals and
other drugs and biologicals as discussed
in section V.B. of this proposed rule. We
believe this could be a reasonable first
step as this threshold is well understood
and known to commenters as
therapeutic drugs, biologicals, and
radiopharmaceuticals are currently paid
separately if they have a calculated perday cost above this threshold and are
not policy-packaged. However, it is also
our longstanding belief that diagnostic
radiopharmaceuticals should have their
payment packaged as they function as
supplies during a diagnostic test or
procedure and enable the provision of
an independent service and are not
themselves the primary therapeutic
modality. We seek additional
information from interested parties on
this approach.
Regarding the second listed option,
we seek comment on whether to pay
separately for a diagnostic
radiopharmaceutical with a specific perday cost threshold that may be greater
or less than the OPPS drug packaging
threshold. Specifically, we are
interested to learn why interested
parties believe a threshold-based policy
is important as well as interested
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parties’ rationale for creating a threshold
that would be different from the OPPS
drug packaging threshold.
Regarding the third listed option, we
have heard from some interested parties
that they believe APC restructuring,
including adding additional nuclear
medicine APCs for services utilizing
high-cost diagnostic
radiopharmaceuticals, would be
appropriate. We seek comment as to
how these interested parties specifically
envision operationalizing this approach
and what advantage this approach
would have for beneficiaries, hospitals,
and CMS over other options.
For the fourth listed option, we
recently became aware that some
interested parties believe that CMS
packaging policies could influence
participation of beneficiaries and testing
sites in clinical trials, particularly those
studying Alzheimer’s disease, and are
interested to learn more about these
concerns. While we believe there could
be a multitude of reasons for difficulty
in recruiting study sites and
beneficiaries for clinical trials,
including the COVID–19 PHE, we are
requesting comment as to whether CMS
should consider creating payment
policies for diagnostic
radiopharmaceuticals used in clinical
trials. Specifically, we are interested to
learn what commenters believe an
appropriate payment mechanism would
be for these diagnostic
radiopharmaceuticals, whether there are
certain disease states or categories of
trials for which we should target our
payment policies, ways in which this
policy could help promote equitable
recruitment and diverse participation,
and the method by which CMS should
determine which clinical trial
diagnostic radiopharmaceuticals should
be subject to this policy.
Finally, for approach five, we are
seeking comment on new codes that
CMS could adopt that may incorporate
the disease state being diagnosed or a
diagnostic indication of a particular
class of diagnostic
radiopharmaceuticals. CMS could create
indication-specific coding to reflect the
imaging procedure and the target of the
imaging procedure. For example, CMS
could create a code to represent a PET
scan that detects a specific protein. If
multiple diagnostic
radiopharmaceuticals are available to
use during this PET scan to detect this
specific protein, then their payment
would be packaged into the payment for
this newly created code and reflected in
the payment for this code. Therefore, if
there is a specific clinical indication for
which only very costly diagnostic
radiopharmaceuticals are available, our
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data would appropriately reflect their
utilization. Alternatively, if there is a
specific clinical indication in which a
wide variety of diagnostic
radiopharmaceuticals can be used, all
with varying costs, then our data would
reflect this and our payment rates would
not incentivize a higher-cost diagnostic
radiopharmaceutical when there is a
lower-cost, but clinically similar,
diagnostic radiopharmaceutical
alternative. This coding approach could
be coupled with the restructuring of the
nuclear medicine APC family. We
believe this approach of more granular
coding could allow for more specific
data to be reported and thus more
targeted and appropriate payment rates
to be developed. This approach would
also help to maintain the principles of
a prospective payment system by
maintaining current packaging policies
as payment for the diagnostic
radiopharmaceutical would continue to
be packaged into the payment for the
procedure in which the diagnostic
radiopharmaceutical is used.
We also seek additional explanation
from interested parties as to why they
believe their suggested approach is the
best policy approach to ensure
beneficiary access to diagnostic
radiopharmaceuticals and equitable
payment for innovative and effective
technologies. We welcome comment
regarding ideas discussed in this
section, discussed in prior rulemaking,
or new ideas for payment for diagnostic
radiopharmaceuticals in OPPS.
Finally, we are interested in hearing
from stakeholders how the discussed
policy modifications might impact our
overarching goal of utilizing packaging
policies to better align OPPS policies
with that of a prospective payment
system rather than a fee schedule. We
would also like to know if making any
of the policy changes discussed
previously could have negative
consequences for beneficiaries, such as
unintentionally influencing clinical
practice decisions, increasing
beneficiary cost-sharing obligations, or
inadvertently encouraging the use of
higher-cost diagnostic
radiopharmaceuticals over lower cost,
but equally effective, diagnostic options.
We note that depending on the
comments received, we may adopt as
final one or more alternative payment
mechanisms for radiopharmaceuticals
for CY 2024.
4. Calculation of OPPS Scaled Payment
Weights
We established a policy in the CY
2013 OPPS/ASC final rule with
comment period (77 FR 68283) of using
geometric mean-based APC costs to
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calculate relative payment weights
under the OPPS. In the CY 2023 OPPS/
ASC final rule with comment period (87
FR 71778 through 71780), we applied
this policy and calculated the relative
payment weights for each APC for CY
2023 that were shown in Addenda A
and B of the CY 2023 OPPS/ASC final
rule with comment period (which were
made available via the internet on the
CMS website) using the APC costs
discussed in sections II.A.1 and II.A.2 of
the CY 2023 OPPS/ASC final rule with
comment period (87 FR 71757 through
71777). For CY 2024, as we did for CY
2023, we propose to continue to apply
the policy established in CY 2013 and
calculate relative payment weights for
each APC for CY 2024 using geometric
mean-based APC costs.
For CY 2012 and CY 2013, outpatient
clinic visits were assigned to one of five
levels of clinic visit APCs, with APC
0606 representing a mid-level clinic
visit. In the CY 2014 OPPS/ASC final
rule with comment period (78 FR 75036
through 75043), we finalized a policy
that created alphanumeric HCPCS code
G0463 (Hospital outpatient clinic visit
for assessment and management of a
patient), representing any and all clinic
visits under the OPPS. HCPCS code
G0463 was assigned to APC 0634
(Hospital Clinic Visits). We also
finalized a policy to use CY 2012 claims
data to develop the CY 2014 OPPS
payment rates for HCPCS code G0463
based on the total geometric mean cost
of the levels one through five CPT
Evaluation or Assessment and
Management (E/M) codes for clinic
visits previously recognized under the
OPPS (CPT codes 99201 through 99205
and 99211 through 99215). In addition,
we finalized a policy to no longer
recognize a distinction between new
and established patient clinic visits.
For CY 2016, we deleted APC 0634
and reassigned the outpatient clinic
visit HCPCS code G0463 to APC 5012
(Level 2 Examinations and Related
Services) (80 FR 70372). For CY 2024,
as we did for CY 2023, we propose to
continue to standardize all of the
relative payment weights to APC 5012.
We believe that standardizing relative
payment weights to the geometric mean
of the APC to which HCPCS code G0463
is assigned maintains consistency in
calculating unscaled weights that
represent the cost of some of the most
frequently provided OPPS services. For
CY 2024, as we did for CY 2023, we
propose to assign APC 5012 a relative
payment weight of 1.00 and to divide
the geometric mean cost of each APC by
the geometric mean cost for APC 5012
to derive the unscaled relative payment
weight for each APC. The choice of the
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APC on which to standardize the
relative payment weights does not affect
payments made under the OPPS
because we scale the weights for budget
neutrality.
Section 1833(t)(9)(B) of the Act
requires that APC reclassification and
recalibration changes, wage index
changes, and other adjustments be made
in a budget neutral manner. Budget
neutrality ensures that the estimated
aggregate weight under the OPPS for CY
2024 is neither greater than nor less
than the estimated aggregate weight that
would have been calculated without the
changes. To comply with this
requirement concerning the APC
changes, we propose to compare the
estimated aggregate weight using the CY
2023 scaled relative payment weights to
the estimated aggregate weight using the
proposed CY 2024 unscaled relative
payment weights.
For CY 2023, we multiplied the CY
2023 scaled APC relative payment
weight applicable to a service paid
under the OPPS by the volume of that
service from CY 2022 claims to calculate
the total relative payment weight for
each service. We then added together
the total relative payment weight for
each of these services in order to
calculate an estimated aggregate weight
for the year. For CY 2024, we propose
to apply the same process using the
estimated CY 2024 unscaled relative
payment weights rather than scaled
relative payment weights. We propose
to calculate the weight scalar by
dividing the CY 2023 estimated
aggregate weight by the unscaled CY
2024 estimated aggregate weight.
For a detailed discussion of the
weight scalar calculation, we refer
readers to the OPPS claims accounting
document available on the CMS website
at: https://www.cms.gov/Medicare/
Medicare-Fee-for-Service-Payment/
HospitalOutpatientPPS/.
Click on the link labeled ‘‘CY 2024
OPPS/ASC Notice of Proposed
Rulemaking’’, which can be found
under the heading ‘‘Hospital Outpatient
Prospective Payment System
Rulemaking’’ and open the claims
accounting document link at the bottom
of the page, which is labeled ‘‘2024
NPRM OPPS Claims Accounting (PDF)’’.
We propose to compare the estimated
unscaled relative payment weights in
CY 2024 to the estimated total relative
payment weights in CY 2023 using CY
2022 claims data, holding all other
components of the payment system
constant to isolate changes in total
weight. Based on this comparison, we
propose to adjust the calculated CY
2024 unscaled relative payment weights
for purposes of budget neutrality. We
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propose to adjust the estimated CY 2024
unscaled relative payment weights by
multiplying them by a proposed weight
scalar of 1.4529 to ensure that the
proposed CY 2024 relative payment
weights are scaled to be budget neutral.
The proposed CY 2024 relative payment
weights listed in Addenda A and B to
this proposed rule (which are available
via the internet on the CMS website) are
scaled and incorporate the recalibration
adjustments discussed in sections II.A.1
and II.A.2 of this proposed rule.
Section 1833(t)(14) of the Act
provides the payment rates for certain
specified covered outpatient drugs
(SCODs). Section 1833(t)(14)(H) of the
Act provides that additional
expenditures resulting from this
paragraph shall not be taken into
account in establishing the conversion
factor, weighting, and other adjustment
factors for 2004 and 2005 under
paragraph (9) but shall be taken into
account for subsequent years. Therefore,
the cost of those SCODs (as discussed in
section V.B.2 of this proposed rule) is
included in the budget neutrality
calculations for the CY 2024 OPPS.
B. Proposed Conversion Factor Update
Section 1833(t)(3)(C)(ii) of the Act
requires the Secretary to update the
conversion factor used to determine the
payment rates under the OPPS on an
annual basis by applying the OPD rate
increase factor. For purposes of section
1833(t)(3)(C)(iv) of the Act, subject to
sections 1833(t)(17) and 1833(t)(3)(F) of
the Act, the OPD rate increase factor is
equal to the hospital inpatient market
basket percentage increase applicable to
hospital discharges under section
1886(b)(3)(B)(iii) of the Act. In the FY
2024 IPPS/Long Term Care Hospital
(LTCH) PPS proposed rule (88 FR 27004
through 27005), consistent with current
law, based on IHS Global, Inc.’s fourth
quarter 2022 forecast, the proposed FY
2024 IPPS market basket percentage
increase was 3.0 percent. We note that
under our regular process for the CY
2024 OPPS/ASC final rule, we would
use the market basket update for the FY
2024 IPPS/LTCH PPS final rule, which
would be based on IHS Global, Inc.’s
second quarter 2023 forecast of the FY
2024 IPPS market basket percentage
increase. If that forecast is different than
the IPPS market basket percentage
increase used for this proposed rule, the
CY 2024 OPPS/ASC final rule OPD rate
increase factor would reflect that
updated forecast of the market basket
percentage increase.
Section 1833(t)(3)(F)(i) of the Act
requires that, for 2012 and subsequent
years, the OPD fee schedule increase
factor under subparagraph (C)(iv) be
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reduced by the productivity adjustment
described in section 1886(b)(3)(B)(xi)(II)
of the Act. Section 1886(b)(3)(B)(xi)(II)
of the Act defines the productivity
adjustment as equal to the 10-year
moving average of changes in annual
economy-wide, private nonfarm
business multifactor productivity (MFP)
(as projected by the Secretary for the 10year period ending with the applicable
fiscal year, year, cost reporting period,
or other annual period) (the
‘‘productivity adjustment’’). In the FY
2012 IPPS/LTCH PPS final rule (76 FR
51689 through 51692), we finalized our
methodology for calculating and
applying the productivity adjustment,
and then revised this methodology, as
discussed in the FY 2016 IPPS/LTCH
PPS final rule (80 FR 49509). The U.S.
Department of Labor’s Bureau of Labor
Statistics (BLS) publishes the official
measures of private nonfarm business
productivity for the U.S. economy. We
note that previously the productivity
measure referenced in section
1886(b)(3)(B)(xi)(II) of the Act was
published by BLS as private nonfarm
business multifactor productivity.
Beginning with the November 18, 2021
release of productivity data, BLS
replaced the term multifactor
productivity (MFP) with total factor
productivity (TFP). BLS noted that this
is a change in terminology only and will
not affect the data or methodology. As
a result of the BLS name change, the
productivity measure referenced in
section 1886(b)(3)(B)(xi)(II) of the Act is
now published by BLS as private
nonfarm business total factor
productivity. However, as mentioned,
the data and methods are unchanged.
Please see www.bls.gov for the BLS
historical published TFP data. A
complete description of IGI’s TFP
projection methodology is available on
the CMS website at https://
www.cms.gov/Research-StatisticsDataand-Systems/Statistics-TrendsandReports/MedicareProgram
RatesStats/ MarketBasketResearch. In
addition, we note that beginning with
the FY 2022 IPPS/LTCH PPS final rule,
we refer to this adjustment as the
productivity adjustment rather than the
MFP adjustment to more closely track
the statutory language in section
1886(b)(3)(B)(xi)(II) of the Act. We note
that the adjustment continues to rely on
the same underlying data and
methodology. In the FY 2024 IPPS/
LTCH PPS proposed rule (88 FR 27005),
the proposed productivity adjustment
for FY 2024 was 0.2 percentage point.
Therefore, we propose that the
productivity adjustment for the CY 2024
OPPS would be 0.2 percentage point.
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We also propose that if more recent data
subsequently become available after the
publication of this proposed rule (for
example, a more recent estimate of the
market basket percentage increase and/
or the productivity adjustment), we
would use such updated data, if
appropriate, to determine the CY 2024
market basket update and the
productivity adjustment, which are
components in calculating the OPD fee
schedule increase factor under sections
1833(t)(3)(C)(iv) and 1833(t)(3)(F) of the
Act.
We note that section 1833(t)(3)(F) of
the Act provides that application of this
subparagraph may result in the OPD fee
schedule increase factor under section
1833(t)(3)(C)(iv) of the Act being less
than 0.0 percent for a year, and may
result in OPPS payment rates being less
than rates for the preceding year. As
described in further detail below, we
propose for CY 2024 an OPD fee
schedule increase factor of 2.8 percent
for the CY 2024 OPPS (which is the
proposed estimate of the hospital
inpatient market basket percentage
increase of 3.0 percent, less the
proposed 0.2 percentage point
productivity adjustment).
We propose that hospitals that fail to
meet the Hospital OQR Program
reporting requirements would be subject
to an additional reduction of 2.0
percentage points from the OPD fee
schedule increase factor adjustment to
the conversion factor that would be
used to calculate the OPPS payment
rates for their services, as required by
section 1833(t)(17) of the Act. For
further discussion of the Hospital OQR
Program, we refer readers to section XIV
of this proposed rule.
To set the OPPS conversion factor for
2024, we propose to increase the CY
2023 conversion factor of $85.585 by 2.8
percent reflecting the proposed IPPS
hospital market basket update. In
accordance with section 1833(t)(9)(B) of
the Act, we propose further to adjust the
conversion factor for CY 2024 to ensure
that any revisions made to the wage
index and rural adjustment are made on
a budget neutral basis. We propose to
calculate an overall budget neutrality
factor of 0.9974 for wage index changes
by comparing proposed total estimated
payments from our simulation model
using the proposed FY 2024 IPPS wage
indexes to those payments using the FY
2023 IPPS wage indexes, as adopted on
a calendar year basis for the OPPS. We
further propose to calculate an
additional budget neutrality factor of
0.9975 to account for our proposed
policy to cap wage index reductions for
hospitals at 5 percent on an annual
basis.
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For the CY 2024 OPPS, we propose to
maintain the current rural adjustment
policy, as discussed in section II.E of
this proposed rule. Therefore, the
proposed budget neutrality factor for the
rural adjustment is 1.0000.
We propose to calculate a CY 2024
budget neutrality adjustment factor for
the cancer hospital payment adjustment
by transitioning from the target PCR of
0.89 we finalized for CYs 2020 through
2023 (which included the 1.0
percentage point reduction as required
by section 16002(b) of the 21st Century
Cures Act) and incrementally reducing
the target PCR by an additional 1.0
percentage point for each calendar year,
beginning with CY 2024, until the target
PCR equals the PCR of non-cancer
hospitals calculated using the most
recent data minus 1.0 percentage point
as required by section 16002(b) of the
21st Century Cures Act. Therefore, we
propose to apply a budget neutrality
adjustment factor of 1.0005 to the
conversion factor for the cancer hospital
payment adjustment. In accordance
with section 1833(t)(18)(C) of the Act, as
added by section 16002(b) of the 21st
Century Cures Act (Pub. L. 114–255),
requires that we reduce the target PCR
by 0.01, which brings the proposed
target PCR to 0.88. This is 0.01 less than
the target PCR of 0.89 from CY 2021
through CY 2023, which was held at the
pre-PHE target.
For this proposed rule, we estimated
that proposed pass-through spending for
drugs, biologicals, and devices for CY
2024 would equal approximately $234.1
million, which represents 0.26 percent
of total projected CY 2024 OPPS
spending. Therefore, the proposed
conversion factor would be adjusted by
the difference between the 0.16 percent
estimate of pass-through spending for
CY 2023 and the 0.26 percent estimate
of proposed pass-through spending for
CY 2024, resulting in a proposed
decrease to the conversion factor for CY
2024 of 0.1 percent.
Proposed estimated payments for
outliers would remain at 1.0 percent of
total OPPS payments for CY 2024. We
estimated for this proposed rule that
outlier payments would be
approximately 0.78 percent of total
OPPS payments in CY 2023; the 1.00
percent for proposed outlier payments
in CY 2024 would constitute a 0.22
percent increase in payment in CY 2024
relative to CY 2023.
For CY 2024, we also propose that
hospitals that fail to meet the reporting
requirements of the Hospital OQR
Program would continue to be subject to
a further reduction of 2.0 percentage
points to the OPD fee schedule increase
factor. For hospitals that fail to meet the
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requirements of the Hospital OQR
Program, we propose to make all other
adjustments discussed above, but use a
reduced OPD fee schedule update factor
of 0.8 percent (that is, the proposed OPD
fee schedule increase factor of 2.8
percent further reduced by 2.0
percentage points). This would result in
a proposed reduced conversion factor
for CY 2024 of $85.782 for hospitals that
fail to meet the Hospital OQR Program
requirements (a difference of ¥1.706 in
the conversion factor relative to
hospitals that met the requirements).
In summary, for 2024, we propose to
use a reduced conversion factor of
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$85.782 in the calculation of payments
for hospitals that fail to meet the
Hospital OQR Program requirements (a
difference of ¥1.706 in the conversion
factor relative to hospitals that met the
requirements).
For 2024, we propose to use a
conversion factor of $87.488 in the
calculation of the national unadjusted
payment rates for those items and
services for which payment rates are
calculated using geometric mean costs;
that is, the proposed OPD fee schedule
increase factor of 2.8 percent for CY
2024, the required proposed wage index
budget neutrality adjustment of
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approximately 0.9974, the proposed 5
percent annual cap for individual
hospital wage index reductions
adjustment of approximately 0.9975, the
proposed cancer hospital payment
adjustment of 1.0005, and the proposed
adjustment of an decrease of 0.1
percentage point of projected OPPS
spending for the difference in passthrough spending, which results in a
proposed conversion factor for CY 2024
of $87.488. The calculations we
performed to determine the CY 2024
proposed conversion factor are shown
in Table 3.
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C. Proposed Wage Index Changes
Section 1833(t)(2)(D) of the Act
requires the Secretary to determine a
wage adjustment factor to adjust the
portion of payment and coinsurance
attributable to labor-related costs for
relative differences in labor and laborrelated costs across geographic regions
in a budget neutral manner (codified at
42 CFR 419.43(a)). This portion of the
OPPS payment rate is called the OPPS
labor-related share. Budget neutrality is
discussed in section II.B of this
proposed rule.
The OPPS labor-related share is 60
percent of the national OPPS payment.
This labor-related share is based on a
regression analysis that determined that,
for all hospitals, approximately 60
percent of the costs of services paid
under the OPPS were attributable to
wage costs. We confirmed that this
labor-related share for outpatient
services is appropriate during our
regression analysis for the payment
adjustment for rural hospitals in the CY
2006 OPPS final rule with comment
period (70 FR 68553). We propose to
continue this policy for the CY 2024
OPPS. We refer readers to section II.H
of this proposed rule for a description
and an example of how the wage index
for a particular hospital is used to
determine payment for the hospital.
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As discussed in the claims accounting
narrative included with the supporting
documentation for this proposed rule
(which is available via the internet on
the CMS website (https://www.cms.gov/
Medicare/Medicare-Fee-for-ServicePayment/HospitalOutpatientPPS/
Hospital-Outpatient-Regulations-andNotices)), for estimating APC costs, we
would standardize 60 percent of
estimated claims costs for geographic
area wage variation using the same FY
2024 pre-reclassified wage index that
we use under the IPPS to standardize
costs. This standardization process
removes the effects of differences in area
wage levels from the determination of a
national unadjusted OPPS payment rate
and copayment amount.
Under 42 CFR 419.41(c)(1) and
419.43(c) (published in the OPPS April
7, 2000 final rule with comment period
(65 FR 18495 and 18545)), the OPPS
adopted the final fiscal year IPPS postreclassified wage index as the calendar
year wage index for adjusting the OPPS
standard payment amounts for labor
market differences. Therefore, the wage
index that applies to a particular acute
care, short-stay hospital under the IPPS
also applies to that hospital under the
OPPS. As initially explained in the
September 8, 1998 OPPS proposed rule
(63 FR 47576), we believe that using the
IPPS wage index as the source of an
adjustment factor for the OPPS is
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reasonable and logical, given the
inseparable, subordinate status of the
HOPD within the hospital overall. In
accordance with section 1886(d)(3)(E) of
the Act, the IPPS wage index is updated
annually.
The Affordable Care Act contained
several provisions affecting the wage
index. These provisions were discussed
in the CY 2012 OPPS/ASC final rule
with comment period (76 FR 74191).
Section 10324 of the Affordable Care
Act added section 1886(d)(3)(E)(iii)(II)
to the Act, which defines a frontier State
and amended section 1833(t) of the Act
to add paragraph (19), which requires a
frontier State wage index floor of 1.00 in
certain cases, and states that the frontier
State floor shall not be applied in a
budget neutral manner. We codified
these requirements at § 419.43(c)(2) and
(3) of our regulations. For 2024, we
propose to implement this provision in
the same manner as we have since CY
2011. Under this policy, the frontier
State hospitals would receive a wage
index of 1.00 if the otherwise applicable
wage index (including reclassification,
the rural floor, and rural floor budget
neutrality) is less than 1.00. Because the
HOPD receives a wage index based on
the geographic location of the specific
inpatient hospital with which it is
associated, the frontier State wage index
adjustment applicable for the inpatient
hospital also would apply for any
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associated HOPD. We refer readers to
the FY 2011 through FY 2023 IPPS/
LTCH PPS final rules for discussions
regarding this provision, including our
methodology for identifying which areas
meet the definition of ‘‘frontier States’’
as provided for in section
1886(d)(3)(E)(iii)(II) of the Act: for FY
2011, 75 FR 50160 through 50161; for
FY 2012, 76 FR 51793, 51795, and
51825; for FY 2013, 77 FR 53369
through 53370; for FY 2014, 78 FR
50590 through 50591; for FY 2015, 79
FR 49971; for FY 2016, 80 FR 49498; for
FY 2017, 81 FR 56922; for FY 2018, 82
FR 38142; for FY 2019, 83 FR 41380; for
FY 2020, 84 FR 42312; for FY 2021, 85
FR 58765; for FY 2022, 86 FR 45178;
and for FY 2023, 87 FR 49006.
In addition to the changes required by
the Affordable Care Act, we note that
the proposed FY 2024 IPPS wage
indexes continue to reflect a number of
adjustments implemented in past years,
including, but not limited to,
reclassification of hospitals to different
geographic areas, the rural floor
provisions, the imputed floor wage
index adjustment in all-urban states, an
adjustment for occupational mix, an
adjustment to the wage index based on
commuting patterns of employees (the
out-migration adjustment), and the
permanent 5-percent cap on any
decrease to a hospital’s wage index from
its wage index in a prior FY. Beginning
with FY 2024, we proposed to include
hospitals with § 412.103 reclassification
along with geographically rural
hospitals in all rural wage index
calculations, and to exclude ‘‘dual
reclass’’ hospitals (hospitals with
simultaneous § 412.103 and Medicare
Geographic Classification Review Board
(MGCRB) reclassifications) implicated
by the hold harmless provision at
section 1886(d)(8)(C)(ii) of the Act (88
FR 26973 through 26974). We also
propose to continue the low wage index
hospital policy, under which we
increase the wage index for hospitals
with a wage index value below the 25th
percentile wage index value for a fiscal
year by half the difference between the
otherwise applicable final wage index
value for a year for that hospital and the
25th percentile wage index value for
that year across all hospitals. We refer
readers to the FY 2024 IPPS/LTCH PPS
proposed rule (88 FR 26963 through
26986) for a detailed discussion of all
proposed changes to the FY 2024 IPPS
wage indexes.
We note that in the FY 2023 IPPS/
LTCH PPS final rule (87 FR 49018
through 49021), we finalized a
permanent approach to smooth year-toyear decreases in hospitals’ wage
indexes. Specifically, for FY 2023 and
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subsequent years, we apply a 5-percent
cap on any decrease to a hospital’s wage
index from its wage index in the prior
FY, regardless of the circumstances
causing the decline. That is, a hospital’s
wage index for FY 2024 would not be
less than 95 percent of its final wage
index for FY 2023, and that for
subsequent years, a hospital’s wage
index would not be less than 95 percent
of its final wage index for the prior FY.
We stated that we believe this policy
would increase the predictability of
IPPS payments for hospitals and
mitigate instability and significant
negative impacts to hospitals resulting
from changes to the wage index. It
would also eliminate the need for
temporary and potentially uncertain
transition adjustments to the wage index
in the future due to specific policy
changes or circumstances outside
hospitals’ control. Except for newly
opened hospitals, we will apply the cap
for a fiscal year using the final wage
index applicable to the hospital on the
last day of the prior fiscal year. A newly
opened hospital would be paid the wage
index for the area in which it is
geographically located for its first full or
partial fiscal year, and it would not
receive a cap for that first year because
it would not have been assigned a wage
index in the prior year (in accordance
with 42 CFR 419.41(c)(1) and 419.43(c),
as noted above).
Core Based Statistical Areas (CBSAs)
are made up of one or more constituent
counties. Each CBSA and constituent
county has its own unique identifying
codes. The FY 2018 IPPS/LTCH PPS
final rule (82 FR 38130) discussed the
two different lists of codes to identify
counties: Social Security
Administration (SSA) codes and Federal
Information Processing Standard (FIPS)
codes. Historically, CMS listed and used
SSA and FIPS county codes to identify
and crosswalk counties to CBSA codes
for purposes of the IPPS and OPPS wage
indexes. However, the SSA county
codes are no longer being maintained
and updated, although the FIPS codes
continue to be maintained by the U.S.
Census Bureau. The Census Bureau’s
most current statistical area information
is derived from ongoing census data
received since 2010; the most recent
data are from 2015. The Census Bureau
maintains a complete list of changes to
counties or county equivalent entities
on the website at: https://
www.census.gov/geo/reference/countychanges.html (which, as of May 6, 2019,
migrated to: https://www.census.gov/
programs-surveys/geography.html). In
the FY 2018 IPPS/LTCH PPS final rule
(82 FR 38130), for purposes of
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crosswalking counties to CBSAs for the
IPPS wage index, we finalized our
proposal to discontinue the use of the
SSA county codes and begin using only
the FIPS county codes. Similarly, for the
purposes of crosswalking counties to
CBSAs for the OPPS wage index, in the
CY 2018 OPPS/ASC final rule with
comment period (82 FR 59260), we
finalized our proposal to discontinue
the use of SSA county codes and begin
using only the FIPS county codes. For
CY 2024, under the OPPS, we are
continuing to use only the FIPS county
codes for purposes of crosswalking
counties to CBSAs.
We propose to use the FY 2024 IPPS
post-reclassified wage index for urban
and rural areas as the wage index for the
OPPS to determine the wage
adjustments for both the OPPS payment
rate and the copayment rate for CY
2024. Therefore, any policies and
adjustments for the FY 2024 IPPS postreclassified wage index would be
reflected in the final CY 2024 OPPS
wage index beginning on January 1,
2024. We refer readers to the FY 2024
IPPS/LTCH PPS proposed rule (88 FR
26963 through 26986) and the proposed
FY 2024 hospital wage index files
posted on the CMS website at https://
www.cms.gov/medicare/acute-inpatientpps/fy-2024-ipps-proposed-rule-homepage. With regard to budget neutrality
for the CY 2024 OPPS wage index, we
refer readers to section II.B of this
proposed rule. We continue to believe
that using the IPPS post-reclassified
wage index as the source of an
adjustment factor for the OPPS is
reasonable and logical, given the
inseparable, subordinate status of the
HOPD within the hospital overall.
Hospitals that are paid under the
OPPS, but not under the IPPS, do not
have an assigned hospital wage index
under the IPPS. Therefore, for non-IPPS
hospitals paid under the OPPS, it is our
longstanding policy to assign the wage
index that would be applicable if the
hospital was paid under the IPPS, based
on its geographic location and any
applicable wage index policies and
adjustments. We propose to continue
this policy for CY 2024. We refer readers
to the FY 2024 IPPS/LTCH PPS
proposed rule (88 FR 26963 through
26986) for a detailed discussion of the
proposed changes to the FY 2024 IPPS
wage indexes.
It has been our longstanding policy to
allow non-IPPS hospitals paid under the
OPPS to qualify for the out-migration
adjustment if they are located in a
section 505 out-migration county
(section 505 of the Medicare
Prescription Drug, Improvement, and
Modernization Act of 2003 (MMA)).
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Applying this adjustment is consistent
with our policy of adopting IPPS wage
index policies for hospitals paid under
the OPPS. We note that, because nonIPPS hospitals cannot reclassify, they
are eligible for the out-migration wage
index adjustment if they are located in
a section 505 out-migration county. This
is the same out-migration adjustment
policy that would apply if the hospital
were paid under the IPPS. For CY 2024,
we propose to continue our policy of
allowing non-IPPS hospitals paid under
the OPPS to qualify for the outmigration
adjustment if they are located in a
section 505 out-migration county
(section 505 of the MMA). Furthermore,
we propose that the wage index that
would apply for CY 2024 to non-IPPS
hospitals paid under the OPPS would
continue to include the rural floor
adjustment and any policies and
adjustments applied to the IPPS wage
index to address wage index disparities.
In addition, the wage index that would
apply to non-IPPS hospitals paid under
the OPPS would include the 5-percent
cap on wage index decreases.
For CMHCs, for CY 2024, we propose
to continue to calculate the wage index
by using the post-reclassification IPPS
wage index based on the CBSA where
the CMHC is located. Furthermore, we
propose that the wage index that would
apply to a CMHC for CY 2024 would
continue to include the rural floor
adjustment and any policies and
adjustments applied to the IPPS wage
index to address wage index disparities.
In addition, the wage index that would
apply to CMHCs would include the 5percent cap on wage index decreases.
Also, we propose that the wage index
that would apply to CMHCs would not
include the outmigration adjustment
because that adjustment only applies to
hospitals.
Table 4A associated with the FY 2024
IPPS/LTCH PPS proposed rule
(available via the internet on the CMS
website at: https://www.cms.gov/
Medicare/Medicare-Fee-for-ServicePayment/AcuteInpatientPPS/index)
identifies counties that would be
eligible for the out-migration
adjustment. Table 2 associated with the
FY 2024 IPPS/LTCH PPS proposed rule
(available for download via the website
above) identifies IPPS hospitals that
would receive the out-migration
adjustment for FY 2024. We are
including the outmigration adjustment
information from Table 2 associated
with the FY 2024 IPPS/LTCH PPS
proposed rule as Addendum L to this
proposed rule, with the addition of nonIPPS hospitals that would receive the
section 505 outmigration adjustment
under this proposed rule. Addendum L
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is available via the internet on the CMS
website. We refer readers to the CMS
website for the OPPS at: https://
www.cms.gov/Medicare/Medicare-Feefor-Service-Payment/Hospital
OutpatientPPS/index. At this link,
readers will find a link to the proposed
FY 2024 IPPS wage index tables and
Addendum L.
D. Proposed Statewide Average Default
Cost-to-Charge Ratios (CCRs)
In addition to using CCRs to estimate
costs from charges on claims for
ratesetting, we use overall hospitalspecific CCRs calculated from the
hospital’s most recent cost report (OMB
NO: 0938–0050 for Form CMS–2552–10)
to determine outlier payments,
payments for pass-through devices, and
monthly interim transitional corridor
payments under the OPPS during the
PPS year. For certain hospitals, under
the regulations at 42 CFR
419.43(d)(5)(iii), we use the statewide
average default CCRs to determine the
payments mentioned earlier if it is not
possible to determine an accurate CCR
for a hospital in certain circumstances.
This includes hospitals that are new,
hospitals that have not accepted
assignment of an existing hospital’s
provider agreement, and hospitals that
have not yet submitted a cost report. We
also use the statewide average default
CCRs to determine payments for
hospitals whose CCR falls outside the
predetermined ceiling threshold for a
valid CCR or for hospitals in which the
most recent cost report reflects an allinclusive rate status (Medicare Claims
Processing Manual (Pub. 100–04),
Chapter 4, Section 10.11).
We discussed our policy for using
default CCRs, including setting the
ceiling threshold for a valid CCR, in the
CY 2009 OPPS/ASC final rule with
comment period (73 FR 68594 through
68599) in the context of our adoption of
an outlier reconciliation policy for cost
reports beginning on or after January 1,
2009. For details on our process for
calculating the statewide average CCRs,
we refer readers to the CY 2024 OPPS
proposed rule Claims Accounting
Narrative that is posted on our website.
We propose to calculate the default
ratios for CY 2024 using the most recent
cost report data. We will update these
ratios in the final rule with comment
period if more recent cost report data
are available.
We no longer publish a table in the
Federal Register containing the
statewide average CCRs in the annual
OPPS proposed rule and final rule with
comment period. These CCRs with the
upper limit will be available for
download with each OPPS CY proposed
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rule and final rule on the CMS website.
We refer readers to our website at:
https://www.cms.gov/Medicare/
Medicare-Fee-for-Service-Payment/
HospitalOutpatientPPS/HospitalOutpatient-Regulations-andNotices.html; click on the link on the
left of the page titled ‘‘Hospital
Outpatient Regulations and Notices’’
and then select the relevant regulation
to download the statewide CCRs and
upper limit in the downloads section of
the web page.
E. Proposed Adjustment for Rural Sole
Community Hospitals (SCHs) and
Essential Access Community Hospitals
(EACHs) Under Section 1833(t)(13)(B) of
the Act for CY 2024
In the CY 2006 OPPS final rule with
comment period (70 FR 68556), we
finalized a payment increase for rural
sole community hospitals (SCHs) of 7.1
percent for all services and procedures
paid under the OPPS, excluding drugs,
biologicals, brachytherapy sources, and
devices paid under the pass-through
payment policy, in accordance with
section 1833(t)(13)(B) of the Act, as
added by section 411 of the Medicare
Prescription Drug, Improvement, and
Modernization Act of 2003 (MMA) (Pub.
L. 108–173). Section 1833(t)(13) of the
Act provides the Secretary the authority
to make an adjustment to OPPS
payments for rural hospitals, effective
January 1, 2006, if justified by a study
of the difference in costs by APC
between hospitals in rural areas and
hospitals in urban areas. Our analysis
showed a difference in costs for rural
SCHs. Therefore, for the CY 2006 OPPS,
we finalized a payment adjustment for
rural SCHs of 7.1 percent for all services
and procedures paid under the OPPS,
excluding separately payable drugs and
biologicals, brachytherapy sources,
items paid at charges reduced to costs,
and devices paid under the passthrough payment policy, in accordance
with section 1833(t)(13)(B) of the Act.
In the CY 2007 OPPS/ASC final rule
with comment period (71 FR 68010 and
68227), for purposes of receiving this
rural adjustment, we revised our
regulations at § 419.43(g) to clarify that
essential access community hospitals
(EACHs) are also eligible to receive the
rural SCH adjustment, assuming these
entities otherwise meet the rural
adjustment criteria. Currently, two
hospitals are classified as EACHs, and
as of CY 1998, under section 4201(c) of
the Balanced Budget Act of 1997 (BBA)
(Pub. L. 105–33), a hospital can no
longer become newly classified as an
EACH.
This adjustment for rural SCHs is
budget neutral and applied before
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calculating outlier payments and
copayments. We stated in the CY 2006
OPPS final rule with comment period
(70 FR 68560) that we would not
reestablish the adjustment amount on an
annual basis, but we may review the
adjustment in the future and, if
appropriate, would revise the
adjustment. We provided the same 7.1
percent adjustment to rural SCHs,
including EACHs, again in CYs 2008
through 2023.
For CY 2024, we propose to continue
the current policy of a 7.1 percent
payment adjustment for rural SCHs,
including EACHs, for all services and
procedures paid under the OPPS,
excluding separately payable drugs and
biologicals, brachytherapy sources,
items paid at charges reduced to costs,
and devices paid under the passthrough payment policy, applied in a
budget neutral manner.
F. Proposed Payment Adjustment for
Certain Cancer Hospitals for CY 2024
1. Background
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Since the inception of the OPPS,
which was authorized by the Balanced
Budget Act of 1997 (BBA) (Pub. L. 105–
33), Medicare has paid the 11 hospitals
that meet the criteria for cancer
hospitals identified in section
1886(d)(1)(B)(v) of the Act under the
OPPS for covered outpatient department
services. These cancer hospitals are
exempted from payment under the IPPS.
With the Medicare, Medicaid and
SCHIP Balanced Budget Refinement Act
of 1999 (Pub. L. 106–113), the Congress
added section 1833(t)(7), ‘‘Transitional
Adjustment to Limit Decline in
Payment,’’ to the Act, which requires
the Secretary to determine OPPS
payments to cancer and children’s
hospitals based on their pre-BBA
payment amount (these hospitals are
often referred to under this policy as
‘‘held harmless’’ and their payments are
often referred to as ‘‘hold harmless’’
payments).
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As required under section
1833(t)(7)(D)(ii) of the Act, a cancer
hospital receives the full amount of the
difference between payments for
covered outpatient department services
under the OPPS and a ‘‘pre-BBA
amount.’’ That is, cancer hospitals are
permanently held harmless to their
‘‘pre-BBA amount,’’ and they receive
transitional outpatient payments (TOPs)
or hold harmless payments to ensure
that they do not receive a payment that
is lower in amount under the OPPS than
the payment amount they would have
received before implementation of the
OPPS, as set forth in section
1833(t)(7)(F) of the Act. The ‘‘pre-BBA
amount’’ is the product of the hospital’s
reasonable costs for covered outpatient
department services occurring in the
current year and the base payment-tocost ratio (PCR) for the hospital defined
in section 1833(t)(7)(F)(ii) of the Act.
The ‘‘pre-BBA amount’’ and the
determination of the base PCR are
defined at § 419.70(f). TOPs are
calculated on Worksheet E, Part B, of
the Hospital Cost Report or the Hospital
Health Care Complex Cost Report (Form
CMS–2552–96 or Form CMS–2552–10
(OMB NO: 0938–0050), respectively), as
applicable each year. Section
1833(t)(7)(I) of the Act exempts TOPs
from budget neutrality calculations.
Section 3138 of the Affordable Care
Act (Pub. L. 111–148) amended section
1833(t) of the Act by adding a new
paragraph (18), which instructs the
Secretary to conduct a study to
determine if, under the OPPS,
outpatient costs incurred by cancer
hospitals described in section
1886(d)(1)(B)(v) of the Act with respect
to APC groups exceed outpatient costs
incurred by other hospitals furnishing
services under section 1833(t) of the
Act, as determined appropriate by the
Secretary. Section 1833(t)(18)(A) of the
Act requires the Secretary to take into
consideration the cost of drugs and
biologicals incurred by cancer hospitals
and other hospitals. Section
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1833(t)(18)(B) of the Act provides that,
if the Secretary determines that cancer
hospitals’ costs are higher than those of
other hospitals, the Secretary shall
provide an appropriate adjustment
under section 1833(t)(2)(E) of the Act to
reflect these higher costs. In 2011, after
conducting the study required by
section 1833(t)(18)(A) of the Act, we
determined that outpatient costs
incurred by the 11 specified cancer
hospitals were greater than the costs
incurred by other OPPS hospitals. For a
complete discussion regarding the
cancer hospital cost study, we refer
readers to the CY 2012 OPPS/ASC final
rule with comment period (76 FR 74200
through 74201).
Based on these findings, we finalized
a policy to provide a payment
adjustment to the 11 specified cancer
hospitals that reflects their higher
outpatient costs, as discussed in the CY
2012 OPPS/ASC final rule with
comment period (76 FR 74202 through
74206). Specifically, we adopted a
policy to provide additional payments
to the cancer hospitals so that each
cancer hospital’s final PCR for services
provided in a given calendar year is
equal to the weighted average PCR
(which we refer to as the ‘‘target PCR’’)
for other hospitals paid under the OPPS.
The target PCR is set in advance of the
calendar year and is calculated using
the most recently submitted or settled
cost report data that are available at the
time of final rulemaking for the calendar
year. The amount of the payment
adjustment is made on an aggregate
basis at cost report settlement. We note
that the changes made by section
1833(t)(18) of the Act do not affect the
existing statutory provisions that
provide for TOPs for cancer hospitals.
The TOPs are assessed, as usual, after
all payments, including the cancer
hospital payment adjustment, have been
made for a cost reporting period. Table
4 displays the target PCR for purposes
of the cancer hospital adjustment for CY
2012 through CY 2023.
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2. Proposed Policy for CY 2024
Section 16002(b) of the 21st Century
Cures Act (Pub. L. 114–255) amended
section 1833(t)(18) of the Act by adding
subparagraph (C), which requires that in
applying § 419.43(i) (that is, the
payment adjustment for certain cancer
hospitals) for services furnished on or
after January 1, 2018, the target PCR
adjustment be reduced by 1.0
percentage point less than what would
otherwise apply. Section 16002(b) also
provides that, in addition to the
percentage reduction, the Secretary may
consider making an additional
percentage point reduction to the target
PCR that takes into account payment
rates for applicable items and services
described under section 1833(t)(21)(C)
of the Act for hospitals that are not
cancer hospitals described under
section 1886(d)(1)(B)(v) of the Act.
Further, in making any budget
neutrality adjustment under section
1833(t) of the Act, the Secretary shall
not take into account the reduced
expenditures that result from
application of section 1833(t)(18)(C) of
the Act.
We propose to provide additional
payments to the 11 specified cancer
hospitals so that each cancer hospital’s
proposed PCR is equal to the weighted
average PCR (or ‘‘target PCR’’) for the
other OPPS hospitals, generally using
the most recent submitted or settled cost
report data that are available, reduced
by 1.0 percentage point, to comply with
section 16002(b) of the 21st Century
Cures Act, and adjusted by the proposed
post-Public Health Emergency transition
as described later in this section. We are
not proposing an additional reduction
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beyond the 1.0 percentage point
reduction required by section 16002(b)
of the 21st Century Cures Act for CY
2024.
To calculate the proposed CY 2024
target PCR, we would use the same
extract of cost report data from HCRIS
used to estimate costs for the CY 2024
OPPS which, in most cases, would be
the most recently available hospital cost
reports. Using these cost report data, we
included data from Worksheet E, Part B,
for each hospital, using data from each
hospital’s most recent cost report,
whether as submitted or settled.
We then limited the dataset to the
hospitals with CY 2022 claims data that
we used to model the impact of the
proposed CY 2024 APC relative
payment weights (3,406 hospitals)
because it is appropriate to use the same
set of hospitals that are being used to
calibrate the modeled CY 2024 OPPS.
The cost report data for the hospitals in
this dataset were from cost report
periods with fiscal year ends ranging
from 2017 to 2022; however, the cost
reporting periods were predominantly
from fiscal years ending in 2021 and
2022. We then removed the cost report
data of the 47 hospitals located in
Puerto Rico from our dataset because we
did not believe their cost structure
reflected the costs of most hospitals
paid under the OPPS, and, therefore,
their inclusion may bias the calculation
of hospital-weighted statistics. We also
removed the cost report data of 14
hospitals because these hospitals had
cost report data that were not complete
(missing aggregate OPPS payments,
missing aggregate cost data, or missing
both), so that all cost reports in the
study would have both the payment and
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cost data necessary to calculate a PCR
for each hospital, leading to a proposed
analytic file of 3,345 hospitals with cost
report data.
Using this smaller dataset of cost
report data, we estimate that, on
average, the OPPS payments to other
hospitals furnishing services under the
OPPS were approximately 86 percent of
reasonable cost (weighted average PCR
of .86). Therefore, after applying the 1.0
percentage point reduction, as required
by section 16002(b) of the 21st Century
Cures Act, using our standard process
the payment amount associated with the
cancer hospital payment adjustment to
be determined at cost report settlement
would be the additional payment
needed to result in a target PCR equal
to 0.85 for each cancer hospital.
However, we note that a proposed
cancer hospital target PCR of 0.85 for CY
2024 is dramatically lower than the
target PCR from previous years.
Historically, as shown in Table 4, the
target PCR for cancer hospitals has been
between 0.88 and 0.92. In light of our
concerns about the impact of the
COVID–19 PHE on CY 2020 claims and
cost data, we finalized a policy to
continue the target PCR of 0.89 from CY
2021 for CY 2022 and for CY 2023 as an
appropriate cancer hospital adjustment
under our authority described in section
1833(t)(2)(E) of the Act. We believe the
impact of the COVID–19 PHE claims
and cost data used to calculate the target
PCR of 0.85 may continue to have some
limited influence on our target PCR
calculations. However, we believe we
should begin to take into consideration
the PCR of non-cancer hospitals based
on the most recently available data for
calculating the target PCR. We do not
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know if the changes in the data that
have yielded a significantly lower PCR
for non-cancer hospitals using the most
recently available data are likely to
continue in future years or if, when data
from after the PHE is available, we will
see the target PCR increase toward its
historical norm. We are concerned that
using the 0.85 target PCR calculated
from the most recent data could lead to
instability in cancer hospital adjustment
payments and volatility in the PCR as
we transition to utilizing post-PHE data.
Therefore, in this CY 2024 OPPS/ASC
proposed rule, we propose to transition
from the target PCR of 0.89 we finalized
for CYs 2020 through 2023 (which
included the 1.0 percentage point
reduction as required by section
16002(b) of the 21st Century Cures Act)
and incrementally reduce the target PCR
by an additional 1.0 percentage point for
each calendar year, beginning with CY
2024, until the target PCR equals the
PCR of non-cancer hospitals calculated
using the most recent data minus 1.0
percentage point as required by section
16002(b) of the 21st Century Cures Act.
Therefore, utilizing this methodology
for this CY 2024 OPPS/ASC proposed
rule, we propose to reduce the CY 2023
target PCR of 0.89 by 1 percentage point
and propose a cancer hospital target
PCR of 0.88 for CY 2024.
Table 5 shows the estimated
percentage increase in OPPS payments
to each cancer hospital for CY 2024, due
BILLING CODE 4120–01–P
BILLING CODE 4120–01–C
final rule with comment period (79 FR
66832 through 66834), we set our
projected target for aggregate outlier
payments at 1.0 percent of the estimated
aggregate total payments under the
OPPS for the prospective year. Outlier
payments are provided on a service-byservice basis when the cost of a service
exceeds the APC payment amount
multiplier threshold (the APC payment
amount multiplied by a certain amount)
as well as the APC payment amount
plus a fixed-dollar amount threshold
(the APC payment plus a certain dollar
amount). In CY 2023, the outlier
threshold was met when the hospital’s
cost of furnishing a service exceeded
1.75 times the APC payment amount
(the multiplier threshold) and exceeded
the APC payment amount plus $8,625
(the fixed-dollar amount threshold) (87
FR 71788 through 71790). If the
hospital’s cost of furnishing a service
exceeds both the multiplier threshold
G. Proposed Hospital Outpatient Outlier
Payments
1. Background
The OPPS provides outlier payments
to hospitals to help mitigate the
financial risk associated with high-cost
and complex procedures, where a very
costly service could present a hospital
with significant financial loss. As
explained in the CY 2015 OPPS/ASC
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to the cancer hospital payment
adjustment policy. The actual, final
amount of the CY 2024 cancer hospital
payment adjustment for each cancer
hospital would be determined at cost
report settlement and would depend on
each hospital’s CY 2024 payments and
costs from the settled CY 2024 cost
report. We note that the requirements
contained in section 1833(t)(18) of the
Act do not affect the existing statutory
provisions that provide for TOPs for
cancer hospitals. The TOPs will be
assessed, as usual, after all payments,
including the cancer hospital payment
adjustment, have been made for a cost
reporting period.
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and the fixed-dollar threshold, the
outlier payment is calculated as 50
percent of the amount by which the
hospital’s cost of furnishing the service
exceeds 1.75 times the APC payment
amount. Beginning with CY 2009
payments, outlier payments are subject
to a reconciliation process similar to the
IPPS outlier reconciliation process for
cost reports, as discussed in the CY
2009 OPPS/ASC final rule with
comment period (73 FR 68594 through
68599).
It has been our policy to report the
actual amount of outlier payments as a
percent of total spending in the claims
being used to model the OPPS. Our
estimate of total outlier payments as a
percent of total CY 2022 OPPS
payments, using CY 2022 claims
available for this CY 2024 OPPS
proposed rule, is approximately 0.88
percent. Therefore, for CY 2022, we
estimate that we did not meet the outlier
target by 0.12 percent of total aggregated
OPPS payments.
For this proposed rule, using CY 2022
claims data and CY 2023 payment rates,
we estimate that the aggregate outlier
payments for CY 2023 would be
approximately 0.78 percent of the total
CY 2023 OPPS payments. We provide
estimated CY 2024 outlier payments for
hospitals and CMHCs with claims
included in the claims data that we used
to model impacts in the HospitalSpecific Impacts—Provider-Specific
Data file on the CMS website at: https://
www.cms.gov/Medicare/Medicare-Feefor-Service-Payment/Hospital
OutpatientPPS/.
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2. Outlier Calculation for CY 2024
For CY 2024, we propose to continue
our policy of estimating outlier
payments to be 1.0 percent of the
estimated aggregate total payments
under the OPPS. We propose that a
portion of that 1.0 percent, an amount
equal to less than 0.01 percent of outlier
payments (or 0.0001 percent of total
OPPS payments), would be allocated to
CMHCs for PHP outlier payments. This
is the amount of estimated outlier
payments that would result from the
proposed CMHC outlier threshold as a
proportion of total estimated OPPS
outlier payments. In this CY 2024
OPPS/ASC proposed rule, we propose
to modify our outlier policy and which
APCs are eligible for an outlier payment
if a CMHC’s cost for services exceeds
3.40 times the APC payment rate. The
outlier payment would be calculated as
50 percent of the amount by which the
cost exceeds 3.40 times the proposed
APC payment rate.
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For further discussion of CMHC
outlier payments, we refer readers to
section VIII.C of this proposed rule.
To ensure that the estimated CY 2024
aggregate outlier payments would equal
1.0 percent of estimated aggregate total
payments under the OPPS, we propose
that the hospital outlier threshold be set
so that outlier payments would be
triggered when a hospital’s cost of
furnishing a service exceeds 1.75 times
the APC payment amount and exceeds
the APC payment amount plus $8,350.
We calculated the proposed fixeddollar threshold of $8,350 using the
standard methodology most recently
used for CY 2023 (87 FR 71788 through
71790). For purposes of estimating
outlier payments for CY 2024, we use
the hospital-specific overall ancillary
CCRs available in the April 2023 update
to the Outpatient Provider-Specific File
(OPSF). The OPSF contains providerspecific data, such as the most current
CCRs, which are maintained by the
MACs and used by the OPPS Pricer to
pay claims. The claims that we
generally use to model each OPPS
update lag by 2 years.
In order to estimate the CY 2024
hospital outlier payments, we inflate the
charges on the CY 2022 claims using the
same proposed charge inflation factor of
1.118412 that we used to estimate the
IPPS fixed-loss cost threshold for the FY
2024 IPPS/LTCH PPS proposed rule (88
FR 27220). We used an inflation factor
of 1.05755 to estimate CY 2023 charges
from the CY 2022 charges reported on
CY 2022 claims before applying CY
2023 CCRs to estimate the percent of
outliers paid in CY 2023. The proposed
methodology for determining these
charge inflation factors is discussed in
the FY 2024 IPPS/LTCH PPS proposed
rule (88 FR 27219 through 27220). As
we stated in the CY 2005 OPPS final
rule with comment period (69 FR 65844
through 65846), we believe that the use
of the same charge inflation factors is
appropriate for the OPPS because, with
the exception of the inpatient routine
service cost centers, hospitals use the
same ancillary and cost centers to
capture costs and charges for inpatient
and outpatient services.
As noted in the CY 2007 OPPS/ASC
final rule with comment period (71 FR
68011), we are concerned that we could
systematically overestimate the OPPS
hospital outlier threshold if we did not
apply a CCR inflation adjustment factor.
Therefore, we propose to apply the same
CCR adjustment factor that we proposed
to apply for the FY 2024 IPPS outlier
calculation to the CCRs used to simulate
the proposed CY 2024 OPPS outlier
payments to determine the fixed-dollar
threshold. Specifically, for CY 2024, we
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propose to apply an adjustment factor of
0.977799 to the CCRs that were in the
April 2023 OPSF to trend them forward
from CY 2023 to CY 2024. The
methodology for calculating the
proposed CCR adjustment factor, as well
as the solicitation of comments on an
alternative approach, is discussed in the
FY 2024 IPPS/LTCH PPS proposed rule
(88 FR 27221).
To model hospital outlier payments
for the CY 2024 proposed rule, we apply
the overall CCRs from the April 2023
OPSF after adjustment (using the
proposed CCR inflation adjustment
factor of 0.977799 to approximate CY
2024 CCRs) to charges on CY 2022
claims that were adjusted (using the
proposed charge inflation factor of
1.118412 to approximate CY 2024
charges). We simulated aggregated CY
2022 hospital outlier payments using
these costs for several different fixeddollar thresholds, holding the 1.75
multiplier threshold constant and
assuming that outlier payments would
continue to be made at 50 percent of the
amount by which the cost of furnishing
the service would exceed 1.75 times the
APC payment amount, until the total
outlier payments equaled 1.0 percent of
aggregated estimated total CY 2024
OPPS payments. We estimated that a
proposed fixed-dollar threshold of
$8,350, combined with the proposed
multiplier threshold of 1.75 times the
APC payment rate, would allocate 1.0
percent of aggregated total OPPS
payments to outlier payments. For
CMHCs, we propose that, if a CMHC’s
cost for partial hospitalization or
intensive outpatient services exceeds
3.40 times the APC payment rate, the
outlier payment would be calculated as
50 percent of the amount by which the
cost exceeds 3.40 times the APC
payment rate.
Section 1833(t)(17)(A) of the Act,
which applies to hospitals, as defined
under section 1886(d)(1)(B) of the Act,
requires that hospitals that fail to report
data required for the quality measures
selected by the Secretary, in the form
and manner required by the Secretary
under section 1833(t)(17)(B) of the Act,
incur a 2.0 percentage point reduction
to their OPD fee schedule increase
factor; that is, the annual payment
update factor. The application of a
reduced OPD fee schedule increase
factor results in reduced national
unadjusted payment rates that would
apply to certain outpatient items and
services furnished by hospitals that are
required to report outpatient quality
data and that fail to meet the Hospital
Outpatient Quality Reporting (OQR)
Program requirements. For hospitals
that fail to meet the Hospital OQR
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Program requirements, we proposed to
continue the policy that we
implemented in CY 2010 that the
hospitals’ costs would be compared to
the reduced payments for purposes of
outlier eligibility and payment
calculation. For more information on
the Hospital OQR Program, we refer
readers to section XIV of this proposed
rule.
H. Proposed Calculation of an Adjusted
Medicare Payment From the National
Unadjusted Medicare Payment
The national unadjusted payment rate
is the payment rate for most APCs
before accounting for the wage index
adjustment or any applicable
adjustments. The basic methodology for
determining prospective payment rates
for HOPD services under the OPPS is set
forth in existing regulations at 42 CFR
part 419, subparts C and D. For this CY
2024 OPPS/ASC proposed rule, the
payment rate for most services and
procedures for which payment is made
under the OPPS is the product of the
conversion factor calculated in
accordance with section II.B and the
relative payment weight described in
section II.A of this proposed rule. The
national unadjusted payment rate for
most APCs contained in Addendum A
to this proposed rule (which is available
via the CMS website ‘‘Hospital
Outpatient Regulations and Notices’’
and for most HCPCS codes to which
separate payment under the OPPS has
been assigned in Addendum B to this
proposed rule (which is available on the
CMS website link above) is calculated
by multiplying the proposed CY 2024
scaled weight for the APC by the CY
2024 conversion factor.
We note that section 1833(t)(17) of the
Act, which applies to hospitals, as
defined under section 1886(d)(1)(B) of
the Act, requires that hospitals that fail
to submit data required to be submitted
on quality measures selected by the
Secretary, in the form and manner and
at a time specified by the Secretary,
incur a reduction of 2.0 percentage
points to their OPD fee schedule
increase factor, that is, the annual
payment update factor. The application
of a reduced OPD fee schedule increase
factor results in reduced national
unadjusted payment rates that apply to
certain outpatient items and services
provided by hospitals that are required
to report outpatient quality data and
that fail to meet the Hospital OQR
Program requirements. For further
discussion of the payment reduction for
hospitals that fail to meet the
requirements of the Hospital OQR
Program, we refer readers to section XIV
of this proposed rule.
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Below we demonstrate the steps used
to determine the APC payments that
will be made in a CY under the OPPS
to a hospital that fulfills the Hospital
OQR Program requirements and to a
hospital that fails to meet the Hospital
OQR Program requirements for a service
that has any of the following status
indicator assignments: ‘‘J1’’, ‘‘J2’’, ‘‘P’’,
‘‘Q1’’, ‘‘Q2’’, ‘‘Q3’’, ‘‘Q4’’, ‘‘R’’, ‘‘S’’, ‘‘T’’,
‘‘U’’, or ‘‘V’’ (as defined in Addendum
D1 to this proposed rule, which is
available via the internet on the CMS
website), in a circumstance in which the
multiple procedure discount does not
apply, the procedure is not bilateral,
and conditionally packaged services
(status indicator of ‘‘Q1’’ and ‘‘Q2’’)
qualify for separate payment. We note
that, although blood and blood products
with status indicator ‘‘R’’ and
brachytherapy sources with status
indicator ‘‘U’’ are not subject to wage
adjustment, they are subject to reduced
payments when a hospital fails to meet
the Hospital OQR Program
requirements.
Individual providers interested in
calculating the payment amount that
they would receive for a specific service
from the national unadjusted payment
rates presented in Addenda A and B to
this proposed rule (which are available
via the internet on the CMS website)
should follow the formulas presented in
the following steps. For purposes of the
payment calculations below, we refer to
the national unadjusted payment rate
for hospitals that meet the requirements
of the Hospital OQR Program as the
‘‘full’’ national unadjusted payment
rate. We refer to the national unadjusted
payment rate for hospitals that fail to
meet the requirements of the Hospital
OQR Program as the ‘‘reduced’’ national
unadjusted payment rate. The reduced
national unadjusted payment rate is
calculated by multiplying the reporting
ratio of 0.9805 times the ‘‘full’’ national
unadjusted payment rate. The national
unadjusted payment rate used in the
calculations below is either the full
national unadjusted payment rate or the
reduced national unadjusted payment
rate, depending on whether the hospital
met its Hospital OQR Program
requirements to receive the full CY 2024
OPPS fee schedule increase factor.
Step 1. Calculate 60 percent (the
labor-related portion) of the national
unadjusted payment rate. Since the
initial implementation of the OPPS, we
have used 60 percent to represent our
estimate of that portion of costs
attributable, on average, to labor. We
refer readers to the April 7, 2000 OPPS/
ASC final rule with comment period (65
FR 18496 through 18497) for a detailed
discussion of how we derived this
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percentage. During our regression
analysis for the payment adjustment for
rural hospitals in the CY 2006 OPPS
final rule with comment period (70 FR
68553), we confirmed that this laborrelated share for hospital outpatient
services is appropriate.
The formula below is a mathematical
representation of Step 1 and identifies
the labor-related portion of a specific
payment rate for a specific service.
X is the labor-related portion of the
national unadjusted payment rate.
X = .60 * (national unadjusted payment
rate).
Step 2. Determine the wage index area
in which the hospital is located and
identify the wage index level that
applies to the specific hospital. The
wage index values assigned to each area
would reflect the geographic statistical
areas (which are based upon OMB
standards) to which hospitals are
assigned for FY 2024 under the IPPS,
reclassifications through the Medicare
Geographic Classification Review Board
(MGCRB), section 1886(d)(8)(B) ‘‘Lugar’’
hospitals, and reclassifications under
section 1886(d)(8)(E) of the Act, as
implemented in § 412.103 of the
regulations. We propose to continue to
apply for the CY 2024 OPPS wage index
any adjustments for the FY 2024 IPPS
post-reclassified wage index, including,
but not limited to, the rural floor
adjustment, a wage index floor of 1.00
in frontier states, in accordance with
section 10324 of the Affordable Care Act
of 2010, and an adjustment to the wage
index for certain low wage index
hospitals. For further discussion of the
wage index we propose to apply for the
CY 2024 OPPS, we refer readers to
section II.C of this proposed rule.
Step 3. Adjust the wage index of
hospitals located in certain qualifying
counties that have a relatively high
percentage of hospital employees who
reside in the county, but who work in
a different county with a higher wage
index, in accordance with section 505 of
the Medicare Prescription Drug,
Improvement, and Modernization Act of
2003 (Pub. L. 108–173). Addendum L to
this proposed rule (which is available
via the internet on the CMS website)
contains the qualifying counties and the
associated wage index increase
developed for the proposed FY 2024
IPPS wage index, which are listed in
Table 3 associated with the FY 2024
IPPS proposed rule and available via the
internet on the CMS website at: https://
www.cms.gov/Medicare/Medicare-Feefor-Service-Payment/Acute
InpatientPPS/. (Click on the
link on the left side of the screen titled
‘‘FY 2024 IPPS Proposed Rule Home
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Page’’ and select ‘‘FY 2024 Proposed
Rule Tables.’’) This step is to be
followed only if the hospital is not
reclassified or redesignated under
section 1886(d)(8) or section 1886(d)(10)
of the Act.
Step 4. Multiply the applicable wage
index determined under Steps 2 and 3
by the amount determined under Step 1
that represents the labor-related portion
of the national unadjusted payment rate.
The formula below is a mathematical
representation of Step 4 and adjusts the
labor-related portion of the national
unadjusted payment rate for the specific
service by the wage index.
Xa is the labor-related portion of the
national unadjusted payment rate (wage
adjusted).
Xa = labor-portion of the national
unadjusted payment rate *
applicable wage index.
Step 5. Calculate 40 percent (the
nonlabor-related portion) of the national
unadjusted payment rate and add that
amount to the resulting product of Step
4. The result is the wage index adjusted
payment rate for the relevant wage
index area.
The formula below is a mathematical
representation of Step 5 and calculates
the remaining portion of the national
payment rate, the amount not
attributable to labor, and the adjusted
payment for the specific service.
Y is the nonlabor-related portion of
the national unadjusted payment rate.
Y = .40 * (national unadjusted payment
rate).
Step 6. If a provider is an SCH, as set
forth in the regulations at § 412.92, or an
EACH, which is considered to be an
SCH under section 1886(d)(5)(D)(iii)(III)
of the Act, and located in a rural area,
as defined in § 412.64(b), or is treated as
being located in a rural area under
§ 412.103, multiply the wage index
adjusted payment rate by 1.071 to
calculate the total payment.
The formula below is a mathematical
representation of Step 6 and applies the
rural adjustment for rural SCHs.
Adjusted Medicare Payment (SCH or
EACH) = Adjusted Medicare
Payment * 1.071.
Step 7. The adjusted payment rate is
the sum of the wage adjusted laborrelated portion of the national
unadjusted payment rate and the
nonlabor-related portion of the national
unadjusted payment rate.
Xa is the labor-related portion of the
national unadjusted payment rate (wage
adjusted).
Y is the nonlabor-related portion of
the national unadjusted payment rate.
Adjusted Medicare Payment = Xa + Y
We are providing examples below of
the calculation of both the full and
reduced national unadjusted payment
rates that would apply to certain
outpatient items and services performed
by hospitals that meet and that fail to
meet the Hospital OQR Program
requirements, using the steps outlined
previously. For purposes of this
example, we are using a provider that is
located in Brooklyn, New York that is
assigned to CBSA 35614. This provider
bills one service that is assigned to APC
5071 (Level 1 Excision/Biopsy/Incision
and Drainage). The proposed CY 2024
full national unadjusted payment rate
for APC 5071 is $675.15. The proposed
reduced national adjusted payment rate
for APC 5071 for a hospital that fails to
meet the Hospital OQR Program
requirements is $661.98. This reduced
rate is calculated by multiplying the
reporting ratio of 0.9805 by the full
unadjusted payment rate for APC 5071.
Step 1. The labor-related portion of
the proposed full national unadjusted
payment is approximately $405.09 (.60
* $675.15). The labor-related portion of
the proposed reduced national adjusted
payment is approximately $397.19 (.60
* $675.15).
Step 2 & 3. The FY 2024 wage index
for a provider located in CBSA 35614 in
New York, which includes the adoption
of the proposed IPPS 2024 wage index
policies, is 1.3631.
Step 4. The wage adjusted laborrelated portion of the proposed full
national unadjusted payment is
approximately $522.18 ($405.09
*1.3631). The wage adjusted laborrelated portion of the proposed reduced
national adjusted payment is
approximately $541.41 ($397.19 *
1.3631).
Step 5. The nonlabor-related portion
of the proposed full national unadjusted
payment is approximately $270.06 (.40
* $675.15). The nonlabor-related portion
of the proposed reduced national
adjusted payment is approximately
$264.79 (.40 * $661.98).
Step 6. For this example of a provider
located in Brooklyn, New York, the
rural adjustment for rural SCHs does not
apply.
Step 7. The sum of the labor-related
and nonlabor-related portions of the
proposed full national unadjusted
payment is approximately $822.24
($552.18 + $270.06). The sum of the
portions of the proposed reduced
national adjusted payment is
approximately $806.20 ($541.41 +
$264.79).
I. Proposed Beneficiary Copayments
rate (determined on a national
unadjusted basis) for that service in the
year does not exceed a specified
percentage. As specified in section
1833(t)(8)(C)(ii)(V) of the Act, the
effective copayment rate for a covered
OPD service paid under the OPPS in CY
2006, and in CYs thereafter, shall not
exceed 40 percent of the APC payment
rate.
Section 1833(t)(3)(B)(ii) of the Act
provides that, for a covered OPD service
(or group of such services) furnished in
a year, the national unadjusted
copayment amount cannot be less than
20 percent of the OPD fee schedule
amount. However, section
1833(t)(8)(C)(i) of the Act limits the
amount of beneficiary copayment that
may be collected for a procedure
(including items such as drugs and
biologicals) performed in a year to the
amount of the inpatient hospital
deductible for that year.
Section 4104 of the Affordable Care
Act eliminated the Medicare Part B
1. Background
Section 1833(t)(3)(B) of the Act
requires the Secretary to set rules for
determining the unadjusted copayment
amounts to be paid by beneficiaries for
covered OPD services. Section
1833(t)(8)(C)(ii) of the Act specifies that
the Secretary must reduce the national
unadjusted copayment amount for a
covered OPD service (or group of such
services) furnished in a year in a
manner so that the effective copayment
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coinsurance for preventive services
furnished on and after January 1, 2011,
that meet certain requirements,
including flexible sigmoidoscopies and
screening colonoscopies, and waived
the Part B deductible for screening
colonoscopies that become diagnostic
during the procedure. For a discussion
of the changes made by the Affordable
Care Act with regard to copayments for
preventive services furnished on and
after January 1, 2011, we refer readers to
section XII.B of the CY 2011 OPPS/ASC
final rule with comment period (75 FR
72013).
Section 122 of the Consolidated
Appropriations Act (CAA) of 2021 (Pub.
L. 116–260), Waiving Medicare
Coinsurance for Certain Colorectal
Cancer Screening Tests, amends section
1833(a) of the Act to offer a special
coinsurance rule for screening flexible
sigmoidoscopies and screening
colonoscopies, regardless of the code
that is billed for the establishment of a
diagnosis as a result of the test, or for
the removal of tissue or other matter or
other procedure, that is furnished in
connection with, as a result of, and in
the same clinical encounter as the
colorectal cancer screening test. We
refer readers to section X.B, ‘‘Changes to
Beneficiary Coinsurance for Certain
Colorectal Cancer Screening Tests,’’ of
the CY 2022 OPPS/ASC final rule with
comment period for the full discussion
of this policy (86 FR 63740 through
63743). Under the regulation at 42 CFR
410.152(l)(5)(i)(B), the Medicare Part B
payment percentage for colorectal
cancer screening tests described in the
regulation at § 410.37(j) that are
furnished in CY 2023 through 2026 (and
the corresponding reduction in
coinsurance) is 85 percent (with
beneficiary coinsurance equal to 15
percent).
On August 16, 2022, the Inflation
Reduction Act of 2022 (IRA) (Pub. L.
117–169) was signed into law. Section
11101(a) of the IRA amended section
1847A of the Act by adding a new
subsection (i), which requires the
payment of rebates into the
Supplementary Medical Insurance Trust
Fund for Part B rebatable drugs if the
payment limit amount exceeds the
inflation-adjusted payment amount,
which is calculated as set forth in
section 1847A(i)(3)(C) of the Act. The
provisions of section 11101 of the IRA
are currently being implemented
through program instruction, as
permitted under section 1847A(c)(5)(C)
of the Act. As such, we issued final
guidance for the computation of
inflation-adjusted beneficiary
coinsurance under section 1847A(i)(5)
of the Act and amounts paid under
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section 1833(a)(1)(EE) of the Act on
February 9, 2023.4 5 For additional
information regarding implementation
of section 11101 of the IRA, please see
the inflation rebates resources page at
https://www.cms.gov/inflationreduction-act-and-medicare/inflationrebates-medicare. We also refer readers
to the CY 2024 Medicare Physician Fee
Schedule (PFS) proposed rule for a
detailed discussion of proposals related
to inflation-adjusted beneficiary
coinsurance and Medicare payment for
Medicare Part B rebatable drugs.
Section 11101(b) of the IRA amended
sections 1833(i) and 1833(t)(8) of the
Act by adding a new paragraph (9) and
subparagraph (F), respectively. Section
1833(i)(9) requires under the ASC
payment system that in the case of a
Part B rebatable drug, in lieu of
calculation of coinsurance that would
otherwise apply under the ASC
payment system, the provisions of
section 1847A(i)(5) of the Act shall, as
determined appropriate by the
Secretary, apply for calculation of
beneficiary coinsurance in the same
manner as the provisions of section
1847A(i)(5) of the Act apply under that
section. Similarly, section 1833(t)(8)(F)
of the Act requires under the OPPS that
in the case of a Part B rebatable drug
(except for a drug that has no
copayment applied under subparagraph
(E) of such section or for which payment
is packaged into the payment for a
covered OPD service or group of
services), in lieu of the calculation of
the copayment amount that would
otherwise apply under the OPPS, the
provisions of section 1847A(i)(5) of the
Act shall, as determined appropriate by
the Secretary, apply in the same manner
as the provisions of section 1847A(i)(5)
of the Act apply under that section.
Section 1847A(i)(5) of the Act requires
that for Part B rebatable drugs, as
defined in section 1847A(i)(2)(A) of the
Act, furnished on or after April 1, 2023,
in calendar quarters in which the
amount specified in section
1847A(i)(3)(A)(ii)(I) of the Act (or, in the
case of selected drugs described under
section 1192(c) of the Act, the amount
specified in section 1847A(b)(1)(B) of
the Act), exceeds the inflation-adjusted
payment amount determined in
4 https://www.cms.gov/files/document/medicarepart-b-inflation-rebate-program-initialguidance.pdf.
5 In addition, beginning with the April 2023 ASP
Drug Pricing file, the file includes the coinsurance
percentage for each drug and specifies ‘‘inflationadjusted coinsurance’’ in the ‘‘Notes’’ column if the
coinsurance for a drug is less than 20 percent of the
Medicare Part B payment amount. Drug pricing files
are available at https://www.cms.gov/medicare/
medicare-fee-for-service-part-b-drugs/
mcrpartbdrugavgsalesprice.
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accordance with section 1847A(i)(3)(C)
of the Act, the coinsurance will be 20
percent of the inflation-adjusted
payment amount for such quarter
(hereafter, the inflation-adjusted
coinsurance amount). This inflationadjusted coinsurance amount is applied
as a percent, as determined by the
Secretary, to the payment amount that
would otherwise apply for such
calendar quarter in accordance with
section 1847A(b)(1)(B) or (C) of the Act,
as applicable, including in the case of a
selected drug.
Paragraph (9) of section 1833(i) o the
Act and subparagraph (F) of section
1833(t)(8) of the Act, as added by
section 11101(b) of the IRA, also
provide that in lieu of the amounts of
payment otherwise applicable under the
ASC payment system and OPPS, the
provisions of paragraph (1)(EE) of
subsection (a) of section 1833 of the Act
shall apply, as determined appropriate
by the Secretary. Section 11101(b) of the
IRA amended section 1833(a)(1) of the
Act by adding a new subparagraph (EE),
which requires that if the inflationadjusted payment amount of a Part B
rebatable drug exceeds the payment
amount described in section
1847A(i)(3)(A)(ii)(I) of the Act (or, in the
case of a selected drug, the payment
amount described in section
1847A(b)(1)(B) of the Act), the Part B
payment will, subject to the deductible
and sequestration, equal the difference
between such payment amount and the
inflation-adjusted coinsurance amount.
In this proposed rule, we propose to
codify the OPPS program payment and
cost sharing amounts for Part B
rebatable drugs as required by section
1833(t)(8)(F) by adding a new paragraph
(e) to § 419.41, which cross-references
the regulations proposed in the CY 2024
PFS proposed rule (§§ 410.152(m) and
489.30(b)(6)). We also propose to amend
the regulation text to reflect our
longstanding policies for calculating the
Medicare program payment and cost
sharing amounts for separately payable
drugs and biologicals by adding a new
paragraph (d) to § 419.41. Similarly, we
propose to codify the ASC cost sharing
amounts for Part B rebatable drugs as
required by section 1833(i)(9) of the Act
by revising § 416.172(d) to include a
cross-reference to 42 CFR 489.30(b)(6),
as proposed in the CY 2024 PFS
proposed rule to codify the cost sharing
amounts for Part B rebatable drugs with
prices increasing at a rate faster than
inflation. We are not proposing any
changes to the ASC regulations at 42
CFR part 416 to reflect the Medicare
payment amount for Part B rebatable
drugs with prices increasing at a rate
faster than inflation, because 42 CFR
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416.171(b) already incorporates, for the
ASC payment system, the payment
amounts that apply for the OPPS under
42 CFR part 419. Part 419 would
include our proposed new § 419.41(e),
which addresses Medicare payment for
Part B rebatable drugs under the OPPS.
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2. Proposed OPPS Copayment Policy
For CY 2024, we propose to determine
copayment amounts for new and revised
APCs using the same methodology that
we implemented beginning in CY 2004.
(We refer readers to the November 7,
2003 OPPS final rule with comment
period for a discussion of that
methodology (68 FR 63458).) In
addition, we propose to use the same
standard rounding principles that we
have historically used in instances
where the application of our standard
copayment methodology would result in
a copayment amount that is less than 20
percent and cannot be rounded, under
standard rounding principles, to 20
percent. (We refer readers to the CY
2008 OPPS/ASC final rule with
comment period (72 FR 66687) in which
we discuss our rationale for applying
these rounding principles.) The
proposed national unadjusted
copayment amounts for services payable
under the OPPS that would be effective
January 1, 2024 are included in
Addenda A and B to this proposed rule
(which are available via the internet on
the CMS website).
As discussed in section XIV.E of this
proposed rule, for CY 2024, the
Medicare beneficiary’s minimum
unadjusted copayment and national
unadjusted copayment for a service to
which a reduced national unadjusted
payment rate applies will equal the
product of the reporting ratio and the
national unadjusted copayment, or the
product of the reporting ratio and the
minimum unadjusted copayment,
respectively, for the service.
We note that OPPS copayments may
increase or decrease each year based on
changes in the calculated APC payment
rates, due to updated cost report and
claims data, and any changes to the
OPPS cost modeling process. However,
as described in the CY 2004 OPPS final
rule with comment period, the
development of the copayment
methodology generally moves
beneficiary copayments closer to 20
percent of OPPS APC payments (68 FR
63458 through 63459).
In the CY 2004 OPPS final rule with
comment period (68 FR 63459), we
adopted a new methodology to calculate
unadjusted copayment amounts in
situations including reorganizing APCs,
and we finalized the following rules to
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determine copayment amounts in CY
2004 and subsequent years.
• When an APC group consists solely
of HCPCS codes that were not paid
under the OPPS the prior year because
they were packaged or excluded or are
new codes, the unadjusted copayment
amount would be 20 percent of the APC
payment rate.
• If a new APC that did not exist
during the prior year is created and
consists of HCPCS codes previously
assigned to other APCs, the copayment
amount is calculated as the product of
the APC payment rate and the lowest
coinsurance percentage of the codes
comprising the new APC.
• If no codes are added to or removed
from an APC and, after recalibration of
its relative payment weight, the new
payment rate is equal to or greater than
the prior year’s rate, the copayment
amount remains constant (unless the
resulting coinsurance percentage is less
than 20 percent).
• If no codes are added to or removed
from an APC and, after recalibration of
its relative payment weight, the new
payment rate is less than the prior year’s
rate, the copayment amount is
calculated as the product of the new
payment rate and the prior year’s
coinsurance percentage.
• If HCPCS codes are added to or
deleted from an APC and, after
recalibrating its relative payment
weight, holding its unadjusted
copayment amount constant results in a
decrease in the coinsurance percentage
for the reconfigured APC, the
copayment amount would not change
(unless retaining the copayment amount
would result in a coinsurance rate less
than 20 percent).
• If HCPCS codes are added to an
APC and, after recalibrating its relative
payment weight, holding its unadjusted
copayment amount constant results in
an increase in the coinsurance
percentage for the reconfigured APC, the
copayment amount would be calculated
as the product of the payment rate of the
reconfigured APC and the lowest
coinsurance percentage of the codes
being added to the reconfigured APC.
We noted in the CY 2004 OPPS final
rule with comment period that we
would seek to lower the copayment
percentage for a service in an APC from
the prior year if the copayment
percentage was greater than 20 percent.
We noted that this principle was
consistent with section 1833(t)(8)(C)(ii)
of the Act, which accelerates the
reduction in the national unadjusted
coinsurance rate so that beneficiary
liability will eventually equal 20
percent of the OPPS payment rate for all
OPPS services to which a copayment
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applies, and with section 1833(t)(3)(B)
of the Act, which achieves a 20-percent
copayment percentage when fully
phased in and gives the Secretary the
authority to set rules for determining
copayment amounts for new services.
We further noted that the use of this
methodology would, in general, reduce
the beneficiary coinsurance rate and
copayment amount for APCs for which
the payment rate changes as the result
of the reconfiguration of APCs and/or
recalibration of relative payment
weights (68 FR 63459).
3. Proposed Calculation of an Adjusted
Copayment Amount for an APC Group
Individuals interested in calculating
the national copayment liability for a
Medicare beneficiary for a given service
provided by a hospital that met or failed
to meet its Hospital OQR Program
requirements should follow the
formulas presented in the following
steps.
Step 1. Calculate the beneficiary
payment percentage for the APC by
dividing the APC’s national unadjusted
copayment by its proposed payment
rate. For example, using APC 5071,
$135.03 is approximately 20 percent of
the full national unadjusted payment
rate of $675.15. For APCs with only a
minimum unadjusted copayment in
Addenda A and B to this proposed rule
with comment period (which are
available via the internet on the CMS
website), the beneficiary payment
percentage is 20 percent.
The formula below is a mathematical
representation of Step 1 and calculates
the national copayment as a percentage
of national payment for a given service.
B is the beneficiary payment
percentage.
B = National unadjusted copayment for
APC/national unadjusted payment
rate for APC.
Step 2. Calculate the appropriate
wage-adjusted payment rate for the APC
for the provider in question, as
indicated in Steps 2 through 4 under
section II.H of this proposed rule.
Calculate the rural adjustment for
eligible providers, as indicated in Step
6 under section II.H of this proposed
rule.
Step 3. Multiply the percentage
calculated in Step 1 by the payment rate
calculated in Step 2. The result is the
wage-adjusted copayment amount for
the APC.
The formula below is a mathematical
representation of Step 3 and applies the
beneficiary payment percentage to the
adjusted payment rate for a service
calculated under section II.H of this
proposed rule, with and without the
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rural adjustment, to calculate the
adjusted beneficiary copayment for a
given service.
Wage-adjusted copayment amount for
the APC = Adjusted Medicare
Payment * B.
Wage-adjusted copayment amount for
the APC (SCH or EACH) =
(Adjusted Medicare Payment *
1.071) * B.
Step 4. For a hospital that failed to
meet its Hospital OQR Program
requirements, multiply the copayment
calculated in Step 3 by the reporting
ratio of 0.9805.
The unadjusted copayments for
services payable under the OPPS that
would be effective January 1, 2024 are
shown in Addenda A and B to this
proposed rule (which are available via
the CMS website). We note that the
proposed national unadjusted payment
rates and copayment rates shown in
Addenda A and B to this proposed rule
reflect the proposed CY 2024 OPD
increase factor discussed in section II.B
of this proposed rule.
In addition, as noted earlier, section
1833(t)(8)(C)(i) of the Act limits the
amount of beneficiary copayment that
may be collected for a procedure
performed in a year to the amount of the
inpatient hospital deductible for that
year.
III. Proposed OPPS Ambulatory
Payment Classification (APC) Group
Policies
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A. Proposed OPPS Treatment of New
and Revised HCPCS Codes
Payments for OPPS procedures,
services, and items are generally based
on medical billing codes, specifically,
HCPCS codes, that are reported on
HOPD claims. HCPCS codes are used to
report surgical procedures, medical
services, items, and supplies under the
hospital OPPS. The HCPCS is divided
into two principal subsystems, referred
to as Level I and Level II of the HCPCS.
Level I is comprised of CPT (Current
Procedural Terminology) codes, a
numeric and alphanumeric coding
system that is established and
maintained by the American Medical
Association (AMA), and consists of
Category I, II, III, MAAA, and PLAA
CPT codes. Level II, which is
established and maintained by CMS, is
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a standardized coding system that is
used primarily to identify products,
supplies, and services not included in
the CPT codes. Together, Level I and II
HCPCS codes are used to report
procedures, services, items, and
supplies under the OPPS payment
system. Specifically, we recognize the
following codes on OPPS claims:
• Category I CPT codes, which
describe surgical procedures, diagnostic
and therapeutic services, and vaccine
codes;
• Category III CPT codes, which
describe new and emerging
technologies, services, and procedures;
• MAAA CPT codes, which describe
laboratory multianalyte assays with
algorithmic analyses (MAA);
• PLA CPT codes, which describe
proprietary laboratory analyses (PLA)
services; and
• Level II HCPCS codes (also known
as alpha-numeric codes), which are
used primarily to identify drugs,
devices, supplies, temporary
procedures, and services not described
by CPT codes.
The codes are updated and changed
throughout the year. CPT and Level II
HCPCS code changes that affect the
OPPS are published through the annual
rulemaking cycle and through the OPPS
quarterly update Change Requests (CRs).
Generally, these code changes are
effective January 1, April 1, July 1, or
October 1. CPT code changes are
released by the AMA (via their website)
while Level II HCPCS code changes are
released to the public via the CMS
HCPCS website. CMS recognizes the
release of new CPT and Level II HCPCS
codes outside of the formal rulemaking
process via OPPS quarterly update CRs.
Based on our review, we assign the new
codes to interim status indicators (SIs)
and APCs. These interim assignments
are finalized in the OPPS/ASC final
rules. This quarterly process offers
hospitals access to codes that more
accurately describe the items or services
furnished and provides payment for
these items or services in a timelier
manner than if we waited for the annual
rulemaking process. We solicit public
comments on the new CPT and Level II
HCPCS codes, status indicators, and
APC assignments through our annual
rulemaking process.
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We note that, under the OPPS, the
APC assignment determines the
payment rate for an item, procedure, or
service. The items, procedures, or
services not exclusively paid separately
under the hospital OPPS are assigned to
appropriate status indicators. Certain
payment status indicators provide
separate payment while other payment
status indicators do not. In section XI
‘‘Proposed CY 2024 Payment Status and
Comment Indicators’’ of this proposed
rule, we discuss the various status
indicators and comment indicators used
under the OPPS. We also provide a
complete list of the proposed status
indicators and their definitions in
Addendum D1 to this proposed rule.
1. April 2023 HCPCS Codes Proposed
Rule Comment Solicitation
For the April 2023 update, 67 new
HCPCS codes were established and
made effective on April 1, 2023.
Through the April 2023 OPPS quarterly
update CR (Transmittal 11937, Change
Request 13136, dated March 31, 2023),
we recognized several new HCPCS
codes for payment under the OPPS. In
this proposed rule, we solicit public
comments on the proposed APC and
status indicator assignments for the
codes listed in Table 6 (New HCPCS
Codes Effective April 1, 2023). The
proposed status indicator, APC
assignment, and payment rate for each
HCPCS code can be found in
Addendum B to this proposed rule. The
new codes effective April 1, 2023, are
assigned to comment indicator ‘‘NP’’ in
Addendum B to this proposed rule to
indicate that the codes are assigned to
an interim APC assignment and
comments will be accepted on their
interim APC assignments. The complete
list of proposed status indicators and
definitions used under the OPPS can be
found in Addendum D1 to this
proposed rule, while the complete list of
proposed comment indicators and
definitions can be found in Addendum
D2. We note that OPPS Addendum B
(OPPS payment file by HCPCS code),
Addendum D1 (OPPS Status Indicators),
and Addendum D2 (OPPS Comment
Indicators) are available via the internet
on the CMS website.
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For the July 2023 update, 97 new
codes were established and made
effective July 1, 2023. Through the July
2023 OPPS quarterly update CR
(Transmittal 12077, Change Request
13210, dated June 13, 2023), we
recognized several new codes for
payment and assigned them to
appropriate interim OPPS status
indicators and APCs. In this proposed
rule, we solicit public comments on the
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proposed APC and status indicator
assignments for the codes listed in Table
7 (New HCPCS Codes Effective July 1,
2023). The proposed status indicator,
APC assignment, and payment rate for
each HCPCS code can be found in
Addendum B to this proposed rule. The
complete list of proposed status
indicators and corresponding
definitions used under the OPPS can be
found in Addendum D1 to this
proposed rule. In addition, the new
codes are assigned to comment indicator
‘‘NP’’ in Addendum B to this proposed
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rule to indicate that the codes are
assigned to an interim APC assignment
and comments will be accepted on their
interim APC assignments. The complete
list of proposed comment indicators and
definitions used under the OPPS can be
found in Addendum D2 to this
proposed rule. We note that OPPS
Addendum B (OPPS payment file by
HCPCS code), Addendum D1 (OPPS
Status Indicators), and Addendum D2
(OPPS Comment Indicators) are
available via the internet on the CMS
website.
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2. July 2023 HCPCS Codes Proposed
Rule Comment Solicitation
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3. October 2023 HCPCS Codes Final
Rule Comment Solicitation
As has been our practice in the past,
we will solicit comments on the new
CPT and Level II HCPCS codes that will
be effective October 1, 2023, in the CY
2024 OPPS/ASC final rule with
comment period, thereby allowing us to
finalize the status indicators and APC
assignments for the codes in the CY
2025 OPPS/ASC final rule with
comment period. The HCPCS codes will
be released to the public through the
October 2023 OPPS Update CR and the
CMS HCPCS website while the CPT
codes will be released to the public
through the AMA website.
For CY 2024, we propose to continue
our established policy of assigning
comment indicator ‘‘NI’’ in Addendum
B to the OPPS/ASC final rule with
comment period to those new HCPCS
codes that will be effective October 1,
2023, to indicate that we are assigning
them an interim status indicator, which
is subject to public comment. We will
be inviting public comments in the CY
2024 OPPS/ASC final rule with
comment period on the status indicator
and APC assignments, which would
then be finalized in the CY 2025 OPPS/
ASC final rule with comment period.
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4. January 2024 HCPCS Codes
a. New Level II HCPCS Codes Final Rule
Comment Solicitation
Consistent with past practice, we will
solicit comments on the new Level II
HCPCS codes that will be effective
January 1, 2024, in the CY 2024 OPPS/
ASC final rule with comment period,
thereby allowing us to finalize the status
indicators and APC assignments for the
codes in the CY 2025 OPPS/ASC final
rule with comment period. Unlike the
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CPT codes that are effective January 1
and are included in the OPPS/ASC
proposed rules, and except for the
proposed new C-codes and G-codes
listed in Addendum O of this proposed
rule, most Level II HCPCS codes are not
released until sometime around
November to be effective January 1.
Because these codes are not available
until November, we are unable to
include them in the OPPS/ASC
proposed rules. Consequently, for CY
2024, we propose to include the new
Level II HCPCS codes effective January
1, 2024, in Addendum B to the CY 2024
OPPS/ASC final rule with comment
period, which would be incorporated in
the January 2024 OPPS quarterly update
CR. Specifically, for CY 2024, we
propose to continue our established
policy of assigning comment indicator
‘‘NI’’ in Addendum B to the OPPS/ASC
final rule with comment period to the
new HCPCS codes that will be effective
January 1, 2024, to indicate that we are
assigning them an interim status
indicator, which is subject to public
comment. We will be inviting public
comments in the CY 2024 OPPS/ASC
final rule with comment period on the
status indicator and APC assignments,
which would then be finalized in the
CY 2025 OPPS/ASC final rule with
comment period.
b. New CPT Codes Proposed Rule
Comment Solicitation
In the CY 2015 OPPS/ASC final rule
with comment period (79 FR 66841
through 66844), we finalized a revised
process of assigning APC and status
indicators for new and revised Category
I and III CPT codes that would be
effective January 1. Specifically, for the
new/revised CPT codes that we receive
in a timely manner from the AMA’s CPT
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Editorial Panel, we finalized our
proposal to include the codes that
would be effective January 1 in the
OPPS/ASC proposed rules, along with
proposed APC and status indicator
assignments for them, and to finalize the
APC and status indicator assignments in
the OPPS/ASC final rules beginning
with the CY 2016 OPPS update. For
those new/revised CPT codes that were
received too late for inclusion in the
OPPS/ASC proposed rule, we finalized
our proposal to establish and use
HCPCS G-codes that mirror the
predecessor CPT codes and retain the
current APC and status indicator
assignments for a year until we can
propose APC and status indicator
assignments in the following year’s
rulemaking cycle. We note that even if
we find that we need to create HCPCS
G-codes in place of certain CPT codes
for the PFS proposed rule, we do not
anticipate that these HCPCS G-codes
will always be necessary for OPPS
purposes. We will make every effort to
include proposed APC and status
indicator assignments for all new and
revised CPT codes that the AMA makes
publicly available in time for us to
include them in the proposed rule, and
to avoid resorting to use of HCPCS Gcodes and the resulting delay in
utilization of the most current CPT
codes. Also, we finalized our proposal
to make interim APC and status
indicator assignments for CPT codes
that are not available in time for the
proposed rule and that describe wholly
new services (such as new technologies
or new surgical procedures), to solicit
public comments in the final rule, and
to finalize the specific APC and status
indicator assignments for those codes in
the following year’s final rule.
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For the CY 2024 OPPS update, we
received the CPT codes that will be
effective January 1, 2024, from the AMA
in time to be included in this proposed
rule. The new, revised, and deleted CPT
codes can be found in Addendum B to
this proposed rule (which is available
via the internet on the CMS website).
We note that the new and revised CPT
codes are assigned to comment indicator
‘‘NP’’ in Addendum B of this proposed
rule to indicate that the code is new for
the next calendar year or the code is an
existing code with substantial revision
to its code descriptor in the next
calendar year as compared to the
current calendar year with a proposed
APC assignment, and that comments
will be accepted on the proposed APC
assignment and status indicator.
Further, we note that the CPT code
descriptors that appear in Addendum B
are short descriptors and do not
accurately describe the complete
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procedure, service, or item described by
the CPT code. Therefore, we are
including the 5-digit placeholder codes
and the long descriptors for the new and
revised CY 2024 CPT codes in
Addendum O, specifically under the
column labeled ‘‘CY 2024 OPPS/ASC
Proposed Rule 5-Digit AMA/CMS
Placeholder Code.’’ The final HCPCS
code numbers will be included in the
CY 2024 OPPS/ASC final rule with
comment period. In summary, we solicit
public comments on the proposed CY
2024 status indicators and APC
assignments for the new and revised
CPT codes that will be effective January
1, 2024. Because the CPT codes listed in
Addendum B appear with short
descriptors only, we list them again in
Addendum O to this proposed rule with
long descriptors. In addition, we
propose to finalize the status indicator
and APC assignments for these codes
(with their final CPT code numbers) in
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the CY 2024 OPPS/ASC final rule with
comment period. The proposed status
indicator and APC assignment for these
codes can be found in Addendum B to
this proposed rule. In addition, the
complete list of proposed comment
indicators and definitions used under
the OPPS can be found in Addendum
D2 to this proposed rule. We note that
OPPS Addendum B (OPPS payment file
by HCPCS code), Addendum D1 (OPPS
Status Indicators), and Addendum D2
(OPPS Comment Indicators) are
available via the internet on the CMS
website.
Finally, in Table 8 (Comment and
Finalization Timeframes for New and
Revised OPPS-Related HCPCS Codes)
below, we summarize our current
process for updating codes through our
OPPS quarterly update CRs, seeking
public comments, and finalizing the
treatment of these codes under the
OPPS.
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B. Proposed OPPS Changes—Variations
Within APCs
1. Background
Section 1833(t)(2)(A) of the Act
requires the Secretary to develop a
classification system for covered
hospital outpatient department services.
In addition, section 1833(t)(2)(B) of the
Act provides that the Secretary may
establish groups of covered OPD
services within this classification
system, so that services classified within
each group are comparable clinically
and with respect to the use of resources.
In accordance with these provisions, we
developed a grouping classification
system, referred to as Ambulatory
Payment Classifications (APCs), as set
forth in regulations at 42 CFR 419.31.
We use Level I (also known as CPT
codes) and Level II HCPCS codes (also
known as alphanumeric codes) to
identify and group the services within
each APC. The APCs are organized such
that each group is homogeneous both
clinically and in terms of resource use.
Using this classification system, we
have established distinct groups of
similar services. We also have
developed separate APC groups for
certain medical devices, drugs,
biologicals, therapeutic
radiopharmaceuticals, and
brachytherapy devices that are not
packaged into the payment for the
procedure.
We have packaged into the payment
for each procedure or service within an
APC group the costs associated with
those items and services that are
typically ancillary and supportive to a
primary diagnostic or therapeutic
modality and, in those cases, are an
integral part of the primary service they
support. Therefore, we do not make
separate payment for these packaged
items or services. In general, packaged
items and services include, but are not
limited to, the items and services listed
in regulations at 42 CFR 419.2(b). A
further discussion of packaged services
is included in section II.A.3 of this
proposed rule.
Under the OPPS, we generally pay for
covered hospital outpatient services on
a rate-per-service basis, where the
service may be reported with one or
more HCPCS codes. Payment varies
according to the APC group to which
the independent service or combination
of services is assigned. For CY 2024, we
propose that each APC relative payment
weight represents the hospital cost of
the services included in that APC,
relative to the hospital cost of the
services included in APC 5012 (Clinic
Visits and Related Services). The APC
relative payment weights are scaled to
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APC 5012 because it is the hospital
clinic visit APC and clinic visits are
among the most frequently furnished
services in the hospital outpatient
setting.
2. Application of the 2 Times Rule
Section 1833(t)(9)(A) of the Act
requires the Secretary to review, not less
often than annually, and revise the APC
groups, the relative payment weights,
and the wage and other adjustments
described in paragraph (2) to take into
account changes in medical practice,
changes in technology, the addition of
new services, new cost data, and other
relevant information and factors.
Section 1833(t)(9)(A) of the Act also
requires the Secretary to consult with an
expert outside advisory panel composed
of an appropriate selection of
representatives of providers to review
(and advise the Secretary concerning)
the clinical integrity of the APC groups
and the relative payment weights. We
note that the Advisory Panel on
Hospital Outpatient Payment (also
known as the HOP Panel or the Panel)
recommendations for specific services
for the CY 2024 OPPS update will be
discussed in the relevant specific
sections throughout the CY 2024 OPPS/
ASC final rule with comment period.
In addition, section 1833(t)(2) of the
Act provides that, subject to certain
exceptions, the items and services
within an APC group cannot be
considered comparable with respect to
the use of resources if the highest cost
for an item or service in the group is
more than 2 times greater than the
lowest cost for an item or service within
the same group (referred to as the ‘‘2
times rule’’). The statute authorizes the
Secretary to make exceptions to the 2
times rule in unusual cases, such as for
low-volume items and services (but the
Secretary may not make such an
exception in the case of a drug or
biological that has been designated as an
orphan drug under section 526 of the
Federal Food, Drug, and Cosmetic Act).
In determining the APCs with a 2 times
rule violation, we consider only those
HCPCS codes that are significant based
on the number of claims. We note that,
for purposes of identifying significant
procedure codes for examination under
the 2 times rule, we consider procedure
codes that have more than 1,000 single
major claims or procedure codes that
both have more than 99 single major
claims and contribute at least 2 percent
of the single major claims used to
establish the APC cost to be significant
(75 FR 71832). This longstanding
definition of when a procedure code is
significant for purposes of the 2 times
rule was selected because we believe
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that a subset of 1,000 or fewer claims is
negligible within the set of
approximately 100 million single
procedure or single session claims we
use for establishing costs. Similarly, a
procedure code for which there are
fewer than 99 single claims and that
comprises less than 2 percent of the
single major claims within an APC will
have a negligible impact on the APC
cost (75 FR 71832). In this section of
this proposed rule, for CY 2024, we
propose to make exceptions to this limit
on the variation of costs within each
APC group in unusual cases, such as for
certain low-volume items and services.
For the CY 2024 OPPS update, we
identified the APCs with violations of
the 2 times rule and we propose changes
to the procedure codes assigned to these
APCs (with the exception of those APCs
for which we propose a 2 times rule
exception) in Addendum B to this
proposed rule. We note that Addendum
B does not appear in the printed version
of the Federal Register as part of this
proposed rule. Rather, it is published
and made available via the internet on
the CMS website at: https://
www.cms.gov/Medicare/Medicare-Feefor-Service-Payment/Hospital
OutpatientPPS/Hospital-OutpatientRegulations-and-Notices. To eliminate a
violation of the 2 times rule and
improve clinical and resource
homogeneity in the APCs for which we
are not proposing a 2 times rule
exception, we propose to reassign these
procedure codes to new APCs that
contain services that are similar with
regard to both their clinical and
resource characteristics. In many cases,
the proposed HCPCS code
reassignments and associated APC
reconfigurations for CY 2024 included
in this proposed rule are related to
changes in costs of services that were
observed in the CY 2022 claims data
available for CY 2024 ratesetting.
Addendum B to this proposed rule
identifies with a comment indicator
‘‘CH’’ those procedure codes for which
we propose a change to the APC
assignment or status indicator, or both,
that were initially assigned in the July
1, 2023, OPPS Addendum B Update,
which is available via the internet on
the CMS website at: https://
www.cms.gov/Medicare/Medicare-Feefor-Service-Payment/Hospital
OutpatientPPS/Addendum-A-andAddendum-B-Updates.
3. Proposed APC Exceptions to the 2
Times Rule
Taking into account the APC changes
that we propose to make for CY 2024,
we reviewed all of the APCs for which
we identified 2 times rule violations to
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determine whether any of the APCs
would qualify for an exception. We used
the following criteria to evaluate
whether to propose exceptions to the 2
times rule for affected APCs:
• Resource homogeneity;
• Clinical homogeneity;
• Hospital outpatient setting
utilization;
• Frequency of service (volume); and
• Opportunity for upcoding and code
fragments.
For a detailed discussion of these
criteria, we refer readers to the April 7,
2000 final rule (65 FR 18457 through
18458).
Based on the CY 2022 claims data
available for this proposed rule, we
found 21 APCs with violations of the 2
times rule. We applied the criteria as
described above to identify the APCs for
which we propose to make exceptions
under the 2 times rule for CY 2024 and
found that all of the 21 APCs we
identified meet the criteria for an
exception to the 2 times rule based on
the CY 2022 claims data available for
this proposed rule. We note that, on an
annual basis, based on our analysis of
the latest claims data, we identify
violations to the 2 times rule and
propose changes when appropriate.
Those APCs that violate the 2 times rule
are identified and appear in Table 9
below. In addition, we did not include
in that determination those APCs where
a 2 times rule violation was not a
relevant concept, such as APC 5401
(Dialysis), which only has two HCPCS
codes assigned to it that have similar
geometric mean costs and do not create
a 2 times rule violation. Therefore, we
have only identified those APCs,
including those with criteria-based
costs, such as device-dependent CPT/
HCPCS codes, with violations of the 2
times rule, where a 2 times rule
violation is a relevant concept.
Table 9 of this proposed rule lists the
21 APCs for which we propose to make
an exception under the 2 times rule for
CY 2024 based on the criteria cited
above and claims data submitted
between January 1, 2022 and December
31, 2022, and processed on or before
December 31, 2022, and CCRs, if
available. The proposed geometric mean
costs for covered hospital outpatient
services for these and all other APCs
that were used in the development of
this proposed rule can be found on the
CMS website at: https://www.cms.gov/
Medicare/Medicare-Fee-for-ServicePayment/HospitalOutpatientPPS/
Hospital-Outpatient-Regulations-andNotices.
C. Proposed New Technology APCs
period in which a service can be eligible
for payment under a New Technology
APC. Beginning in CY 2002, we retain
services within New Technology APC
groups until we gather sufficient claims
data to enable us to assign the service
to an appropriate clinical APC. This
policy allows us to move a service from
1. Background
In the CY 2002 OPPS final rule (66 FR
59903), we finalized changes to the time
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a New Technology APC in less than 2
years if sufficient data are available. It
also allows us to retain a service in a
New Technology APC for more than 2
years if sufficient data upon which to
base a decision for reassignment have
not been collected.
We also adopted in the CY 2002 OPPS
final rule the following criteria for
assigning a complete or comprehensive
service to a New Technology APC: (1)
the service must be truly new, meaning
it cannot be appropriately reported by
an existing HCPCS code assigned to a
clinical APC and does not appropriately
fit within an existing clinical APC; (2)
the service is not eligible for transitional
pass-through payment (however, a truly
new, comprehensive service could
qualify for assignment to a new
technology APC even if it involves a
device or drug that could, on its own,
qualify for a pass-through payment); and
(3) the service falls within the scope of
Medicare benefits under section 1832(a)
of the Act and is reasonable and
necessary in accordance with section
1862(a)(1)(A) of the Act (66 FR 59898
through 59903). For additional
information about our New Technology
APC policy, we refer readers to https://
www.cms.gov/Medicare/Medicare-Feefor-Service-Payment/Hospital
OutpatientPPS/passthrough_payment
on the CMS website and then follow the
instructions to access the MEARISTM
system for OPPS New Technology APC
applications.
In the CY 2004 OPPS final rule with
comment period (68 FR 63416), we
restructured the New Technology APCs
to make the cost intervals more
consistent across payment levels and
refined the cost bands for these APCs to
retain two parallel sets of New
Technology APCs: one set with a status
indicator of ‘‘S’’ (Significant Procedures,
Not Discounted when Multiple. Paid
under OPPS; separate APC payment)
and the other set with a status indicator
of ‘‘T’’ (Significant Procedure, Multiple
Reduction Applies. Paid under OPPS;
separate APC payment). These current
New Technology APC configurations
allow us to price new technology
services more appropriately and
consistently.
For CY 2023, there were 52 New
Technology APC levels, ranging from
the lowest cost band assigned to APC
1491 (New Technology—Level 1A ($0–
$10)) to the highest cost band assigned
to APC 1908 (New Technology—Level
52 ($145,001–$160,000)). We note that
the cost bands for the New Technology
APCs, specifically, APCs 1491 through
1599 and 1901 through 1908, vary with
increments ranging from $10 to $14,999.
These cost bands identify the APCs to
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which new technology procedures and
services with estimated service costs
that fall within those cost bands are
assigned under the OPPS. Payment for
each APC is made at the mid-point of
the APC’s assigned cost band. For
example, payment for New Technology
APC 1507 (New Technology—Level 7
($501–$600)) is made at $550.50.
Under the OPPS, one of our goals is
to make payments that are appropriate
for the services that are necessary for the
treatment of Medicare beneficiaries. The
OPPS, like other Medicare payment
systems, is budget neutral and increases
are limited to the annual hospital
market basket increase reduced by the
productivity adjustment. We believe
that our payment rates reflect the costs
that are associated with providing care
to Medicare beneficiaries and are
adequate to ensure access to services (80
FR 70374). For many emerging
technologies, there is a transitional
period during which utilization may be
low, often because providers are first
learning about the technologies and
their clinical utility. Quite often, parties
request that Medicare make higher
payments under the New Technology
APCs for new procedures in that
transitional phase. These requests, and
their accompanying estimates for
expected total patient utilization, often
reflect very low rates of patient use of
expensive equipment, resulting in high
per-use costs for which requesters
believe Medicare should make full
payment. Medicare does not, and we
believe should not, assume
responsibility for more than its share of
the costs of procedures based on
projected utilization for Medicare
beneficiaries and does not set its
payment rates based on initial
projections of low utilization for
services that require expensive capital
equipment. For the OPPS, we rely on
hospitals to make informed business
decisions regarding the acquisition of
high-cost capital equipment, taking into
consideration their knowledge about
their entire patient base (Medicare
beneficiaries included) and an
understanding of Medicare’s and other
payers’ payment policies. We refer
readers to the CY 2013 OPPS/ASC final
rule with comment period (77 FR
68314) for further discussion regarding
this payment policy.
Some services assigned to New
Technology APCs have very low annual
volume, which we consider to be fewer
than 100 claims (86 FR 63528). Where
utilization of services assigned to a New
Technology APC is low, it can lead to
wide variation in payment rates from
year to year, resulting in even lower
utilization and potential barriers to
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access to new technologies, which
ultimately limits our ability to assign
the service to the appropriate clinical
APC. To mitigate these issues, we
finalized a policy, in the CY 2019 OPPS/
ASC final rule with comment period, to
utilize our equitable adjustment
authority at section 1833(t)(2)(E) of the
Act to adjust how we determine the
costs for low-volume services assigned
to New Technology APCs (83 FR 58892
through 58893). Specifically, in the CY
2019 OPPS/ASC final rule with
comment period (83 FR 58893), we
established that, in each of our annual
rulemakings, we would calculate and
present the result of each statistical
methodology (arithmetic mean,
geometric mean, and median) based on
up to 4 years of claims data and solicit
public comment on which methodology
should be used to establish the payment
rate for the low-volume new technology
service. In the CY 2022 OPPS/ASC final
rule (86 FR 63529), we replaced the
New Technology APC low volume
policy with the universal low volume
APC policy. Unlike the New Technology
APC low volume policy, the universal
low volume APC policy applies to
clinical APCs and brachytherapy APCs,
in addition to procedures assigned to
New Technology APCs, and uses the
highest of the geometric mean,
arithmetic mean, or median based on up
to 4 years of claims data to set the
payment rate for the APC. We refer
readers to the CY 2022 OPPS/ASC final
rule with comment period (86 FR
63529) for further discussion regarding
this policy.
Finally, we note that, in a budgetneutral system, payments may not fully
cover hospitals’ costs in a particular
circumstance, including those for the
purchase and maintenance of capital
equipment. We rely on hospitals to
make their decisions regarding the
acquisition of high-cost equipment with
the understanding that the Medicare
program must be careful to establish its
initial payment rates, including those
made through New Technology APCs,
for new services that lack hospital
claims data based on realistic utilization
projections for all such services
delivered in cost-efficient hospital
outpatient settings. As the OPPS
acquires claims data regarding hospital
costs associated with new procedures,
we regularly examine the claims data
and any available new information
regarding the clinical aspects of new
procedures to confirm that our OPPS
payments remain appropriate for
procedures as they transition into
mainstream medical practice (77 FR
68314). For CY 2024, we included the
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proposed payment rates for New
Technology APCs 1491 to 1599 and
1901 through 1908 in Addendum A to
this proposed rule (which is available
on the CMS website at https://
www.cms.gov/Medicare/Medicare-Feefor-Service-Payment/
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2. Procedures Assigned to New
Technology APC Groups for CY 2024
As we described in the CY 2002 OPPS
final rule (66 FR 59902), we generally
retain a procedure in the New
Technology APC to which it is initially
assigned until we have obtained
sufficient claims data to justify
reassignment of the procedure to a
clinically appropriate APC. In addition,
in cases where we find that our initial
New Technology APC assignment was
based on inaccurate or inadequate
information (although it was the best
information available at the time),
where we obtain new information that
was not available at the time of our
initial New Technology APC
assignment, or where the New
Technology APCs are restructured, we
may, based on more recent resource
utilization information (including
claims data) or the availability of refined
New Technology APC cost bands,
reassign the procedure or service to a
different New Technology APC that
more appropriately reflects its cost (66
FR 59903).
Consistent with our current policy, for
CY 2024, we propose to retain services
within New Technology APC groups
until we obtain sufficient claims data to
justify reassignment of the service to an
appropriate clinical APC. The flexibility
associated with this policy allows us to
reassign a service from a New
Technology APC in less than 2 years if
we have obtained sufficient claims data.
It also allows us to retain a service in
a New Technology APC for more than
2 years if we have not obtained
sufficient claims data upon which to
base a reassignment decision (66 FR
59902).
a. Administration of Subretinal
Therapies Requiring Vitrectomy (APC
1563)
Effective January 1, 2021, CMS
established HCPCS code C9770
(Vitrectomy, mechanical, pars plana
approach, with subretinal injection of
pharmacologic/biologic agent) and
assigned it to a New Technology APC
based on the geometric mean cost of
CPT code 67036 (Vitrectomy,
mechanical, pars plana approach) due to
similar resource utilization. For CY
2021, HCPCS code C9770 was assigned
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to APC 1561 (New Technology—Level
24 ($3001–$3500)). This code may be
used to describe the administration of
HCPCS code J3398 (Injection, voretigene
neparvovec-rzyl, 1 billion vector
genomes). This procedure was
previously discussed in depth in the CY
2021 OPPS/ASC final rule with
comment period (85 FR 85939 through
85940). For CY 2022, we maintained the
APC assignment of APC 1561 (New
Technology—Level 24 ($3001-$3500))
for HCPCS code C9770 (86 FR 63531
through 63532).
HCPCS code J3398 (Injection,
voretigene neparvovec-rzyl, 1 billion
vector genomes) is for a gene therapy
product indicated for a rare mutationassociated retinal dystrophy. Voretigene
neparvovec-rzyl (Luxturna®) was
approved by FDA in December of 2017
and is an adeno-associated virus vectorbased gene therapy indicated for the
treatment of patients with confirmed
biallelic RPE65 mutation-associated
retinal dystrophy.6 This therapy is
administered through a subretinal
injection, which interested parties
describe as an extremely delicate and
sensitive surgical procedure. The FDA
package insert describes one of the steps
for administering Luxturna as, ‘‘after
completing a vitrectomy, identify the
intended site of administration. The
subretinal injection can be introduced
via pars plana.’’
Interested parties, including the
manufacturer of Luxturna®,
recommended CPT code 67036
(Vitrectomy, mechanical, pars plana
approach) for the administration of the
gene therapy.7 However, the
manufacturer previously contended the
administration was not accurately
described by any existing codes as CPT
code 67036 (Vitrectomy, mechanical,
pars plana approach) does not account
for the administration itself.
CMS recognized the need to
accurately describe the unique
procedure that is required to administer
the therapy described by HCPCS code
J3398. Therefore, in the CY 2021 OPPS/
ASC proposed rule (85 FR 48832), we
proposed to establish a new HCPCS
code, C97X1 (Vitrectomy, mechanical,
pars plana approach, with subretinal
injection of pharmacologic/biologic
agent) to describe this process. We
stated that we believed this new HCPCS
code accurately described the unique
service associated with intraocular
6 Luxturna. FDA Package Insert. Available:
https://www.fda.gov/media/109906/download.
7 LUXTURNA REIMBURSEMENT GUIDE FOR
TREATMENT CENTERS. https://
mysparkgeneration.com/pdf/Reimbursement_
Guide_for_Treatment_Centers_Interactive_010418_
FINAL.pdf.
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administration of HCPCS code J3398.
We recognized that CPT code 67036
represents a clinically similar procedure
and process that approximates similar
resource utilization to C97X1. However,
we also recognized that it is not prudent
for the code that describes the
administration of this unique gene
therapy, C97X1, to be assigned to the
same C–APC to which CPT code 67036
is assigned, as this would package the
primary therapy, HCPCS code J3398,
into the code that represents the process
to administer the gene therapy.
Therefore, for CY 2021, we proposed
to assign the services described by
C97X1 to a New Technology APC with
a cost band that contains the geometric
mean cost for CPT code 67036. The
placeholder code C97X1 was replaced
by HCPCS code C9770. For CY 2021, we
finalized our proposal to create HCPCS
code C9770 (Vitrectomy, mechanical,
pars plana approach, with subretinal
injection of pharmacologic/biologic
agent), and we assigned this code to
APC 1561 (New Technology—Level 24
($3001–$3500)) using the geometric
mean cost of CPT code 67036. For CY
2022, we continued to assign HCPCS
code C9770 to APC 1561 (New
Technology—Level 24 ($3001–$3500))
using the geometric mean cost of CPT
code 67036.
CY 2023 was the first year that claims
data were available for HCPCS code
C9770; so we proposed and finalized a
policy to base the payment rate of
HCPCS code C9770 on claims data for
that code rather than on the geometric
mean cost of CPT code 67036. Given the
low number of claims for this
procedure, we designated HCPCS code
C9770 as a low volume procedure under
our universal low volume APC policy
and used the greater of the geometric
mean, arithmetic mean, or median cost
calculated based on the available claims
data to calculate an appropriate
payment rate for purposes of assigning
HCPCS code C9770 to a New
Technology APC.
Based on the claims data available for
the CY 2023 OPPS/ASC final rule, we
found the median was the statistical
methodology that estimated the highest
cost for the service. The payment rate
calculated using this methodology fell
within the cost band for New
Technology APC 1562 (New
Technology—Level 25 ($3501–$4000)).
Therefore, we finalized our proposal to
assign HCPCS code C9770 to APC 1562
for CY 2023.
CPT code 0810T 9Subretinal injection
of a pharmacologic agent, including
vitrectomy and 1 or more retinotomies)
will be effective July 1, 2023. We
recognize the similarity between HCPCS
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code C9770 and CPT code 0810T;
therefore, we propose to delete HCPCS
code C9770 effective December 31,
2023, and to recognize CPT code 0810T
starting January 1, 2024. We propose to
determine the payment rate for the
procedure using the claims data for
HCPCS code C9770. Similar to CY 2023,
for CY 2024, given that there are only
10 single frequency claims available for
ratesetting, we propose to designate CPT
code 0810T as a low volume procedure
under our universal low volume APC
policy and to use the greater of the
geometric mean, arithmetic mean, or
median cost calculated based on the
available claims data for HCPCS code
C9770 to calculate an appropriate
payment rate for purposes of assigning
CPT code 0810T to a New Technology
APC.
Using all available claims from the 4year lookback period, we determined
the geometric mean cost to be $3,944,
the arithmetic mean cost to be $4,192,
and the median cost to be $4,148.
Because the arithmetic mean is the
statistical methodology that estimated
the highest cost for the service, we
propose to use this cost to determine the
New Technology APC placement. The
arithmetic mean of $4,192 falls within
the cost band for New Technology APC
1563 (New Technology—Level 26
($4001–$4500)). Therefore, we propose
to assign CPT code 0810T to APC 1563
for CY 2024. Additionally, we propose
to perform a similar analysis using
updated claims data in the CY 2024
OPPS/ASC final rule with comment
period and update the APC placement
as needed.
Please refer to Table 10 below for the
proposed OPPS New Technology APC
and status indicator assignments for
HCPCS code C9770 and CPT code
0810T for CY 2024. The proposed CY
2024 payment rates can be found in
Addendum B to this proposed rule via
the internet on the CMS website.
b. Bronchoscopy With Transbronchial
Ablation of Lesion(s) by Microwave
Energy (APC 1562)
application for this service and the
service’s clinical similarity to existing
services paid under the OPPS, we
estimated the likely cost of the
procedure would be between $8,001 and
$8,500.
In claims data available for CY 2019
for the CY 2021 OPPS/ASC final rule
with comment period, there were four
claims reported for bronchoscopy with
transbronchial ablation of lesions by
microwave energy. Given the low
volume of claims for the service, we
proposed for CY 2021 to apply the
universal low volume APC policy we
adopted in CY 2019, under which we
utilize our equitable adjustment
authority under section 1833(t)(2)(E) of
the Act to calculate the geometric mean,
arithmetic mean, and median costs to
determine an appropriate payment rate
for purposes of assigning bronchoscopy
with transbronchial ablation of lesions
by microwave energy to a New
Technology APC. We found the
geometric mean cost for the service to be
approximately $2,693, the arithmetic
mean cost to be approximately $3,086,
and the median cost to be
approximately $3,708. The median was
the statistical methodology that
estimated the highest cost for the
service. The payment rate calculated
using this methodology fell within the
cost band for New Technology APC
1562 (New Technology—Level 25
($3501–$4000)). Therefore, we assigned
HCPCS code C9751 to APC 1562 for CY
2021.
In CY 2022, we again used the claims
data from CY 2019 for HCPCS code
C9751. Because the claims data was
unchanged from when it was used in CY
2021, the values for the geometric mean
cost ($2,693), the arithmetic mean cost
($3,086), and the median cost ($3,708)
for the service described by HCPCS code
C9751 remained the same. The highest
cost metric using these methodologies
was again the median and within the
Effective January 1, 2019, CMS
established HCPCS code C9751
(Bronchoscopy, rigid or flexible,
transbronchial ablation of lesion(s) by
microwave energy, including
fluoroscopic guidance, when performed,
with computed tomography
acquisition(s) and 3–D rendering,
computer-assisted, image-guided
navigation, and endobronchial
ultrasound (EBUS) guided transtracheal
and/or transbronchial sampling (for
example, aspiration[s]/biopsy[ies]) and
all mediastinal and/or hilar lymph node
stations or structures and therapeutic
intervention(s)). This microwave
ablation procedure utilizes a flexible
catheter to access the lung tumor via a
working channel and may be used as an
alternative procedure to a percutaneous
microwave approach. Based on our
review of the New Technology APC
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cost band for New Technology APC
1562 (New Technology—Level 25
($3,501–$4,000)). Therefore, we
continued to assign HCPCS code C9751
to APC 1562 (New Technology—Level
25 ($3,501–$4,000)), with a payment
rate of $3,750.50 for CY 2022.
There were no claims reported in CY
2020, CY 2021, or CY 2022 for HCPCS
code C9751. Therefore, for CY 2024, the
only available claims for HCPCS code
C9751 continue to be from CY 2019; and
the reported claims are the same claims
used to calculate the payment rate for
the service in the CY 2021, CY 2022,
and CY 2023 OPPS/ASC final rules with
comment period. Given the low number
of claims for this procedure, we propose
to continue to designate this procedure
as a low volume procedure under our
universal low volume policy and use
the highest of the geometric mean cost,
arithmetic mean cost, or median cost
based on up to 4 years of claims data to
assign the procedure to the appropriate
New Technology APC. Because our
proposal uses the same claims as we
used for CY 2021, CY 2022, and CY
2023, the same values for the geometric
mean cost, arithmetic mean cost, and
the median cost are used to propose a
payment rate for CY 2024. Once again,
the median ($3,708) was the statistical
methodology that estimated the highest
cost for the service. The payment rate
calculated using this methodology
continues to fall within the cost band
for New Technology APC 1562 (New
Technology—Level 25 ($3501–$4000)).
Therefore, we propose to continue to
assign HCPCS code C9751 to APC 1562
(New Technology—Level 25 ($3501–
$4000)), with a proposed payment rate
of $3,750.50 for CY 2024.
Please refer to Table 11 below for the
proposed OPPS New Technology APC
and status indicator assignment for
HCPCS code C9751 for CY 2024. The
proposed CY 2024 payment rates can be
found in Addendum B to this proposed
rule via the internet on the CMS
website.
c. Cardiac Positron Emission
Tomography (PET)/Computed
Tomography (CT) Studies (APCs 1518,
1521, and 1522)
Effective January 1, 2020, we assigned
three CPT codes (78431, 78432, and
78433) that describe the services
associated with cardiac PET/CT studies
to New Technology APCs. CPT code
78431 was assigned to APC 1522 (New
Technology—Level 22 ($2001–$2500))
with a payment rate of $2,250.50. CPT
codes 78432 and 78433 were assigned to
APC 1523 (New Technology—Level 23
($2501–$3000)) with a payment rate of
$2,750.50. We did not receive any
claims data for these services for either
of the CY 2021 or CY 2022 OPPS
proposed or final rules. Therefore, we
continued to assign CPT code 78431 to
APC 1522 (New Technology—Level 22
($2001–$2500)) with a payment rate of
$2,250.50 in CY 2021 and CY 2022.
Likewise, we continued to assign CPT
codes 78432 and 78433 to APC 1523
(New Technology—Level 23 ($2501–
$3000)) with a payment rate of
$2,750.50.
For CY 2023, we used CY 2021 claims
data to determine the payment rates for
CPT codes 78431, 78432, and 78433.
Based on our analysis of the available
claims data, for CY 2023, we assigned
CPT code 78431 to APC 1523 (New
Technology—Level 23 ($2501–$3000))
with a payment rate of $2,750.50; CPT
code 78432 to APC 1520 (New
Technology—Level 20 ($1801–$1900))
with a payment rate of $1,850.50 based
on the application of the universal lowvolume policy; and CPT code 78433 to
APC 1521 (New Technology—Level 21
($1901–$2000)) with a payment rate of
$1,950.50.
For CY 2024, the OPPS payment rates
are proposed to be based on available
CY 2022 claims data. CPT code 78431
had over 22,000 single frequency claims
in CY 2022. The geometric mean for
CPT code 78431 was approximately
$2,300, which is an amount that is
below the cost band for APC 1523 (New
Technology—Level 23 ($2501–$3000)),
where the procedure is currently
assigned. We propose, for CY 2024, that
CPT code 78431 be reassigned to APC
1522 (New Technology—Level 22
($2001–$2500)) with a payment rate of
$2,250.50. Please refer to Table 12
below for the proposed New Technology
APC and status indicator assignments
for CPT code 78431.
There were only six single frequency
claims in CY 2022 for CPT code 78432.
As this is below the threshold of 100
claims for a service within a year, we
propose to apply our universal low
volume APC policy and use the highest
of the geometric mean cost, arithmetic
mean cost, or median cost based on up
to 4 years of claims data to assign CPT
code 78432 to the appropriate New
Technology APC. Using available claims
data from CY 2021 and CY 2022, our
analysis found the geometric mean cost
of the service is approximately $1,658,
the arithmetic mean cost of the service
is approximately $1,445, and the
median cost of the service is
approximately $1,562. The geometric
mean was the statistical methodology
that estimated the highest cost for the
service. The geometric mean cost of
$1,658, is an amount that is below the
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cost band for APC 1520 (New
Technology—Level 20 ($1801–$1900)),
where the procedure is currently
assigned. Therefore, we propose, for CY
2024, to assign CPT code 78432 to APC
1518 (New Technology—Level 18
($1601–$1700)) with a payment rate of
$1,650.50. Please refer to Table 12 for
the proposed New Technology APC and
status indicator assignments for CPT
code 78432.
There were over 1200 single
frequency claims for CPT code 78433 in
CY 2022. The geometric mean for CPT
code 78433 was approximately $1,960,
which is an amount that is within the
cost band for APC 1521 (New
Technology—Level 21 ($1901–$2000)),
to which it is currently assigned.
Therefore, for CY 2024, we propose to
continue to assign CPT code 78433 to
BILLING CODE 4120–01–C
for patients with severe symptomatic
heart failure and is designed to regulate
left atrial pressure in the heart. All
participants who passed initial
screening for the study receive a right
heart catheterization procedure
described by CPT code 93451 (Right
heart catheterization including
d. V–Wave Medical Interatrial Shunt
Procedure (APC 1590)
A randomized, double-blinded,
controlled IDE study is currently in
progress for the V-Wave interatrial
shunt. The V-Wave interatrial shunt is
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APC 1521 with a payment rate of
$1,950.50.
Please refer to Table 12 below for the
proposed OPPS New Technology APC
and status indicator assignment for CPT
codes 78431, 78432, and 78433 for CY
2024. The proposed CY 2024 payment
rates can be found in Addendum B to
this proposed rule via the internet on
the CMS website.
BILLING CODE 4120–01–P
measurement(s) of oxygen saturation
and cardiac output, when performed).
Participants assigned to the
experimental group also receive the VWave interatrial shunt procedure while
participants assigned to the control
group only receive right heart
catheterization. The developer of V-
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Wave was concerned that the current
coding of these services by Medicare
would reveal to the study participants
whether they had received the
interatrial shunt because an additional
procedure code, CPT code 93799
(Unlisted cardiovascular service or
procedure), would be included on the
claims for participants receiving the
interatrial shunt. Therefore, for CY
2020, we created a temporary HCPCS
code to describe the V-Wave interatrial
shunt procedure for both the
experimental group and the control
group in the study. Specifically, we
established HCPCS code C9758 (Blinded
procedure for NYHA class III/IV heart
failure; transcatheter implantation of
interatrial shunt or placebo control,
including right heart catheterization,
trans-esophageal echocardiography
(TEE)/intracardiac echocardiography
(ICE), and all imaging with or without
guidance (for example, ultrasound,
fluoroscopy), performed in an approved
investigational device exemption (IDE)
study) to describe the service, and we
assigned the service to New Technology
APC 1589 (New Technology—Level 38
($10,001–$15,000)) with a payment rate
of $12,500.50.
In the CY 2021 OPPS/ASC final rule
with comment period (85 FR 85946), we
stated that we believe similar resources
and device costs are involved with the
V-Wave interatrial shunt procedure and
the Corvia Medical interatrial shunt
procedure (HCPCS code C9760), except
that payment for HCPCS codes C9758
and C9760 differs based on how often
the interatrial shunt is implanted when
each code is billed. An interatrial shunt
is implanted one-half of the time HCPCS
code C9758 is billed, whereas an
interatrial shunt is implanted every time
HCPCS code C9760 is billed.
Accordingly, for CY 2021, we reassigned
HCPCS code C9758 to New Technology
APC 1590 (New Technology—Level 39
($15,001–$20,000)), which reflects the
cost of receiving the interatrial shunt
one-half of the time the procedure is
performed.
For CY 2022, we used the same claims
data from CY 2019 that we did for the
CY 2021 OPPS final rule with comment
period. Because there were no claims
reporting HCPCS code C9758, we
continued to assign HCPCS code C9758
to New Technology APC 1590 with a
payment rate of $17,500.50 for CY 2022.
For CY 2023 we used claims data from
CY 2019 through CY 2022. Because
there were no claims reporting HCPCS
code C9758, we continued to assign
HCPCS code C9758 to New Technology
APC 1590 with a payment rate of
$17,500.50 for CY 2023.
For CY 2024, the OPPS payment rates
are proposed to be based on available
CY 2022 claims data. Although HCPCS
code C9758 was effective January 1,
2020, we have no claims data at this
time. Because we have no claims data,
for CY 2024, we propose to continue to
assign HCPCS code C9758 to New
Technology APC 1590 with a proposed
payment rate of $17,500.50.
Please refer to Table 13 below for the
proposed OPPS New Technology APC
and status indicator assignment for
HCPCS code C9758 for CY 2024. The
proposed CY 2024 payment rates can be
found in Addendum B to this proposed
rule via the internet on the CMS
website.
e. Corvia Medical Interatrial Shunt
Procedure (APC 1592)
exemption (ide) study) to facilitate
payment for the implantation of the
Corvia Medical interatrial shunt.
As we stated in the CY 2021 OPPS
final rule with comment period (85 FR
85947), we believe that similar
resources and device costs are involved
with the Corvia Medical interatrial
shunt procedure and the V-Wave
interatrial shunt procedure. But unlike
the V-Wave interatrial shunt, which is
implanted half the time the associated
interatrial shunt procedure described by
HCPCS code C9758 is billed, the Corvia
Medical interatrial shunt is implanted
every time the associated interatrial
shunt procedure (HCPCS code C9760) is
billed. Therefore, for CY 2021, we
assigned HCPCS code C9760 to New
Technology APC 1592 (New
Technology—Level 41 ($25,001–
$30,000)) with a payment rate of
$27,500.50. We also modified the code
descriptor for HCPCS code C9760 to
remove the phrase ‘‘or placebo control,’’
from the descriptor. In CY 2022, we
used the same claims data as was used
in the CY 2021 OPPS final rule to
determine the payment rate for HCPCS
code C9760 because there were no
claims for this service in CY 2019, the
On July 1, 2020, we established
HCPCS code C9760 (Non-randomized,
non-blinded procedure for nyha class ii,
iii, iv heart failure; transcatheter
implantation of interatrial shunt or
placebo control, including right and left
heart catheterization, transeptal
puncture, trans-esophageal
echocardiography (tee)/intracardiac
echocardiography (ice), and all imaging
with or without guidance (for example,
ultrasound, fluoroscopy), performed in
an approved investigational device
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year used for ratesetting for CY 2022.
Accordingly, we continued to assign
HCPCS code C9760 to New Technology
APC 1592 in CY 2022. For CY 2023, we
used claims data from CY 2021 through
CY 2022 to determine the payment rate
for HCPCS code C9760. Because there
were no claims for this service, we
continued to assign HCPCS code C9760
to New Technology APC 1592 in CY
2023.
For CY 2024, the OPPS payment rates
are proposed to be based on available
CY 2022 claims data. There was only
one claim for HCPCS code C9760 within
this time period. As this is below the
threshold of 100 claims for a service
within a year, we would designate
C9760 as a low volume service and
apply our universal low volume APC
policy. Under this policy, we would use
the highest of the geometric mean cost,
arithmetic mean cost, or median cost
based on up to 4 years of claims data to
assign HCPCS code C9760 to the
appropriate New Technology APC.
Using the only one claim available for
HCPCS code C9760, the geometric
mean, arithmetic mean, and median
costs are estimated to be approximately
$7945 for this service. However, because
there is only a single claim for HCPCS
code C9760, its payment rate appears to
be an outlier based on the cost
information we received from the
manufacturer. Therefore, we have
concerns that the universal low volume
APC policy calculations do not
accurately capture the cost of the
service. Therefore, we propose to
continue assigning HCPCS code C9760
to New Technology APC 1592.
Please refer to Table 14 below for the
proposed OPPS New Technology APC
and status indicator assignment for
HCPCS code C9760 for CY 2024. The
proposed CY 2024 payment rates can be
found in Addendum B to this proposed
rule via the internet on the CMS
website.
f. Supervised Visits for Esketamine SelfAdministration (APCs 1513 and 1518)
both sign a Patient Enrollment Form,
and the product must only be
administered in a certified medical
office where the health care provider
can monitor the patient.
A treatment session of esketamine
consists of instructed nasal selfadministration by the patient followed
by a period of post-administration
observation of the patient under direct
supervision of a health care
professional. Esketamine is a
noncompetitive N-methyl D-aspartate
(NMDA) receptor antagonist. It is a nasal
spray supplied as an aqueous solution
of esketamine hydrochloride in a vial
with a nasal spray device. This is the
first FDA approval of esketamine for any
use. Each device delivers two sprays
containing a total of 28 mg of
esketamine. Patients require either two
devices (for a 56 mg dose) or three
devices (for an 84 mg dose) per
treatment.
Please refer to the CY 2020 PFS final
rule and interim final rule for more
information about supervised visits for
esketamine nasal spray self-
administration (84 FR 63102 through
63105).
To facilitate prompt beneficiary
access to the new, potentially life-saving
treatment for TRD using esketamine, we
created two new HCPCS G codes, G2082
and G2083, effective January 1, 2020.
HCPCS code G2082 is for an outpatient
visit for the evaluation and management
of an established patient who requires
the supervision of a physician or other
qualified health care professional and
provision of up to 56 mg of esketamine
through nasal self-administration and
includes two hours of postadministration observation. For CY
2020, HCPCS code G2082 was assigned
to New Technology APC 1508 (New
Technology—Level 8 ($601–$700)) with
a payment rate of $650.50. HCPCS code
G2083 describes a similar service to
HCPCS code G2082 but involves the
administration of more than 56 mg of
esketamine. For CY 2020, HCPCS code
G2083 was assigned to New Technology
APC 1511 (New Technology—Level 11
($901–$1000)) with a payment rate of
$950.50. Please see the CY 2021 OPPS/
On March 5, 2019, FDA approved
SpravatoTM (esketamine) nasal spray,
used in conjunction with an oral
antidepressant, for treatment of
depression in adults who have tried
other antidepressant medicines but have
not benefited from them (treatmentresistant depression (TRD)). Because of
the risk of serious adverse outcomes
resulting from sedation and dissociation
caused by esketamine nasal spray
administration, and the potential for
misuse of the product, it is only
available through a restricted
distribution system under a Risk
Evaluation and Mitigation Strategy
(REMS). A REMS is a drug safety
program that FDA can require for
certain medications with serious safety
concerns to help ensure the benefits of
the medication outweigh its risks.
Patients must be monitored by a health
care provider for at least 2 hours after
receiving their esketamine nasal spray
dose, the prescriber and patient must
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ASC final rule with comment period (85
FR 85948), CY 2022 OPPS/ASC final
rule with comment period (86 FR
63538), and the CY 2023 OPPS/ASC
final rule with comment period (87 FR
71816–71817) for the updates to the
APC assignments for G2082 and G2083
we have made in past rules.
For CY 2024, the OPPS payment rates
are proposed to be based on available
CY 2022 claims data as the available
single frequency claims exceed the 100
claims threshold generally used for our
universal low volume policy. Therefore,
for CY 2024, we propose to assign
HCPCS codes G2082 and G2083 to New
Technology APCs based on the codes’
geometric mean costs. Specifically, we
propose to assign HCPCS code G2082 to
New Technology APC 1513 (New
Technology—Level 13 ($1101–$1200))
with a payment rate of $1,150.50 based
on its geometric mean cost of $1,138,
which was calculated using the
available 294 single frequency claims
from CY 2022 claims data. We also
propose to assign HCPCS code G2083 to
New Technology APC 1518 (New
Technology—Level 18 ($1601–$1700))
with a payment rate of $1,650.50 based
on its geometric mean cost of $1,693,
which was calculated using the
available 1581 single frequency claims
from CY 2022 claims data. We note, as
we have begun to gather adequate
claims data on these codes, we are
considering placing HCPCS codes
G2082 and G2083 in clinical APCs
through future rulemaking.
The proposed New Technology APC
and status indicator assignments for
HCPCS codes G2082 and G2083 are
shown in Table 15. The proposed CY
2024 payment rates for these HCPCS
codes can be found in Addendum B to
this proposed rule.
g. DARI Motion Procedure (APC 1505)
therapy and rehabilitation. The
technology consists of eight cameras
that surround a patient, which send live
video to a computer workstation that
analyzes the video to create a 3D
reconstruction of the patient without the
need for special clothing, markers, or
devices attached to the patient’s
clothing or skin. For CY 2022, we
assigned CPT code 0693T to New
Technology APC 1505 (New
Technology—Level 5 ($301–$400)). For
CY 2023, the OPPS payment rates were
based on claims submitted between
January 1, 2021, and December 31, 2021,
processed through June 30, 2022. Due to
its effective date of January 1, 2022,
there were no claims available for CPT
code 0693T for rate setting in CY 2023.
Therefore, in CY 2023, we continued to
assign CPT code 0693T to New
Technology APC 1505.
For CY 2024, the OPPS payment rates
are proposed to be based on available
CY 2022 claims data. Although CPT
code 0693T was effective January 1,
Effective January 1, 2022, CPT code
0693T (Comprehensive full body
computer-based markerless 3D
kinematic and kinetic motion analysis
and report) is associated with the DARI
Motion Procedure, a service that
provides human motion analysis to aid
clinicians in pre- and post-operative
surgical intervention and in making
other treatment decisions, including
selecting the best course of physical
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2022, we have no claims data at this
time. Because we have no claims data,
for CY 2024, we propose to continue to
assign CPT code 0693T to APC 1505
with a proposed payment rate of
$350.50.
Please refer to Table 16 below for the
proposed OPPS New Technology APC
and status indicator assignment for CPT
code 0693T for CY 2024. The proposed
CY 2024 payment rates can be found in
Addendum B to this proposed rule via
the internet on the CMS website.
h. Liver Histotripsy Service (APC 1575)
CPT code 0686T (Histotripsy (i.e.,
non-thermal ablation via acoustic
energy delivery) of malignant
hepatocellular tissue, including image
guidance) was first effective July 1,
2021, and describes the histotripsy
service associated with the use of the
HistoSonics system. Histotripsy is a
non-invasive, non-thermal, mechanical
process that uses a focused beam of
sonic energy to destroy cancerous liver
tumors and is currently in a nonrandomized, prospective clinical trial to
evaluate the efficacy and safety of the
device for the treatment of primary or
metastatic tumors located in the liver.8
When HCPCS code 0686T was first
effective, the histotripsy procedure was
designated as a Category A IDE clinical
study (NCT04573881). Since devices in
Category A IDE studies are excluded
from Medicare payment, payment for
CPT code 0686T only reflected the cost
of the service that is performed each
time it is reported on a claim. For CY
2023, we assigned CPT code 0686T to
New Technology APC 1575 (New
Technology—Level 38 ($10,000–
$15,000) with a payment rate of
$12,500. However, on March 2, 2023,
the histotripsy IDE clinical study was
re-designated as a Category B (Nonexperimental/Investigational) IDE study.
Due to this new designation, the
proposed payment for CPT code 0686T
in CY 2024 would reflect payment for
both the service that is performed and
the device used each time it is reported
on a claim.
For CY 2024, the OPPS payment rates
are proposed to be based on available
CY 2022 claims data. There are only two
claims for CPT code 0686T within this
time period. We note that 0686T was
still designated as a Category A IDE
study for these claims and therefore, the
payment for these claims only included
payment for the cost of the service. As
the available claims data is below the
threshold of 100 claims for a service
within a year, we could propose to
designate CPT code 0686T as a low
volume service under our universal low
volume APC policy, and use the highest
of the geometric mean cost, arithmetic
mean cost, or median cost to assign CPT
code 0686T to the appropriate New
Technology APC. Based on the two
available claims in CY 2022, when CPT
code 0686T was still designated as a
Category A IDE study, the geometric
mean is estimated to be: $4,466; the
median is estimated to be: $4,480; and
the arithmetic mean is estimated to be:
$4,480. Because $4,480 is the greatest of
these methodologies, we would use this
value to set the payment rate for CPT
code 0686T. However, we have
concerns that the available claims data
and universal low volume APC policy
calculations would not accurately
capture the cost of the service following
its approval as a Category B IDE study
in March of 2023. If 0686T were still
designated as a Category A IDE study,
then the two claims available would be
appropriate to set its payment rate, as
the claims reflect the cost of the service
and exclude the cost of the device.
However, because CPT code 0686T was
approved as a Category B IDE study,
meaning Medicare coverage and
payment of the device is no longer
statutorily prohibited, the two CY 2022
claims available would not accurately
capture the cost of 0686T for CY 2024.
Therefore, based on the service costs
reflected in the available claims and our
estimates of the cost of the Category B
device, for CY 2024, we propose to
maintain CPT code 0686T’s current APC
assignment. Specifically, we propose to
assign CPT code 0686T to APC 1575
(New Technology—Level 38 ($10,001–
$15,000)) with a payment rate of
$12,500.50.
Please refer to Table 17 below for the
proposed OPPS New Technology APC
and status indicator assignment for CPT
code 0686T for CY 2024. The proposed
CY 2024 payment rates can be found in
Addendum B to this proposed rule via
the internet on the CMS website.
8 ClinicalTrials.gov. ‘‘The HistoSonics System for
Treatment of Primary and Metastatic Liver Tumors
Using Histotripsy (#HOPE4LIVER)
(#HOPE4LIVER).’’ Accessed May 10, 2022. https://
clinicaltrials.gov/ct2/show/study/NCT04573881.
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i. Liver Multiscan Service (APC 1505)
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Effective July 1, 2021, CPT codes
0648T (Quantitative magnetic resonance
for analysis of tissue composition (e.g.,
fat, iron, water content), including
multiparametric data acquisition, data
preparation and transmission,
interpretation and report, obtained
without diagnostic mri examination of
the same anatomy (e.g., organ, gland,
tissue, target structure) during the same
session; single organ) and 0649T
(Quantitative magnetic resonance for
analysis of tissue composition (e.g., fat,
iron, water content), including
multiparametric data acquisition, data
preparation and transmission,
interpretation and report, obtained with
diagnostic mri examination of the same
anatomy (e.g., organ, gland, tissue, target
structure); single organ (list separately
in addition to code for primary
procedure)) are associated with the
Liver MultiScan service. LiverMultiScan
is a Software as a medical Service (SaaS)
that is intended to aid the diagnosis and
management of chronic liver disease,
the most prevalent of which is NonAlcoholic Fatty Liver Disease (NAFLD).
It provides standardized, quantitative
imaging biomarkers for the
characterization and assessment of
inflammation, hepatocyte ballooning,
and fibrosis, as well as steatosis, and
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iron accumulation. LiverMultiScan
receives MR images acquired from
patients’ providers and analyzes the
images using their proprietary Artificial
Intelligence (AI) algorithms. It then
sends the providers a quantitative
metric report of the patient’s liver
fibrosis and inflammation. For CY 2023,
we assigned CPT codes 0648T and
0649T to New Technology APC 1511
(New Technology—Level 11 ($901–
$1,000) with a payment rate of $950.50.
For CY 2024, the OPPS payment rates
are proposed to be based on available
CY 2022 claims data. We identified only
39 claims each for CPT code 0648T and
CPT code 0649T during this time
period. As this is below the threshold of
100 claims for a service within a year,
we propose to apply our universal low
volume APC policy and use the highest
of the geometric mean cost, arithmetic
mean cost, or median cost based on up
to 4 years of claims data to assign CPT
codes 0648T and 0649T to the
appropriate New Technology APC.
There are available claims data from CY
2021 and CY 2022 for CPT codes 0648T
and 0649T. Our analysis of the data for
CPT code 0648T found the geometric
mean cost of the service is
approximately $269, the arithmetic
mean cost of the service is
approximately $320, and the median
cost of the service is approximately
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$313. Our analysis of the data for CPT
code 0649T found the geometric mean
cost of the service is approximately
$102, the arithmetic mean cost of the
service is approximately $136, and the
median cost of the service is
approximately $83. The arithmetic
mean was the statistical methodology
that estimated the highest cost for CPT
codes 0648T and 0649T. In accordance
to our SaaS Add-on Codes policy (87 FR
72032 to 72033), SaaS CPT add-on
codes are assigned to the identical APCs
and the same status indicator
assignments as their standalone codes.
Consistent with our SaaS Add-on Codes
policy, CPT code 0649T, the add-on
code for LiverMultiScan would be
assigned to the identical APC and status
indicator to CPT code 0648T, the
standalone code for the same service.
Therefore, we propose, for CY 2024, to
assign CPT codes 0648T and 0649T to
APC 1505 (New Technology—Level 5
($301–$400)) with a payment rate of
$350.50.
Please refer to Table 18 below for the
proposed OPPS New Technology APC
and status indicator assignments for
CPT codes 0648T and 0649T for CY
2024. The proposed CY 2024 payment
rates can be found in Addendum B to
this proposed rule via the internet on
the CMS website.
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j. Minimally Invasive Glaucoma Surgery
(MIGS) (APC 5493)
Prior to CY 2022, extracapsular
cataract removal with insertion of
intraocular lens was reported using CPT
codes describing cataract removal
alongside a CPT code for device
insertion. Specifically, the procedure
was described using CPT codes 66982
(Extracapsular cataract removal with
insertion of intraocular lens prosthesis
(1-stage procedure), manual or
mechanical technique (for example,
irrigation and aspiration or
phacoemulsification), complex,
requiring devices or techniques not
generally used in routine cataract
surgery (for example, iris expansion
device, suture support for intraocular
lens, or primary posterior
capsulorrhexis) or performed on
patients in the amblyogenic
developmental stage; without
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endoscopic cyclophotocoagulation) or
66984 (Extracapsular cataract removal
with insertion of intraocular lens
prosthesis (1-stage procedure), manual
or mechanical technique (for example,
irrigation and aspiration or
phacoemulsification); without
endoscopic cyclophotocoagulation) and
0191T (Insertion of anterior segment
aqueous drainage device, without
extraocular reservoir, internal approach,
into the trabecular meshwork; initial
insertion).
For CY 2022, the AMA’s CPT
Editorial Panel created two new
Category I CPT codes describing
extracapsular cataract removal with
insertion of intraocular lens prosthesis,
specifically, CPT codes 66989
(Extracapsular cataract removal w/IOL
insertion, complex; with insertion of
intraocular (e.g., trabecular meshwork,
supraciliary, suprachoroidal) anterior
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segment aqueous drainage device,
without extraocular reservoir, internal
approach, one or more) and 66991
(Extracapsular cataract removal w/IOL
insertion; with insertion of intraocular
(e.g., trabecular meshwork, supraciliary,
suprachoroidal) anterior segment
aqueous drainage device, without
extraocular reservoir, internal approach,
one or more); deleted a Category III CPT
code, specifically, CPT code 0191T,
describing insertion of anterior segment
aqueous drainage device; and created a
new Category III CPT code, specifically,
CPT code 0671T, describing anterior
segment aqueous drainage device
without concomitant cataract removal.
For CY 2022, we finalized the
assignment of CPT codes 66989 and
66991 to New Technology APC 1563
(New Technology—Level 26 ($4,001–
$4,500)). We stated that we believed that
the change in coding for MIGS is
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significant in that it changes
longstanding billing for the service from
reporting two separate CPT codes to
reporting a single bundled code.
Without claims data, and given the
magnitude of the coding change, we
explained that we did not believe we
had the necessary information on the
costs associated with CPT codes 66989
and 66991 to assign them to a clinical
APC at that time. We maintained these
APC assignments for CY 2023.
For CY 2023, the payment rates were
based on claims data submitted between
January 1, 2021, and December 31, 2021,
and processed on or before June 30,
2022, and CCRs, if available. Because
CPT codes 66989 and 66991 were
effective January 1, 2022, and we had no
claims data for CY 2022, we finalized
continued assignment of CPT codes
66989 and 66991 to New Technology
APC 1563.
For CY 2024, the OPPS payment rates
are proposed to be based on available
CY 2022 claims data. For CY 2024,
based on our analysis of claims data, we
found a total of 898 single frequency
claims and an estimated geometric mean
cost of $5,241.55 for CPT code 66989
and a total of 5,576 single frequency
claims and an estimated geometric mean
cost of $4,957.01 for CPT code 66991.
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Given the claims volume, we believe it
is appropriate to reassign the service to
a clinical APC using our regular process
of using the most recent year of claims
data for a procedure. Upon review, we
determined that the most appropriate
clinical APC family for CPT codes
66989 and 66991 would be the
Intraocular Procedures APC family (APC
5491 through 5495). However, there was
a large payment rate difference between
the level 2 Intraocular Procedures APC
(APC 5492), which has a payment rate
of $3,970.62, and the level 3 Intraocular
Procedures APC (APC 5493), which has
a payment rate of $14,067.62. Assigning
CPT codes 66989 and 66991 to either
APC 5492 or 5493 would result in a
payment rate that would not reflect the
cost for these procedures.
Therefore, given the significant
difference in payment between APC
5492 and APC 5493, we believe it is
appropriate to restructure the
Intraocular Procedures APC family.
Specifically, we propose to create a
sixth level in the Intraocular Procedures
APC family by dividing APC 5492 into
two APCs—an APC for services with a
geometric mean cost of less than $5,000
and an APC for services with a
geometric mean cost of greater than, or
equal to, $5,000. We believe that the
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creation of an additional level in the
Intraocular APC family will create a
smoother distribution of the costs
between the different levels based on
their resource costs and clinical
characteristics. See section III.E. (OPPS
APC-Specific Policies: Intraocular
Procedures) of this proposed rule for a
detailed discussion of our proposal to
restructure the Intraocular Procedures
APC family. Reorganizing the
Intraocular Procedures APCs would
create a proposed Level 3 APC to be
referred to as ‘‘Proposed APC 5493’’
with a payment rate of approximately
$5,110.58 which is closer to the
geometric mean of CPT codes 66989 and
66991. We note that, although these
services have different estimated
geometric mean costs, interested parties
have indicated that it is preferable that
they be placed within the same APC due
to clinical similarity; therefore, we
propose to reassign CPT codes 66989
and 66991 to Proposed APC 5493 for CY
2024.
The proposed clinical APC and status
indicator assignments for CPT codes
66989 and 66991 are found in Table 19.
The proposed CY 2024 payment rates
can be found in Addendum B to this
proposed rule.
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k. Scalp Cooling (APC 1514)
CPT code 0662T (Scalp cooling,
mechanical; initial measurement and
calibration of cap) became effective on
July 1, 2021, to describe initial
measurement and calibration of a scalp
cooling device for use during
chemotherapy administration to prevent
hair loss. According to Medicare’s
National Coverage Determination (NCD)
policy, specifically, NCD 110.6 (Scalp
Hypothermia During Chemotherapy to
Prevent Hair Loss), the scalp cooling cap
itself is classified as an incident to
supply to a physician service, and
would not be paid under the OPPS;
however, interested parties have
indicated that there are substantial
resource costs of around $1,900 to
$2,400 associated with calibration and
fitting of the cap. CPT guidance states
that CPT code 0662T should be billed
once per chemotherapy session, which
we interpret to mean once per course of
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1. Optellum Lung Cancer Prediction
(LCP) (APC 1508)
CPT codes 0721T (Quantitative
computed tomography (CT) tissue
characterization, including
interpretation and report, obtained
without concurrent CT examination of
any structure contained in previously
acquired diagnostic imaging) and 0722T
(Quantitative computed tomography (ct)
tissue characterization, including
interpretation and report, obtained with
concurrent ct examination of any
structure contained in the concurrently
acquired diagnostic imaging dataset (list
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chemotherapy. Therefore, if a course of
chemotherapy involves, for example, 6
or 18 sessions, HOPDs should report
CPT 0662T only once for that 6 or 18
therapy sessions. For CY 2022, we
assigned CPT code 0662T to APC New
Technology 1520 (New Technology—
Level 20 ($1,801–$1,900)) with a
payment rate of $1,850.50. For CY 2023,
we did not have any claims data; so we
continued to assign CPT code 0662T to
APC 1520.
For CY 2024, the OPPS payment rates
are proposed to be based on available
CY 2022 claims data. The Scalp Cooling
service became effective in the OPPS in
CY 2022, and we have identified 11
single frequency paid claims for CPT
code 0662T for CY 2022. As this is
below the threshold of 100 claims for a
service within a year, we propose to
designate CPT code 0662T as a low
volume service under our universal low
volume APC policy and to use the
highest of the geometric mean cost,
arithmetic mean cost, or median cost
based on up to 4 years of claims data to
assign the service to the appropriate
New Technology APC. Based on our
review of the available claims, the
geometric mean cost for CPT code
0662T is $831.16; the median is
$797.63; and the arithmetic mean is
$1,284.59. Therefore, for CY 2024, we
propose to designate this service as a
low volume service under our universal
low volume APC policy and reassign
CPT code 0662T to APC 1514 (New
Technology—Level 14 ($1,201–$1,300))
with a payment rate of $1,250.50 for CY
2024 based on the arithmetic mean of
$1,284.59.
Please refer to Table 20 below for the
proposed OPPS New Technology APC
and status indicator assignment for CPT
code 0662T. The proposed CY 2024
payment rates can be found in
Addendum B to this proposed rule via
the internet on the CMS website.
separately in addition to code for
primary procedure)) became effective
July 1, 2022, and are associated with the
Optellum LCP technology. The
Optellum LCP applies an algorithm to a
patient’s CT scan to produce a raw risk
score for a patient’s pulmonary nodule.
The physician uses the risk score to
quantify the risk of lung cancer and to
determine what the next management
step should be for the patient (e.g., CT
surveillance versus invasive procedure).
For CY 2023, we assigned CPT codes
0721T and 0722T to APC New
Technology 1508 (New Technology—
Level 8 ($601–$700)).
For CY 2024, the OPPS payment rates
are proposed to be based on available
CY 2022 claims data. There are no
claims available for CPT codes 0721T
and 0722T. Therefore, for CY 2024, we
propose to continue assigning CPT
codes 0721T and 0722T to New
Technology APC 1508.
Please refer to Table 21 below for the
proposed OPPS New Technology APC
and status indicator assignment for
HCPCS codes 0721T and 0722T for CY
2024. The proposed CY 2024 payment
rates can be found in Addendum B to
this proposed rule via the internet on
the CMS website.
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m. Quantitative Magnetic Resonance
Cholangiopancreatography (QMRCP)
(APC 1511)
Effective July 1, 2022, CPT codes
0723T (Quantitative magnetic resonance
cholangiopancreatography (QMRCP)
including data preparation and
transmission, interpretation and report,
obtained without diagnostic magnetic
resonance imaging (MRI) examination of
the same anatomy (e.g., organ, gland,
tissue, target structure) during the same
session) and 0724T (Quantitative
magnetic resonance
cholangiopancreatography (qmrcp),
including data preparation and
transmission, interpretation and report,
obtained with diagnostic magnetic
resonance imaging (mri) examination of
the same anatomy (e.g., organ, gland,
tissue, target structure) (list separately
in addition to code for primary
procedure)) are associated with the
QMRCP Software as a medical Service
(SaaS). The service performs
quantitative assessment of the biliary
tree and gallbladder. It uses a
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proprietary algorithm that produces a
three-dimensional reconstruction of the
biliary tree and pancreatic duct and also
provides precise quantitative
information of biliary tree volume and
duct metrics. For CY 2023, we assigned
CPT codes 0723T and 0724T to New
Technology APC 1511 (New
Technology—Level 11 ($900–$1,000)).
For CY 2024, the OPPS payment rates
are proposed to be based on available
CY 2022 claims data. For CPT code
0723T, there were no claims during this
time period. Because there are no claims
available, we propose to continue to
assign CPT code 0723T to New
Technology APC 1511 with a payment
rate of $950.50.
For CPT code 0724T, there was only
one claim for CY 2022. As this is below
the threshold of 100 claims for a service
within a year, we could propose to
designate CPT code 0724T as a low
volume service under our universal low
volume APC policy and use the highest
of the geometric mean cost, arithmetic
mean cost, or median cost based on up
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to 4 years of claims data to assign the
service to an appropriate New
Technology APC. Because there is only
one claim available, the geometric
mean, arithmetic mean, and median
costs are estimated to be $26 for this
service. However, because there is only
a single claim for CPT code 0724T, the
single claim available appears to be an
outlier based on the cost information we
received from the manufacturer.
Therefore, we have concerns that the
universal low volume APC policy
calculations do not accurately capture
the cost of the service. Therefore, for CY
2024, we propose to continue assigning
CPT code 0724T to New Technology
APC 1511 with a payment rate of
$950.50.
Please refer to Table 22 below for the
proposed OPPS New Technology APC
and status indicator assignment for
HCPCS code 0724T for CY 2024. The
proposed CY 2024 payment rates can be
found in Addendum B to this proposed
rule via the internet on the CMS
website.
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n. CardiAMP (APC 1590)
The CardiAMP cell therapy IDE
studies are two randomized, doubleblinded, controlled IDE studies: The
CardiAMP Cell Therapy Chronic
Myocardial Ischemia Trial 9 and the
CardiAMP Cell Therapy Heart Failure
Trial.10 The two trials are designed to
investigate the safety and efficacy of
autologous bone marrow mononuclear
cells treatment for the following: (1)
Patients with medically refractory and
symptomatic ischemic cardiomyopathy;
and (2) patients with refractory angina
pectoris and chronic myocardial
ischemia. On April 1, 2022, we
established HCPCS code C9782 to
describe the CardiAMP cell therapy IDE
studies and assigned HCPCS code
C9782 to APC 1574 (New Technology—
Level 37 ($9,501–$10,000)) with the
status indicator ‘‘T.’’ We subsequently
revised the descriptor for HCPCS code
C9782 to: (Blinded procedure for New
York Heart Association (NYHA) Class II
or III heart failure, or Canadian
Cardiovascular Society (CCS) Class III or
IV chronic refractory angina;
transcatheter intramyocardial
transplantation of autologous bone
marrow cells (e.g., mononuclear) or
placebo control, autologous bone
marrow harvesting and preparation for
transplantation, left heart
catheterization including
ventriculography, all laboratory
services, and all imaging with or
without guidance (e.g., transthoracic
echocardiography, ultrasound,
fluoroscopy), all device(s), performed in
an approved Investigational Device
Exemption (IDE) study) to clarify the
inclusion of the Helix transendocardial
injection catheter device in the
descriptor. Additionally, we determined
that APC 1590 (New Technology—Level
39 ($15,001–$20,000)) most accurately
accounted for the resources associated
with furnishing the procedure described
by HCPCS code C9782.
For CY 2024, the OPPS payment rates
are proposed to be based on available
CY 2022 claims data. There are no
available claims for ratesetting for CY
2024. Therefore, for CY 2024, we
propose to continue assigning HCPCS
code C9782 to New Technology APC
1590 with a payment rate of $17,050.50.
Please refer to Table 23 below for the
proposed OPPS New Technology APC
and status indicator assignment for
HCPCS code C9782 for CY 2024. The
proposed CY 2024 payment rates can be
found in Addendum B to this proposed
rule via the internet on the CMS
website.
9 ClinicalTrials.gov. ‘‘Randomized Controlled
Pivotal Trial of Autologous Bone Marrow Cells
Using the CardiAMP Cell Therapy System in
Patients With Refractory Angina Pectoris and
Chronic Myocardial Ischemia.’’ Accessed May 10,
2022. https://clinicaltrials.gov/ct2/show/
NCT03455725?term=NCT03455725&rank=1.
10 ClinicalTrials.gov. ‘‘Randomized Controlled
Pivotal Trial of Autologous Bone Marrow
Mononuclear Cells Using the CardiAMP Cell
Therapy System in Patients With Post Myocardial
Infarction Heart Failure.’’ Accessed May 10, 2022.
https://clinicaltrials.gov/ct2/show/NCT02438306.
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o. Surfacer® Inside-Out® Access
Catheter System (APC 1534)
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HCPCS code C9780 (Insertion of
central venous catheter through central
venous occlusion via inferior and
superior approaches (e.g., inside-out
technique), including imaging guidance)
describes the procedure associated with
the use of the Surfacer® Inside-Out®
Access Catheter System that is designed
to address central venous occlusion.
p. Insertion or Replacement of
Neurostimulator System for Treatment
of Central Sleep Apnea; Complete
System (APC 1580)
HCPCS code 0424T (Insertion or
replacement of a neurostimulator
system for treatment of central sleep
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HCPCS code C9780 was established on
October 1, 2021, and since its
establishment the code has been
assigned to New Technology APC 1534
(New Technology—Level 34 ($8,001–
$8,500)).
For CY 2024, the OPPS payment rates
are proposed to be based on available
CY 2022 claims data. Although HCPCS
code C9780 was effective October 1,
2021, we have no claims data at this
time. Because we have no claims data
available, for CY 2024, we propose to
continue to assign HCPCS code C9780
to APC 1534 with a proposed payment
rate of $8,250.50.
Please refer to Table 24 below for the
proposed OPPS New Technology APC
and status indicator assignment for
HCPCS code C9780 for CY 2024. The
proposed CY 2024 payment rates can be
found in Addendum B to this proposed
rule via the internet on the CMS
website.
apnea; complete system (transvenous
placement of right or left stimulation
lead, sensing lead, implantable pulse
generator)) is associated with the use of
the Remede® System, which is used to
treat adult patients with moderate to
severe Central Sleep Apnea. HCPCS
code 0424T was first effective in January
1, 2016, and subsequently assigned to
Comprehensive APC 5464
(Neurostimulator and Related
Procedures APC—Level 4). For CY 2021,
we created a 5-level structure for the
Neurostimulator and Related Procedure
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APC series, and consequently, assigned
HCPCS code 0424T to the highest level
in the series: Comprehensive APC 5465
(Neurostimulator & Related Procedures
APC—Level 5). For CY 2023, we
proposed to continue the 5-level
structure for the Neurostimulator and
Related Procedure APC series, while
also soliciting comment on the creation
of an additional Level 6 APC in the
series. In the CY 2023 final rule with
comment period, we finalized our
proposal to continue the 5-level APC
structure based on a determination that
the existing structure remained
appropriate based on clinical and cost
characteristics. However, we also
recognized that CPT code 0424T was
not appropriately assigned to the
Comprehensive APC 5465 based on a
significant difference between its
geometric mean cost and that of the
APC. Therefore, for CY 2023, we
finalized the assignment of HCPCS code
0424T to New Technology APC 1581
(New Technology—Level 44 ($50,001–
$60,000)).
For CY 2024, the OPPS payment rates
are proposed to be based on available
CY 2022 claims data. There are only 30
claims for HCPCS code 0424T available
during this time period. As this is below
the threshold of 100 claims for a service
within a year, we propose to apply our
universal low volume APC policy and
use the highest of the geometric mean
cost, arithmetic mean cost, or median
cost based on up to 4 years of claims
data to assign HCPCS code 0424T to the
appropriate New Technology APC.
Considering the available claims data
for HCPCS code 0424T, the arithmetic
mean is $49,468; the median is $48,285;
and the geometric mean cost is $44,287.
Of these, the arithmetic mean is the
statistical methodology that estimates
the highest cost for the service. The
payment rate calculated using this
methodology falls within the cost band
for New Technology APC 1580 (New
Technology—Level 43 ($40,001–
$50,000)) with a payment rate of
$45,000.50. Therefore, for CY 2024, we
propose to assign HCPCS code 0424T to
New Technology APC 1580. We note
that for the CY 2024 update, the CPT
Editorial Panel is deleting HCPCS code
0424T and replacing it with placeholder
code 3X008 effective January 1, 2024.
Consequently, we propose to assign
HCPCS code 0424T to status indicator
‘‘D’’ to indicate the code will be deleted
and assigning its replacement code,
specifically, placeholder code 3X008, to
APC 1580 for CY 2024. For placeholder
code 3X008, the final 5-digit CPT code
number will be listed in the CY 2024
OPPS/ASC final rule with comment
period.
Please refer to Table 25 below for the
proposed OPPS New Technology APC
and status indicator assignment for
placeholder code 3X008 for CY 2024.
The proposed CY 2024 payment rates
can be found in Addendum B to this
proposed rule via the internet on the
CMS website.
q. Cleerly Labs (APC 1511)
extent of coronary plaque and stenosis
in patients who have undergone
coronary computed tomography
analysis (CCTA). The AMA CPT
Editorial Panel established the following
four codes associated with this service,
effective January 1, 2021:
0623T: Automated quantification and
characterization of coronary
atherosclerotic plaque to assess severity
of coronary disease, using data from
coronary computed tomographic.
angiography; data preparation and
transmission, computerized analysis of
Cleerly Labs is a Software as a Service
(SaaS) that assesses the extent of
coronary artery disease severity using
Atherosclerosis Imaging-Quantitative
Computer Tomography (AI–QCT). This
procedure is performed to quantify the
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data, with review of computerized
analysis output to reconcile discordant
data, interpretation and report.
0624T: Automated quantification and
characterization of coronary
atherosclerotic plaque to assess severity
of coronary disease, using data from
coronary computed tomographic
angiography; data preparation and
transmission.
0625T: Automated quantification and
characterization of coronary
atherosclerotic plaque to assess severity
of coronary disease, using data from
coronary computed tomographic
angiography; computerized analysis of
data from coronary computed
tomographic angiography.
0626T: Automated quantification and
characterization of coronary
atherosclerotic plaque to assess severity
of coronary disease, using data from
coronary computed tomographic
angiography; review of computerized
analysis output to reconcile discordant
data, interpretation and report.
In the CY 2021 OPPS/ASC final rule
with comment period, we assigned the
CPT codes 0623T, 06234T, 0625T,
0626T codes to status indicator ‘‘E1’’ to
indicate that the codes are not payable
by Medicare when submitted on
outpatient claims because the service
had not received FDA clearance at the
time of the assignment.
For the October 2022 update, based
on our review of the New Technology
application submitted to CMS for OPPS
payment consideration, we evaluated
the current status indicator assignments
for CPT codes 0623T–0626T. Based on
the technology and its potential
utilization in the HOPD setting, our
evaluation of the service, as well as
input from our medical advisors, we
assigned CPT code 0625T to a separately
payable status. Specifically, in the
October 2022 OPPS Update CR (Change
Request 12885, Transmittal 11594,
dated September 9, 2022), we reassigned
CPT code 0625T to status indicator ‘‘S’’
(Significant Procedures, Not Discounted
when Multiple. Paid under OPPS;
separate APC payment) and APC 1511
(New Technology—Level 11 ($900–
$1,000)) with a payment rate of $950.50,
effective October 1, 2022, following our
review of the manufacturer’s New
Technology APC application.
For CY 2024, the OPPS payment rates
are proposed to be based on available
CY 2022 claims data. There are 90
claims for CPT code 0625T during this
time period. As this is below the
threshold of 100 claims for a service
within a year, we could propose to
designate CPT code 0625T as a low
volume service under our universal low
volume APC policy and use the highest
of the geometric mean cost, arithmetic
mean cost, or median cost based on up
to 4 years of claims data to assign code
0625T to the appropriate New
Technology APC. We found the
geometric mean cost for the service to be
approximately $3.70, the arithmetic
mean cost to be approximately $4.10,
and the median cost to be
approximately $3.50. Under our
universal low volume APC policy, we
would use the greatest of the statistical
methodologies, the arithmetic mean, to
assign CPT code 0625T to New
Technology 1491 (New Technology—
Level 1A (0–$10)) with a payment rate
of $5.00. However, we acknowledge
that, because CPT code 0625T was only
made separately payable as part of the
OPPS in October 2022, and, therefore,
the claims available only reflect two
months of data, we have concerns that
we do not have sufficient claims data to
justify reassignment to another New
Technology APC (66 FR 69902).
Therefore, consistent with our current
policy to retain services within New
Technology APC groups until we obtain
sufficient claims data to justify
reassignment (66 FR 59902), for CY
2024 we propose to maintain CPT code
0625T’s current assignment.
Specifically, for CY 2024, we propose to
continue to assign CPT code 0625T to
New Technology APC 1511 with a
payment rate of $950.50.
Please refer to Table 26 below for the
proposed OPPS New Technology APC
and status indicator assignment for CPT
code 0625T for CY 2024. The proposed
CY 2024 payment rates can be found in
Addendum B to this proposed rule via
the internet on the CMS website.
D. Universal Low Volume APC Policy for
Clinical and Brachytherapy APCs
fewer than 100 single claims that can be
used for ratesetting purposes in the
claims year used for ratesetting for the
prospective year. For this proposed rule,
CY 2022 claims are generally the claims
used for ratesetting; and clinical and
brachytherapy APCs with fewer than
100 single claims from CY 2022 that can
be used for ratesetting would be low
volume APCs subject to our universal
low volume APC policy. As we stated in
the CY 2022 OPPS/ASC final rule with
comment period, we adopted this policy
to reduce the volatility in the payment
rate for those APCs with fewer than 100
single claims. Where a clinical or
In the CY 2022 OPPS/ASC final rule
with comment period (86 FR 63743
through 63747), we adopted a policy to
designate clinical and brachytherapy
APCs as low volume APCs if they have
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brachytherapy APC has fewer than 100
single claims that can be used for
ratesetting, under our low volume APC
payment adjustment policy, we
determine the APC cost as the greatest
of the geometric mean cost, arithmetic
mean cost, or median cost based on up
to four years of claims data. We
excluded APC 5853 (Partial
Hospitalization for CMHCs) and APC
5863 (Partial Hospitalization for
Hospital-based PHPs) from our
universal low volume APC policy given
the different nature of policies that
affect the partial hospitalization
program. We also excluded APC 2698
(Brachytx, stranded, nos) and APC 2699
(Brachytx, non-stranded, nos) as our
current methodology for determining
payment rates for non-specified
brachytherapy sources is appropriate.
Based on claims data available for this
proposed rule, we propose to designate
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five brachytherapy APCs and five
clinical APCs as low volume APCs
under the OPPS. The five brachytherapy
APCs and five clinical APCs meet our
criteria of having fewer than 100 single
claims in the claims year used for
ratesetting (CY 2022 for this proposed
rule). Eight of the ten APCs were
designated as low volume APCs in CY
2023. Based on data for this CY 2024
OPPS/ASC proposed rule, APC 2642
(Brachytx, stranded, C–131) now meets
our criteria to be designated a Low
Volume APC; and we propose to
designate it as such for CY 2024.
Further, with the proposed addition of
Level 6 Intraocular APC (APC 5496), as
discussed in section III.E of this
proposed rule, and the reassignment of
certain intraocular procedures from
Level 2 to Level 3, the Level 4
Intraocular APC (which was the Level 3
Intraocular APC in CY 2023), now meets
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our criteria to be designated a Low
Volume APC; and we propose to
designate it as such for CY 2024.
Table 27 includes the APC geometric
mean cost without the low volume APC
designation, that is, if we calculated the
geometric mean cost based on CY 2022
claims data available for ratesetting; the
median, arithmetic mean, and geometric
mean cost using up to four years of
claims data based on the APC’s
designation as a low volume APC; and
the statistical methodology we propose
to use to determine the APC’s cost for
ratesetting purposes for CY 2024. As
discussed in our CY 2022 OPPS/ASC
final rule with comment period (86 FR
63751 through 63754), given our
concerns with CY 2020 claims data as
a result of the PHE, the four years of
claims data we proposed to use to
calculate the costs for these APCs are
CYs 2018, 2019, 2021, and 2022.
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beginning with the issuance of the CY
2025 proposed rule and for each OPPS
rulemaking thereafter. We refer readers
to the CY 2023 OPPS/ASC final rule
with comment period (87 FR 71934
through 71938) for a full discussion of
the policy to publicly post OPPS device
pass-through applications.
a. Background
The intent of transitional device passthrough payment, as implemented at
§ 419.66, is to facilitate access for
beneficiaries to the advantages of new
and truly innovative devices by
allowing for adequate payment for these
new devices while the necessary cost
data is collected to incorporate the costs
for these devices into the procedure
APC rate (66 FR 55861). Under section
1833(t)(6)(B)(iii) of the Act, the period
for which a device category eligible for
transitional pass-through payments
under the OPPS can be in effect is at
least 2 years but not more than 3 years.
Prior to CY 2017, our regulation at
§ 419.66(g) provided that this passthrough payment eligibility period
began on the date CMS established a
particular transitional pass-through
category of devices, and we based the
pass-through status expiration date for a
device category on the date on which
pass-through payment was effective for
the category. In the CY 2017 OPPS/ASC
final rule with comment period (81 FR
79654), in accordance with section
1833(t)(6)(B)(iii)(II) of the Act, we
amended § 419.66(g) to provide that the
pass-through eligibility period for a
device category begins on the first date
on which pass-through payment is made
under the OPPS for any medical device
described by such category.
In addition, prior to CY 2017, our
policy was to propose and finalize the
dates for expiration of pass-through
status for device categories as part of the
OPPS annual update. This means that
device pass-through status would expire
at the end of a calendar year when at
least 2 years of pass-through payments
had been made, regardless of the quarter
in which the device was approved. In
the CY 2017 OPPS/ASC final rule with
comment period (81 FR 79655), we
changed our policy to allow for
quarterly expiration of pass-through
payment status for devices, beginning
with pass-through devices approved in
CY 2017 and subsequent calendar years,
to afford a pass-through payment period
that is as close to a full 3 years as
possible for all pass-through payment
devices. We also have an established
policy to package the costs of the
devices that are no longer eligible for
pass-through payments into the costs of
the procedures with which the devices
are reported in the claims data used to
set the payment rates (67 FR 66763).
We refer readers to the CY 2017
OPPS/ASC final rule with comment
period (81 FR 79648 through 79661) for
a full discussion of the current device
pass-through payment policy.11
In the CY 2023 OPPS/ASC final rule
with comment period, we finalized our
policy to publicly post online OPPS
device pass-through applications
received on or after March 1, 2023,
11 To apply for OPPS transitional device passthrough status, applicants complete an application
that is subject to the Paperwork Reduction Act
(PRA). This collection (CMS–10052) has an OMB
control number of 0938–0857 and an expiration
date of November 30, 2025.
E. Proposed APC-Specific Policies:
Intraocular Procedures
In reviewing the claims data available
for the CY 2024 OPPS proposed rule, we
believed that it was appropriate to
create an additional Intraocular
Procedures level, between the current
Level 2 and 3 APCs. We last adjusted
the number of APCs in the Intraocular
Procedures family in CY 2020, when we
reestablished APC 5495 (Level 5
Intraocular Procedures) to accommodate
the procedure described by CPT code
0308T (Insertion of ocular telescope
prosthesis including removal of
crystalline lens or intraocular lens
prosthesis) based on its estimated cost
(84 FR 61249 through 61250). Creating
a new APC in the Intraocular
Procedures family will allow for a
smoother distribution of the costs
between the different levels based on
their resource costs and clinical
characteristics. Therefore, for the CY
2024 OPPS, we propose to establish a
six-level APC structure for the
Intraocular Procedures series. We noted
that in addition to creating the new
level, we also proposed to assign CPT
codes 66989 (Extracapsular cataract
removal w/IOL insertion, complex; with
insertion of intraocular (e.g., trabecular
meshwork, supraciliary, suprachoroidal)
anterior segment aqueous drainage
device, without extraocular reservoir,
internal approach, one or more) and
66991 (Extracapsular cataract removal
w/IOL insertion; with insertion of
intraocular (e.g., trabecular meshwork,
supraciliary, suprachoroidal) anterior
segment aqueous drainage device,
without extraocular reservoir, internal
approach, one or more) to the new Level
3 APC, as discussed in further detail in
section III.C.2.j. (Minimally Invasive
Glaucoma Surgery (MIGS) (APC 5493))
of this proposed rule.
IV. Proposed OPPS Payment for Devices
A. Proposed Pass-Through Payment for
Devices
1. Beginning Eligibility Date for Device
Pass-Through Status and Quarterly
Expiration of Device Pass-Through
Payments
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b. Expiration of Transitional PassThrough Payments for Certain Devices
As stated earlier, section
1833(t)(6)(B)(iii) of the Act requires that,
under the OPPS, a category of devices
be eligible for transitional pass-through
payments for at least 2 years, but not
more than 3 years. Currently, there are
15 device categories eligible for passthrough payment. These devices are
listed in Table 28 of this proposed rule
where we detail the expiration dates of
pass-through payment status for each of
the 15 devices currently receiving
device pass-through payment.
In the CY 2022 OPPS/ASC final rule
with comment period we used CY 2019
claims data, rather than CY 2020 claims
data, to inform CY 2022 ratesetting (86
FR 63755). As a result, we utilized our
equitable adjustment authority at
section 1833(t)(2)(E) of the Act to
provide up to four quarters of separate
payment for 27 drugs and biologicals
and one device category whose passthrough payment status expired
between December 31, 2021 and
September 30, 2022 to mimic continued
pass-through payment, promote
adequate access to innovative therapies
for Medicare beneficiaries, and gather
sufficient data for purposes of assigning
these devices to clinical APCs (86 FR
63755). A full discussion of this
finalized policy is included in section
X.F of the CY 2022 OPPS/ASC final rule
with comment (86 FR 63755).
Section 4141(a)(2) of the Consolidated
Appropriations Act, 2023 (CAA, 2023)
(Pub. L. 117–328) amended section
1833(t)(6) by adding a new
subparagraph (K), which extended the
device pass-through status under
paragraph (6) for a 1-year period
beginning January 1, 2023, for device
categories whose period of pass-through
status would have ended on December
31, 2022. There are five device
categories for which pass-through status
would have ended on December 31,
2022, but which will now end on
December 31, 2023. Pass-through status
began for these device categories on
January 1, 2020.
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2. New Device Pass-Through
Applications for CY 2024
a. Background
Section 1833(t)(6) of the Act provides
for pass-through payments for devices,
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and section 1833(t)(6)(B) of the Act
requires CMS to use categories in
determining the eligibility of devices for
pass-through payments. As part of
implementing the statute through
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regulations, we have continued to
believe that it is important for hospitals
to receive pass-through payments for
devices that offer substantial clinical
improvement in the treatment of
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Medicare beneficiaries to facilitate
access by beneficiaries to the advantages
of the new technology. Conversely, we
have noted that the need for additional
payments for devices that offer little or
no clinical improvement over
previously existing devices is less
apparent. In such cases, these devices
can still be used by hospitals, and
hospitals will be paid for them through
appropriate APC payment. Moreover, a
goal is to target pass-through payments
for those devices where cost
considerations are most likely to
interfere with patient access (66 FR
55852; 67 FR 66782; and 70 FR 68629).
As specified in regulations at
§ 419.66(b)(1) through (3), to be eligible
for transitional pass-through payment
under the OPPS, a device must meet the
following criteria:
• If required by FDA, the device must
have received FDA approval or
clearance and FDA marketing
authorization (except for a device that
has received an FDA investigational
device exemption (IDE) and has been
classified as a Category B device by
FDA), or meet another appropriate FDA
exemption; and the pass-through
payment application must be submitted
within 3 years from the date of the
initial FDA marketing authorization, if
required, unless there is a documented,
verifiable delay in U.S. market
availability after FDA marketing
authorization is granted, in which case
CMS will consider the pass-through
payment application if it is submitted
within 3 years from the date of market
availability;
• The device is determined to be
reasonable and necessary for the
diagnosis or treatment of an illness or
injury or to improve the functioning of
a malformed body part, as required by
section 1862(a)(1)(A) of the Act; and
• The device is an integral part of the
service furnished, is used for one
patient only, comes in contact with
human tissue, and is surgically
implanted or inserted (either
permanently or temporarily), or applied
in or on a wound or other skin lesion.
In addition, according to
§ 419.66(b)(4), a device is not eligible to
be considered for device pass-through
payment if it is any of the following: (1)
equipment, an instrument, apparatus,
implement, or item of this type for
which depreciation and financing
expenses are recovered as depreciation
assets as defined in Chapter 1 of the
Medicare Provider Reimbursement
Manual (CMS Pub. 15–1); or (2) a
material or supply furnished incident to
a service (for example, a suture,
customized surgical kit, or clip, other
than a radiological site marker).
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Separately, we use the following
criteria, as set forth under § 419.66(c), to
determine whether a new category of
pass-through payment devices should
be established. The device to be
included in the new category must—
• Not be appropriately described by
an existing category or by any category
previously in effect established for
transitional pass-through payments, and
was not being paid for as an outpatient
service as of December 31, 1996;
• Have an average cost that is not
‘‘insignificant’’ relative to the payment
amount for the procedure or service
with which the device is associated as
determined under § 419.66(d) by
demonstrating: (1) the estimated average
reasonable cost of devices in the
category exceeds 25 percent of the
applicable APC payment amount for the
service related to the category of
devices; (2) the estimated average
reasonable cost of the devices in the
category exceeds the cost of the devicerelated portion of the APC payment
amount for the related service by at least
25 percent; and (3) the difference
between the estimated average
reasonable cost of the devices in the
category and the portion of the APC
payment amount for the device exceeds
10 percent of the APC payment amount
for the related service (with the
exception of brachytherapy and
temperature-monitored cryoablation,
which are exempt from the cost
requirements as specified at
§ 419.66(c)(3) and (e)); and
• Demonstrate a substantial clinical
improvement, that is, substantially
improve the diagnosis or treatment of an
illness or injury or improve the
functioning of a malformed body part
compared to the benefits of a device or
devices in a previously established
category or other available treatment, or,
for devices for which pass-through
payment status will begin on or after
January 1, 2020, as an alternative
pathway to demonstrating substantial
clinical improvement, a device is part of
the FDA’s Breakthrough Devices
Program and has received marketing
authorization for the indication covered
by the Breakthrough Device designation.
Beginning in CY 2016, we changed
our device pass-through evaluation and
determination process. Device passthrough applications are still submitted
to CMS through the quarterly
subregulatory process, but the
applications are subject to notice and
comment rulemaking in the next
applicable OPPS annual rulemaking
cycle. Under this process, all
applications that are preliminarily
approved upon quarterly review will
automatically be included in the next
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49631
applicable OPPS annual rulemaking
cycle, while submitters of applications
that are not approved upon quarterly
review will have the option of being
included in the next applicable OPPS
annual rulemaking cycle or
withdrawing their application from
consideration. Under this notice-andcomment process, applicants may
submit new evidence, such as clinical
trial results published in a peerreviewed journal or other materials, for
consideration during the public
comment process for the proposed rule.
This process allows those applications
that we are able to determine meet all
of the criteria for device pass-through
payment under the quarterly review
process to receive timely pass-through
payment status, while still allowing for
a transparent, public review process for
all applications (80 FR 70417 through
70418).
In the CY 2020 annual rulemaking
process, we finalized an alternative
pathway for devices that are granted a
Breakthrough Device designation (84 FR
61295) and receive FDA marketing
authorization for the indication covered
by the Breakthrough Device designation.
Under this alternative pathway, devices
that are granted an FDA Breakthrough
Device designation are not evaluated in
terms of the current substantial clinical
improvement criterion at § 419.66(c)(2)
for the purposes of determining device
pass-through payment status, but do
need to meet the other requirements for
pass-through payment status in our
regulation at § 419.66. Devices that are
part of the Breakthrough Devices
Program, have received FDA marketing
authorization for the indication covered
by the Breakthrough Devices
designation, and meet the other criteria
in the regulation can be approved
through the quarterly process and
announced through that process (81 FR
79655). Proposals regarding these
devices and whether pass-through
payment status should continue to
apply are included in the next
applicable OPPS rulemaking cycle. This
process promotes timely pass-through
payment status for innovative devices,
while also recognizing that such devices
may not have a sufficient evidence base
to demonstrate substantial clinical
improvement at the time of FDA
marketing authorization.
More details on the requirements for
device pass-through payment
applications are included on the CMS
website in the application form itself at:
https://www.cms.gov/Medicare/
Medicare-Fee-for-Service-Payment/
HospitalOutpatientPPS/passthrough_
payment.html, in the ‘‘Downloads’’
section. In addition, CMS is amenable to
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meeting with applicants or potential
applicants to facilitate information
sharing to support the evaluation of an
OPPS device pass-through payment
application or discuss general
application criteria, including the
substantial clinical improvement
criterion.
b. Applications Received for Device
Pass-Through Status for CY 2024
We received six complete
applications by the March 1, 2023
quarterly deadline, which was the last
quarterly deadline for applications to be
received in time to be included in this
proposed rule. We received three of the
applications in the second quarter of
2022, one of the applications in the
third quarter of 2022, no applications in
the fourth quarter of 2022, and two of
the applications in the first quarter of
2023. One of the applications was
approved for device pass-through status
during the quarterly review process:
MY01 Continuous Compartmental
Pressure Monitor, which was submitted
on May 31, 2022 and conditionally
approved as HCPCS code C1834 on
October 1, 2022. However, after further
review, we determined that the
conditional approval was in error, and
consequently, we deleted code C1834
on March 31, 2023.
Applications received for the later
deadlines for the remaining 2023
quarters (the quarters beginning June 1,
September 1, and December 1 of 2023),
if any, will be discussed in the CY 2025
OPPS/ASC proposed rule. We note that
the quarterly application process and
requirements have not changed because
of the addition of rulemaking review.
Detailed instructions on submission of a
quarterly device pass-through payment
application are included on the CMS
website at: https://www.cms.gov/
Medicare/Medicare-Fee-for-ServicePayment/HospitalOutpatientPPS/
Downloads/catapp.pdf.
Discussions of the applications we
received by the March 1, 2023 deadline
are included below.
ddrumheller on DSK120RN23PROD with PROPOSALS2
(1) Alternative Pathway Device PassThrough Applications
We received two device pass-through
applications by the March 2023
quarterly application deadline for
devices that have received Breakthrough
Device designation from FDA and FDA
marketing authorization for the
indication for which they have a
Breakthrough Device designation, and
therefore are eligible to apply under the
alternative pathway.
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(a) CavaClear Inferior Vena Cava (IVC)
Filter Removal Laser Sheath
Phillips North America, LLC
submitted an application for a new
device category for transitional passthrough payment status for CavaClear
Inferior Vena Cava (IVC) Filter Removal
Laser Sheath (CavaClear) for CY 2024.
Per the applicant, CavaClear is a
breakthrough device intended for tissue
ablation in the removal of embedded
IVC filters that have failed a previous
retrieval method. IVC filters are used to
capture blood clots and prevent them
from moving to the lungs in patients
with venous thromboembolism. Per the
applicant, research has shown that IVC
filters may have long-term
complications, including device
migration, filter fracture, and IVC
occlusion; as a result, FDA issued a
safety notice that recommends that
physicians remove retrievable IVC
filters as soon as they are no longer
needed. The applicant stated that
CavaClear facilitates the detachment of
firmly adherent IVC filters using
ultraviolet laser energy. The applicant
explained that CavaClear uses
circumferential tissue ablation that can
aid in capturing the filter within
seconds of laser activation, which can
help increase physician efficiency, and
may help lower costs by reducing the
number of retrieval attempts to remove
an embedded IVC filter.
According to the applicant, CavaClear
is a 14F or 16F laser catheter used for
the intra-operative removal of IVC
filters. The applicant further explained
that CavaClear consists of optical fibers
arranged in a circle, sandwiched
between inner and outer polymer
tubing. The fibers terminate at the distal
end within a polished tip and at the
proximal end within a coupler that
mates with the excimer laser. According
to the applicant, inner and outer
stainless-steel bands, which form a
radiopaque marker, protect the optical
fibers at the distal tip. The applicant
also stated that CavaClear was designed
to slide through an introducer sheath
and with an inner lumen to allow an
appropriate traction platform to pass
through it. Per the applicant, the device
facilitates detachment of IVC filters from
the IVC wall using ultraviolet laser
energy and subsequent collapse of the
filter, partially within the laser sheath
and entirely within the introducer
sheath. The laser sheath was designed
for use with the CVX–300® Excimer
Laser or Philips Laser System (PLS),
which allows the multifiber laser
sheaths to transmit ultraviolet energy to
the tissue at the distal tip of the device.
The applicant further explained that,
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when activated, the laser ablates the
tissue and frees the IVC filter from
overgrowth in a controllable fashion.
The applicant stated that by using cool
ultraviolet laser energy around the
embedded IVC filter, CavaClear can
assist in fast filter capture with low
force.
As stated previously, to be eligible for
transitional pass-through payment
under the OPPS, a device must meet the
criteria at § 419.66(b)(1) through (4).
With respect to the newness criterion at
§ 419.66(b)(1), CavaClear received FDA
Breakthrough Device designation
effective April 23, 2021, for the ablation
of tissue in the removal of IVC filters
that have failed a previous retrieval
method. FDA granted the applicant De
Novo classification for CavaClear (laserpowered IVC filter retrieval catheter) on
December 21, 2021, for the same
indication as the one covered by the
Breakthrough Device designation. We
received the application for a new
device category for transitional passthrough payment status for CavaClear
on May 30, 2022, which is within 3
years of the date of the initial FDA
marketing authorization.
We are inviting public comment on
whether CavaClear meets the newness
criterion at § 419.66(b)(1).
With respect to the eligibility criterion
at § 419.66(b)(3), according to the
applicant, CavaClear is integral to the
service provided, is used for one patient
only, comes in contact with human
tissue, and is surgically implanted or
inserted into the patient through the
insertion of a laser catheter temporarily
for the interoperative removal of IVC
filters as required at § 419.66(b)(3).
We are inviting public comment on
whether CavaClear meets the eligibility
criterion at § 419.66(b)(3).
With respect to the exclusion criterion
at § 419.66(b)(4), the applicant also
claimed that CavaClear meets the
criterion because it is not equipment, an
instrument, apparatus, implement, or
item of this type for which depreciation
and financing expenses are recovered,
and it is not a supply or material
furnished incident to a service.
We are inviting public comment on
whether CavaClear meets the exclusion
criterion at § 419.66(b)(4).
In addition to the criteria at
§ 419.66(b)(1) through (4), the criteria
for establishing new device categories
are specified at § 419.66(c). The first
criterion, at § 419.66(c)(1), provides that
CMS determines that a device to be
included in the category is not
appropriately described by any of the
existing categories or by any category
previously in effect, and was not being
paid for as an outpatient service as of
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December 31, 1996. The applicant
described CavaClear as an IVC filter
removal device that uses a laser to
ablate tissue and is intended to facilitate
detaching and removing indwelling IVC
filters. Per the applicant, CavaClear is
the first and only FDA-cleared solution
for advanced IVC filter removal, and the
applicant claimed that no previous
device categories for pass-through
payment appropriately describe
CavaClear. Per the applicant, the
possible existing pass-through code—
HCPCS code C2629 (Introducer/sheath,
other than guiding, other than
intracardiac electrophysiological,
laser)—does not appropriately describe
CavaClear because CavaClear uses a
unique laser mechanism of action,
unlike the snag, snare, and forcep
method to remove IVC filters; CavaClear
is not intended to remove pacemaker
and defibrillator leads like the products
described by C2629; and CavaClear
impacts different anatomy than the
products described by C2629.
Specifically, the applicant asserted that
C2629 includes devices that are
indicated to remove implanted
pacemaker and defibrillator leads and
devices via a catheter inserted into the
vascular system. In addition, the
applicant noted that FDA granted
CavaClear De Novo classification,
reflecting that there is no legally
marketed predicate device for
CavaClear.
We note, based on the description the
applicant provided, that CavaClear is a
laser sheath intended for use in the IVC,
which is not intracardiac, and thus
could be encompassed by the descriptor
of C2629. We also note that another
existing pass-through payment category
may appropriately describe CavaClear.
Specifically, we believe that C1773
(Retrieval device, insertable (used to
retrieve fractured medical devices)) may
appropriately describe CavaClear. Passthrough payment category C1773 is a
broad category descriptor for a device
that retrieves another device within a
patient’s vascular system. Based on the
description the applicant provided,
CavaClear is a device (a laser-powered
sheath that uses a laser to ablate tissue
in the IVC) used to retrieve another
medical device (an IVC filter device),
which is consistent with the descriptor
for C1773. In this context, we believe
CavaClear may be similar to the devices
currently described by C2629 and
C1773, and therefore, CavaClear may
also be appropriately described by
C2629 and C1773.
We are inviting public comment on
whether CavaClear meets the device
category criterion at § 419.66(c)(1).
The second criterion for establishing
a device category, at § 419.66(c)(2),
provides that CMS determines either of
the following: (i) that a device is
included in the category that has
demonstrated that it will substantially
improve the diagnosis or treatment of an
illness or injury or improve the
functioning of a malformed body party
compared to the benefits of a device or
devices in a previously established
category or other available treatment; or
(ii) for devices for which pass-through
status will begin on or after January 1,
2020, as an alternative to the substantial
clinical improvement criterion, the
device is part of the FDA’s Breakthrough
Devices Program and has received FDA
marketing authorization for the
indication covered by the Breakthrough
Device designation. CavaClear has a
Breakthrough Device designation and
marketing authorization from FDA for
the indication covered by the
Breakthrough Device designation, and
therefore, appears to meet the criterion
at § 419.66(c)(2)(ii) and is not evaluated
for substantial clinical improvement.
The third criterion for establishing a
device category, at § 419.66(c)(3),
requires us to determine if the cost of
the device is not insignificant, as
described in § 419.66(d). Section
419.66(d) includes three cost
significance criteria that must each be
met. The applicant provided the
following information in support of cost
significance requirements. The
applicant stated that CavaClear would
be reported with HCPCS code listed in
Table 29.
To meet the cost criterion for device
pass-through payment status, a device
must pass all three tests of the cost
criterion for at least one APC. As we
explained in the CY 2005 OPPS final
rule with comment period (69 FR
65775), we generally use the lowest APC
payment rate applicable for use with the
nominated device when we assess
whether a device meets the cost
significance criterion, thus increasing
the probability the device will pass the
cost significance test. For our
calculations, we used APC 5183, which
had a CY 2022 payment rate of
$2,923.63 at the time the application
was received. Beginning in CY 2017, we
calculate the device offset amount at the
HCPCS/CPT code level instead of the
APC level (81 FR 79657). HCPCS code
37193 had a device offset amount of
$762.48 at the time the application was
received.12 According to the applicant,
the cost of CavaClear is $3,165.00.
Section 419.66(d)(1), the first cost
significance requirement, provides that
the estimated average reasonable cost of
devices in the category must exceed 25
percent of the applicable APC payment
amount for the service related to the
category of devices. The estimated
average reasonable cost of $3,165.00 for
CavaClear is 108.26 percent of the
applicable APC payment amount for the
service related to the category of devices
of $2,923.63 (($3,165.00/$2,923.63) ×
100 = 108.26 percent). Therefore, we
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12 We note that the applicant selected a value of
$537.36 for the device offset amount. However, the
value selected is inconsistent with the device offset
amount related to HCPCS 37193 in APC 5183 found
in Addendum P to the CY 2022 OPPS/ASC final
rule with comment period, as corrected in the 2022
Correction Notice OPPS Addendum (87 FR 2060).
We selected the value of $762.48, which we believe
is the accurate value. Based on our initial
assessment for this proposed rule, using the device
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offset amount of $762.48 would result in CavaClear
meeting the cost significance requirement.
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believe CavaClear meets the first cost
significance requirement.
The second cost significance
requirement, at § 419.66(d)(2), provides
that the estimated average reasonable
cost of the devices in the category must
exceed the cost of the device-related
portion of the APC payment amount for
the related service by at least 25 percent,
which means that the device cost needs
to be at least 125 percent of the offset
amount (the device-related portion of
the APC found on the offset list). The
estimated average reasonable cost of
$3,165 for CavaClear is 415.09 percent
of the cost of the device-related portion
of the APC payment amount for the
related service of $762.48 (($3,165.00/
$762.48) × 100 = 415.09 percent).
Therefore, we believe CavaClear meets
the second cost significance
requirement.
The third cost significance
requirement, at § 419.66(d)(3), provides
that the difference between the
estimated average reasonable cost of the
devices in the category and the portion
of the APC payment amount for the
device must exceed 10 percent of the
APC payment amount for the related
service. The difference between the
estimated average reasonable cost of
$3,165.00 for CavaClear and the portion
of the APC payment amount for the
device of $762.48 is 82.18 percent of the
APC payment amount for the related
service of $2,923.63
((($3,165.00¥762.48)/$2,923.63) × 100 =
82.18 percent). Therefore, we believe
that CavaClear meets the third cost
significance requirement.
We are inviting public comment on
whether CavaClear meets the device
pass-through payment criteria discussed
in this section, including the cost
criterion for device pass-through
payment status.
(b) CERAMENT® G
BONESUPPORT AB submitted an
application for a new device category
for transitional pass-through payment
status for CERAMENT® G for CY 2024.
Per the applicant, CERAMENT® G is a
single-use implantable bone void filler
combination device/drug that remodels
into bone and elutes gentamicin. The
applicant further explained that
CERAMENT® G is an adjunct to
systematic antibiotic therapy as part of
the surgical treatment of osteomyelitis
(i.e., bone infection) in the extremities
and is used where there is a need for
supplemental bone void filler material.
The applicant asserted that
CERAMENT® G can reduce the
recurrence of chronic osteomyelitis from
gentamicin-sensitive microorganisms to
protect bone healing and augment
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provisional hardware to help support
bone fragments during the surgical
procedure. The applicant stated that
CERAMENT® G is the first on-label
solution for a one-stage surgical
approach to treating bone infections
with its unique dual mode of action: (1)
promote bone healing (bone
remodeling), and (2) protect bone
healing (elution of a local broadspectrum antibiotic). According to the
applicant, once implanted,
CERAMENT® G resorbs overtime and
remodels into bone in 6 to 12 months.
Per the applicant, CERAMENT® G is
comprised of three key compounds: (1)
hydroxyapatite (HA), (2) calcium sulfate
(CaS), and (3) gentamicin sulfate.
According to the applicant, by
combining calcium sulfate and
hydroxyapatite, a balance is achieved
between implant resorption rate and
bone remodeling rate. The applicant
further explained that the CaS acts as a
resorbable carrier for HA. The applicant
described that HA has a slow resorption
rate and high osteoconductivity
promoting bone remodeling and thus
gives long-term structural support to the
newly-formed bone. The gentamicin
sulfate is a broad-spectrum
aminoglycoside antibiotic that is
sensitive to a spectrum of aerobic
bacteria, particularly gram-negative
bacilli, as well as aerobic gram-positive
cocci, in particular Staphylococcus
aureus, some coagulase negative
staphylococci (CoNS) (e.g.,
Staphylococcus epidermidis), and some
strains of streptococci. According to the
applicant, the gentamicin sulfate is
present in the bone void filler to prevent
colonization from gentamicin-sensitive
microorganisms to protect bone healing.
Per the applicant, CERAMENT® G is
comprised of eight components (these
components contain the three key
compounds as well as other parts for the
successful application of CERAMENT®
G): (1) CERAMENT® CMI, a closed
mixing injection system pre-packed
with ceramic bone substitute (CBS), is a
mixture of the CaS (60 wt percent) and
HA (40 wt percent). The applicant
further explained that the mixing device
is comprised of a 60 mL syringe, which
in its proximal part is equipped with a
movable combined plunger and mixing
paddle, and in its distal part with a luerlock connection. The movable mixing
paddle allows effective mixing of the
material inside the syringe. Calcium
Sulfate and Hydroxyapatite (CSH) are
the setting component of the bone void
filler, and per the applicant, this
component will react to calcium sulfate
dihydrate (CSD) and will be resorbed
over time, giving place for natural bone
to grow into the bone graft. The
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applicant described that CSD is added
as a seeding agent to accelerate the
setting reaction of CSH to CSD, and that
HA is an osteoconductive mineral
similar to natural bone (this part of the
bone graft substitute will not be
resorbed and does not need to be
surgically removed). The applicant
stated that CSH and CSD conform to
specifications based on the monograph
Calcium Sulfate Dihydrate 0982,
European Pharmacopoeia (EP) and the
Official Monograph for Calcium Sulfate
U.S. Pharmacopoeia/National
Formulary (USP) as well as internal
requirements; (2) CERAMENT® ID, an
injection device used to inject the paste
into the bone void or gap; (3) Valve, a
needleless valve needed for the transfer
of the ceramic paste from the
CERAMENT® CMI to the CERAMENT®
ID; (4) Tip Extenders, which are sterile,
plastic needles with an inner diameter
of 2.55 mm and two lengths (50 and 100
mm), that are connected to the
CERAMENT® ID to facilitate placement
of the paste at the debridement site; (5)
CERAMENT® GENTAMICIN, the
gentamicin sulfate in a glass vial
equipped with a stopper and a cap. The
gentamicin sulfate subcomponent has a
potency equivalent to ≥590mg
gentamicin/mg (anhydrous substance)
and is dissolved in the 0.9 percent
sterile sodium chloride solution and
mixed with the CBS powder. Per the
applicant, the prepared paste sets to a
calcium sulfate dihydrate matrix with
embedded hydroxyapatite particles, and
gentamicin sulfate. The applicant
further explained that it delivers 17.5
mg gentamicin per mL paste. Per the
applicant, the gentamicin sulfate
subcomponent complies with the EP
monograph for gentamicin sulfate; (6)
CERAMENT® MIXING LIQUID, a sterile
sodium chloride, (NaCl) solution, 9 mg
per mL in a glass vial. Per the applicant,
it is the liquid component of
CERAMENT® G. This component
contains water which is needed for the
calcium sulfate reaction to occur. The
liquid meets requirements of the
compendial excipient of USP/EP grade
and is also registered in the inactive
ingredient database; (7) BONESUPPORT
DP, which includes two ventilated
dispensing pins to facilitate easy
handling when preparing the
gentamicin solution; and (8)
BONESUPPORT SYRINGE, a single
packed, sterile 10 mL syringe with a
male/female rotator assembly, and is
used when preparing the gentamicin
solution.
According to the applicant, after the
surgical site has been prepared and any
dead bone is debrided (i.e., removed),
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the CERAMENT® G paste is prepared by
the surgeon or surgical technician by:
(1) mixing the gentamicin powder with
the provided saline to make a
gentamicin liquid; (2) adding the
gentamicin liquid to the powder in the
CERAMENT® CMI syringe and mixing
the gentamicin liquid and powder; and
(3) transferring the resulting paste to a
smaller delivery syringe. Four minutes
after the start of mixing, the paste is
ready to be used as a bone void filler.
Per the applicant, it can be injected
using the tip extenders provided in the
kit or by attaching a needle to the
delivery syringe, or it can be placed into
a bead mold to form beads. Fifteen
minutes after the start of mixing,
CERAMENT® G can be drilled into, if
required. At 20 minutes, it is fully set,
at which time the wound can be closed.
As stated previously, to be eligible for
transitional pass-through payment
under the OPPS, a device must meet the
criteria at § 419.66(b)(1) through (4).
With respect to the newness criterion at
§ 419.66(b)(1), CERAMENT® G received
FDA Breakthrough Device designation
effective March 12, 2020, as a
resorbable, gentamicin-eluting ceramic
bone graft substitute intended for use as
a bone void filler as an adjunct to
systemic antibiotic therapy and surgical
debridement (standard treatment
approach to a bone infection) as part of
the surgical treatment of osteomyelitis.
By eluting gentamicin, CERAMENT® G
can inhibit the colonization of
gentamicin-sensitive microorganisms to
protect bone healing. CERAMENT® G
can augment provisional hardware to
help support bone fragments during the
surgical procedure and is resorbed and
replaced by bone during the healing
process. FDA granted the applicant De
Novo classification for CERAMENT® G
under the generic name, resorbable
calcium salt bone void filler containing
a single approved aminoglycoside
antibacterial substance on May 17, 2022,
for the same indication as the one
covered by the Breakthrough Device
designation. We received the
application for a new device category
for transitional pass-through payment
status for CERAMENT® G on May 31,
2022, which is within 3 years of the date
of the initial FDA marketing
authorization.
We are inviting public comment on
whether CERAMENT® G meets the
newness criterion at § 419.66(b)(1).
With respect to the integral part of the
service criterion at § 419.66(b)(3), the
applicant did not indicate whether
CERAMENT® G is integral to the service
provided. However, per the applicant,
CERAMENT® G is used for one patient
only, comes in contact with human
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tissue, and is surgically implanted or
inserted into the patient as required at
§ 419.66(b)(3).
We are inviting public comment on
whether CERAMENT® G meets the
eligibility criterion at § 419.66(b)(3).
With respect to the exclusion criterion
at § 419.66(b)(4), the applicant did not
address whether CERAMENT® G is
equipment, an instrument, apparatus,
implement, or item of this type for
which depreciation and financing
expenses are recovered, or if
CERAMENT® G is a supply or material
furnished incident to a service.
We are inviting public comment on
whether CERAMENT® G meets the
exclusion criterion at § 419.66(b)(4).
In addition to the criteria at
§ 419.66(b)(1) through (4), the criteria
for establishing new device categories
are specified at § 419.66(c). The first
criterion, at § 419.66(c)(1), provides that
CMS determines that a device to be
included in the category is not
appropriately described by any of the
existing categories or by any category
previously in effect, and was not being
paid for as an outpatient service as of
December 31, 1996. The applicant
described CERAMENT® G as a singleuse implantable bone void filler
combination device/drug that remodels
into bone and elutes gentamicin. The
applicant asserted that there are no
existing bone void filler devices cleared
or approved for use in the U.S. for single
stage surgical reconstruction of bone
defects that provide stability, promote
bone formation, and effectively support
the surgical treatment of infection by
antibiotic elution. However, for
comparison purposes, the applicant
listed HCPCS code C1734 (Orthopedic/
device/drug matrix for opposing boneto-bone or soft-tissue-to-bone
(implantable)), as a device category that
it considers similar to CERAMENT® G’s
device category.13
The applicant stated that
CERAMENT® G differs from the bone
substitutes AUGMENT® and
AUGMENT® Injectable (devices
described by HCPCS code C1734). We
note that CMS approved an application
for AUGMENT® Bone Graft as a new
device category for transitional passthrough payment status and established
HCPCS code C1734 as a new device
category beginning in CY 2020. We refer
readers to the CY 2019 OPPS/ASC final
13 HCPCS code C1734 is a device category for
which pass-through status was extended for a 1year period beginning January 1, 2023, by section
(a)(2) of the Consolidated Appropriations Act, 2023
(CAA, 2023) (Pub. L. 117–328), titled Extension of
Pass-Through Status Under the Medicare Program
for Certain Devices Impacted by COVID–19. https://
www.cms.gov/files/document/r11801cp.pdf
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49635
rule with comment period (84 FR 61292
through 61294) for a full discussion of
the AUGMENT® Bone Graft application
and decision.14 The applicant asserted
that CERAMENT® G and AUGMENT®
differ in terms of the product
composition and mechanism of action,
or intended use. In addition, the
applicant asserted that the products are
intended for different groups of patients.
With respect to composition, per the
applicant, CERAMENT® G consists of
HA, CaS, and gentamicin sulfate. In
contrast, the applicant stated that
AUGMENT® consists of beta-tricalcium
phosphate (b-TCP) and recombinant
human platelet-derived growth factor
(rhPDGF–BB), and AUGMENT®
Injectable consists of b-TCP, rhPDGF–
BB, and a collagen matrix. With respect
to the mechanism of action, the
applicant stated that CaS in
CERAMENT® G acts as a resorbable
carrier for HA, which has a slow
resorption rate and high
osteoconductivity, providing a scaffold
for new bone generation. The applicant
further explained that by combining CaS
and HA, a balance is achieved between
implant resorption rate and bone
remodeling rate, and by eluting
gentamicin, CERAMENT® G can reduce
the recurrence of chronic osteomyelitis
from gentamicin-sensitive
microorganisms to protect bone healing.
In contrast, according to the applicant,
the rhPDGF–BB in AUGMENT® acts as
a chemo-attractant and mitogen for cells
involved in wound healing and through
its promotion of angiogenesis at the site
of healing, and the b- TCP acts as a bone
void filler to prevent soft tissue from
collapsing into the void.
Per the applicant, CERAMENT® G is
indicated for use as a bone void filler in
skeletally mature patients as an adjunct
to systemic antibiotic therapy and
surgical debridement (standard
treatment approach to a bone infection)
as part of the surgical treatment of
osteomyelitis in defects in the
extremities. In contrast, per the
applicant, AUGMENT® and
AUGMENT® Injectable15 are indicated
14 https://www.govinfo.gov/content/pkg/FR-201911-12/pdf/2019-24138.pdf
15 The applicant differentiates itself from
AUGMENT® and AUGMENT® Injectable, but does
not use the term ‘‘AUGMENT® Bone Graft’’ in the
application. However, the link provided in the
application goes to the AUGMENT® web page that
describes AUGMENT® Regenerative Solutions,
AUGMENT® Bone Graft and AUGMENT®
Injectable. We use the term ‘‘AUGMENT®’’ to
collectively refer to the AUGMENT® products
described herein and those listed on the
AUGMENT® website. The applicant provided web
page (in footnote): AUGMENT BONE GRAFT
website: https://www.augmentbonegraft.com/
healthcare-professionals/.
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for use as an alternative to autograft in
arthrodesis in patients who require a
bone fusion, such as patients who have
arthritis, avascular necrosis, joint
instability or deformity, or joint
arthroplasty of the ankle and/or
hindfoot. Further, the applicant asserted
that AUGMENT® cannot be used in the
patients for whom CERAMENT® G is
indicated because AUGMENT® is
specifically contraindicated in patients
with an active infection at the operative
site.
We note that, based on the description
of the device provided by the applicant,
CERAMENT® G and AUGMENT® differ
in terms of composition and intended
use, but also note that device categories
are not intended to be device specific.
Rather, device categories are intended to
encompass any device that can be
appropriately described by the category.
As such, when we evaluate a potential
pass-through device to determine
whether it meets the device category
criterion at § 419.66(c)(1), we compare
the subject device to the device category
descriptor rather than to the specific
device for which the device category
was created. Specifically, C1734
describes any device that meets the
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following descriptor: Orthopedic/
device/drug matrix for opposing boneto-bone or soft-tissue-to-bone
(implantable), and per the applicant,
CERAMENT® G is described as an
implantable device/drug matrix that,
with its intended use, will oppose softtissue-to-bone. In this context, we
believe CERAMENT® G may be similar
to the devices currently described by
C1734, and therefore CERAMENT® G
may also be appropriately described by
C1734.
We are inviting public comment on
whether CERAMENT® G meets the
device category criterion at
§ 419.66(c)(1).
The second criterion for establishing
a device category, at § 419.66(c)(2),
provides that CMS determines either of
the following: (i) that a device to be
included in the category has
demonstrated that it will substantially
improve the diagnosis or treatment of an
illness or injury or improve the
functioning of a malformed body part
compared to the benefits of a device or
devices in a previously established
category or other available treatment; or
(ii) for devices for which pass-through
status will begin on or after January 1,
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2020, as an alternative to the substantial
clinical improvement criterion, the
device is part of the FDA’s Breakthrough
Devices Program and has received FDA
marketing authorization for the
indication covered by the Breakthrough
Device designation. CERAMENT® G has
a Breakthrough Device designation and
marketing authorization from FDA for
the indication covered by the
Breakthrough Device designation (as
explained in more detail in the
discussion of the newness criterion) and
therefore appears to meet the criterion at
§ 419.66(c)(2)(ii) and is not evaluated for
substantial clinical improvement.
The third criterion for establishing a
device category, at § 419.66(c)(3),
requires us to determine that the cost of
the device is not insignificant, as
described in § 419.66(d). Section
419.66(d) includes three cost
significance criteria that must each be
met. The applicant provided the
following information in support of the
cost significance requirements. The
applicant stated that CERAMENT® G
would be reported with HCPCS codes
listed in Table 30.
BILLING CODE 4120–01–P
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BILLING CODE 4120–01–C
To meet the cost criterion for device
pass-through payment status, a device
must pass all three tests of the cost
criterion for at least one APC. As we
explained in the CY 2005 OPPS final
rule with comment period (69 FR
65775), we generally use the lowest APC
payment rate applicable for use with the
nominated device when we assess
whether a device meets the cost
significance criterion, thus increasing
the probability the device will pass the
cost significance test. For our
calculations, we used APC 5112, which
had a CY 2022 payment rate of
$1,422.51 at the time the application
was received. Beginning in CY 2017, we
calculate the device offset amount at the
HCPCS/CPT code level instead of the
APC level (81 FR 79657). HCPCS code
23035 had a device offset amount of
$217.36 at the time the application was
received. We note that the applicant
submitted cost information for two
different device sizes (5 ml and 10 ml)
for CERAMENT® G. Per the applicant,
the average patient will require
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approximately 10 ml per procedure,
with a weighted cost of $7,567.00 per
patient.
Section 419.66(d)(1), the first cost
significance requirement, provides that
the estimated average reasonable cost of
devices in the category must exceed 25
percent of the applicable APC payment
amount for the service related to the
category of devices. The estimated
average reasonable cost of $7,567.00 for
CERAMENT® G is 531.95 percent of the
applicable APC payment amount for the
service related to the category of devices
of $1,422.51 (($7,567.00/$1,422.51) ×
100 = 531.95 percent). Therefore, we
believe CERAMENT® G meets the first
cost significance requirement.
The second cost significance
requirement, at § 419.66(d)(2), provides
that the estimated average reasonable
cost of the devices in the category must
exceed the cost of the device-related
portion of the APC payment amount for
the related service by at least 25 percent,
which means that the device cost needs
to be at least 125 percent of the offset
amount (the device-related portion of
PO 00000
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Fmt 4701
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the APC found on the offset list). The
estimated average reasonable cost of
$7,567.00 for CERAMENT® G is
3,481.32 percent of the cost of the
device-related portion of the APC
payment amount for the related service
of $217.36 (($7,567.00/$217.36) × 100 =
3,481.32 percent). Therefore, we believe
that CERAMENT® G meets the second
cost significance requirement.
The third cost significance
requirement, at § 419.66(d)(3), provides
that the difference between the
estimated average reasonable cost of the
devices in the category and the portion
of the APC payment amount for the
device must exceed 10 percent of the
APC payment amount for the related
service. The difference between the
estimated average reasonable cost of
$7,567.00 for CERAMENT® G and the
portion of the APC payment amount for
the device of $217.36 is 516.67 percent
of the APC payment amount for the
related service of $1,422.51
((($7,567.00¥$217.36)/$1,422.51) × 100
= 516.67 percent). Therefore, we believe
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that CERAMENT® G meets the third
cost significance requirement.
We are inviting public comment on
whether the CERAMENT® G meets the
device pass-through payment criteria
discussed in this section, including the
cost criterion for device pass-through
payment status.
(2) Traditional Device Pass-Through
Applications
ddrumheller on DSK120RN23PROD with PROPOSALS2
(a) Ambu® aScopeTM 5 Broncho HD
Ambu Inc. submitted an application
for a new device category for
transitional pass-through payment
status for the Ambu® aScopeTM 5
Broncho HD for CY 2024. Per the
applicant, the Ambu® aScopeTM 5
Broncho HD is one component of the
Ambu® aScopeTM 5 Broncho HD System
which consists of: (1) the Ambu®
aScopeTM 5 Broncho HD (5.0/2.2 or 5.6/
2.8), a sterile, single-use, disposable
flexible/rigid bronchoscope; and (2)
Ambu® aBoxTM 2, a compatible,
reusable display unit. The applicant is
only seeking a new device category for
transitional pass-through payment
status for the Ambu® aScopeTM 5
Broncho HD component.
Per the applicant, the Ambu®
aScopeTM 5 Broncho HD, consists of: (1)
a handle, to hold the scope (designed for
left and right hand); (2) a control lever,
to move the distal tip up or down in a
single plane; (3) a working channel and
working channel port, for instillation of
fluids and insertion of endotherapy
instruments; (4) a biopsy valve, to be
attached to the working channel port,
for insertion of endotherapy instruments
or attachment of a syringe; (5) a suction
connector, for connection of suction
tubing; (6) a suction button, to activate
suction when pressed; (7) endoscope
buttons 1 and 2 (depending on settings
in display unit the two remote switches
allow for direct activation on handle of
four different functionalities such as
image and video capturing, initiate
advanced red contrast (ARC), and
zoom); (8) a rotation control ring, for
rotation of the insertion cord during
procedure; (9) a tube connection, for
fixation of tubes with standard
connector during procedure; (10) an
insertion cord and insertion portion,
flexible airway insertion cord; (11)
bending section, maneuverable part;
(12) distal tip, which contains the
camera, light source (two light-emitting
diodes (LEDs)), and the working
channel exit; (13) display unit
connector, to connect to the port on the
Ambu® aBoxTM 2 display unit; (14) a
cable, to transmit the image signal to the
Ambu® aBoxTM 2 display unit; (15) a
protective handle cover, to protect the
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control lever during transport and
storage; (16) a protective pipe, to protect
the insertion cord during transport and
storage; and (17) an introducer, to
facilitate introduction of luer lock
syringes.
The applicant stated that the Ambu®
aScopeTM 5 Broncho HD is an imaging/
illumination bronchoscope device that
uses an integrated camera module and
built-in dual LED illumination to
provide access to, and imaging of, the
lungs for diagnostic and therapeutic
purposes for pulmonology patients. The
device is intended for endoscopy and
endoscopic surgery within the lungs,
also known as bronchoscopy. According
to the applicant, the Ambu® aScopeTM
5 Broncho HD was designed to perform
a wide array of diagnostic and
interventional pulmonology procedures.
The applicant noted that the Ambu®
aScopeTM 5 Broncho HD is a single-use
bronchoscope designed to be used with
the Ambu® aBoxTM 2 display unit,
endotherapy instruments, and other
ancillary equipment for bronchoscopic
procedures and examination within the
airways and the tracheobronchial tree. It
is intended to provide visualization via
the compatible display unit, the Ambu®
aBoxTM 2, and to allow passage of
endotherapy instruments via its working
channel.
Per the applicant, the Ambu®
aScopeTM 5 Broncho HD bronchoscope
is inserted into the patient airway
through either the mouth, nose, or via
a tracheostomy, if present. The
applicant explained that when the
Ambu® aScopeTM 5 Broncho HD
bronchoscope has reached the correct
position, endotherapy instruments can
be inserted into the working channel
system of the bronchoscope. Per the
applicant, an introducer supplied with
the bronchoscope can be attached to the
working channel port via a luer lock
adaptor, while the bronchoscope is in
use. The applicant noted that the
suction system may be used to remove
blood, saliva, and mucus from the
airway. The applicant indicated that a
bronchoscope operator monitors the
field of view via the integrated camera
of the Ambu® aScopeTM 5 Broncho HD
bronchoscope and the procedure is
finished when the device is pulled out
completely.
As stated previously, to be eligible for
transitional pass-through payment
under the OPPS, a device must meet the
criteria at § 419.66(b)(1) through (4).
With respect to the newness criterion at
§ 419.66(b)(1), on July 25, 2022, the
applicant received 510(k) clearance
from FDA for the Ambu® aScopeTM 5
Broncho HD as a device to be used for
endoscopic procedures and examination
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49639
within the airways and tracheobronchial
tree. We received the application for a
new device category for transitional
pass-through payment status for the
Ambu® aScopeTM 5 Broncho HD on
February 28, 2023, which is within 3
years of the date of the initial FDA
marketing authorization.
We are inviting public comment on
whether the Ambu® aScopeTM 5
Broncho HD meets the newness
criterion at § 419.66(b)(1).
With respect to the eligibility criterion
at § 419.66(b)(3), according to the
applicant, the Ambu® aScopeTM 5
Broncho HD is integral to the service
provided, is used for one patient only,
comes in contact with human tissue,
and is surgically inserted as required by
§ 418.66(b)(3).
We are inviting public comment on
whether the Ambu® aScopeTM 5
Broncho HD meets the criterion at
§ 419.66(b)(3).
With respect to the exclusion criterion
at § 419.66(b)(4), the applicant did not
address whether the Ambu® aScopeTM 5
Broncho HD is equipment, an
instrument, apparatus, implement, or
item of this type for which depreciation
and financing expenses are recovered,
or if the Ambu® aScopeTM 5 Broncho
HD is a supply or material furnished
incident to a service.
We are inviting public comment on
whether the Ambu® aScopeTM 5
Broncho HD meets the exclusion
criterion at § 419.66(b)(4).
In addition to the criteria at
§ 419.66(b)(1) through (4), the criteria
for establishing new device categories
are specified at § 419.66(c). The first
criterion, at § 419.66(c)(1), provides that
CMS determines that a device to be
included in the category is not
appropriately described by any of the
existing categories or by any category
previously in effect, and was not being
paid for as an outpatient service as of
December 31, 1996. The applicant
described the Ambu® aScopeTM 5
Broncho HD as a single-use, disposable,
digital flexible/rigid bronchoscope that
is used in pulmonary procedures
(bronchoscopy) to diagnose and treat
conditions of the lungs, including
tumors or bronchial cancer, airway
blockage (obstruction), narrowed areas
in airways (strictures), inflammation,
and infections such as tuberculosis (TB),
pneumonia, fungal or parasitic lung
infections, interstitial pulmonary
disease, causes of persistent cough,
causes of coughing up blood, spots seen
on chest X-rays, and vocal cord
paralysis. The applicant claimed that
the Ambu® aScopeTM 5 Broncho HD is
different from other endoscopes because
it is a single-use endoscope indicated
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for use in the respiratory system, the
device records snapshots or video of
images, and the device is temporarily
inserted into the patient airway to
diagnose and treat lung problems.
According to the applicant, there are
two possible existing pass-through
device categories, represented by the
following codes: C1748 (Endoscope,
single-use (i.e., disposable), upper
gastrointestinal tract (GI), imaging/
illumination device (insertable)); and
C1747 (Endoscope, single-use (i.e.,
disposable), urinary tract, imaging/
illumination device (insertable)). The
applicant noted that while these two
codes are for single-use endoscopic
devices, they are only appropriate for GI
and urinary tract imaging, respectively.
Therefore, the applicant asserted that
these two codes would not apply to a
single-use, disposable, bronchoscopy for
use in pulmonary procedures. We note
that while C1748 and C1747 are
intended to be used in different
anatomical areas of the patient, the
codes for both device categories
describe devices that are single use and
have imaging capabilities.
We are inviting public comment on
whether the Ambu® aScopeTM 5
Broncho HD meets the device category
criterion at § 419.66(c)(1).
The second criterion for establishing
a device category, at § 419.66(c)(2),
provides that CMS determines either of
the following: (i) that a device to be
included in the category has
demonstrated that it will substantially
improve the diagnosis or treatment of an
illness or injury or improve the
functioning of a malformed body part
compared to the benefits of a device or
devices in a previously established
category or other available treatment; or
(ii) for devices for which pass-through
status will begin on or after January 1,
2020, as an alternative to the substantial
clinical improvement criterion, the
device is part of the FDA’s Breakthrough
Devices Program and has received FDA
marketing authorization for the
indication covered by the Breakthrough
Device designation. The applicant
claimed that the Ambu® aScopeTM 5
Broncho HD represents a substantial
clinical improvement over existing
technologies by: (1) elimination of
complex cleaning/reprocessing
procedures, (2) reduction of microbial
transmission and infection since it is
single-use, (3) elimination of the need
for continuous training of reprocessing
staff, (4) minimization of the risk of
patient cross-contamination, (5)
assurance that a sterilized scope will be
used each time, and (6) assurance that
there will be no biofilm from endoscope
channels. The applicant provided four
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articles, an FDA guidance letter, and an
FDA safety notice specifically for the
purpose of addressing the substantial
clinical improvement criterion.
In support of its claim that the use of
the Ambu® aScopeTM 5 Broncho HD
eliminates complex cleaning/
reprocessing procedures because it is a
single-use device, the applicant
referenced an FDA Reprocessing Final
Guidance document 16 issued March 17,
2015. This FDA document provides
guidance to medical device
manufacturers on the complex activities
involved in crafting and validating
reprocessing instructions that ensure
that the device can be used safely and
for the purpose for which it is intended.
The guidance document is limited to
reusable medical devices and single-use
medical devices that are initially
supplied as non-sterile to the user and
require the user to process the device
prior to its use. In this guidance
document, FDA identifies a subset of
reusable medical devices (including
bronchoscopes and accessories) that
pose a greater likelihood of microbial
transmission and represent a high risk
of infection (subclinical or clinical) if
they are not adequately reprocessed and
indicates design features which may
pose a challenge to adequate
reprocessing for arthroscopes,
laparoscopic instruments, and
electrosurgical instruments, and their
respective accessories. However, the
FDA guidance does not mention sterile,
single-use medical devices in this
document.
In support of its claim that the use of
the Ambu® aScopeTM 5 Broncho HD
reduces microbial transmission and
infection because it is single-use, the
applicant referenced an FDA safety
notice 17 issued on September 17, 2015
(2015 FDA safety notice). The FDA
notice discussed the findings of an
investigation into infections associated
with reprocessed reusable medical
devices, including an analysis of
Medical Device Reports (MDRs)
submitted to FDA from manufacturers
and health care facilities. The notice
provided that between January 2010 and
June 2015, FDA received 109 MDRs
concerning infections or device
16 FDA Guidance March 17 2015 ‘‘Reprocessing
Medical Devices in Health Care Settings: Validation
Methods and Labeling: Guidance for Industry and
Food and Drug Administration Staff’’ https://
www.fda.gov/downloads/medicaldevices/
deviceregulationandguidance/guidancedocuments/
ucm253010.pdf.
17 FDA Safety Communications, Infections
Associated with Reprocessed Flexible
Bronchoscopes: FDA Safety Communication, issued
September 17, 2015. https://www.fdanews.com/ext/
resources/files/09-15/092115-safetynotice.pdf?1442508647.
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contamination associated with flexible
bronchoscopes. However, FDA noted
that, when compared to the number of
bronchoscopy procedures performed in
the U.S. each year, this is considered a
small number of MDRs. In 2014, FDA
received 50 MDRs that mentioned
infections or device contamination
associated with reprocessed flexible
bronchoscopes, which prompted
additional investigation of this issue.
FDA indicated that a small number of
the reported infections were from
persistent device contamination despite
following the manufacturer’s
reprocessing instructions, however,
most of the infections were the result of
the failure to meticulously follow
manufacturer instructions for
reprocessing, or continued use of
devices despite integrity, maintenance,
and mechanical issues. FDA provides
additional recommendations for health
care facilities and staff that reprocess
flexible bronchoscopes and patients
considering bronchoscopy procedures,
but does not reference single-use
bronchoscopes in the notice.
In support of its claim that the use of
the Ambu® aScopeTM 5 Broncho HD
eliminates the need for continuous
training of reprocessing staff, the
applicant referenced a study by
Chaˆteauvieux et al.,18 which assessed
the organizational and economic
impacts of the introduction of a
single-use flexible bronchoscope (FB)
(Ambu® aScopeTM, versions 2 and 3) in
comparison with a reusable FB
(Pentax®) at the hospital level. The
study took place between May 2016 and
October 2016 in the Georges Pompidou
European Hospital, an 800-bed
university hospital in France.
Chaˆteauvieux et al. noted that the
introduction of single-use FBs led to a
more simplified process, less stress for
medical and paramedical staff in
emergency situations, teaching benefits,
and easier management of transport, in
comparison with reusable FBs.
However, the authors recommended
limiting the use of single-use FBs to
specific situations, and to prioritize the
use of reusable devices for most of the
bronchoscopies for cost savings.
The applicant referred to a meta study
by Barron and Kennedy19 to support its
18 Cha
ˆ teauvieux, C., Farah, L., Gue´rot, E.,
Wermert, D., Pineau, J., Prognon, P., Borget, I., &
Martelli, N. (2018). Single-use flexible
bronchoscopes compared with reusable
bronchoscopes: Positive organizational impact but a
costly solution. Journal of evaluation in clinical
practice, 24(3), 528–535. https://doi.org/10.1111/
jep.12904.
19 Barron, S.P., & Kennedy, M.P. (2020). SingleUse (Disposable) Flexible Bronchoscopes: The
Future of Bronchoscopy? Advances in therapy,
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claim that the use of Ambu® aScopeTM
5 Broncho HD minimizes the risk of
patient cross-contamination, ensuring
that health care providers have taken
optimal steps to safeguard their patients.
Barron and Kennedy summarized the
major advantages of single-use FBs over
the standard reusable FBs in clinical
scenarios. The authors noted that singleuse FBs offer a safer alternative to
standard reusable FBs in specific
scenarios where reduced risk of cross
infection was critical in the
immunocompromised patient and in
rare cases of prior contamination due to
transmissible spongiform
encephalopathies.
The applicant referred to a selfsponsored study 20 by Ofstead et al.21 in
2019, in support of its claim that the use
of the Ambu® aScopeTM 5 Broncho HD
ensures a sterilized scope is available
for each procedure while reusable
endoscopes may not be sterile even if
manufacturers’ cleaning protocols are
followed. The study first referenced
Ofstead et al.’s 2017 22 evaluation of the
effectiveness of bronchoscope
processing in three large hospitals
where every bronchoscope had visible
defects, protein was detected on 100
percent of high-level disinfected
bronchoscopes, and bacteria or mold
were found on 58 percent of the patientready bronchoscopes. Then, in 2019,
Ofstead et al. conducted the study to
determine the time and cost of
acquiring, maintaining, and
reprocessing bronchoscopes in four
hospitals (two in the Midwest and two
in the West Coast). Three hospitals had
obtained single-use Ambu®
bronchoscopes (2018, version
unspecified) for procedures done in
certain departments, after hours, or in
emergency situations. Per Ofstead et al.
(2019), the cost for procedures with
reusable bronchoscopes ($281 to $803)
were comparable or higher than the cost
of single-use bronchoscopes ($220 to
$315), due to acquisition and
maintenance of large inventories of
bronchoscopes to ensure real-time
37(11), 4538–4548. https://doi.org/10.1007/s12325020-01495-8.
20 Ofstead et al. acknowledged that this study was
supported by an unrestricted research grant from
Ambu Inc. The study sponsor did not participate in
designing the study, identifying sites, collecting
data, compiling results, interpreting the findings, or
writing this article.
21 Ofstead, C.L., Hopkins, K.M., Eiland, J.E., &
Wetzler, H.P. Managing Bronchoscope Quality and
Cost: Results of a Real-world Study. https://
www.ambu.com/Files/Files/Ambu/Investor/News/
English/2019/Managing%20Bronchoscope%20
cost%20a%20real%20world%20study.pdf.
22 Ofstead CL, Quick MR, Wetzler HP, et al.
Effectiveness of reprocessing for flexible
bronchoscopes and endobronchial ultrasound
bronchoscopes. Chest. 2018;154(5):1024–34.
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availability for various hospital
departments. Ofstead et al. (2019)
suggested the use of single-use
bronchoscopes and accessories for after
hours and emergency situations and any
procedures that do not require advanced
bronchoscopy capabilities. Ofstead et al.
(2019) summarized the steps that can be
taken to reduce risks related to
bronchoscope contamination and to
focus on implementing quality
management systems to improve
personnel competence, bronchoscope
inventory management, maintenance,
reprocessing effectiveness, and storage.
In addition to following manufacturer’s
steps for reprocessing the devices,
Ofstead et al. (2019) suggest the use of
single-use bronchoscopes and
accessories for after hours and
emergency situations and any
procedures that do not require advanced
bronchoscopy capabilities, which are
currently available in the list of
recommendations.
The applicant referenced a review
article by Kovaleva et al.23 in support of
its claim that the Ambu® aScopeTM 5
Broncho HD’s single-use feature is free
of biofilm from endoscope channels
since routine cleaning procedures do
not remove biofilm reliably from
endoscope channels. This review
presents an overview of the infections
and cross-contaminations related to
flexible gastrointestinal endoscopy and
bronchoscopy and illustrates the impact
of biofilm on endoscope reprocessing
and post-endoscopic infection. Kovaleva
et al. noted that the use of antibiofilmoxidizing agents with an antimicrobial
coating inside washer disinfectors could
reduce biofilm build-up inside
endoscopes and automated endoscope
re-processors and decrease the risk of
transmitting infections.24 Per Kovaleva
et al. while sterilization can be helpful
to destroy microorganisms within
biofilms, ethylene oxide sterilization
may fail in the presence of organic
debris after an inadequate cleaning
procedure before reprocessing of
flexible endoscopes. There was no
mention of single-use bronchoscopes in
the study.
The applicant cited a self-sponsored,
laboratory study by Kurman et al.,25 in
23 Kovaleva, J., Peters, F.T., van der Mei, H.C., &
Degener, J.E. (2013). Transmission of infection by
flexible gastrointestinal endoscopy and
bronchoscopy. Clinical microbiology reviews, 26(2),
231–254. https://doi.org/10.1128/CMR.00085-12.
24 Kovaleva, J., Peters, F.T., van der Mei, H.C., &
Degener, J.E. (2013). Transmission of infection by
flexible gastrointestinal endoscopy and
bronchoscopy. Clinical microbiology reviews, 26(2),
231–254. https://doi.org/10.1128/CMR.00085-12.
25 Kurman, J., Wagh, A., Benn, B., & Islam, S.,
(2023). A Comparison of Single-use Bronchoscopes
and Reusable Bronchoscopes for Interventional
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general support of its application.
Kurman et al. evaluated and assessed
four different manufacturers’ single-use
flexible bronchoscopes (SFB), including
the nominated device and its prior
model, against their reusable flexible
bronchoscopes (RFB) on a cadaver (i.e.,
corpse) model, benchtop fixturing, and
artificial plastic lung model. The study
compared the Ambu® aScopeTM 5
Broncho HD with four devices: (1)
Olympus H-SteriScope; (2) Verathon
BFLEX; (3) Boston Scientific Exalt-B;
and (4) Ambu® aScopeTM 4 Broncho
(the prior model of the nominated
device). The study concluded that the
Ambu® aScopeTM 5 Broncho HD has the
highest overall performance, the highest
overall rating for sampling, and highest
maneuverability in difficult segmental
airways among the comparator devices.
The applicant indicated that the
Ambu® aScopeTM 5 Broncho HD differs
from these comparator devices as it is
the only device that is compatible with
argon gas plasma coagulation,
cryotherapy, and laser, with an HD
(1200x800) chip, has more degrees of
articulation with tools, and provides
image and video capture from the scope
handle with multiple programmable
functions including capture photo, start/
end video, enable zoom, and initiate
ARC. In addition, the applicant stated
that the nominated device is superior to
its earlier legally marketed device in
terms of maneuverability into difficult
segmental airways, overall performance,
and overall sampling assessment. The
applicant asserted that the nominated
device differs from the predicate device
due to a rotation mechanism on the
handle and its superior articulation,
which allow for more complicated
procedures to be performed such as
cryotherapy and coagulation. The
applicant stated that the nominated
device is equipped with an HD image
chip and increased depth-of-field and
field-of-view, which allow
interventional pulmonologists to
perform inspections, biopsies, and
debulking. The applicant also stated
that the nominated device’s
programmable buttons allow for
superior documentation than the earlier
bronchoscope device.
We note that the nominated device
was determined to be substantially
equivalent to the earlier device that the
applicant had previously legally
marketed. The FDA 510(k) summary
indicated that both devices share similar
technological characteristics such as
optical system, bending section,
diameter of insertion cord and distal
Pulmonology Applications. Confidential. Ambu
Inc., funded evaluation and testing.
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end, and insertion portion length.
Furthermore, the 510(k) summary
indicated that both have the same
technical characteristics, which include
maneuverable tip controlled by the user,
flexible insertion cord, camera and LED
light source at the distal tip, sterilized
by ethylene oxide, single-use devices,
ability for aspiration and sample
collection in bronchoalveolar lavage,
and bronchial wash procedures.
We note that in its application, the
applicant provided a comparison of
certain devices or device categories that
it believed are most closely related or
similar to the Ambu® aScopeTM 5
Broncho HD. The applicant identified
six reusable devices that it believed are
most closely related: (1) Olympus Evis
Exera Iii Bronchovideoscope Bf–h190;
(2) Pentax EB–J10 Video Bronchoscope;
(3) Fujifilm EB–580S Video
Bronchoscope; (4) Olympus BF–Q190;
(5) Olympus BF–1TH190; and (6)
Olympus BF–XT190. According to the
applicant, these devices are used during
the same specific procedure(s) and/or
services with which the Ambu®
aScopeTM 5 Broncho HD is used. The
applicant stated that the Ambu®
aScopeTM 5 Broncho HD’s single-use
feature is unique among the
comparators. According to the
applicant, the single-use feature
eliminates bronchoscope reprocessing.
The applicant further submitted several
articles reporting results on the
prevalence of infection due to
incomplete or inadequate processing for
reusable bronchoscopes, which we
summarize as follows. An article by
Shimizu et al.26 concluded that patients
with larger lesions, presence of
endobronchial lesions, histology of
small-cell lung cancer, and advanceddisease stage tended to develop
pulmonary infectious complications
more often than other patients. A 2020
systematic literature review and metaanalysis by Travis et al.27 reported an
estimated average reusable FB crosscontamination rate of 8.69 percent ±
1.86 (standard division [SD]) (95 percent
confidence interval [CI]: 5.06–12.33
percent) among eight studies from the
U.S. and four European countries.
Travis et al.28 attributed the infection
rate to the differences in the study
26 Shimizu, T., Okachi, S., Imai, N., Hase, T.,
Morise, M., Hashimoto, N., Sato, M., & Hasegawa,
Y. (2020). Risk factors for pulmonary infection after
diagnostic bronchoscopy in patients with lung
cancer. Nagoya journal of medical science, 82(1),
69–77. https://doi.org/10.18999/nagjms.82.1.69.
27 Travis, H.S., Russell, R.V., & Kovaleva, J.
(2023). Cross-contamination rate of reusable flexible
bronchoscopes: A systematic literature review and
meta-analysis. Journal of Infection Prevention,
17571774231158203.
28 Id.
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design and sampling methods,
geography, low number of data points,
clinical settings, and an aversion
towards publishing negative findings
among the eight studies. Furthermore,
the applicant submitted a 2019
systematic review and cost-effective
analysis by Mouritsen et al.,29 which
reported an average 2.8 percent crosscontamination rate from reusable,
flexible bronchoscopes among 16
studies from the United Kingdom, U.S.,
France, Spain, Australia, and Taiwan.
Mouristen et al. identified that the
single-use flexible bronchoscopes were
cost effective and associated with a
reduction of infection risk of
approximately 1.71–4.07 percent
compared with reusable flexible
bronchoscopes. Lastly, the applicant
again cited the meta study by Barron
and Kennedy 30 referencing the findings
from Ofstead et al.31, the review by
Mouristen et al., and the Emergency
Care Research Institute’s (ECRI’s)
report.32 Of note, ECRI highlighted the
recontamination of flexible endoscopes
due to mishandling or improper storage
as one of the top 10 health technology
hazards.
Based on the evidence submitted with
the application, we note the following
concerns: We are concerned about
whether the Ambu® aScopeTM 5
Broncho HD can be distinguished from
similar devices on the market and the
earlier versions of the nominated device
on the market sufficiently to
demonstrate substantial clinical
improvement. Four of the studies the
applicant submitted, Chaˆteauvieux et
al.,33 Barron and Kennedy,34 Kurman et
29 Mouritsen, J.M., Ehlers, L., Kovaleva, J.,
Ahmad, I., & El-Boghdadly, K. (2020). A systematic
review and cost effectiveness analysis of reusable
vs. single-use flexible bronchoscopes. Anaesthesia,
75(4), 529–540.
30 Barron, S. P., & Kennedy, M.P. (2020). SingleUse (Disposable) Flexible Bronchoscopes: The
Future of Bronchoscopy? Advances in therapy,
37(11), 4538–4548. https://doi.org/10.1007/s12325020-01495-8.
31 Ofstead CL, Quick MR, Wetzler HP, et al.
Effectiveness of reprocessing for flexible
bronchoscopes and endobronchial ultrasound
bronchoscopes. Chest. 2018;154(5):1024–34.
32 ECRI. Top 10 health technology hazards.
Executive brief. Pennsylvania: ECRI Institute,
Health devices; 2019. p. 2019.
33 Cha
ˆ teauvieux, C., Farah, L., Gue´rot, E.,
Wermert, D., Pineau, J., Prognon, P., Borget, I., &
Martelli, N. (2018). Single-use flexible
bronchoscopes compared with reusable
bronchoscopes: Positive organizational impact but a
costly solution. Journal of evaluation in clinical
practice, 24(3), 528–535. https://doi.org/10.1111/
jep.12904.
34 Barron, S.P., & Kennedy, M.P. (2020). SingleUse (Disposable) Flexible Bronchoscopes: The
Future of Bronchoscopy? Advances in therapy,
37(11), 4538–4548. https://doi.org/10.1007/s12325020-01495-8.
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al.,35 and Ofstead et al.,36 investigated
and provided data on the applicant’s
earlier models of the device, but did not
provide comparisons to the nominated
device. In addition, we note that the
studies provided also did not compare
the nominated device to an appropriate
comparator such as a single-use
bronchoscope from a different
manufacturer or a standard reusable
bronchoscope in a clinical setting. In
addition, we note that the applicant’s
self-sponsored study by Kurman, et al.37
was conducted in the laboratory (i.e., on
cadaver, benchtop fixturing, and
artificial plastic lung) and not in the
clinical setting. In order to demonstrate
substantial clinical improvement over
currently available treatments, we
consider supporting evidence,
preferably published peer-reviewed
clinical trials, that shows improved
clinical outcomes, such as reduction in
mortality, complications, subsequent
interventions, future hospitalizations,
recovery time, pain, or a more rapid
beneficial resolution of the disease
process compared to the standard of
care.
Furthermore, we note that the
Chaˆteauvieux et al.38 and Barron and
Kennedy 39 studies suggested limiting
the use of single-use bronchoscope
device to specific situations (i.e., after
hours or emergency),
immunocompromised patients, and in
rare cases of preventing prior
contamination in the inpatient setting.
We believe that further investigation
with comparators in these specified
cases would be particularly helpful to
determine whether the device
demonstrates substantial clinical
improvements over currently available
35 Kurman, J., Wagh, A., Benn, B., & Islam, S.,
(2023). A Comparison of Single-use Bronchoscopes
and Reusable Bronchoscopes for Interventional
Pulmonology Applications. Confidential. Ambu
Inc., funded evaluation and testing.
36 Ofstead, C.L., Hopkins, K.M., Eiland, J.E., &
Wetzler, H.P. Managing Bronchoscope Quality and
Cost: Results of a Real-world Study. https://
www.ambu.com/Files/Files/Ambu/Investor/News/
English/2019/Managing%20Bronchoscope%20cost
%20a%20real%20world%20study.pdf.
37 Kurman, J., Wagh, A., Benn, B., & Islam, S.,
(2023). A Comparison of Single-use Bronchoscopes
and Reusable Bronchoscopes for Interventional
Pulmonology Applications. Confidential. Ambu
Inc., funded evaluation and testing.
38 Cha
ˆ teauvieux, C., Farah, L., Gue´rot, E.,
Wermert, D., Pineau, J., Prognon, P., Borget, I., &
Martelli, N. (2018). Single-use flexible
bronchoscopes compared with reusable
bronchoscopes: Positive organizational impact but a
costly solution. Journal of evaluation in clinical
practice, 24(3), 528–535. https://doi.org/10.1111/
jep.12904.
39 Barron, S.P., & Kennedy, M.P. (2020). SingleUse (Disposable) Flexible Bronchoscopes: The
Future of Bronchoscopy? Advances in therapy,
37(11), 4538–4548. https://doi.org/10.1007/s12325020-01495-8.
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treatments in the clinical setting where
it is most likely to be used.
We note concern that the application
and all the articles submitted as
evidence of substantial clinical
improvement discuss potential adverse
events from reusable bronchoscope
procedures, but do not directly show
any clinical improvement that results
from the use of the Ambu® aScopeTM 5
Broncho HD. We note that Shimizu et
al.,40 Travis et al.,41 Barron and
Kennedy,42 and Ofstead et al.43
provided information about the risks
associated with reprocessing reusable
devices and reported mixed results.
We also note that the 2015 FDA safety
notice 44 provided preliminary
information regarding infections
associated with the use of reprocessed
flexible bronchoscopes, but did not
discuss or recommend the use of
disposable, single-use devices in the
notice. Furthermore, we note the
following concerns about studies on the
prevalence of infection due to
incomplete/inadequate reprocessing of
reusable bronchoscopes. The studies
authored by Chaˆteauvieux et al.,45
T., Okachi, S., Imai, N., Hase, T.,
Morise, M., Hashimoto, N., Sato, M., & Hasegawa,
Y. (2020). Risk factors for pulmonary infection after
diagnostic bronchoscopy in patients with lung
cancer. Nagoya journal of medical science, 82(1),
69–77. https://doi.org/10.18999/nagjms.82.1.69.
41 Travis, H.S., Russell, R.V., & Kovaleva, J.
(2023). Cross-contamination rate of reusable flexible
bronchoscopes: A systematic literature review and
meta-analysis. Journal of Infection Prevention,
17571774231158203.
42 Barron, S.P., & Kennedy, M.P. (2020). SingleUse (Disposable) Flexible Bronchoscopes: The
Future of Bronchoscopy? Advances in therapy,
37(11), 4538–4548. https://doi.org/10.1007/s12325020-01495-8.
43 Ofstead, C.L., Hopkins, K.M., Eiland, J.E., &
Wetzler, H.P. Managing Bronchoscope Quality and
Cost: Results of a Real-world Study. https://
www.ambu.com/Files/Files/Ambu/Investor/News/
English/2019/Managing%
20Bronchoscope%20cost%20a
%20real%20world%20study.pdf.
44 FDA Safety Communications, Infections
Associated with Reprocessed Flexible
Bronchoscopes: FDA Safety Communication, issued
September 17, 2015. https://www.fdanews.com/ext/
resources/files/09-15/092115-safetynotice.pdf?1442508647.
45 Cha
ˆ teauvieux, C., Farah, L., Gue´rot, E.,
Wermert, D., Pineau, J., Prognon, P., Borget, I., &
Martelli, N. (2018). Single-use flexible
bronchoscopes compared with reusable
bronchoscopes: Positive organizational impact but a
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40 Shimizu,
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Shimizu et al.,46 Travis et al.,47 and
Mouritsen et al.48 have small sample
sizes. Furthermore, the Barron and
Kennedy,49 Travis et al.,50 and
Mouritsen et al.51 studies used different
study designs and sampling
methodologies, or were performed in
various clinical settings other than
outpatient, which may affect the quality
and reliability of the data provided in
support of the applicant’s assertions. We
do not believe that we have sufficient
information on the prevalence of
infection to evaluate the applicant’s
substantial clinical improvement claims
for the nominated device. We are
seeking comments on the prevalence of
infection due to incomplete/inadequate
processing for bronchoscopes in the
U.S. and whether single-use
bronchoscopes reduce the infection rate
in patients to identify the extent of the
problem with existing technologies.
The applicant provided evidence
which seemed to rely on indirect
inferences from other sources of data.
We question the relevance of the 2015
FDA safety notice 52 to the nominated
costly solution. Journal of evaluation in clinical
practice, 24(3), 528–535. https://doi.org/10.1111/
jep.12904.
46 Shimizu, T., Okachi, S., Imai, N., Hase, T.,
Morise, M., Hashimoto, N., Sato, M., & Hasegawa,
Y. (2020). Risk factors for pulmonary infection after
diagnostic bronchoscopy in patients with lung
cancer. Nagoya journal of medical science, 82(1),
69–77. https://doi.org/10.18999/nagjms.82.1.69.
47 Travis, H.S., Russell, R.V., & Kovaleva, J.
(2023). Cross-contamination rate of reusable flexible
bronchoscopes: A systematic literature review and
meta-analysis. Journal of Infection Prevention,
17571774231158203.
48 Mouritsen, J.M., Ehlers, L., Kovaleva, J.,
Ahmad, I., & El-Boghdadly, K. (2020). A systematic
review and cost effectiveness analysis of reusable
vs. single-use flexible bronchoscopes. Anaesthesia,
75(4), 529–540.
49 Barron, S.P., & Kennedy, M.P. (2020). SingleUse (Disposable) Flexible Bronchoscopes: The
Future of Bronchoscopy? Advances in therapy,
37(11), 4538–4548. https://doi.org/10.1007/s12325020-01495-8.
50 Travis, H.S., Russell, R.V., & Kovaleva, J.
(2023). Cross-contamination rate of reusable flexible
bronchoscopes: A systematic literature review and
meta-analysis. Journal of Infection Prevention,
17571774231158203.
51 Mouritsen, J.M., Ehlers, L., Kovaleva, J.,
Ahmad, I., & El-Boghdadly, K. (2020). A systematic
review and cost effectiveness analysis of reusable
vs. single-use flexible bronchoscopes. Anaesthesia,
75(4), 529–540.
52 FDA Safety Communications, Infections
Associated with Reprocessed Flexible
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device because as stated above, the
guidance applies to reprocessed flexible
bronchoscopes broadly, but not to
disposable, single-use devices
comparable to the nominated device.
We are concerned that many of the
applicant’s substantial clinical
improvement claims rely on an
assumption that inadequate
reprocessing of reusable bronchoscopes
is positively correlated with heightened
risk of infection, providing studies with
small sample sizes and other limitations
as described above as their only
support. We note that the applicant
provided background information on
the established reprocessing
guidelines 53 for reusable devices;
however, the existence of reprocessing
guidelines does not provide evidence on
the prevalence of infection rates,
establish a relationship between
infection risk and reprocessing
procedures, or substantiate that singleuse disposable scopes, or the nominated
device specifically, would be a
substantial clinical improvement over
currently available treatments.
We are inviting public comment on
whether the Ambu® aScopeTM 5
Broncho HD meets the substantial
clinical improvement criterion at
§ 419.66(c)(2)(i).
The third criterion for establishing a
device category, at § 419.66(c)(3),
requires us to determine that the cost of
the device is not insignificant, as
described in § 419.66(d). Section
419.66(d) includes three cost
significance criteria that must be met.
The applicant provided the following
information in support of the cost
significance requirements. The
applicant stated that the Ambu®
aScopeTM 5 Broncho HD would be
reported with HCPCS codes listed in
Table 31.
BILLING CODE 4120–01–P
Bronchoscopes: FDA Safety Communication, issued
September 17, 2015. https://www.fdanews.com/ext/
resources/files/09-15/092115-safetynotice.pdf?1442508647.
53 FDA Guidance March 17, 2015, ‘‘Reprocessing
Medical Devices in Health Care Settings: Validation
Methods and Labeling: Guidance for Industry and
Food and Drug Administration Staff.’’
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To meet the cost criterion for device
pass-through payment status, a device
must pass all three tests of the cost
criterion for at least one APC. As we
explained in the CY 2005 OPPS final
rule with comment period (69 FR
65775), we generally use the lowest APC
payment rate applicable for use with the
nominated device when we assess
whether a device meets the cost
significance criterion, thus increasing
the probability the device will pass the
cost significance test. For our
calculations, we used APC 5152, which
had a CY 2022 payment rate of $383.33
at the time the application was received.
Beginning in CY 2017, we calculate the
device offset amount at the HCPCS/CPT
code level instead of the APC level (81
FR 79657). We note that the HCPCS
code 31646 identified by the applicant
had a device offset amount of $0.00 at
the time the application was received.
Accordingly, we are evaluating the cost
significance requirements using $0.00 as
the appropriate device offset amount.
According to the applicant, the cost of
the Ambu® aScopeTM 5 Broncho HD is
$799.00.
Section 419.66(d)(1), the first cost
significance requirement, provides that
the estimated average reasonable cost of
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devices in the category must exceed 25
percent of the applicable APC payment
amount for the service related to the
category of devices. The estimated
average reasonable cost of $799.00 for
the Ambu® aScopeTM 5 Broncho HD is
208.44 percent of the applicable APC
payment amount for the service related
to the category of devices of $383.33
(($799.00/$383.33) × 100 = 208.44
percent). Therefore, we believe the
Ambu® aScopeTM 5 Broncho HD meets
the first cost significance requirement.
The second cost significance
requirement, at § 419.66(d)(2), provides
that the estimated average reasonable
cost of the devices in the category must
exceed the cost of the device-related
portion of the APC payment amount for
the related service by at least 25 percent,
which means that the device cost needs
to be at least 125 percent of the offset
amount (the device-related portion of
the APC found on the offset list). Given
that there are no device-related costs in
the APC payment amount, and the
Ambu® aScopeTM 5 Broncho HD has an
estimated average reasonable cost of
$799.00, we believe that the Ambu®
aScopeTM 5 Broncho HD meets the
second cost significance requirement.
The third cost significance
requirement, at § 419.66(d)(3), provides
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that the difference between the
estimated average reasonable cost of the
devices in the category and the portion
of the APC payment amount for the
device must exceed 10 percent of the
APC payment amount for the related
service. The difference between the
estimated average reasonable cost of
$799.00 for the Ambu® aScopeTM 5
Broncho HD and the portion of the APC
payment amount for the device of $0.00
exceeds the APC payment amount for
the related service of $799.00 by 208.44
percent ((($799.00¥$0.00)/$383.33) ×
100 = 208.44 percent). Therefore, we
believe that the Ambu® aScopeTM 5
Broncho HD meets the third cost
significance requirement.
We are inviting public comment on
whether the Ambu® aScopeTM 5
Broncho HD meets the device passthrough payment criteria discussed in
this section, including the cost criterion
for device pass-through payment status.
(b) Praxis Medical CytoCore
Praxis Medical, LLC submitted an
application for a new device category
for transitional pass-through payment
status for Praxis Medical CytoCore
(CytoCore) for CY 2024. Per the
applicant, CytoCore is a single-use
disposable biopsy instrument. Per the
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applicant, at the time of biopsy, the
motorized CytoCore device contains
gears and an internal motor that spins
a minimally invasive needle to increase
cellular yields in fewer passes. The
applicant further explained that
CytoCore is vacuum-assisted and can
easily be operated using one hand.
According to the applicant, the primary
use is for biopsy of any suspicious
thyroid nodule.
The applicant stated that the CytoCore
Biopsy Instrument device package
includes: (1) five CytoCore Biopsy
Instruments, each containing three luer
adapters in a sterile pouch, a syringeholding device, equipped with a scissorslide mechanism for drawing back the
syringe plunger to create suction, an
internal motor that rotates a needle, and
an internal alkaline type battery; (2) five
5-mL syringes; and (3) instructions for
use (IFU) booklets. Per the applicant,
the CytoCore is compatible with
disposable needles of 22-to-25-gauge
and 4-to-10-cm length that are intended
for soft tissue biopsy procedures
(needles are not included in the device
package). The applicant further
explained that only the CytoCore luer
adapters and syringes provided by
Praxis can be used on CytoCore and that
the CytoCore luer adapters can only be
used with the CytoCore Biopsy
Instrument.
Per the applicant, the operator of
CytoCore can direct the needle and
draw back the plunger with only one
hand, thereby diminishing the need to
move the needle in an in-and-out
motion to harvest cells. As with other
types of biopsies, the sample collected
can help make a diagnosis or rule out
conditions such as cancer. The
applicant claimed that CytoCore enables
the physician to collect more cellular
material in fewer passes and reduce the
number of repeat biopsies and surgeries
related to inadequate cellular samples
using the standard fine needle
aspiration (FNA) biopsy. According to
the applicant, CytoCore is designed to
collect enough DNA for pathology to
definitively rule in or out cancer and
inform subsequent treatment at the time
of the first biopsy. Per the applicant,
studies report nondiagnostic rates for
thyroid biopsies to be as high as 30 to
50 percent using standard FNA biopsy.
As stated previously, to be eligible for
transitional pass-through payment
under the OPPS, a device must meet the
criteria at § 419.66(b)(1) through (4).
With respect to the newness criterion at
§ 419.66(b)(1), on March 31, 2020, the
applicant received 510(k) clearance
from FDA for CytoCore for use as a
device to hold a syringe for performing
a biopsy of an identified mass with one
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hand. We received the application for a
new device category for transitional
pass-through payment status for
CytoCore on August 31, 2022, which is
within 3 years from the date of the
initial FDA marketing authorization.
We are inviting public comments on
whether CytoCore meets the newness
criterion at § 419.66(b)(1).
With respect to the eligibility criterion
at § 419.66(b)(3), the applicant did not
assert whether CytoCore is integral to
the service provided. According to the
applicant, CytoCore is used for one
patient only. Per the applicant,
CytoCore comes into contact with
human tissue and is surgically inserted
via the syringe attached to the
motorized CytoCore device. Per the
applicant, CytoCore is used with a 22to-25-gauge standard fine needle (not
included in the device package), which
is inserted into human tissue to collect
cellular samples. The applicant stated
that the fine needle is attached to
CytoCore, inserted into the nodule, and
cellular material is collected through the
needle into the syringe. The applicant
further explained that the cellular
material is visible in the hub of the
needle or the luer adapter. However, we
note that the motorized CytoCore device
itself is not surgically implanted or
inserted (either permanently or
temporarily) or applied in or on a
wound or other skin lesion, as required
at § 419.66(b)(3). Further, we note that
according to the FDA 510(k) Summary
and Indication for Use, CytoCore is a
device to hold a syringe for performing
a biopsy of an identified mass with one
hand and that the device never comes
in contact with the patient. With respect
to the exclusion criterion at
§ 419.66(b)(4), the applicant did not
address whether CytoCore is equipment,
an instrument, apparatus, implement, or
item of this type for which depreciation
and financing expenses are recovered as
depreciable assets. The applicant also
did not address whether CytoCore is a
supply or material furnished incident to
a service. However, in the CY 2000
OPPS interim final rule with comment
period (65 FR 67798, 65 FR 67804
through 67805), we explained how we
interpreted § 419.43(e)(4)(iv). We stated
that we consider a device to be
surgically implanted or inserted if it is
surgically inserted or implanted via a
natural or surgically created orifice, or
inserted or implanted via a surgically
created incision. We also stated that we
do not consider an item used to cut or
otherwise create a surgical opening to be
a device that is surgically implanted or
inserted. We consider items used to
create incisions, such as scalpels,
electrocautery units, biopsy
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apparatuses, or other commonly used
operating room instruments, to be
supplies or capital equipment not
eligible for transitional pass-through
payments. We stated that we believe the
function of these items is different and
distinct from that of devices that are
used for surgical implantation or
insertion. Finally, we stated that,
generally, we would expect that surgical
implantation or insertion of a device
occurs after the surgeon uses certain
primary tools, supplies, or instruments
to create the surgical path or site for
implanting the device. In the CY 2006
OPPS final rule with comment period
(70 FR 68516, 70 FR 68629 and 68630),
we adopted as final our interpretation
that the surgical insertion or
implantation criterion can be met by
devices that are surgically inserted or
implanted via a natural or surgically
created orifice, as well as those devices
that are inserted or implanted via a
surgically created incision. We
reiterated that we maintain all of the
other criteria in § 419.66 of the
regulations, namely, that we do not
consider an item used to cut or
otherwise create a surgical opening to be
a device that is surgically implanted or
inserted.
We are inviting public comments on
whether CytoCore meets the exclusion
criterion at § 419.66(b).
In addition to the criteria at
§ 419.66(b)(1) through (4), the criteria
for establishing new device categories
are specified at § 419.66(c). The first
criterion, at § 419.66(c)(1), provides that
CMS determines that a device to be
included in the category is not
appropriately described by any of the
existing categories or by any category
previously in effect, and was not being
paid for as an outpatient service as of
December 31, 1996. The applicant
described CytoCore as a motorized,
single-use disposable biopsy instrument
that contains gears and an internal
motor that spins a minimally invasive
needle during biopsy to increase
cellular yields in fewer passes. Per the
applicant, no previous device categories
for pass-through payment have
encompassed the device.
We have not identified an existing
pass-through payment category that
describes CytoCore. We are inviting
public comment on whether CytoCore
meets the device category criterion at
§ 419.66(c)(1).
The second criterion for establishing
a device category, at § 419.66(c)(2),
provides that CMS determines either of
the following: (i) that a device to be
included in the category has
demonstrated that it will substantially
improve the diagnosis or treatment of an
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illness or injury or improve the
functioning of a malformed body part
compared to the benefits of a device or
devices in a previously established
category or other available treatment; or
(ii) for devices for which pass-through
status will begin on or after January 1,
2020, as an alternative to the substantial
clinical improvement criterion, the
device is part of the FDA’s Breakthrough
Devices Program and has received FDA
marketing authorization for the
indication covered by the Breakthrough
Device designation. The applicant
claimed that the use of CytoCore results
in substantial clinical improvement over
existing technologies by: (1) reducing
tissue trauma, bleeding; (2) increasing
cellular harvest; (3) reducing passes
required, clinical invasiveness; and (4)
reducing nondiagnostic biopsy results
follow up. The applicant provided one
article and one conference poster in
support of these claims.
In support of the claims that using
CytoCore reduced tissue trauma and/or
bleeding, and that it increased cellular
harvest, the applicant submitted a
conference poster of a study performed
to evaluate the consistency and
diagnostic quality of cellular material
obtained with a 22-to-25-gauge fine
needle using CytoCore as compared to
FNA without using CytoCore and to
traditional core biopsy. In the study,54
samples utilizing FNA syringe (n = 14)
and core biopsy (n = 12) were obtained
and compared to biopsy samples
obtained with CytoCore. The samples
were analyzed in pathology separately
for diagnostic adequacy. Using the
Fisher exact test statistic, the study
authors found no significant difference
(p < .05) between FNA and CytoCore.
Similarly, using the Fisher exact test
statistic, the study authors found no
significant difference (p < . 05) between
core biopsy and CytoCore. Specifically,
the study authors reported that
CytoCore was successful in obtaining a
diagnosis in 78 percent of biopsies,
which was unchanged from FNA;
however, the authors reported that the
cellular yield of samples obtained with
CytoCore were superior to FNA biopsy
samples. The study authors also
reported that when compared to
traditional core samples, CytoCore
specimens were similar to traditional
core biopsy in yielding a diagnosis, with
54 Rey, E., Huber, J., Risam, R., Shahzad, R.,
Gonzalez, A., Acosta, A. (2022, April). Making the
Diagnosis: Increasing the Cellular Yield of
Pathology Samples Through a Motorized Rotating,
Aspirating Device. Poster presented at the Daniel
Manganaro Memorial 2022 Annual Scientific Poster
Symposium, Elmira, NY. Retrieved from https://
www.arnothealthgme.org/_files/ugd/c76666_
083113203de449a8a6054cf7b81aac82.pdf.
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CytoCore yielding a diagnosis 99
percent of the time and core biopsy 100
percent of the time. The authors
concluded that CytoCore provides a
reliably high amount of cellular material
with significantly less tissue damage,
which is especially useful for vascular
tissue such as lymph nodes and breast
tissue.
In support of the claims that using
CytoCore reduces the number of passes
required and the clinical invasiveness of
a thyroid biopsy, and that it reduces
nondiagnostic biopsy results and
follow-up, the applicant provided an
unpublished article that described the
performance of CytoCore on the number
of passes required to obtain an adequate
sample and diagnostic biopsy in
comparison to using traditional
ultrasound-guided FNA (US–FNA)
biopsy rates reported in the literature.55
The study authors performed a
retrospective chart review of
consecutive US–FNA thyroid biopsies
performed with CytoCore between
August 2020 and March 2021. The chart
records included ultrasound and
pathology data points, including exam
code, name of operator, biopsy tool,
number of passes required for adequacy,
and pathological diagnosis using the
Bethesda System for Reporting Thyroid
Cytopathology. The authors stated that
the study included a total of 100 FNA
biopsies from 69 patients, and a total of
nine different operators performed these
biopsies. At the time of biopsy, most (88
percent) of the patients were women,
and, on average, were 65 years of age at
the time of biopsy. In addition, the
study authors stated that the number of
nodules biopsied ranged from one to
three on average, but most patients (65
percent) had only one nodule biopsied.
The operators’ years of experience
ranged from 4 to 39 years of practice,
with most (76 percent) performed by an
operator with 5 years of practice
experience (the study authors noted that
this operator was never the sole operator
for the procedure). In addition, a
cytotechnologist was present for all
procedures and rapid on-site evaluation
(ROSE) was done on the smears to
determine if the sample met the criteria
for adequacy. All biopsies were
performed using a 25 gauge, 11⁄2 inch
BD TM needle attached to CytoCore. The
Bethesda System classification
categories include Category I
(nondiagnostic), Category II (benign),
Category III (atypia), Category IV
55 Authors unknown. Motorized rotating fine
needle biopsy device reduces number of passes
needed for cytological adequacy and improves
diagnostic accuracy, not published; uses a
retrospective study type.
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(suspicious for neoplasm), Category V
(suspicious for malignancy), and
Category VI (malignant). The study
authors defined determinant diagnoses
as the sum total of biopsies classified in
Categories II (benign) and IV
(malignant). The authors compared their
study results to 20 published articles
with publication dates between 2012
and 2022 that reported results for
thyroid US–FNA biopsy. The study
used descriptive statistics (averages and
frequencies) and a single sample
proportion test to compare the adequacy
of the biopsy sample for each pass and
the percentage of nondiagnostic,
indeterminant, and determinant
diagnosis classifications to conventional
US–FNA techniques results reported in
literature. According to the study
authors, the number of passes required
to attain an adequate sample using
CytoCore ranged from one to four and
was statistically significantly lower than
using conventional FNA technique as
reported in the 20 articles. Specifically,
to obtain an adequate sample of a
thyroid nodule using CytoCore
compared to the conventional FNA
technique, 65 percent required only one
pass compared to 36 percent, 93 percent
required two or fewer passes compared
to 60 percent, 97 percent required three
or fewer passes compared to 72 percent,
and 100 percent required four or fewer
passes compared to 75 percent,
respectively. The authors stated that
restricting the analyses to only one
nodule per patient did not result in a
change in significance. In addition, the
authors stated that for their study group,
pathology was able to make a
determinant diagnosis (Category II and
Category VI) for 91 percent of the
samples. Specifically, of the 100
samples included in the study, 3
percent were nondiagnostic (Category I),
88 percent were benign (Category II), 4
percent were atypia (Category III), 2
percent were suspicious for neoplasm
(Category IV), 0 percent were suspicious
for malignancy (Category V), and 3
percent were malignant (Category VI).
According to the authors, this was
significantly better than the median
nondiagnostic (Category I) and
determinant diagnosis rates reported in
the literature, 10% (p = 0.02) and 65%
(p < 0.001), respectively. The rate of
indeterminant classifications (Category
III) was also lower in their study
population but was not statistically
significant (p = 0.17). The study authors
concluded that if their study sample of
100 thyroid biopsies using CytoCore had
the same median results as FNA thyroid
biopsies reported in the literature, an
additional 11 patients would have a
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biopsy classified as Category I or
Category III (nondiagnostic and atypia)
and would have required at least one
more US–FNA to make a diagnosis, and
an additional four patients would have
a biopsy classified as Category IV
(suspicious neoplasm) and would have
required a partial lobectomy to
determine malignancy. The study
authors further concluded that in
addition to the higher cost associated
with additional biopsies and/or surgical
intervention, there may be a greater
impact on a patient’s quality of life due
to potential surgical complications,
vocal cord palsy (VCP), lifetime
hormonal replacement, and cosmetic
scarring. Furthermore, the authors
concluded that CytoCore resulted in
more than a three-fold decrease in
nondiagnostic (Category III) biopsies
and significant increase in definitive
diagnoses. The management of an
initially indeterminant biopsy can range
from a repeat US–FNA (Categories I and
III) to lobectomy or thyroidectomy
(Categories IV and V). The actual risk of
malignancy can be as low as 1 percent
to 15 percent for Categories I and III, but
as high as 75 percent for Category V.
Therefore, the authors concluded that
initially indeterminant diagnosis can
result in unnecessary procedures and
increased costs for the healthcare
system and patients for false positives,
but for true malignancies, indeterminant
biopsies could also delay diagnosis and
treatment.
We note that the nominated device
was determined to be substantially
equivalent to a legally marketed device,
the TAO Aspirator and Plastic Finger.
The FDA 510(k) summary indicated that
the devices share similar technological
characteristics such as a device to hold
a syringe for performing fine needle
aspiration, a needle is connected to the
syringe and inserted into a lesion, and
a syringe plunger is retracted to create
suction. The FDA 510(k) summary
indicated that CytoCore differs in that a
battery powers a motor that rotates the
needle. In addition, the applicant
provided a comparison of certain
devices that it believed are most closely
related or similar to CytoCore.
Specifically, the applicant identified
two devices with related HCPCS
procedure codes that it believes are
most closely related to CytoCore: (1)
HCPCS code 10005 (fine needle
aspiration biopsy, including ultrasound
guidance, first lesion) and the Benton
[sic] DickinsonTM (BDTM) device; and
(2) HCPCS code 60100 (biopsy thyroid,
percutaneous core needle) and the
BioPince device. According to the
applicant, the BDTM is a single-use 25-
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gauge 1-inch basic needle with no
syringe and is the standard fine needle
used most often in thyroid biopsy
procedures. In contrast, the applicant
stated that CytoCore is a motorized
vacuum assisted device that applies
vacuum during biopsy and rotates the
[fine] needle. Per the applicant,
BioPince is a full core firing biopsy
device with a 16-to-18-gauge needle,
and it is not recommended for head/
neck biopsies due to sensitive structures
in the head/neck area (e.g., nerves,
carotid, vessels, trachea). The applicant
further explained that medical society
guidelines, including those of the
American Thyroid Association (ATA),
recommend fine needle aspiration for
biopsy of thyroid nodules. In contrast,
the applicant stated that CytoCore is
designed to obtain core comparable
specimens, but using the safe fine
needle (25-to-22-gauge), obviating the
need for this more invasive procedure
for thyroid biopsies.
Based on the evidence submitted, we
note the following concerns: The first
study is an undated conference poster
presentation and it is not clear whether
it has been submitted for publication in
a peer-reviewed journal. We also have
concerns with the generalizability and
validity of the findings. The authors did
not report their sampling methodology
used to obtain the study samples,
calling into question the validity of the
comparison groups and any inferences
made. In addition, the authors did not
describe how they addressed important
confounding variables that may affect
the quality of the biopsy specimen (e.g.,
ultrasound guided, nature, and location
of nodule biopsied), calling into
question whether the FNA and core
biopsy samples can validly be compared
to CytoCore biopsy samples. The study
used small sample sizes, a sample of 14
biopsies for the comparison to FNA and
a sample of 12 biopsies for the
comparison to core biopsies, within one
radiology department location, limiting
the generalizability of the findings. In
addition, it is not clear that the study is
limited to thyroid biopsies and the
authors did not report any information
on patient characteristics (e.g., age or
sex) or the nature of the nodule.
Furthermore, the study authors reported
that there was no significant difference
in obtaining a diagnosis between
CytoCore and FNA, and CytoCore and
core biopsy, which calls into question
any claim of the superiority (versus
equivalency) of the CytoCore biopsy
samples. The study authors reported
that the cellular yield of samples
obtained with CytoCore were overall
superior to FNA biopsy samples, but the
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metrics to evaluate this and whether
this difference was statistically
significant were not reported. We note
that we are unable to determine the
validity of this finding. We also note
that, as presented in the poster, the
study authors presented two different
rates of diagnosis when using CytoCore
with no explanation. Specifically, the
study authors stated that CytoCore was
able to obtain a successful diagnosis in
78 percent of biopsies when compared
to FNA and in 99 percent of biopsies
when compared to core biopsy.
Additionally, the purpose of the study
did not include an evaluation of
whether CytoCore reduced trauma or
increased cellular harvest, but rather
sought to evaluate the consistency and
diagnostic quality of cellular material
obtained with CytoCore using a 22-to25-gauge fine needle compared to
traditional core biopsy. The study
authors did not present metrics that
might be used to evaluate the amount of
trauma as a result of the biopsy
procedures (e.g., bleeding or bruising
after the biopsy procedures). We note
that we are unable to determine the
validity of this finding (i.e., using
CytoCore compared to core biopsy
reduces tissue damage).
The second document submitted with
the application as evidence of
substantial clinical improvement is an
article that is undated and does not list
the authors or location of the study. The
applicant did not provide any further
details regarding the status of the article.
The study authors did not use a direct
comparison group; rather, they
compared their study results to those
found in published literature. The paper
did not describe the approach used to
select the articles used to compare the
performance of CytoCore and there is no
indication that a systematic literature
review was conducted. We note that we
are not able to determine if the literature
reported rates included in the study are
representative of FNA thyroid biopsy
results. Similarly, beyond selecting
articles that reported US–FNA thyroid
biopsies, the paper did not describe
whether the study authors assessed the
quality of the study designs in the
selected literature. We note the paper
did not control for confounding factors
the study authors stated may impact the
adequacy of a biopsy sample, including
the skill and knowledge of the person
performing the biopsy, the preparation
of the specimens, and the nature of the
nodule (e.g., size, composition,
vascularity). Similarly, we note the
study authors did not account for other
important potential confounders
including the skill and knowledge of the
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pathologist and having a
cytotechnologist present to perform
ROSE on the specimens during the
biopsy.
We further note that none of the
evidence submitted by the applicant
provides conclusive evidence that the
use of CytoCore reduces tissue trauma
and/or bleeding, increases cellular
yield, reduces the number of passes
required or clinical invasiveness, or
reduces the number of nondiagnostic
biopsy results or follow-up. In order to
demonstrate substantial clinical
improvement over currently available
treatments, we consider supporting
evidence, preferably published peerreviewed clinical trials, that shows
improved clinical outcomes, such as
reduction in mortality, complications,
subsequent interventions, future
hospitalizations, recovery time, pain, or
a more rapid beneficial resolution of the
disease process compared to the
standard of care. Additional supporting
evidence, preferably published peer-
reviewed clinical trials, that shows
these improved clinical outcomes
would help inform our assessment of
whether CytoCore demonstrates
substantial clinical improvement over
existing technologies.
Finally, we are concerned that
CytoCore may not demonstrate that it
substantially improves the diagnosis or
treatment of an illness when compared
to the benefits of other available
treatments. CytoCore was determined to
be substantially equivalent to a legally
marketed device, the TAO Aspirator and
Plastic Finger, which received 510(k)
clearance on December 9, 1997. The
FDA 510(k) summary for CytoCore
indicated that the devices share similar
technological characteristics. In fact, the
FDA 510(k) summary indicated that
CytoCore differs only in that a battery
powers a motor that rotates the needle,
while the TAO Aspirator is moved
manually in an in-and-out motion. In
addition, while the applicant
distinguishes CytoCore from a
comparator device, BioPince, it is our
understanding that BioPince is a large
gauge full core firing biopsy device that
is not recommended for use in the head/
neck, the anatomic region for which
CytoCore has primary use, according to
the application. Therefore it remains
unclear how such a comparison with
BioPince supports the argument of
substantial clinical improvement.
We are inviting public comments on
whether CytoCore meets the substantial
clinical improvement criterion at
§ 419.66(c)(2)(i).
The third criterion for establishing a
device category, at § 419.66(c)(3),
requires us to determine that the cost of
the device is not insignificant, as
described in § 419.66(d). Section
419.66(d) includes three cost
significance criteria that must each be
met. The applicant provided the
following information in support of the
cost significance requirements. The
applicant stated that CytoCore would be
reported with HCPCS codes in Table 32.
To meet the cost criterion for device
pass-through payment status, a device
must pass all three tests of the cost
criterion for at least one APC. As we
explained in the CY 2005 OPPS final
rule with comment period (69 FR
65775), we generally use the lowest APC
payment rate applicable for use with the
nominated device when we assess
whether a device meets the cost
significance criterion, thus increasing
the probability the device will pass the
cost significance test. For our
calculations, we used APC 5071, which
had a CY 2022 payment rate of $635.54
at the time the application was received.
Beginning in CY 2017, we calculate the
device offset amount at the HCPCS/CPT
code level instead of the APC level (81
FR 79657). HCPCS code 10005 had a
device offset amount of $0.89 at the time
the application was received.56
According to the applicant, the cost of
the CytoCore is $175.00.
Section 419.66(d)(1), the first cost
significance requirement, provides that
the estimated average reasonable cost of
devices in the category must exceed 25
percent of the applicable APC payment
amount for the service related to the
category of devices. The estimated
average reasonable cost of $175.00 for
CytoCore is 27.54 percent of the
applicable APC payment amount for the
service related to the category of devices
of $635.54 (($175.00/$635.54) × 100 =
27.54 percent). Therefore, we believe
CytoCore meets the first cost
significance requirement.
The second cost significance
requirement, at § 419.66(d)(2), provides
that the estimated average reasonable
cost of the devices in the category must
exceed the cost of the device-related
portion of the APC payment amount for
the related service by at least 25 percent,
which means that the device cost needs
to be at least 125 percent of the offset
amount (the device-related portion of
the APC found on the offset list). The
estimated average reasonable cost of
$175.00 for CytoCore is 19,662.92
percent of the cost of the device-related
portion of the APC payment amount for
the related service of $0.89 (($175.00/
$0.89) × 100 = 19,662.92 percent).
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56 We note that the applicant selected a value of
$32.16 for the device offset amount. However, the
value selected is inconsistent with the device offset
amount related to HCPCS 10005 in APC 5071 found
in Addendum P to the CY 2022 OPPS/ASC final
rule with comment period, as corrected in the 2022
Correction Notice OPPS Addendum (87 FR 2060).
We selected the value of $0.89, which we believe
is the accurate value. Based on our initial
assessment for this proposed rule, using the device
offset amount of $0.89 would result in CytoCore
meeting the cost significance requirement.
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Therefore, we believe that CytoCore
meets the second cost significance
requirement.
The third cost significance
requirement, at § 419.66(d)(3), provides
that the difference between the
estimated average reasonable cost of the
devices in the category and the portion
of the APC payment amount for the
device must exceed 10 percent of the
APC payment amount for the related
service. The difference between the
estimated average reasonable cost of
$175.00 for CytoCore and the portion of
the APC payment amount for the device
of $0.89 is 27.40 percent of the APC
payment amount for the related service
of $635.54 or ((($175.00¥$0.89)/$
635.54) × 100 = 27.40 percent).
Therefore, we believe that CytoCore
meets the third cost significance
requirement.
We are inviting public comment on
whether CytoCore meets the device
pass-through payment criteria discussed
in this section, including the cost
criterion for device pass-through
payment status.
(c) EchoTip®
Cook Medical submitted an
application for a new device category
for transitional pass-through payment
status for the EchoTip® Insight
Portosystemic Pressure Gradient
Measurement System® (EchoTip®) for
CY 2024. According to the applicant,
EchoTip® is used in the diagnosis and
management of patient populations with
chronic liver diseases (CLDs), and
especially with non-alcoholic fatty liver
Disease (NAFLD). The applicant stated
that EchoTip® directly measures
pressures in the hepatic and portal
venous vasculatures and is used in
conjunction with an ultrasound
endoscope. The applicant provided that
a physician measures the portosystemic
pressure gradient via endoscopic
ultrasound guidance, a curvilinear array
echoendoscope is advanced to the
stomach, and the portal and hepatic
veins are visualized under ultrasound
guidance. A 25-gauge needle (which is
prepared prior to the procedure by
attaching it to connection tubing and a
disposable transducer) is advanced
through the echoendoscope which then
punctures the hepatic vein through the
liver parenchyma, and a pressure
measurement is obtained. Per the
applicant, a total of three measurements
are obtained, after which the needle is
retracted in the scope and the
echoendoscope is repositioned for
portal vein access. The needle is then
advanced to the portal vein where
another set of three pressure
measurements is obtained. The
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portosystemic pressure gradient is
calculated by determining the difference
between the two averaged
measurements.
According to the applicant, EchoTip®
is a single-use, disposable device
comprised of the EchoTip® Insight
Needle, a connecting tube, and a
Compass CT transducer. EchoTip® is
supplied with a 10 ml syringe. Once
assembled, EchoTip® is used with an
ultrasound endoscope and directly
measures pressures in the hepatic and
portal venous vasculatures. The
EchoTip® Insight Needle is stainless
steel, has a handle and protective outer
sheath, and attaches to the accessory
channel of the endoscope. The
polyethylene connecting tube consists
of a 90 cm tube, a female luer fitting, a
male luer fitting, and a stopcock. The
connecting tube is used to attach the
transducer to the needle handle. The
stopcock is used to aid priming of the
assembled components. The Compass
CT transducer is a self-calibrating
disposable pressure transducer with
integrated digital display. EchoTip® is
intended for direct measurement and
monitoring of physiological pressure,
including during the infusion of fluids
and therapeutic and diagnostic agents.
As stated previously, to be eligible for
transitional pass-through payment
under the OPPS, a device must meet the
criteria at § 419.66(b)(1) through (4).
With respect to the newness criterion at
§ 419.66(b)(1), on November 20, 2019,
FDA granted De Novo classification for
EchoTip® as a device to directly
measure pressures in the hepatic and
portal venous vasculatures and is used
in conjunction with an ultrasound
endoscope. We received the application
for a new device category for
transitional pass-through payment
status for the EchoTip® on June 29,
2022, which is within 3 years of the date
of the initial FDA marketing
authorization.
We are inviting public comment on
whether the EchoTip® meets the
newness criterion at § 419.66(b)(1).
With respect to the eligibility criterion
at § 419.66(b)(3), the applicant stated
that EchoTip® is integral to the service
provided, is used for one patient only,
comes in contact with human skin, and
is applied in or on a wound or other
skin lesion. According to the applicant,
the hepatic vein and portal vein are
punctured through the liver
parenchyma to obtain pressure
measurements.
We are inviting public comment on
whether EchoTip® meets the integral
part of the service criterion at
§ 419.66(b)(3).
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With respect to the exclusion criterion
at § 419.66(b)(4), the applicant claimed
that EchoTip® meets the device
eligibility requirements because it is not
equipment, an instrument, apparatus,
implement, or item of this type for
which depreciation and financing
expenses are recovered, and it is not a
supply or material furnished incident to
a service.
We are inviting public comment on
whether EchoTip® meets the exclusion
criterion at § 419.66(b)(4).
In addition to the criteria at
§ 419.66(b)(1) through (4), the criteria
for establishing new device categories
are specified at § 419.66(c). The first
criterion, at § 419.66(c)(1), provides that
CMS determines that a device to be
included in the category is not
appropriately described by any of the
existing categories or by any category
previously in effect, and was not being
paid for as an outpatient service as of
December 31, 1996. The applicant
described EchoTip® as the only device
authorized by the FDA with an
indication to directly access and
measure pressure in the hepatic and
portal venous vasculatures in
conjunction with an ultrasound
endoscope. Per the applicant, FDA
established there is no recognized
predicate product, or other similar
approved device with a similar
mechanism of action. Per the applicant,
no previous device categories for passthrough payment have encompassed
EchoTip® and there are no similar
device categories. Upon review, it does
not appear that there are any existing
pass-through payment categories that
might apply to EchoTip®.
We are inviting public comment on
whether EchoTip®meets the device
category criterion at § 419.66(c)(1).
The second criterion for establishing
a device category, at § 419.66(c)(2),
provides that CMS determines either of
the following: (i) that a device to be
included in the category has
demonstrated that it will substantially
improve the diagnosis or treatment of an
illness or injury or improve the
functioning of a malformed body part
compared to the benefits of a device or
devices in a previously established
category or other available treatment; or
(ii) for devices for which pass-through
status will begin on or after January 1,
2020, as an alternative to the substantial
clinical improvement criterion, the
device is part of the FDA’s Breakthrough
Devices Program and has received FDA
marketing authorization for the
indication covered by the Breakthrough
Device designation. The applicant
claimed that EchoTip® represents a
substantial clinical improvement over
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existing technologies in the diagnosis
and management of chronic liver
disease because: (1) Endoscopic ultrasound-guided direct portal-systemic
pressure gradient measurement (EUS–
PPG)-guided measurement is clinically
safer and more accurate than the current
standard transjugular endovascular
indirect measurement, referred to as the
hepatic venous pressure gradient
(HVPG); (2) EUS–PPG is technically
feasible and superior to HVPG; (3) EUS–
PPG has benefits in non-cirrhotic
patients; and (4) EUS–PPG has utility in
the evaluation of ESRD patients and
kidney transplant candidacy. The
applicant provided four articles
specifically for the purpose of
addressing the substantial clinical
improvement criterion claims. The
applicant also included one background
article that discussed social
determinants of health and disparities
in liver disease.57
In support of the first claim, the
applicant submitted an article on a
prospective, single-armed, singleacademic center study.58 Patients with
suspected liver disease or cirrhosis were
enrolled prospectively from 2020 to
2021. EUS–PPG was measured by
calculating the difference between the
mean portal pressure and the mean
hepatic vein pressure. PH was defined
as PPG >5 mm Hg and clinically
significant PH as PPG <10 mm Hg. The
primary outcomes were procedural
technical success rate and correlation of
EUS–PPG with fibrosis stage obtained
from concurrent EUS-guided liver
biopsy sampling and the correlation of
EUS–PPG with patients’ imaging,
clinical, and laboratory findings. The
secondary outcome was occurrence of
procedural adverse events. EUS–PPG
measurement was successful in 23
patients, leading to a technical success
rate of 96 percent. The authors reported
that there was no statistically significant
correlation between the fibrosis stage on
histology and measured PPG (P = .559).
According to the authors, this did not
change after excluding three patients
without established chronic liver
disease from the analysis. The authors
reported that one patient experienced a
mild adverse event with postprocedural
abdominal pain resulting in an
emergency department visit. The
57 Kardashian,
A., Wilder, J., Terrault, N. Price, J.
(2021). Addressing Social Determinants of Liver
Disease During the COVID–19 Pandemic and
Beyond: A Call to Action. Hepatology 73 (2): 811–
820.
58 Hajifathalian, K., Westerveld, D., Kaplan, A. et.
al. (2022). Simultaneous EUS-guided portosystemic
pressure measurement and liver biopsy sampling
correlate with clinically meaningful outcomes.
Gastrointestinal Endoscopy 95(4): 703–710.
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authors also reported that five patients
(28 percent) received oral
acetaminophen in the post anesthesia
care unit for mild abdominal pain after
the procedure, which resolved in all
cases before discharge without the need
for further pharmacotherapy.
In support of its second claim, the
applicant submitted a single-center
retrospective study on patients with
various CLDs undergoing EUS–PPG and
EUS-guided liver biopsy (EUS–bx) to
assess correlation with histological
hepatic fibrosis stage and various
clinical, laboratory, endoscopic and
imaging variables indicative of
advanced liver disease.59 Cases with
EUS–PPG were identified at the
University of California Irvine, a tertiary
endoscopy center, between January
2014 and March 2020. Three different
ways of evaluating the EUS–PPG
outcomes were assessed: (1) success rate
of the EUS–PPG measurement; (2)
performance; and (3) safety profile. The
primary outcome evaluated was the
association between EUS–PPG and the
presence of histologic liver fibrosis,
stage ≥3. EUS–PPG procedures were
successfully completed in all 64 cases.
On multivariate analysis, EUS–PPG ≥5
mmHg was significantly associated with
fibrosis stage ≥3 on EUG-liver biopsy
(LR 27.0, 95% CI = 1.653¥360.597, p =
0.004), independent from C-cirrhosis,
clinical portal hypertension,
thrombocytopenia, splenomegaly,
aspartate aminotransferase to platelet
ration index score >2, and fibrosis-4
score >3.25. There were six
complications in total, including
abdominal pain (n = 3) and sore throat
(n = 3). The authors reported that there
were no subjects who had post-EUS–
PPG emergency room (ER) visits or
hospital admissions.
In support of its third claim, the
applicant submitted a review of
endoscopic ultrasound guided
interventions. The article 60 discussed
the diagnosis and treatment of portal
hypertension and treatment of gastric
varices (GV) and compared liver biopsy,
HVPG, and EUS–PPG. With respect to
the utility of HVPG, the authors
explained that in the absence of fibrosis/
nodules (i.e., cirrhosis) the pressure
equalizes throughout the interconnected
sinusoidal network, and results in
59 Choi, A., Chang, K., Samaransena, J. et. al.
(2022). Endoscopic Ultrasound-Guided
Porto-systemic Pressure Gradient Measurement
Correlates with Histological Hepatic Fibrosis.
Digestive Diseases and Sciences. https://doi.org/
10.1007/s10620-022-07418-7.
60 Rudnick, S., Conway, J., Russo, M. (2021).
Current state of endohepatology: Diagnosis and
treatment of portal hypertension and its
complications with endoscopic ultrasound. World
Journal of Hepatology 13(8): 887–895.
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minimal gradient (i.e., normal; up to 4
mmHg). Thus, according to the authors,
HVPG does not provide useful
information regarding prehepatic or
presinusoidal portal hypertension (PH)
(i.e., non-cirrhotic causes of PH). In
comparison, EUS-guided portal pressure
gradient (PPG) measurements employ a
direct sampling technique. Thus, the
study authors found direct measurement
of the portal vein pressure could be
considered the gold standard because it
is not an estimate of sinusoidal pressure
as is HVPG. The difference in the mean
measurement of these pressures is
termed the PPG which is analogous to
the HVPG, with the caveat that direct
portal vein measurement also allows for
the assessment of prehepatic/
presinusoidal PH; a limitation of the
transjugular approach. The study
authors cited a study by Huang et al.61
that used a porcine animal model with
a novel EUS-guided system which
included a manometer attached to a 25gauge fine needle aspiration (FNA)
needle for directly measuring pressures
in the hepatic and portal veins. The
purpose of this animal study was to
assess clinical feasibility and assess
correlation with the standard of care:
HVPG measurement through
transjugular approach. The study
authors further cited a pilot study
involving 28 patients between the age of
18–75 years with a history of liver
disease or suspected cirrhosis that
underwent EUS–PPG measurements
using the technique and equipment in
the animal study. The portal vein and
hepatic vein were targeted via a
transgastric-transduodenal approach
(inferior vena cava (IVC) was substituted
for hepatic vein when not technically
feasible). The technical success rate of
EUS–PPG measurement was 100 percent
without any adverse events. The study
authors concluded that EUS–PPG
measurement was a safe and feasible
alternative to HVPG measurement.
In support of its fourth claim, the
applicant submitted a letter in which
the author described a retrospective,
single-center study to determine
feasibility, safety, and utility of EUS–
PPG using EUS-liver biopsy as
comparison in patients with end stage
renal disease (ESRD) and suspected
portal hypertension.62 According to the
61 Huang JY, Samarasena JB, Tsujino T, Chang KJ.
EUS-guided portal pressure gradient measurement
with a novel 25-gauge needle device versus
standard transjugular approach: a comparison
animal study. Gastrointest Endosc 2016; 84: 358–
362 [PMID: 26945557 DOI: 10.1016/
j.gie.2016.02.032].
62 Rubin, R., Mehta, M., Rossi, A., Joeslon, D.,
Shrestha, R. (2021). Letter to the Editor: Endoscopic
ultrasound guided portal-systemic pressure gradient
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letter author, the purpose of the study
was to investigate the use of EUS–PPG
to assess pressure and the
recommendation to decide between
kidney transplant (KT) or combined
liver KT. According to the letter author,
the study suggested that new
endoscopic and EUS findings were
discovered with successful/reproducible
EUS–PPG in 10 out of 11 (91 percent)
subjects. The author stated there were
no significant adverse events such as
bleeding related to venous punctures,
transfusions, or EUS–PPG-related
hospitalizations. The author referenced
conclusions from the study citing the
need for further studies correlating
EUS–PPG with wedged hepatic vein
pressure gradient (WHVPG), assess
patient experience, and analyze cost/
benefit of one-stop versus piecemeal
procedures. It is also noted in the letter
that WHVPG may not always be feasible
in ESRD patients due to catheter-related
suprapubic thromboses. We note that
this source did not include the original
retrospective study, only a letter
referencing it and highlighting its
potential value to further research.
Based on the evidence submitted with
the application, we note the following
concerns: a lack of direct comparison of
EUS–PPG with HVPG and non-invasive
methods, a lack of consistent correlation
with liver biopsy, the reliance on nonpeer reviewed studies, and small sample
sizes.
In the first two claims, the applicant
asserted EUS–PPG is clinically safer and
more accurate than HVPG and
technically superior to HVPG. However,
the applicant did not directly compare
EUS–PPG and HVPG. The Hajifathalian
et. al. study,63 which supported the first
claim, stated EUS–PPG offers an
alternative and potentially superior
methodology to measure PPG regardless
of liver disease etiology, without
showing evidence of a direct
comparison between EUS–PPG and
HVPG. The Choi study,64 in support of
the second claim, directly compared
EUS–PPG with EUS-liver biopsy, but it
did not compare EUS–PPG with HVPG.
The authors cited the lack of direct
comparison between EUS–PPG and
HVPG as a limitation in the study.
Further these two studies had small
sample sizes and were conducted at a
single site; the Hajifathalian et. al. study
included 24 patients while the Choi
study included 64 patients.
In addition, we note that the
Hajifathalian et. al. study results did not
achieve correlation with fibrosis stage
obtained from concurrent EUS-guided
liver biopsy sampling. According to the
authors, there was no statistically
significant correlation between the
fibrosis stage on histology and measured
PPG ( P= .559). We are concerned that
the lack of correlation would not
support the claim that EUS-guided PPG
measurement is more accurate than the
current method using an indirect
measurement with the use of HVPG.
In support of its fourth claim, we note
the applicant relied on a letter to the
editor that provides a study description
rather than submitting the study directly
as evidence for its claim.65 In the
enclosed letter, the author also noted
that future studies are needed to
correlate EUS–PPG with WHVPG.
Lastly, the article the applicant
provided in support of social
determinants of health and disparities
did not directly discuss the device.
Additional supporting evidence,
preferably published peer-reviewed
clinical trials that show improved
clinical outcomes would help with our
assessment of whether EchoTip®
demonstrates substantial clinical
improvement over existing technologies.
We are inviting public comment on
whether EchoTip® meets the substantial
clinical improvement criterion at
§ 419.66(c)(2)(i)
The third criterion for establishing a
device category, at § 419.66(c)(3),
requires us to determine that the cost of
the device is not insignificant, as
described in § 419.66(d). Section
419.66(d) includes three cost
significance criteria that must each be
met. The applicant provided the
following information in support of the
cost significance requirements. The
applicant stated that EchoTip® would
be reported with HCPCS codes listed in
Table 33.
To meet the cost criterion for device
pass-through payment status, a device
must pass all three tests of the cost
criterion for at least one APC. As we
explained in the CY 2005 OPPS final
rule with comment period with
comment period (69 FR 65775), we
generally use the lowest APC payment
rate applicable for use with the
measurement to determine candidacy for kidney
transplant alone versus combined liver kidney
transplant in patients with advanced fibrosis or
cirrhosis. Transplant International 2021 (34): 2903–
2904.
63 Hajifathalian, K., Westerveld, D., Kaplan, A. et.
al. (2022). Simultaneous EUS-guided portosystemic
pressure measurement and liver biopsy sampling
correlate with clinically meaningful outcomes.
Gastrointestinal Endoscopy 95(4): 703–710.
64 Choi, A., Chang, K., Samaransena, J. et. al.
(2022). Endoscopic Ultrasound-Guided
Porto-systemic Pressure Gradient Measurement
Correlates with Histological Hepatic Fibrosis.
Digestive Diseases and Sciences. P.7. https://
doi.org/10.1007/s10620-022-07418-7.
65 Rubin, R., Mehta, M., Rossi, A., Joeslon, D.,
Shrestha, R.. (2021). Letter to the Editor:
Endoscopic ultrasound guided portal-systemic
pressure gradient measurement to determine
candidacy for kidney transplant alone versus
combined liver kidney transplant in patients with
advanced fibrosis or cirrhosis. Transplant
International 2021 (34): 2903–2904.
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nominated device when we assess
whether a device meets the cost
significance criterion, thus increasing
the probability the device will pass the
cost significance test. For our
calculations, we used APC 5302, which
had a CY 2022 payment rate of
$1,658.81 at the time the application
was received. Beginning in CY 2017, we
calculate the device offset amount at the
HCPCS/CPT code level instead of the
APC level (81 FR 79657). HCPCS code
43238 had a device offset amount of
$19.08 at the time the application was
received.66 According to the applicant,
the cost of the EchoTip® is $1,965.00.
Section 419.66(d)(1), the first cost
significance requirement, provides that
the estimated average reasonable cost of
devices in the category must exceed 25
percent of the applicable APC payment
amount for the service related to the
category of devices. The estimated
average reasonable cost of $1,965.00 for
EchoTip® is 118.46 percent of the
applicable APC payment amount for the
service related to the category of devices
of $1,658.81 (($1,965.00/$1,658.81) ×
100 = 118.46 percent). Therefore, we
believe EchoTip® meets the first cost
significance requirement.
The second cost significance
requirement, at § 419.66(d)(2), provides
that the estimated average reasonable
cost of the devices in the category must
exceed the cost of the device-related
portion of the APC payment amount for
the related service by at least 25 percent,
which means that the device cost needs
to be at least 125 percent of the offset
amount (the device-related portion of
the APC found on the offset list). The
estimated average reasonable cost of
$1,965.00 for EchoTip® is 10,298.74
percent of the cost of the device-related
portion of the APC payment amount for
the related service of $19.08 (($1,965.00/
$19.08) × 100 = 10,298.74. Therefore, we
believe that EchoTip® meets the second
cost significance requirement.
The third cost significance
requirement, at § 419.66(d)(3), provides
that the difference between the
estimated average reasonable cost of the
devices in the category and the portion
of the APC payment amount for the
device must exceed 10 percent of the
APC payment amount for the related
66 We note that the applicant selected a value of
$156.43 for the device offset amount. However, the
value selected is inconsistent with the device offset
amount related to HCPCS 43238 in APC 5302 found
in Addendum P to the CY 2022 OPPS/ASC final
rule with comment period, as corrected in the 2022
Correction Notice OPPS Addendum (87 FR 2060).
We selected the value of $19.08, which we believe
is the accurate value. Based on our initial
assessment for this proposed rule, using the device
offset amount of $19.08 would result in EchoTip®
meeting the cost significance requirement.
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service. The difference between the
estimated average reasonable cost of
$1,965.00 for EchoTip® and the portion
of the APC payment amount for the
device of $19.08 is 117.31 percent of the
APC payment amount for the related
service of $1,658.81
((($1,965.00¥$19.08)/$1,658.81) × 100 =
117.31 percent). Therefore, we believe
that EchoTip® meets the third cost
significance requirement.
We are inviting public comment on
whether the EchoTip® meets the device
pass-through payment criteria discussed
in this section, including the cost
criterion for device pass-through
payment status.
(d) FLEX Vessel Prep TM System
Venture Med Group, Inc. submitted
an application for a new device category
for transitional pass-through payment
status for FLEX Vessel Prep TM System
(FLEX VP TM) for CY 2024. Per the
applicant, FLEX VP TM is an
endovascular, over-the-wire, retractable,
sheathed catheter with a three-strut
treatment element at the distal tip used
to help resolve stenoses occluding
vascular access in patients with EndStage Renal Disease (ESRD) on
hemodialysis. According to the
applicant, FLEX VP TM is used with
percutaneous transluminal angioplasty
(PTA) catheters and for the treatment of
in-stent restenosis of balloon
expandable and self-expanding stents in
the peripheral vasculature. The
applicant asserted that FLEX VP TM
consists of three integrated components:
(1) control handle, which includes the
flush and guidewire ports and sheath
and treatment element actuators; (2)
catheter shaft; and (3) treatment
element, which includes three
proximally mounted micro-surgical
blades on protective skids. The struts
are radially opposed, and the proximal
portion of each strut includes a microsurgical blade. A radiopaque marker is
located distally to assist in the
positioning of the catheter.
According to the applicant, when
deployed, FLEX VP TM’s struts
independently engage with neointimal
hyperplastic stenoses occluding an
arteriovenous fistula or graft used for
hemodialysis. As the device is pulled
back through the lesion, the blades
create three continuous, parallel microincisions, approximately 250 microns in
depth, along the lesion’s entire length.
The applicant provided that this is a
non-balloon-based device where the
struts exert a consistent force of
approximately one atmosphere on the
vessel wall. Per the applicant,
additional micro-incisions may be
created by using several passes of the
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device. According to the applicant, the
device breaks the lesion surface to
facilitate the effectiveness of a
percutaneous transluminal balloon
angioplasty, which immediately follows
use of the device in restoring patency to
the vascular access.
The applicant asserted that the microincisions improve acute luminal gain
and vessel compliance by releasing
circumferential tension in the lesion.
The applicant asserted that this
preparation can help reduce vessel
trauma and complications (including
severe dissection and need for a bail-out
stent) and the need for high pressure
balloons (which risk barotrauma). Per
the applicant, the interventionalist
advances FLEX VP TM past the lesion,
then unsheathes and expands the
treatment element and slowly draws the
catheter back, allowing each microsurgical blade to simultaneously and
independently engage with the lesion.
This step produces three continuous,
parallel micro-incisions along the
lesion’s length. According to the
applicant, this process may be repeated
several times; once the lesion is crossed
on the first pass, the treatment element
is re-sheathed, advanced again through
the lesion, and rotated approximately 30
to 90 degrees. The treatment element is
then re-deployed and the process is
repeated.
As stated previously, to be eligible for
transitional pass-through payment
under the OPPS, a device must meet the
criteria at § 419.66(b)(1) through (4).
With respect to the newness criterion at
§ 419.66(b)(1), on September 11, 2020,
the applicant received 510(k) clearance
from FDA for FLEX VP TM for use with
PTA catheters to facilitate dilation of
stenoses in the femoral and popliteal
arteries and treatment of obstructive
lesions of native or synthetic
arteriovenous dialysis fistulae. The
device is also indicated for treatment of
in-stent restenosis of balloon
expandable and self-expanding stents in
the peripheral vasculature. We received
the application for a new device
category for transitional pass-through
payment status for FLEX VP TM on
February 28, 2023, which is within 3
years of the date of the initial FDA
marketing authorization.
We are inviting public comment on
whether FLEX VP TM meets the newness
criterion at § 419.66(b)(1).
With respect to the eligibility criterion
at § 419.66(b)(3), according to the
applicant, FLEX VP TM is integral to the
service provided, is used for one patient
only, comes in contact with human
skin, and is applied through an incision
(for hemodialysis patients, the incision
is in the wrist or arm area). FLEX VP TM
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is inserted through the incision over a
guidewire until distal to the lesion to be
treated and prior to the angioplasty
procedure.
We are inviting public comment on
whether FLEX VP TM meets the integral
part of the service criterion at
§ 419.66(b)(3).
With respect to the exclusion criterion
at § 419.66(b)(4), the applicant claimed
that FLEX VP TM meets the device
eligibility requirements of § 419.66(b)(4)
because it is not equipment, an
instrument, apparatus, implement, or
item of this type for which depreciation
and financing expenses are recovered,
and it is not a supply or material
furnished incident to a service.
We are inviting public comment on
whether FLEX VPTM meets the
exclusion criterion at § 419.66(b)(4).
In addition to the criteria at
§ 419.66(b)(1) through (4), the criteria
for establishing new device categories
are specified at § 419.66(c). The first
criterion, at § 419.66(c)(1), provides that
CMS determines that a device to be
included in the category is not
appropriately described by any of the
existing categories or by any category
previously in effect, and was not being
paid for as an outpatient service as of
December 31, 1996. The applicant
described FLEX VPTM as an
endovascular, over-the-wire, retractable,
sheathed catheter with a three-strut
treatment element at the distal tip used
to help resolve stenoses occluding
vascular access in patients with ESRD
on hemodialysis. Per the applicant, no
previous device categories for passthrough payment have encompassed
FLEX VPTM and there are no similar
device categories. Upon review, it does
not appear that there are any existing
pass-through payment categories that
might apply to FLEX VPTM.
We are inviting public comment on
whether FLEX VPTM meets the device
category criterion at § 419.66(c)(1).
The second criterion for establishing
a device category, at § 419.66(c)(2),
provides that CMS determines either of
the following: (i) that a device to be
included in the category has
demonstrated that it will substantially
improve the diagnosis or treatment of an
illness or injury or improve the
functioning of a malformed body part
compared to the benefits of a device or
devices in a previously established
category or other available treatment; or
(ii) for devices for which pass-through
status will begin on or after January 1,
2020, as an alternative to the substantial
clinical improvement criterion, the
device is part of FDA’s Breakthrough
Devices Program and has received FDA
marketing authorization for the
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indication covered by the Breakthrough
Device designation. The applicant stated
that FLEX VPTM represents a substantial
clinical improvement over existing
technologies by: (1) improving clinical
outcomes for the hemodialysis patient
population with dysfunctional
arteriovenous (AV) access; and (2)
reducing the rate of device-related
complications. The applicant cited two
studies describing the findings of a
single clinical trial specifically for the
purpose of addressing the substantial
clinical improvement criterion.
The first study presented findings 6
months after patients were treated with
FLEX VPTM followed by balloon
angioplasty (Aruny, et al.),67 and the
second study presented findings at 12
months post-treatment with FLEX VPTM
followed by balloon angioplasty (author
not identified in the manuscript for the
12-month follow up).68 Both studies
focused on results from methods used to
show the durability of the treatments of
blocked vascular accesses with FLEX
VPTM. The trial was a prospective,
observational controlled clinical trial. A
total of 148 lesions or blockages were
treated with FLEX VPTM prior to a PTA
in 114 subjects (the population was 53.5
percent female; 65.8 percent Black or
African American (B/AA)), treated at
eight clinical sites. All subjects were
hemodialysis patients with vascular
blockages. Of the 114 subjects, 104
patients had prior treatments to correct
stenoses before enrolling in the trial. A
primary endpoint was anatomic success,
defined as angiographic confirmation of
<30 percent residual stenosis postprocedure without adverse event.
Additional assessments included
dialysis circuit primary patency or
vascular openness, clinical success and
procedural success. The trial also
measured the target lesion primary
patency (TLPP) and freedom from target
lesion restenosis (FFTLR) to determine
if there is a decreased rate of subsequent
therapeutic interventions. The two
studies of the single clinical trial also
examined the rate of device-related
complications. No serious adverse
events were reported initially (Aruny et
al.), or in the 12-month follow-up
(author not identified in the manuscript
for the 12-month follow-up). The
studies looked at differences in
outcomes based on race and sex and
67 Aruny et al., Real-World Results of a Novel
Vessel Preparation Device Prior to Balloon
Angioplasty for Arteriovenous Access Repair in
Diverse Populations on Dialysis, under review, JVA,
Feb. 2023.
68 Durability of Arteriovenous Access Repair
Involving Vessel Preparation by Longitudinal
Micro-Incisions Before Balloon Angioplasty;
unpublished manuscript (no author identified).
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found no significant differences. Per the
applicant, the results suggest that FLEX
VPTM followed by angioplasty can
substantially reduce the number and
burden of maintenance procedures for
hemodialysis patients with
arteriovenous fistula (AVF),
arteriovenous graft (AVG), and AV
disfunctions that cause cephalic arch
stenoses.
In support of its first claim, that FLEX
VPTM improves clinical outcomes for
the hemodialysis patient population
with dysfunctional AV access, the
applicant asserted that FLEX VPTM
decreased both the rates of therapeutic
interventions and subsequent
therapeutic interventions. The applicant
provided the following evidence from
the clinical trial and two studies. FLEX
VPTM treatment prior to angioplasty
benefits hemodialysis patients by
improving the level of openness of
blocked (or stenosed) arteriovenous
access; a recurring issue that occurs
because of the fistulas created to
facilitate hemodialysis. The use of FLEX
VPTM also allows the site with prior
blockage (also known as lesions) to stay
opened for a longer period of time,
reducing the frequency of future
angioplasty procedures. The applicant
discussed how the initial study (Aruny
et al.), found that patients treated with
FLEX VPTM prior to PTA (FLEX+PTA)
had 6 months TLPP of 63.7 percent
openness, versus the 15.6 percent to
50.5 percent rates of vascular openness
after PTA alone observed in other
publications. This study also presented
results for FFTLR, a calculation to
determine an average number of days of
durability of the percentage of the
patency or lesion openness reported; for
the overall hemodialysis population
studied it was 206.7 days. The applicant
also described results for patients with
only AVFs or AVGs. For FLEX+PTA in
AVF patients, TLPP was 70.6 percent
and FFTLR was 219.7 days. For
FLEX+PTA in AVG patients, TLPP was
46.6 percent and FFTLR was 173.9 days.
Confirmation of reliability of the
findings was shown by dialysis access
circuit primary patency: 54.3 percent
(AVF 54.1 percent; AVG 47.4 percent).
According to the applicant, results of
dialysis access circuit primary patency
derived from the literature with only
angioplasty performed ranged from 0
percent to 48 percent. The applicant
also presented results 12 months posttreatment (author not identified in the
manuscript for the 12-month follow up)
supporting the durability of the
FLEX+PTA. Per the applicant, results
generally accord with Aruny et al.’s 6month results and exceed PTA-only
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results from the literature. Overall,
TLPP was 45.7 percent (versus 62.2
percent at 6 months) and FFTLR was
250.9 days (versus literature (PTA only),
131.4 days). Per the applicant, this
result suggests that compared to the
durability of PTA only, FTA+PTA
would result in a lower frequency of
treatments to remove stenosis in overall
hemodialysis patients. For AVFs, TLPP
was 47.4 percent (versus 67.5 percent at
6 months); FFTLR was 258.5 days
(versus literature, 156.9 days). For
AVGs, TLPP was 43.8 percent (versus
52.4 percent at 6 months); FFTLR was
239.4 days (versus literature, 76.6 days).
Overall, 12 months circuit primary
patency was 36.5 percent (versus 54.3
percent at 6 months).69
In further support of the applicant’s
first claim, the applicant presented
results from the clinical trial comparing
B/AA patients to non-B/AA patients. In
support of FLEX VPTM prior to PTA
improving clinical outcomes for B/AA
hemodialysis patient population with
dysfunctional AV access, the applicant
discussed the initial Aruny et al. study,
in which B/AA patients had better
results with FLEX VPTM intervention
than did non-B/AA patients. The B/AA
cohort (65.8 percent of sample) had
TLPP of 63.76 percent versus 58.8
percent for the non-B/AA cohort after
treatment with FLEX+PTA. FFTLR was
207.8 days for B/AA versus 192.2 days
for non-B/AA. For B/AA patients with
cephalic arch lesions, TLPP was 78.6
percent versus 58.3 percent for non-B/
AA. The applicant asserted that these
results were achieved despite preexisting disparities in patient’s
experience with AV access care. B/AA
patients had more years since they
started hemodialysis (p<0.01),
suggesting a possibility of increased
severity or complexity of lesions in the
B/AA patients.70 The applicant also
presented results 12 months posttreatment.71 In terms of B/AA patient
outcomes comparable to the overall
sample, the B/AA cohort (65.8 percent
of sample) had TLPP of 45.9 percent
versus 45.7 percent overall patients and
FFTLR was 257.8 days for B/AA versus
250.9 days overall patients. In B/AA
patients with cephalic arch lesions,
69 Durability of Arteriovenous Access Repair
Involving Vessel Preparation by Longitudinal
Micro-Incisions Before Balloon Angioplasty;
unpublished manuscript (no author identified).
70 Aruny et al., Real-World Results of a Novel
Vessel Preparation Device Prior to Balloon
Angioplasty for Arteriovenous Access Repair in
Diverse Populations on Dialysis, under review, JVA,
Feb. 2023.
71 Durability of Arteriovenous Access Repair
Involving Vessel Preparation by Longitudinal
Micro-Incisions Before Balloon Angioplasty;
unpublished manuscript (no author identified).
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TLPP was 71.8 percent versus 59.7
percent overall patients.
Furthermore, in support of the
applicant’s first claim, the applicant
provided the following evidence from
the clinical trial. In support of FLEX
VPTM improving clinical outcomes for a
female hemodialysis patient population
with dysfunctional AV access, the
applicant stated that in the initial Aruny
et al. study, females differed from males
significantly in their pre-existing
experiences with AV care. Female
patients had more years since they
started hemodialysis (p<0.01) and since
AV access creation (p<0.01) and more
prior AV access interventions (p<0.05);
according to the applicant, this
potentially suggests that female patients
are more prone to complexity of lesions
or recurrence of stenosis. However, no
statistically significant differences in
results of TLPP and FFTLR measures at
6 months post treatment were observed
between females and males treated with
FLX VPTM followed by PTA. Therefore,
females receiving a FLEX VPTM
intervention prior to PTA achieved
results comparable to males,
notwithstanding pre-existing
disparities.72
In further support of the applicant’s
first claim, the applicant explained that
cephalic arch (CA) stenoses are
notoriously difficult to treat effectively
and have some of the worst results in
dialysis access results and recurrence of
the lesions in a short amount of time.
The applicant explained that
complications are also high. In this
sample, the target stenosis was in the
CA in 25/114 patients (21.9 percent).
TLPP following FLEX+PTA at 6 months
(Aruny et al.) was 70.6 percent overall
patients, and 76.8 percent in the B/AA
cohort. According to the applicant
comparable figures in the literature
ranged from 0 percent to 51.6 percent.
Access dialysis circuit primary patency
gathered from the literature for PTA
only was 66.4 percent for CA cases.73
The applicant also presented results 12month post-treatment (author not
identified in the manuscript for the 12month follow up). TLPP for these
patients following FLEX+PTA at 12
months was 59.7 percent for overall
patients and 71.8 percent in the B/AA
cohort. According to the applicant,
72 Aruny et al., Real-World Results of a Novel
Vessel Preparation Device Prior to Balloon
Angioplasty for Arteriovenous Access Repair in
Diverse Populations on Dialysis, under review, JVA,
Feb. 2023.
73 Aruny et al., Real-World Results of a Novel
Vessel Preparation Device Prior to Balloon
Angioplasty for Arteriovenous Access Repair in
Diverse Populations on Dialysis, under review, JVA,
Feb. 2023.
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comparable figures in the clinical
literature ranged from 0 percent to 33.9
percent and access dialysis circuit
primary patency was 55.3 percent for
CA cases.74
In support of the applicant’s second
claim, the applicant asserted that no
serious adverse events were reported
from the initial study (Aruny et al.).
Five procedural complications and one
dissection related to the FLEX VPTM
device were recorded. Three dissections
were associated with PTA.75 The
applicant also presented results 12
months post-treatment (author not
identified in the manuscript for the 12month follow-up), noting that no serious
adverse events were reported during 12month follow-up.
According to the applicant, these
findings confirm the safety record for
FLEX VPTM, which is better when
compared to the Journal of Vascular and
Interventional Radiology (JVIR) Quality
Improvement Guidelines thresholds for
AVF and AVG. According to the
applicant, in the literature, up to 15%
cephalic arch lesions result in vessel
rupture and about 12% of PTAs in B/
AA patients are reported to result in
major complications.76
Ultimately, the applicant concluded
that FLEX VPTM is safe and effective,
notably in patients with AVGs and those
with CA stenoses, and furthermore,
despite observed differences in time
since hemodialysis onset, clinical
success was similar across sex and race,
suggesting an opportunity to enhance
health equity.77 The applicant also
added that FLEX VPTM, when used with
PTA, provides sustained clinical
improvement over existing technologies
by increasing the patency and time to
reintervention of PTA procedures in
AVFs and AVGs at 12 months (author
not identified in the manuscript for the
12-month follow-up), while reducing
the potential for serious complications,
such as perforations and vessel rupture.
Favorable results at 6 months for the B/
AA cohort reported in Aruny et al.’s
article were sustained in the 12 month
74 Durability of Arteriovenous Access Repair
Involving Vessel Preparation by Longitudinal
Micro-Incisions Before Balloon Angioplasty;
unpublished manuscript (no author identified).
75 Aruny et al., Real-World Results on a Novel
Vessel Preparation Device Prior to Balloon
Angioplasty for Arteriovenous Access Repair in
Diverse Populations on Dialysis, under review, JVA,
Feb. 2023.
76 Durability of Arteriovenous Access Repair
Involving Vessel Preparation by Longitudinal
Micro-Incisions Before Balloon Angioplasty;
unpublished manuscript (no author identified).
77 Aruny et al., Real-World Results of a Novel
Vessel Preparation Device Prior to Balloon
Angioplasty for Arteriovenous Access Repair in
Diverse Populations on Dialysis, under review, JVA,
Feb. 2023.
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results. Further, according to the
applicant, the use of FLEX VPTM offers
the prospect of improved treatment of
unresponsive or difficult to treat
stenosis in the cephalic arch.78
Based on the evidence submitted in
the application, we note the following
concerns: The applicant presented two
studies (Aruny et al. [a 6-month follow
up], and an unpublished manuscript
which did not identify an author [12month follow up] submitted with the
application) that are based on a single
clinical trial of 114 patients followed for
12 months. Per the applicant, the results
from the 6-months follow up are not yet
published, and the results from 12months post-treatment are also
unpublished and only available at the
FLEX VPTM registry. Therefore, we note
that the evidence presented on benefits
to patients in hemodialysis is not peerreviewed and this may reduce the
strength of the evidence presented and
the opinion of peers on study quality. In
order to demonstrate substantial clinical
improvement over currently available
treatments, we consider supporting
evidence, preferably published peerreviewed clinical trials, that shows
improved clinical outcomes, such as
reduction in mortality, complications,
subsequent interventions, future
hospitalizations, recovery time, pain, or
a more rapid beneficial resolution of the
disease process compared to the
standard of care. We also note that, due
to the clinical trial design, there is
insufficient data on the impact of
angioplasty with the drug-coated
balloon option. The drug in these
balloons may play a role in the
improvement of patency or openness
durability and additional studies to
strengthen the initial observations
presented by the applicant would be
helpful.
Lastly, we note the applicant did not
show a clear crosswalk of findings or
data in terms of device-related
complications (including dissection and
embolectomy) observed in the trial and
compared to those referenced in
literature. For example, procedural
complications and dissection were
mentioned in the FLEX VPTM group
while rupture and major complications
were mentioned in the literature. The
clinical trial results presented one
dissection attributed to FLEX VPTM after
148 lesions were treated with FLEX
VPTM plus PTA. Per the applicant, there
are approximately 732,000 interventions
per year in the U.S. to maintain
lifesaving arteriovenous access and
FLEX VPTM could be potentially used in
a fraction of those; this increases the
concern for frequency of complications
and therefore, additional studies may be
needed to strengthen the second
substantial clinical improvement claim.
We are inviting public comment on
whether FLEX VPTM meets the
substantial clinical improvement
criterion at § 419.66(c)(2)(i).
The third criterion for establishing a
device category, at § 419.66(c)(3),
requires us to determine that the cost of
the device is not insignificant, as
described in § 419.66(d). Section
419.66(d) includes three cost
significance criteria that must each be
met. The applicant provided the
following information in support of the
cost significance requirements. The
applicant stated that FLEX VPTM would
be reported with HCPCS codes listed in
Table 34.
To meet the cost criterion for device
pass-through payment status, a device
must pass all three tests of the cost
criterion for at least one APC. As we
explained in the CY 2005 OPPS final
rule with comment period (69 FR
65775), we generally use the lowest APC
payment rate applicable for use with the
nominated device when we assess
whether a device meets the cost
significance criterion, thus increasing
the probability the device will pass the
cost significance test. For our
calculations, we used APC 5192, which
had a CY 2022 payment rate of
$5,061.89 at the time the application
was received. Beginning in CY 2017, we
calculate the device offset amount at the
HCPCS/CPT code level instead of the
APC level (81 FR 79657). HCPCS code
36902 had a device offset amount of
$1,271.04 at the time the application
was received.79 According to the
applicant, the cost of FLEX VP TM is
$1,995.00.
Section 419.66(d)(1), the first cost
significance requirement, provides that
the estimated average reasonable cost of
devices in the category must exceed 25
percent of the applicable APC payment
amount for the service related to the
category of devices. The estimated
average reasonable cost of $1,995.00 for
FLEX VP TM is 39.41 percent of the
applicable APC payment amount for the
78 Durability of Arteriovenous Access Repair
Involving Vessel Preparation by Longitudinal
Micro-Incisions Before Balloon Angioplasty;
unpublished manuscript (no author identified).
79 We note that the applicant selected a value of
$1,391.99 for the device offset amount. However,
the value selected is inconsistent with the device
offset amount related to HCPCS 36902 in APC 5192
found in Addendum P to the CY 2022 OPPS/ASC
final rule with comment period, as corrected in the
2022 Correction Notice OPPS Addendum (87 FR
2060). We selected the value of $1,271.04, which
we believe is the accurate value. Based on our
initial assessment for this proposed rule, using the
device offset amount of $1,271.04 would result in
FLEX VP TM meeting the cost significance
requirement.
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service related to the category of devices
of $5,061.89 (($1,995.00/$5,061.89) ×
100 = 39.41 percent). Therefore, we
believe FLEX VP TM meets the first cost
significance requirement.
The second cost significance
requirement, at § 419.66(d)(2), provides
that the estimated average reasonable
cost of the devices in the category must
exceed the cost of the device-related
portion of the APC payment amount for
the related service by at least 25 percent,
which means that the device cost needs
to be at least 125 percent of the offset
amount (the device-related portion of
the APC found on the offset list). The
estimated average reasonable cost of
$1,995.00 for FLEX VP TM is 156.96
percent of the cost of the device-related
portion of the APC payment amount for
the related service of $1,271.04
(($1,995.00/$1,271.04) × 100 = 156.96
percent). Therefore, we believe that
FLEX VP TM meets the second cost
significance requirement.
The third cost significance
requirement, at § 419.66(d)(3), provides
that the difference between the
estimated average reasonable cost of the
devices in the category and the portion
of the APC payment amount for the
device must exceed 10 percent of the
APC payment amount for the related
service. The difference between the
estimated average reasonable cost of
$1,995.00 for FLEX VP TM and the
portion of the APC payment amount for
the device of $1,271.04 is 14.30 percent
of the APC payment amount for the
related service of $5,061.89
((($1,995.00¥$1,271.04)/$5,061.89) ×
100 = 14.30 percent). Therefore, we
believe that FLEX VP TM meets the third
cost significance requirement.
We are inviting public comment on
whether FLEX VP TM meets the device
pass-through payment criteria discussed
in this section, including the cost
criterion for device pass-through
payment status.
ddrumheller on DSK120RN23PROD with PROPOSALS2
B. Proposed Device-Intensive
Procedures
1. Background
Under the OPPS, prior to CY 2017,
device-intensive status for procedures
was determined at the APC level for
APCs with a device offset percentage
greater than 40 percent (79 FR 66795).
Beginning in CY 2017, CMS began
determining device-intensive status at
the HCPCS code level. In assigning
device-intensive status to an APC prior
to CY 2017, the device costs of all the
procedures within the APC were
calculated and the geometric mean
device offset of all of the procedures had
to exceed 40 percent. Almost all of the
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procedures assigned to device-intensive
APCs utilized devices, and the device
costs for the associated HCPCS codes
exceeded the 40-percent threshold. The
no cost/full credit and partial credit
device policy (79 FR 66872 through
66873) applies to device-intensive
procedures and is discussed in detail in
section IV.B.4 of this proposed rule. A
related device policy was the
requirement that certain procedures
assigned to device-intensive APCs
require the reporting of a device code on
the claim (80 FR 70422) and is
discussed in detail in section IV.B.3 of
this proposed rule. For further
background information on the deviceintensive APC policy, we refer readers
to the CY 2016 OPPS/ASC final rule
with comment period (80 FR 70421
through 70426).
a. HCPCS Code-Level Device-Intensive
Determination
As stated earlier, prior to CY 2017,
under the device-intensive methodology
we assigned device-intensive status to
all procedures requiring the
implantation of a device that were
assigned to an APC with a device offset
greater than 40 percent and, beginning
in CY 2015, that met the three criteria
listed below. Historically, the deviceintensive designation was at the APC
level and applied to the applicable
procedures within that APC. In the CY
2017 OPPS/ASC final rule with
comment period (81 FR 79658), we
changed our methodology to assign
device-intensive status at the individual
HCPCS code level rather than at the
APC level. Under this policy, a
procedure could be assigned deviceintensive status regardless of its APC
assignment, and device-intensive APC
designations were no longer applied
under the OPPS or the ASC payment
system.
We believe that a HCPCS code-level
device offset is, in most cases, a better
representation of a procedure’s device
cost than an APC-wide average device
offset based on the average device offset
of all of the procedures assigned to an
APC. Unlike a device offset calculated at
the APC level, which is a weighted
average offset for all devices used in all
of the procedures assigned to an APC,
a HCPCS code-level device offset is
calculated using only claims for a single
HCPCS code. We believe that this
methodological change results in a more
accurate representation of the cost
attributable to implantation of a highcost device, which ensures consistent
device-intensive designation of
procedures with a significant device
cost. Further, we believe a HCPCS codelevel device offset removes
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inappropriate device-intensive status for
procedures without a significant device
cost that are granted such status because
of their APC assignment.
Under our existing policy, procedures
that meet the criteria listed in section
IV.C.1.b of this proposed rule are
identified as device-intensive
procedures and are subject to all the
policies applicable to procedures
assigned device-intensive status under
our established methodology, including
our policies on device edits and no cost/
full credit and partial credit devices
discussed in sections IV.C.3 and IV.C.4
of this proposed rule.
b. Use of the Three Criteria To Designate
Device-Intensive Procedures
We clarified our established policy in
the CY 2018 OPPS/ASC final rule with
comment period (82 FR 52474), where
we explained that device-intensive
procedures require the implantation of a
device and additionally are subject to
the following criteria:
• All procedures must involve
implantable devices that would be
reported if device insertion procedures
were performed;
• The required devices must be
surgically inserted or implanted devices
that remain in the patient’s body after
the conclusion of the procedure (at least
temporarily); and
• The device offset amount must be
significant, which is defined as
exceeding 40 percent of the procedure’s
mean cost.
We changed our policy to apply these
three criteria to determine whether
procedures qualify as device-intensive
in the CY 2015 OPPS/ASC final rule
with comment period (79 FR 66926),
where we stated that we would apply
the no cost/full credit and partial credit
device policy—which includes the three
criteria listed previously—to all deviceintensive procedures beginning in CY
2015. We reiterated this position in the
CY 2016 OPPS/ASC final rule with
comment period (80 FR 70424), where
we explained that we were finalizing
our proposal to continue using the three
criteria established in the CY 2007
OPPS/ASC final rule with comment
period for determining the APCs to
which the CY 2016 device intensive
policy will apply. Under the policies we
adopted in CYs 2015, 2016, and 2017,
all procedures that require the
implantation of a device and meet the
previously described criteria are
assigned device-intensive status,
regardless of their APC placement.
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2. Device-Intensive Procedure Policy for
CY 2019 and Subsequent Years
As part of our effort to better capture
costs for procedures with significant
device costs, in the CY 2019 OPPS/ASC
final rule with comment period (83 FR
58944 through 58948), for CY 2019, we
modified our criteria for deviceintensive procedures. We had heard
from interested parties that the criteria
excluded some procedures that
interested parties believed should
qualify as device-intensive procedures.
Specifically, we were persuaded by
interested party arguments that
procedures requiring expensive
surgically inserted or implanted devices
that are not capital equipment should
qualify as device-intensive procedures,
regardless of whether the device
remains in the patient’s body after the
conclusion of the procedure. We agreed
that a broader definition of deviceintensive procedures was warranted,
and made two modifications to the
criteria for CY 2019 (83 FR 58948). First,
we allowed procedures that involve
surgically inserted or implanted singleuse devices that meet the device offset
percentage threshold to qualify as
device-intensive procedures, regardless
of whether the device remains in the
patient’s body after the conclusion of
the procedure. We established this
policy because we no longer believe that
whether a device remains in the
patient’s body should affect a
procedure’s designation as a deviceintensive procedure, as such devices
could, nonetheless, comprise a large
portion of the cost of the applicable
procedure. Second, we modified our
criteria to lower the device offset
percentage threshold from 40 percent to
30 percent, to allow a greater number of
procedures to qualify as device
intensive. We stated that we believe
allowing these additional procedures to
qualify for device-intensive status will
help ensure these procedures receive
more appropriate payment in the ASC
setting, which will help encourage the
provision of these services in the ASC
setting. In addition, we stated that this
change would help to ensure that more
procedures containing relatively highcost devices are subject to the device
edits, which leads to more correctly
coded claims and greater accuracy in
our claims data. Specifically, for CY
2019 and subsequent years, we finalized
that device-intensive procedures will be
subject to the following criteria:
• All procedures must involve
implantable devices assigned a CPT or
HCPCS code;
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• The required devices (including
single-use devices) must be surgically
inserted or implanted; and
• The device offset amount must be
significant, which is defined as
exceeding 30 percent of the procedure’s
mean cost (83 FR 58945).
In addition, to further align the
device-intensive policy with the criteria
used for device pass-through payment
status, we finalized, for CY 2019 and
subsequent years, that for purposes of
satisfying the device-intensive criteria, a
device-intensive procedure must
involve a device that:
• Has received FDA marketing
authorization, has received an FDA
investigational device exemption (IDE),
and has been classified as a Category B
device by FDA in accordance with
§§ 405.203 through 405.207 and 405.211
through 405.215, or meets another
appropriate FDA exemption from
premarket review;
• Is an integral part of the service
furnished;
• Is used for one patient only;
• Comes in contact with human
tissue;
• Is surgically implanted or inserted
(either permanently or temporarily); and
• Is not either of the following:
(a) Equipment, an instrument,
apparatus, implement, or item of the
type for which depreciation and
financing expenses are recovered as
depreciable assets as defined in Chapter
1 of the Medicare Provider
Reimbursement Manual (CMS Pub. 15–
1); or
(b) A material or supply furnished
incident to a service (for example, a
suture, customized surgical kit, scalpel,
or clip, other than a radiological site
marker) (83 FR 58945).
In addition, for new HCPCS codes
describing procedures requiring the
implantation of devices that do not yet
have associated claims data, in the CY
2017 OPPS/ASC final rule with
comment period (81 FR 79658), we
finalized a policy for CY 2017 to apply
device-intensive status with a default
device offset set at 41 percent for new
HCPCS codes describing procedures
requiring the implantation or insertion
of a device that did not yet have
associated claims data until claims data
are available to establish the HCPCS
code-level device offset for the
procedures. This default device offset
amount of 41 percent was not calculated
from claims data; instead, it was applied
as a default until claims data were
available upon which to calculate an
actual device offset for the new code.
The purpose of applying the 41-percent
default device offset to new codes that
describe procedures that implant or
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insert devices was to ensure ASC access
for new procedures until claims data
become available.
As discussed in the CY 2019 OPPS/
ASC proposed rule and final rule with
comment period (83 FR 37108 through
37109 and 58945 through 58946,
respectively), in accordance with our
policy stated previously to lower the
device offset percentage threshold for
procedures to qualify as deviceintensive from greater than 40 percent to
greater than 30 percent, for CY 2019 and
subsequent years, we modified this
policy to apply a 31-percent default
device offset to new HCPCS codes
describing procedures requiring the
implantation of a device that do not yet
have associated claims data until claims
data are available to establish the
HCPCS code-level device offset for the
procedures. In conjunction with the
policy to lower the default device offset
from 41 percent to 31 percent, we
continued our current policy of, in
certain rare instances (for example, in
the case of a very expensive implantable
device), temporarily assigning a higher
offset percentage if warranted by
additional information such as pricing
data from a device manufacturer (81 FR
79658). Once claims data are available
for a new procedure requiring the
implantation or insertion of a device,
device-intensive status is applied to the
code if the HCPCS code-level device
offset is greater than 30 percent,
according to our policy of determining
device-intensive status by calculating
the HCPCS code-level device offset.
In addition, in the CY 2019 OPPS/
ASC final rule with comment period, we
clarified that since the adoption of our
policy in effect as of CY 2018, the
associated claims data used for purposes
of determining whether or not to apply
the default device offset are the
associated claims data for either the new
HCPCS code or any predecessor code, as
described by CPT coding guidance, for
the new HCPCS code. Additionally, for
CY 2019 and subsequent years, in
limited instances where a new HCPCS
code does not have a predecessor code
as defined by CPT, but describes a
procedure that was previously described
by an existing code, we use clinical
discretion to identify HCPCS codes that
are clinically related or similar to the
new HCPCS code but are not officially
recognized as a predecessor code by
CPT, and to use the claims data of the
clinically related or similar code(s) for
purposes of determining whether or not
to apply the default device offset to the
new HCPCS code (83 FR 58946).
Clinically related and similar
procedures for purposes of this policy
are procedures that have few or no
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clinical differences and use the same
devices as the new HCPCS code. In
addition, clinically related and similar
codes for purposes of this policy are
codes that either currently or previously
describe the procedure described by the
new HCPCS code. Under this policy,
claims data from clinically related and
similar codes are included as associated
claims data for a new code, and where
an existing HCPCS code is found to be
clinically related or similar to a new
HCPCS code, we apply the device offset
percentage derived from the existing
clinically related or similar HCPCS
code’s claims data to the new HCPCS
code for determining the device offset
percentage. We stated that we believe
that claims data for HCPCS codes
describing procedures that have minor
differences from the procedures
described by new HCPCS codes will
provide an accurate depiction of the
cost relationship between the procedure
and the device(s) that are used, and will
be appropriate to use to set a new code’s
device offset percentage, in the same
way that predecessor codes are used. If
a new HCPCS code has multiple
predecessor codes, the claims data for
the predecessor code that has the
highest individual HCPCS-level device
offset percentage is used to determine
whether the new HCPCS code qualifies
for device-intensive status. Similarly, in
the event that a new HCPCS code does
not have a predecessor code but has
multiple clinically related or similar
codes, the claims data for the clinically
related or similar code that has the
highest individual HCPCS level device
offset percentage is used to determine
whether the new HCPCS code qualifies
for device-intensive status.
As we indicated in the CY 2019
OPPS/ASC proposed rule and final rule
with comment period, additional
information for our consideration of an
offset percentage higher than the default
of 31 percent for new HCPCS codes
describing procedures requiring the
implantation (or, in some cases, the
insertion) of a device that do not yet
have associated claims data, such as
pricing data or invoices from a device
manufacturer, should be directed to the
Division of Outpatient Care, Mail Stop
C4–01–26, Centers for Medicare &
Medicaid Services, 7500 Security
Boulevard, Baltimore, MD 21244–1850,
or electronically at outpatientpps@
cms.hhs.gov. Additional information
can be submitted prior to issuance of an
OPPS/ASC proposed rule or as a public
comment in response to an issued
OPPS/ASC proposed rule. Device offset
percentages will be set in each year’s
final rule.
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The full listing of the proposed CY
2024 device-intensive procedures can be
found in Addendum P to this proposed
rule (which is available via the internet
on the CMS website). Further, our
claims accounting narrative contains a
description of our device offset
percentage calculation. Our claims
accounting narrative for this proposed
rule can be found under supporting
documentation for the CY 2024 OPPS/
ASC proposed rule on our website at:
https://www.cms.gov/medicare/
medicare-fee-for-service-payment/
hospitaloutpatientpps.
3. Device Edit Policy
In the CY 2015 OPPS/ASC final rule
with comment period (79 FR 66795), we
finalized a policy and implemented
claims processing edits that require any
of the device codes used in the previous
device-to-procedure edits to be present
on the claim whenever a procedure code
assigned to any of the APCs listed in
Table 5 of the CY 2015 OPPS/ASC final
rule with comment period (the CY 2015
device-dependent APCs) is reported on
the claim. In addition, in the CY 2016
OPPS/ASC final rule with comment
period (80 FR 70422), we modified our
previously existing policy and applied
the device coding requirements
exclusively to procedures that require
the implantation of a device that are
assigned to a device-intensive APC. In
the CY 2016 OPPS/ASC final rule with
comment period, we also finalized our
policy that the claims processing edits
are such that any device code, when
reported on a claim with a procedure
assigned to a device-intensive APC
(listed in Table 42 of the CY 2016 OPPS/
ASC final rule with comment period (80
FR 70422)) will satisfy the edit.
In the CY 2017 OPPS/ASC final rule
with comment period (81 FR 79658
through 79659), we changed our policy
for CY 2017 and subsequent years to
apply the CY 2016 device coding
requirements to the newly defined
device-intensive procedures. For CY
2017 and subsequent years, we also
specified that any device code, when
reported on a claim with a deviceintensive procedure, will satisfy the
edit. In addition, we created HCPCS
code C1889 to recognize devices
furnished during a device-intensive
procedure that are not described by a
specific Level II HCPCS Category Ccode. Reporting HCPCS code C1889
with a device-intensive procedure will
satisfy the edit requiring a device code
to be reported on a claim with a deviceintensive procedure. In the CY 2019
OPPS/ASC final rule with comment
period, we revised the description of
HCPCS code C1889 to remove the
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specific applicability to device-intensive
procedures (83 FR 58950). For CY 2019
and subsequent years, the description of
HCPCS code C1889 is ‘‘Implantable/
insertable device, not otherwise
classified’’. In the CY 2023 OPPS/ASC
final rule with comment period (87 FR
71830), we described a commenter’s
concern about the potentially
inadequate payment rate for APC 5495
(Level 5 Intraocular Procedures) and
their recommendation that we use our
equitable adjustment authority to limit
the potential reduction in the CY 2023
APC payment rate by applying a 10
percent cap on the reduction in relative
weights for Low Volume APCs in CY
2023. While we did not accept the
commenter’s recommendation to limit a
Low Volume APC’s decline in relative
weight to no more than 10 percent, we
stated we would continue to monitor
the costs and payment rates for
procedures assigned to Low Volume
APCs to determine if additional changes
or refinements to our current policy are
needed.
In our review of claims data for CPT
code 0308T (Insertion of ocular
telescope prosthesis including removal
of crystalline lens or intraocular lens
prosthesis), we noticed unusual coding,
charge, and cost data in the claims data
from CY 2017, CY 2018, CY 2019, and
CY 2021. Some claims did not report the
correct device code—HCPCS code
C1840 (Lens, intraocular (telescopic))—
and such claims had substantially lower
cost than claims that reported the
correct device code. In particular,
claims that reported the correct device
code had an average device cost of
$15,030.04, while claims that did not
report the correct device code had an
average device cost of $430.72. The vast
majority of claims for CPT code 0308T
in our 4-year analysis did report the
correct device code; however, the
limited number of claims that either
reported the wrong procedure code or
reported the wrong device code had an
outsized impact on the APC payment
rate because of the very low volume of
claims for this APC. Because payment
stability for this Low Volume APC relies
so critically on accurate reporting of the
procedure’s associated costs, we believe
this APC would benefit from a
procedure-to-device edit—a claims
processing edit that requires a certain
device code to be included on the claim
when hospitals report a specific
procedure code. The procedures
associated with the Level 5 Intraocular
APC, which we propose to reassign to
a new Level 6 Intraocular APC (APC
5496) in section III.E of this proposed
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rule, describe the implantation of a
specific device codes:
• CPT code 0308T (Insertion of ocular
telescope prosthesis including removal
of crystalline lens or intraocular lens
prosthesis) describes the implantation of
device HCPCS code C1840 (Lens,
intraocular (telescopic));
• CPT code 0616T (Insertion of iris
prosthesis, including suture fixation and
repair or removal of iris, when
performed; without removal of
crystalline lens or intraocular lens,
without insertion of intraocular lens)
describes the implantation of device
HCPCS code C1839 (Iris prosthesis);
• CPT code 0617T (Insertion of iris
prosthesis, including suture fixation and
repair or removal of iris, when
performed; with removal of crystalline
lens and insertion of intraocular lens)
describes the implantation of device
HCPCS code C1839 (Iris prosthesis); or
• CPT code 0618T (Insertion of iris
prosthesis, including suture fixation and
repair or removal of iris, when
performed; with secondary intraocular
lens placement or intraocular lens
exchange) also describes the
implantation of device HCPCS code
C1839 (Iris prosthesis).
We propose to establish a procedureto-device edit for the four
aforementioned procedures assigned to
APC 5496 (Level 6 Intraocular
Procedures) and require hospitals to
report the correct device HCPCS codes
when reporting any of the four
procedures. While some interested
parties have previously recommended
in past rulemaking that we reestablish
all of our previous procedure-to-device
edits, we do not expect to extend this
policy beyond the procedures assigned
to APC 5496 (Level 6 Intraocular
Procedures). We continue to rely on
hospitals’ accurate reporting and believe
our current device edits policy of
requiring device-intensive procedures to
be subject to an additional device
reporting edit has improved our
ratesetting for hospital outpatient
department procedures without placing
an undue burden on hospitals.
However, we believe this APC
represents a unique situation—the APC
(which was the Level 5 Intraocular APC
in previous years) has been a Low
Volume APC (fewer than 100 claims in
a claims year) since we established our
Low Volume APC policy, the
procedures associated with this APC
have significant procedure costs often
greater than $15,000, and the
procedures associated with this APC
require the implantation of a high-cost
intraocular device. We believe requiring
a procedure-to-device edit for
procedures assigned to the APC 5496
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(Level 6 Intraocular Procedures), would
not be administratively burdensome to
hospitals given the low volume of
services associated for this APC and will
have a meaningful and significant
impact on the payment rate for this APC
and the stability of the payment rate in
the future.
We are soliciting comments on our
proposal to modify our device edits
policy to require a procedure-to-device
edit for procedures assigned to APC
5496 (Level 6 Intraocular Procedures)
for CY 2024.
4. Adjustment to OPPS Payment for No
Cost/Full Credit and Partial Credit
Devices
a. Background
To ensure equitable OPPS payment
when a hospital receives a device
without cost or with full credit, in CY
2007, we implemented a policy to
reduce the payment for specified
device-dependent APCs by the
estimated portion of the APC payment
attributable to device costs (that is, the
device offset) when the hospital receives
a specified device at no cost or with full
credit (71 FR 68071 through 68077).
Hospitals were instructed to report no
cost/full credit device cases on the
claim using the ‘‘FB’’ modifier on the
line with the procedure code in which
the no cost/full credit device is used. In
cases in which the device is furnished
without cost or with full credit,
hospitals were instructed to report a
token device charge of less than $1.01.
In cases in which the device being
inserted is an upgrade (either of the
same type of device or to a different
type of device) with a full credit for the
device being replaced, hospitals were
instructed to report as the device charge
the difference between the hospital’s
usual charge for the device being
implanted and the hospital’s usual
charge for the device for which it
received full credit. In CY 2008, we
expanded this payment adjustment
policy to include cases in which
hospitals receive partial credit of 50
percent or more of the cost of a specified
device. Hospitals were instructed to
append the ‘‘FC’’ modifier to the
procedure code that reports the service
provided to furnish the device when
they receive a partial credit of 50
percent or more of the cost of the new
device. We refer readers to the CY 2008
OPPS/ASC final rule with comment
period for more background information
on the ‘‘FB’’ and ‘‘FC’’ modifiers
payment adjustment policies (72 FR
66743 through 66749).
In the CY 2014 OPPS/ASC final rule
with comment period (78 FR 75005
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49661
through 75007), beginning in CY 2014,
we modified our policy of reducing
OPPS payment for specified APCs when
a hospital furnishes a specified device
without cost or with a full or partial
credit. For CY 2013 and prior years, our
policy had been to reduce OPPS
payment by 100 percent of the device
offset amount when a hospital furnishes
a specified device without cost or with
a full credit and by 50 percent of the
device offset amount when the hospital
receives partial credit in the amount of
50 percent or more of the cost for the
specified device. For CY 2014, we
reduced OPPS payment, for the
applicable APCs, by the full or partial
credit a hospital receives for a replaced
device. Specifically, under this
modified policy, hospitals are required
to report on the claim the amount of the
credit in the amount portion for value
code ‘‘FD’’ (Credit Received from the
Manufacturer for a Replaced Device)
when the hospital receives a credit for
a replaced device that is 50 percent or
greater than the cost of the device. For
CY 2014, we also limited the OPPS
payment deduction for the applicable
APCs to the total amount of the device
offset when the ‘‘FD’’ value code
appears on a claim. For CY 2015, we
continued our policy of reducing OPPS
payment for specified APCs when a
hospital furnishes a specified device
without cost or with a full or partial
credit and to use the three criteria
established in the CY 2007 OPPS/ASC
final rule with comment period (71 FR
68072 through 68077) for determining
the APCs to which our CY 2015 policy
will apply (79 FR 66872 through 66873).
In the CY 2016 OPPS/ASC final rule
with comment period (80 FR 70424), we
finalized our policy to no longer specify
a list of devices to which the OPPS
payment adjustment for no cost/full
credit and partial credit devices would
apply and instead apply this APC
payment adjustment to all replaced
devices furnished in conjunction with a
procedure assigned to a device-intensive
APC when the hospital receives a credit
for a replaced specified device that is 50
percent or greater than the cost of the
device.
b. Policy for No Cost/Full Credit and
Partial Credit Devices
In the CY 2017 OPPS/ASC final rule
with comment period (81 FR 79659
through 79660), for CY 2017 and
subsequent years, we finalized a policy
to reduce OPPS payment for deviceintensive procedures, by the full or
partial credit a provider receives for a
replaced device, when a hospital
furnishes a specified device without
cost or with a full or partial credit.
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Under our current policy, hospitals
continue to be required to report on the
claim the amount of the credit in the
amount portion for value code ‘‘FD’’
when the hospital receives a credit for
a replaced device that is 50 percent or
greater than the cost of the device.
In the CY 2014 OPPS/ASC final rule
with comment period (78 FR 75005
through 75007), we adopted a policy of
reducing OPPS payment for specified
APCs when a hospital furnishes a
specified device without cost or with a
full or partial credit by the lesser of the
device offset amount for the APC or the
amount of the credit. We adopted this
change in policy in the preamble of the
CY 2014 OPPS/ASC final rule with
comment period and discussed it in
subregulatory guidance, including
Chapter 4, Section 61.3.6 of the
Medicare Claims Processing Manual.
Further, in the CY 2021 OPPS/ASC final
rule with comment period (85 FR 86017
through 86018, 86302), we made
conforming changes to our regulations
at § 419.45(b)(1) and (2) that codified
this policy.
We are not proposing any changes to
our policies regarding payment for no
cost/full credit and partial credit
devices for CY 2024.
V. Proposed OPPS Payment for Drugs,
Biologicals, and Radiopharmaceuticals
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A. Proposed OPPS Transitional PassThrough Payment for Additional Costs
of Drugs, Biologicals, and
Radiopharmaceuticals
1. Background
Section 1833(t)(6) of the Act provides
for temporary additional payments or
‘‘transitional pass-through payments’’
for certain drugs and biologicals.
Throughout the proposed rule, the term
‘‘biological’’ is used because this is the
term that appears in section 1861(t) of
the Act. A ‘‘biological’’ as used in the
proposed rule includes (but is not
necessarily limited to) a ‘‘biological
product’’ or a ‘‘biologic’’ as defined
under section 351 of the PHS Act. As
enacted by the Medicare, Medicaid, and
SCHIP Balanced Budget Refinement Act
of 1999 (BBRA) (Pub. L. 106–113), this
pass-through payment provision
requires the Secretary to make
additional payments to hospitals for:
current orphan drugs for rare diseases
and conditions, as designated under
section 526 of the Federal Food, Drug,
and Cosmetic Act; current drugs and
biologicals and brachytherapy sources
used in cancer therapy; and current
radiopharmaceutical drugs and
biologicals. ‘‘Current’’ refers to those
types of drugs or biologicals mentioned
above that are hospital outpatient
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services under Medicare Part B for
which transitional pass-through
payment was made on the first date the
hospital OPPS was implemented.
Transitional pass-through payments
also are provided for certain ‘‘new’’
drugs and biologicals that were not
being paid for as an HOPD service as of
December 31, 1996, and whose cost is
‘‘not insignificant’’ in relation to the
OPPS payments for the procedures or
services associated with the new drug or
biological. For pass-through payment
purposes, radiopharmaceuticals are
included as ‘‘drugs.’’ As required by
statute, transitional pass-through
payments for a drug or biological
described in section 1833(t)(6)(C)(i)(II)
of the Act can be made for a period of
at least 2 years, but not more than 3
years, after the payment was first made
for the drug as a hospital outpatient
service under Medicare Part B. Proposed
CY 2024 pass-through drugs and
biologicals and their designated APCs
are assigned status indicator ‘‘G’’ in
Addenda A and B to this proposed rule
(which are available on the CMS
website).80
Section 1833(t)(6)(D)(i) of the Act
specifies that the pass-through payment
amount, in the case of a drug or
biological, is the amount by which the
amount determined under section
1842(o) of the Act for the drug or
biological exceeds the portion of the
otherwise applicable Medicare OPD fee
schedule that the Secretary determines
is associated with the drug or biological.
The methodology for determining the
pass-through payment amount is set
forth in regulations at 42 CFR 419.64.
These regulations specify that the passthrough payment equals the amount
determined under section 1842(o) of the
Act minus the portion of the APC
payment that CMS determines is
associated with the drug or biological.
Section 1847A of the Act establishes
the average sales price (ASP)
methodology, which is used for
payment for drugs and biologicals
described in section 1842(o)(1)(C) of the
Act furnished on or after January 1,
2005. The ASP methodology, as applied
under the OPPS, uses several sources of
data as a basis for payment, including
the ASP, the wholesale acquisition cost
(WAC), and the average wholesale price
(AWP). In the proposed rule, the term
‘‘ASP methodology’’ and ‘‘ASP-based’’
are inclusive of all data sources and
methodologies described therein.
Additional information on the ASP
methodology can be found on our
website at: https://www.cms.gov/
80 https://www.cms.gov/medicare/medicare-feefor-service-payment/hospitaloutpatientpps.
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Medicare/Medicare-Fee-for-Service-PartB-Drugs/McrPartBDrugAvgSalesPrice/
index.html.
The pass-through application and
review process for drugs and biologicals
is described on our website at: https://
www.cms.gov/Medicare/Medicare-Feefor-Service-Payment/HospitalOut
patientPPS/passthrough_payment.html.
2. Transitional Pass-Through Payment
Period for Pass-Through Drugs,
Biologicals, and Radiopharmaceuticals
and Quarterly Expiration of PassThrough Status
As required by statute, transitional
pass-through payments for a drug or
biological described in section
1833(t)(6)(C)(i)(II) of the Act can be
made for a period of at least 2 years, but
not more than 3 years, after the payment
was first made for the drug or biological
as a hospital outpatient service under
Medicare Part B. Our current policy is
to accept pass-through applications on a
quarterly basis and to begin passthrough payments for approved passthrough drugs and biologicals on a
quarterly basis through the next
available OPPS quarterly update after
the approval of a drug’s or biological’s
pass-through status. However, prior to
CY 2017, we expired pass-through
status for drugs and biologicals on an
annual basis through notice-andcomment rulemaking (74 FR 60480). In
the CY 2017 OPPS/ASC final rule with
comment period (81 FR 79662), we
finalized a policy change, beginning
with pass-through drugs and biologicals
approved in CY 2017 and subsequent
calendar years, to allow for a quarterly
expiration of pass-through payment
status for drugs, biologicals, and
radiopharmaceuticals to afford a passthrough payment period that is as close
to a full 3 years as possible for all passthrough drugs, biologicals, and
radiopharmaceuticals.
This change eliminated the variability
of the pass-through payment eligibility
period, which previously varied based
on when a particular application was
initially received. We adopted this
change for pass-through approvals
beginning on or after CY 2017, to allow,
on a prospective basis, for the maximum
pass-through payment period for each
pass-through drug without exceeding
the statutory limit of 3 years. Notice of
drugs for which pass-through payment
status is ending during the calendar year
is included in the quarterly OPPS
Change Request transmittals.
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There are 43 drugs and biologicals for
which pass-through payment status
expires by December 31, 2023, as listed
in Table 35. These drugs and biologicals
will have received OPPS pass-through
payment for 3 years during the period
of April 1, 2020 through December 31,
2023. In accordance with the policy
finalized in CY 2017 and described
earlier, pass-through payment status for
drugs and biologicals approved in CY
2017 and subsequent years will expire
on a quarterly basis, with a pass-through
payment period as close to 3 years as
possible.
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With the exception of those groups of
drugs and biologicals that are always
packaged when they do not have passthrough payment status (specifically,
anesthesia drugs; drugs, biologicals, and
radiopharmaceuticals that function as
supplies when used in a diagnostic test
or procedure (including diagnostic
radiopharmaceuticals, contrast agents,
and stress agents); and drugs and
biologicals that function as supplies
when used in a surgical procedure), our
standard methodology for providing
payment for drugs and biologicals with
expiring pass-through payment status in
an upcoming calendar year is to
determine the product’s estimated per
day cost and compare it with the OPPS
drug packaging threshold for that
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calendar year (which is proposed to be
$140 for CY 2024), as discussed further
in section V.B.1 of this proposed rule.
If the estimated per day cost for the drug
or biological is less than or equal to the
applicable OPPS drug packaging
threshold, we package payment for the
drug or biological into the payment for
the associated procedure in the
upcoming calendar year. If the
estimated per day cost of the drug or
biological is greater than the OPPS drug
packaging threshold, we provide
separate payment at the applicable ASP
methodology-based payment amount
(which is generally ASP plus 6 percent),
as discussed further in section V.B.2 of
this proposed rule.
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4. Proposed Drugs, Biologicals, and
Radiopharmaceuticals With PassThrough Payment Status Expiring in CY
2024
We propose to end pass-through
payment status in CY 2024 for 25 drugs
and biologicals. These drugs and
biologicals, which were initially
approved for pass-through payment
status between April 1, 2021, and
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January 1, 2022, are listed in Table 36.
The APCs and HCPCS codes for these
drugs and biologicals, which have passthrough payment status that will end by
December 31, 2024, are assigned status
indicator ‘‘G’’ (Pass-Through Drugs and
Biologicals) in Addenda A and B to this
proposed rule (which are available on
the CMS website).81 The APCs and
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HCPCS codes for these drugs and
biologicals, which have pass-through
payment status, are assigned status
indicator ‘‘G’’ only for the duration of
their pass-through status.
Section 1833(t)(6)(D)(i) of the Act sets
the amount of pass-through payment for
pass-through drugs and biologicals (the
pass-through payment amount) as the
difference between the amount
authorized under section 1842(o) of the
Act and the portion of the otherwise
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applicable OPD fee schedule that the
Secretary determines is associated with
the drug or biological. For CY 2024 and
subsequent years, we propose to
continue to pay for pass-through drugs
and biologicals using the ASP
methodology, meaning a payment rate
based on ASP, WAC, or AWP. This
payment rate is generally ASP plus 6
percent, equivalent to the payment rate
these drugs and biologicals would
receive in the physician’s office setting
in CY 2024. We note that, under the
OPD fee schedule, separately payable
drugs assigned to an APC are generally
payable at ASP plus 6 percent.
Therefore, we propose that a $0 passthrough payment amount would be paid
for pass-through drugs and biologicals
under the CY 2024 OPPS, and in
subsequent years, because the difference
between the amount authorized under
section 1842(o) of the Act, which is
generally ASP plus 6 percent, and the
portion of the otherwise applicable OPD
fee schedule that the Secretary
determines is appropriate, which is also
proposed to be the same payment rate,
which is generally ASP plus 6 percent,
is $0. We propose that this policy and
the other policies proposed in this
section would apply in both CY 2024
and subsequent years as they have been
our longstanding policies under the
OPPS. Therefore, we do not believe the
policies need to be re-proposed
annually and should apply for
subsequent years until such time as we
propose to change them.
In the case of policy-packaged drugs
(which include the following:
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anesthesia drugs; drugs, biologicals, and
radiopharmaceuticals that function as
supplies when used in a diagnostic test
or procedure (including contrast agents,
diagnostic radiopharmaceuticals, and
stress agents); and drugs and biologicals
that function as supplies when used in
a surgical procedure), we propose that
their pass-through payment amount
would be equal to a payment rate
calculated using the ASP methodology,
meaning a payment rate based on ASP,
WAC, or AWP. This proposed payment
rate would generally be ASP plus 6
percent for CY 2024 and subsequent
years, minus a payment offset for the
portion of the otherwise applicable OPD
fee schedule that the Secretary
determines is associated with the drug
or biological as described in section
V.A.6 of this proposed rule. We propose
this policy because, if not for the passthrough payment status of these policypackaged products, payment for these
products would be packaged into the
associated procedure and therefore,
there are associated OPD fee schedule
amounts for them.
We propose to continue to update
pass-through payment rates on a
quarterly basis on the CMS website
during CY 2024 and subsequent years if
later quarter ASP submissions (or more
recent WAC or AWP information, as
applicable) indicate that adjustments to
the payment rates for these pass-through
payment drugs or biologicals are
necessary. For a full description of this
policy, we refer readers to the CY 2006
OPPS/ASC final rule with comment
period (70 FR 68632 through 68635).
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For CY 2024 and subsequent years,
consistent with our CY 2023 policy for
diagnostic and therapeutic
radiopharmaceuticals, we propose to
continue to provide payment for both
diagnostic and therapeutic
radiopharmaceuticals that are granted
pass-through payment status based on
the ASP methodology. As stated earlier,
for purposes of pass-through payment,
we consider radiopharmaceuticals to be
drugs under the OPPS. Therefore, if a
diagnostic or therapeutic
radiopharmaceutical receives passthrough payment status during CY 2024
or subsequent years, we propose to
follow the standard ASP methodology to
determine the pass-through payment
rate that drugs receive under section
1842(o) of the Act, which is generally
ASP plus 6 percent. If ASP data are not
available for a radiopharmaceutical, we
propose to provide pass-through
payment at WAC plus 3 percent
(consistent with our policy in section
V.B.2.b of this proposed rule), the
equivalent payment provided for passthrough drugs and biologicals without
ASP information. Additional detail on
the WAC plus 3 percent payment policy
can be found in section V.B.2.b of this
proposed rule). If WAC information also
is not available, we propose to provide
payment for the pass-through
radiopharmaceutical at 95 percent of its
most recent AWP.
We refer readers to Table 36 below for
the list of drugs and biologicals with
pass-through payment status expiring
during CY 2024.
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5. Proposed Drugs, Biologicals, and
Radiopharmaceuticals With PassThrough Payment Status Continuing
Through CY 2024
We propose to continue pass-through
payment status in CY 2024 for 42 drugs
and biologicals. These drugs and
biologicals, which were approved for
pass-through payment status with
effective dates beginning between April
1, 2022, and April 1, 2023, are listed in
Table 37. The APCs and HCPCS codes
for these drugs and biologicals, which
have pass-through payment status that
would continue after December 31,
2024, are assigned status indicator ‘‘G’’
in Addenda A and B to this proposed
rule (which are available on the CMS
website).82
Section 1833(t)(6)(D)(i) of the Act sets
the amount of pass-through payment for
pass-through drugs and biologicals (the
pass-through payment amount) as the
difference between the amount
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authorized under section 1842(o) of the
Act and the portion of the otherwise
applicable OPD fee schedule that the
Secretary determines is associated with
the drug or biological. For CY 2024 and
subsequent years, we propose to
continue to pay for pass-through drugs
and biologicals at a payment rate based
on the ASP methodology, which may be
based on ASP, WAC, or AWP, but is
generally ASP plus 6 percent, which is
equivalent to the payment rate these
drugs and biologicals would receive in
the physician’s office setting in CY
2024. We propose that a $0 pass-through
payment amount would be paid for
pass-through drugs and biologicals that
are not policy-packaged as described in
section V.B.1.c of this proposed rule
under the CY 2024 OPPS and in
subsequent years, because the difference
between the amount authorized under
section 1842(o) of the Act, which would
generally be ASP plus 6 percent, and the
portion of the otherwise applicable OPD
fee schedule that the Secretary
determines is appropriate, which would
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also generally be ASP plus 6 percent, is
$0.
In the case of policy-packaged drugs
(which include the following:
anesthesia drugs; drugs, biologicals, and
radiopharmaceuticals that function as
supplies when used in a diagnostic test
or procedure (including contrast agents,
diagnostic radiopharmaceuticals, and
stress agents); and drugs and biologicals
that function as supplies when used in
a surgical procedure), we propose that
their pass-through payment amount
would be equal to a payment rate based
on the ASP methodology, which may be
based on ASP, WAC, or AWP, but
would generally be ASP plus 6 percent
for CY 2024, minus a payment offset for
any predecessor drug products
contributing to the pass-through
payment as described in section V.A.6
of this proposed rule). We propose this
policy because, if not for the passthrough payment status of these policypackaged products, payment for these
products would be packaged into the
associated procedure and therefore,
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there are associated OPD fee schedule
amounts for them.
We propose to continue to update
pass-through payment rates on a
quarterly basis on our website during
CY 2024, and in subsequent years, if
later quarter ASP submissions (or more
recent WAC or AWP information, as
applicable) indicate that adjustments to
the payment rates for these pass-through
payment drugs or biologicals are
necessary. For a full description of this
policy, we refer readers to the CY 2006
OPPS/ASC final rule with comment
period (70 FR 68632 through 68635).
For CY 2024 and subsequent years,
consistent with our CY 2023 policy for
diagnostic and therapeutic
radiopharmaceuticals, we propose to
continue to provide payment for both
diagnostic and therapeutic
radiopharmaceuticals that are granted
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pass-through payment status based on
the ASP methodology. As stated earlier,
for purposes of pass-through payment,
we consider radiopharmaceuticals to be
drugs under the OPPS. Therefore, if a
diagnostic or therapeutic
radiopharmaceutical receives passthrough payment status during CY 2024,
we will continue to follow the standard
ASP methodology to determine the
pass-through payment rate that drugs
receive under section 1842(o) of the Act,
which would generally be ASP plus 6
percent. If ASP data are not available for
a radiopharmaceutical, we would
provide pass-through payment at WAC
plus 3 percent (consistent with our
policy in section V.B.2.b of this
proposed rule), the equivalent payment
provided to pass-through drugs and
biologicals without ASP information.
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Additional detail on the WAC plus 3
percent payment policy can be found in
section V.B.2.b of this proposed rule). If
WAC information also is not available,
we would provide payment for the passthrough radiopharmaceutical at 95
percent of its most recent AWP.
We propose that the other policies
proposed in this section would apply in
both CY 2024 and subsequent years as
they have been our longstanding
policies under the OPPS. Therefore, we
do not believe the policies need to be reproposed annually and should apply for
subsequent years until such time as we
propose to change them.
The drugs and biologicals that we
propose would have pass-through
payment status expire after December
31, 2024, are shown in Table 37.
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6. Proposed Provisions for Reducing
Transitional Pass-Through Payments for
Policy-Packaged Drugs, Biologicals, and
Radiopharmaceuticals To Offset Costs
Packaged Into APC Groups
Under the regulation at 42 CFR
419.2(b)(15), nonpass-through drugs,
biologicals, and radiopharmaceuticals
that function as supplies when used in
a diagnostic test or procedure are
packaged in the OPPS. This category
includes diagnostic
radiopharmaceuticals, contrast agents,
stress agents, and other diagnostic
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drugs. Also, under the regulation at 42
CFR 419.2(b)(16), nonpass-through
drugs and biologicals that function as
supplies in a surgical procedure are
packaged in the OPPS. This category
includes skin substitutes and other
surgical-supply drugs and biologicals.
Finally, under the regulation at 42 CFR
419.2(b)(4), anesthesia drugs are
packaged in the OPPS. As described
earlier, section 1833(t)(6)(D)(i) of the Act
specifies that the transitional passthrough payment amount for passthrough drugs and biologicals is the
difference between the amount paid
under section 1842(o) of the Act and the
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otherwise applicable OPD fee schedule
amount. Because a payment offset is
necessary in order to provide an
appropriate transitional pass-through
payment, we deduct from the passthrough payment for policy-packaged
drugs, biologicals, and
radiopharmaceuticals an amount
reflecting the portion of the APC
payment associated with predecessor
products in order to ensure no duplicate
payment is made. This amount
reflecting the portion of the APC
payment associated with predecessor
products is called the payment offset.
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The payment offset policy applies to
all policy-packaged drugs, biologicals,
and radiopharmaceuticals. For a full
description of the payment offset policy
as applied to policy-packaged drugs,
which include diagnostic
radiopharmaceuticals, contrast agents,
stress agents, and skin substitutes, we
refer readers to the discussion in the CY
2016 OPPS/ASC final rule with
comment period (80 FR 70430 through
70432). For CY 2024 and subsequent
years, as we did in CY 2023, we propose
to continue to apply the same policypackaged offset policy to payment for
pass-through diagnostic
radiopharmaceuticals, pass-through
contrast agents, pass-through stress
agents, and pass-through skin
substitutes. We propose that these
policies would apply in both CY 2024
and subsequent years as they are our
longstanding policies under the OPPS,
and we do not believe they need to be
re-proposed annually. Instead, we
believe they should apply for
subsequent years until such time as we
propose to change them or until such
time as the APCs to which a payment
offset may be applicable for certain
products change. The APCs to which a
payment offset may be applicable for
pass-through diagnostic
radiopharmaceuticals, pass-through
contrast agents, pass-through stress
agents, and pass-through skin
substitutes are identified in Table 38.
We propose to continue to post
annually on our website at: https://
www.cms.gov/Medicare/Medicare-Feefor-Service-Payment/
HospitalOutpatientPPS/Annual-PolicyFiles.html a file that contains the APC
offset amounts that will be used for that
year for purposes of both evaluating cost
significance for candidate pass-through
payment device categories and drugs
and biologicals and establishing any
appropriate APC offset amounts.
Specifically, the file will continue to
provide the amounts and percentages of
APC payment associated with packaged
implantable devices, policy-packaged
drugs, and threshold packaged drugs
and biologicals for every OPPS clinical
APC.
1. Proposed Criteria for Packaging
Payment for Drugs, Biologicals, and
Radiopharmaceuticals
the CY 2007 OPPS/ASC final rule with
comment period (71 FR 68085 through
68086)), we set the packaging threshold
for establishing separate APCs for drugs
and biologicals at $135 for CY 2023 (87
FR 71960 through 71961).
Following the CY 2007 methodology,
for this proposed rule, we use the most
recently available four quarter moving
average PPI levels to trend the $50
threshold forward from the third quarter
of CY 2005 to the third quarter of CY
2024 and round the resulting dollar
amount ($138.44) to the nearest $5
increment, which yielded a figure of
$140. In performing this calculation, we
used the most recent forecast of the
quarterly index levels for the PPI for
Pharmaceuticals for Human Use
(Prescription) (Bureau of Labor Statistics
series code WPUSI07003) from IHS
Global, Inc. IGI is a nationally
recognized economic and financial
forecasting firm with which CMS
contracts to forecast the various price
B. Proposed OPPS Payment for Drugs,
Biologicals, and Radiopharmaceuticals
Without Pass-Through Payment Status
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a. Proposed Packaging Threshold
In accordance with section
1833(t)(16)(B) of the Act, the threshold
for establishing separate APCs for
payment of drugs and biologicals was
set to $50 per administration during CYs
2005 and 2006. In CY 2007, we used the
four-quarter moving average Producer
Price Index (PPI) levels for
Pharmaceutical Preparations
(Prescription) to trend the $50 threshold
forward from the third quarter of CY
2005 (when the Pub. L. 108–173
mandated threshold became effective) to
the third quarter of CY 2007. We then
rounded the resulting dollar amount to
the nearest $5 increment in order to
determine the CY 2007 threshold
amount of $55. Using the same
methodology as that used in CY 2007
(which is discussed in more detail in
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indexes including the PPI
Pharmaceuticals for Human Use
(Prescription). Based on these
calculations using the CY 2007 OPPS
methodology, we propose a packaging
threshold for CY 2024 of $140.
b. Packaging of Payment for HCPCS
Codes That Describe Certain Drugs,
Certain Biologicals, and Certain
Therapeutic Radiopharmaceuticals
Under the Cost Threshold (‘‘ThresholdPackaged Drugs’’)
To determine the proposed CY 2024
packaging status for all nonpass-through
drugs and biologicals that are not policy
packaged, we calculated, on a HCPCS
code-specific basis, the per day cost of
all drugs, biologicals, and therapeutic
radiopharmaceuticals that had a HCPCS
code in CY 2022 and were paid (via
packaged or separate payment) under
the OPPS. We used data from CY 2022
claims processed through June 30, 2022,
for this calculation. However, we did
not perform this calculation for those
drugs and biologicals with multiple
HCPCS codes that include different
dosages, as described in section V.B.1.d
of this proposed rule, or for the
following policy-packaged items that we
propose to continue to package in CY
2024: anesthesia drugs; drugs,
biologicals, and radiopharmaceuticals
that function as supplies when used in
a diagnostic test or procedure; and drugs
and biologicals that function as supplies
when used in a surgical procedure.
In order to calculate the per day costs
for drugs, biologicals, and therapeutic
radiopharmaceuticals to determine their
proposed packaging status in CY 2024,
we use the methodology that was
described in detail in the CY 2006 OPPS
proposed rule (70 FR 42723 through
42724) and finalized in the CY 2006
OPPS final rule with comment period
(70 FR 68636 through 68638). For each
drug and biological HCPCS code, we
used an estimated payment rate based
on the ASP methodology, which is
generally ASP plus 6 percent (which is
the payment rate we proposed for
separately payable drugs and
biologicals) for CY 2024, as discussed in
more detail in section V.B.2.b of this
proposed rule) to calculate the CY 2024
proposed rule per day costs. We used
the manufacturer-submitted ASP data
from the fourth quarter of CY 2022 (data
that were used for payment purposes in
the physician’s office setting, effective
April 1, 2023) to determine the
proposed rule per day cost.
As is our standard methodology, for
CY 2024 we propose to use payment
rates based on the ASP data from the
fourth quarter of CY 2022 for budget
neutrality estimates, packaging
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determinations, impact analyses, and
completion of Addenda A and B to this
proposed rule (which are available via
the internet on the CMS website)
because these are the most recent data
available for use at the time of
development of the CY 2024 OPPS/ASC
proposed rule. These data also were the
basis for drug payments in the
physician’s office setting, effective April
1, 2023. For items that did not have an
ASP-based payment rate, such as some
therapeutic radiopharmaceuticals, we
used their mean unit cost derived from
the CY 2022 hospital claims data to
determine their per day cost.
We propose to package items with a
per day cost less than or equal to $140
and identify items with a per day cost
greater than $140 as separately payable
unless they are policy-packaged.
Consistent with our past practice, we
cross-walked historical OPPS claims
data from the CY 2022 HCPCS codes
that were reported to the CY 2023
HCPCS codes that we display in
Addendum B to this proposed rule
(which is available on the CMS
website) 83 for proposed payment in CY
2024.
Our policy during previous cycles of
OPPS rulemaking has been to use
updated ASP and claims data to make
final determinations of the packaging
status of HCPCS codes for drugs,
biologicals, and therapeutic
radiopharmaceuticals for the OPPS/ASC
final rule with comment period. We
note that it is also our policy to make
an annual packaging determination for a
HCPCS code only when we develop the
OPPS/ASC final rule with comment
period for the update year. Only HCPCS
codes that are identified as separately
payable in the final rule with comment
period are subject to quarterly updates.
For our calculation of per day costs of
HCPCS codes for drugs and biologicals
in this proposed rule, we propose to use
ASP data from the fourth quarter of CY
2022, which is the basis for calculating
payment rates for drugs and biologicals
in the physician’s office setting using
the ASP methodology, effective April 1,
2023, along with updated hospital
claims data from CY 2022. We note that
we also propose to use these data for
budget neutrality estimates and impact
analyses for this proposed rule.
Payment rates for HCPCS codes for
separately payable drugs and biologicals
included in Addenda A and B of this
proposed rule are based on ASP data
from the second quarter of CY 2023.
These data will be the basis for
calculating payment rates for drugs and
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biologicals in the physician’s office
setting using the ASP methodology,
effective October 1, 2023. These
payment rates would then be updated in
the January 2024 OPPS update, based on
the most recent ASP data to be used for
physicians’ office and OPPS payment as
of January 1, 2024. For items that do not
currently have an ASP-based payment
rate, we calculated their mean unit cost
from all of the CY 2022 claims data and
updated cost report information
available for this proposed rule to
determine their final per day cost.
Consequently, the packaging status of
some HCPCS codes for drugs,
biologicals, and therapeutic
radiopharmaceuticals in this OPPS/ASC
proposed rule may be different from the
same drugs’ HCPCS codes’ packaging
status determined based on the data
used for the final rule with comment
period. Under such circumstances, we
propose to continue to follow the
established policies initially adopted for
the CY 2005 OPPS (69 FR 65780) in
order to more equitably pay for those
drugs whose costs fluctuate relative to
the proposed CY 2024 OPPS drug
packaging threshold and the drug’s
payment status (packaged or separately
payable) in CY 2023. These established
policies have not changed for many
years and are the same as described in
the CY 2016 OPPS/ASC final rule with
comment period (80 FR 70434).
Specifically, for CY 2024 and
subsequent years, consistent with our
historical practice, we propose to apply
the following policies to those HCPCS
codes for drugs, biologicals, and
therapeutic radiopharmaceuticals whose
relationship to the drug packaging
threshold changes based on the updated
drug packaging threshold and on the
final updated data:
• HCPCS codes for drugs and
biologicals that were paid separately in
CY 2023 and that are proposed for
separate payment in CY 2024, and that
then have per day costs equal to or less
than the CY 2024 final rule drug
packaging threshold, based on the
updated ASPs and hospital claims data
used for the CY 2024 final rule, would
continue to receive separate payment in
CY 2024.
• HCPCS codes for drugs and
biologicals that were packaged in CY
2023 and that are proposed for separate
payment in CY 2024, and that then have
per day costs equal to or less than the
CY 2024 final rule drug packaging
threshold, based on the updated ASPs
and hospital claims data used for the CY
2024 final rule, would remain packaged
in CY 2024.
• HCPCS codes for drugs and
biologicals for which we proposed
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packaged payment in CY 2024 but that
then have per-day costs greater than the
CY 2024 final rule drug packaging
threshold, based on the updated ASPs
and hospital claims data used for the CY
2024 final rule, would receive separate
payment in CY 2024.
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c. Policy-Packaged Drugs, Biologicals,
and Radiopharmaceuticals
As mentioned earlier in this section,
under the OPPS, we package several
categories of nonpass-through drugs,
biologicals, and radiopharmaceuticals,
regardless of the cost of the products.
Because the products are packaged
according to the policies in 42 CFR
419.2(b), we refer to these packaged
drugs, biologicals, and
radiopharmaceuticals as ‘‘policypackaged’’ drugs, biologicals, and
radiopharmaceuticals. These policies
are either longstanding or based on
longstanding principles and inherent to
the OPPS and are as follows:
• Anesthesia, certain drugs,
biologicals, and other pharmaceuticals;
medical and surgical supplies and
equipment; surgical dressings; and
devices used for external reduction of
fractures and dislocations
(§ 419.2(b)(4));
• Intraoperative items and services
(§ 419.2(b)(14));
• Drugs, biologicals, and
radiopharmaceuticals that function as
supplies when used in a diagnostic test
or procedure (including, but not limited
to, diagnostic radiopharmaceuticals,
contrast agents, and pharmacologic
stress agents) (§ 419.2(b)(15)); and
• Drugs and biologicals that function
as supplies when used in a surgical
procedure (including, but not limited to,
skin substitutes and similar products
that aid wound healing and implantable
biologicals) (§ 419.2(b)(16)).
The policy at § 419.2(b)(16) is broader
than that at § 419.2(b)(14). As we stated
in the CY 2015 OPPS/ASC final rule
with comment period: ‘‘We consider all
items related to the surgical outcome
and provided during the hospital stay in
which the surgery is performed,
including postsurgical pain
management drugs, to be part of the
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surgery for purposes of our drug and
biological surgical supply packaging
policy’’ (79 FR 66875). The category
described by § 419.2(b)(15) is large and
includes diagnostic
radiopharmaceuticals, contrast agents,
stress agents, and some other products.
The category described by § 419.2(b)(16)
includes skin substitutes and some
other products. We believe it is
important to reiterate that cost
consideration is not a factor when
determining whether an item is a
surgical supply (79 FR 66875).
We welcome ongoing dialogue and
engagement from interested parties
regarding suggestions for payment
changes for consideration in future
rulemaking.
d. Packaging Determination for HCPCS
Codes That Describe the Same Drug or
Biological But Different Dosages
In the CY 2010 OPPS/ASC final rule
with comment period (74 FR 60490
through 60491), we finalized a policy to
make a single packaging determination
for a drug, rather than an individual
HCPCS code, when a drug has multiple
HCPCS codes describing different
dosages because we believe that
adopting the standard HCPCS codespecific packaging determinations for
these codes could lead to inappropriate
payment incentives for hospitals to
report certain HCPCS codes instead of
others. We continue to believe that
making packaging determinations on a
drug-specific basis eliminates payment
incentives for hospitals to report certain
HCPCS codes for drugs and allows
hospitals flexibility in choosing to
report all HCPCS codes for different
dosages of the same drug or only the
lowest dosage HCPCS code. Therefore,
we propose to continue our policy to
make packaging determinations on a
drug-specific basis, rather than a HCPCS
code-specific basis, for those HCPCS
codes that describe the same drug or
biological but different dosages in CY
2024.
For CY 2024, in order to propose a
packaging determination that is
consistent across all HCPCS codes that
describe different dosages of the same
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drug or biological, we aggregated both
our CY 2022 claims data and our pricing
information, which is based on the ASP
methodology, which is generally ASP
plus 6 percent, across all of the HCPCS
codes that describe each distinct drug or
biological in order to determine the
mean units per day of the drug or
biological in terms of the HCPCS code
with the lowest dosage descriptor. The
following drugs did not have pricing
information available for the ASP
methodology for this proposed rule;
and, as is our current policy for
determining the packaging status of
other drugs, we used the mean unit cost
available from the CY 2022 claims data
to make the proposed packaging
determinations for these drugs: HCPCS
code C9257 (Injection, bevacizumab,
0.25 mg); HCPCS code J1840 (Injection,
kanamycin sulfate, up to 500 mg);
HCPCS code J1850 (Injection,
kanamycin sulfate, up to 75 mg); HCPCS
code J3472 (Injection, hyaluronidase,
ovine, preservative free, per 1,000 usp
units); HCPCS code J7100 (Infusion,
dextran 40, 500 ml); and HCPCS code
J7110 (Infusion, dextran 75, 500 ml).
For all other drugs and biologicals
that have HCPCS codes describing
different doses, we then multiplied the
proposed weighted average ASP
methodology based payment rate, which
is generally ASP plus 6 percent, per unit
payment amount across all dosage levels
of a specific drug or biological by the
estimated units per day for all HCPCS
codes that describe each drug or
biological from our claims data to
determine if the estimated per day cost
of each drug or biological is less than or
equal to the proposed CY 2024 drug
packaging threshold of $140 (in which
case all HCPCS codes for the same drug
or biological would be packaged) or
greater than the proposed CY 2024 drug
packaging threshold of $140 (in which
case all HCPCS codes for the same drug
or biological would be separately
payable). The proposed packaging status
of each drug and biological HCPCS code
to which this methodology would apply
in CY 2024 is displayed in Table 39.
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2. Proposed Payment for Drugs and
Biologicals Without Pass-Through
Status That Are Not Packaged
a. Proposed Payment for Specified
Covered Outpatient Drugs (SCODs) and
Other Separately Payable Drugs and
Biologicals
Section 1833(t)(14) of the Act defines
certain separately payable
radiopharmaceuticals, drugs, and
biologicals and mandates specific
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payments for these items. Under section
1833(t)(14)(B)(i) of the Act, a ‘‘specified
covered outpatient drug’’ (known as a
SCOD) is defined as a covered
outpatient drug, as defined in section
1927(k)(2) of the Act, for which a
separate APC has been established and
that either is a radiopharmaceutical
agent or a drug or biological for which
payment was made on a pass-through
basis on or before December 31, 2002.
Under section 1833(t)(14)(B)(ii) of the
Act, certain drugs and biologicals are
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designated as exceptions and are not
included in the definition of SCODs.
These exceptions are—
• A drug or biological for which
payment is first made on or after
January 1, 2003, under the transitional
pass-through payment provision in
section 1833(t)(6) of the Act.
• A drug or biological for which a
temporary HCPCS code has not been
assigned.
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• During CYs 2004 and 2005, an
orphan drug (as designated by the
Secretary).
Section 1833(t)(14)(A)(iii) of the Act
requires that payment for SCODs in CY
2006 and subsequent years be equal to
the average acquisition cost for the drug
for that year as determined by the
Secretary, subject to any adjustment for
overhead costs and taking into account
the hospital acquisition cost survey data
collected by the Government
Accountability Office (GAO) in CYs
2004 and 2005, and later periodic
surveys conducted by the Secretary as
set forth in the statute. If hospital
acquisition cost data are not available,
the law requires that payment be equal
to payment rates established under the
methodology described in section
1842(o), section 1847A, or section
1847B of the Act, as calculated and
adjusted by the Secretary as necessary
for purposes of paragraph (14). We refer
to this alternative methodology as the
‘‘statutory default.’’ Most physician Part
B drugs are paid at ASP plus 6 percent
in accordance with section 1842(o) and
section 1847A of the Act.
Section 1833(t)(14)(E)(ii) of the Act
provides for an adjustment in OPPS
payment rates for SCODs to take into
account overhead and related expenses,
such as pharmacy services and handling
costs. Section 1833(t)(14)(E)(i) of the Act
required MedPAC to study pharmacy
overhead and related expenses and to
make recommendations to the Secretary
regarding whether, and if so how, a
payment adjustment should be made to
compensate hospitals for overhead and
related expenses. Section
1833(t)(14)(E)(ii) of the Act authorizes
the Secretary to adjust the weights for
ambulatory procedure classifications for
SCODs to take into account the findings
of the MedPAC study.84
It has been our policy since CY 2006
to apply the same treatment to all
separately payable drugs and
biologicals, which include SCODs, and
drugs and biologicals that are not
SCODs. Therefore, we apply the
payment methodology in section
1833(t)(14)(A)(iii) of the Act to SCODs,
as required by statute, but we also apply
it to separately payable drugs and
biologicals that are not SCODs, which is
a policy determination rather than a
statutory requirement. For CY 2023 and
subsequent years, we finalized a policy
to apply section 1833(t)(14)(A)(iii)(II) of
84 Medicare Payment Advisory Committee. June
2005 Report to the Congress. Chapter 6: Payment for
pharmacy handling costs in hospital outpatient
departments. Available at: https://
www.medpac.gov/wp-content/uploads/import_
data/scrape_files/docs/default-source/reports/
June05_ch6.pdf.
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the Act to all separately payable drugs
and biologicals, including SCODs.
Although we do not distinguish SCODs
in this discussion, we note that we are
required to apply section
1833(t)(14)(A)(iii)(II) of the Act to
SCODs, but we also are applying this
provision to other separately payable
drugs and biologicals, consistent with
our history of using the same payment
methodology for all separately payable
drugs and biologicals.
For a detailed discussion of our OPPS
drug payment policies from CY 2006 to
CY 2012, we refer readers to the CY
2013 OPPS/ASC final rule with
comment period (77 FR 68383 through
68385). In the CY 2013 OPPS/ASC final
rule with comment period (77 FR 68386
through 68389), we first adopted the
statutory default policy to pay for
separately payable drugs and biologicals
at ASP plus 6 percent based on section
1833(t)(14)(A)(iii)(II) of the Act. We
have continued this policy of paying for
separately payable drugs and biologicals
at the statutory default for CYs 2014
through 2023.
In the case of a drug or biological
during an initial sales period in which
data on the prices for sales of the drug
or biological are not sufficiently
available from the manufacturer, section
1847A(c)(4) of the Act permits the
Secretary to make payments that are
based on WAC. Under section
1833(t)(14)(A)(iii)(II) of the Act, the
amount of payment for a separately
payable drug equals the average price
for the drug for the year established
under, among other authorities, section
1847A of the Act. As explained in
greater detail in the CY 2019 PFS final
rule, under section 1847A(c)(4) of the
Act, although payments may be based
on WAC, unlike section 1847A(b) of the
Act (which specifies that payments
using ASP or WAC must be made with
a 6 percent add-on), section 1847A(c)(4)
of the Act does not require that a
particular add-on amount be applied to
WAC-based pricing for this initial
period when ASP data are not available.
Consistent with section 1847A(c)(4) of
the Act, in the CY 2019 PFS final rule
(83 FR 59661 to 59666), we finalized a
policy that, effective January 1, 2019,
WAC-based payments for Part B drugs
made under section 1847A(c)(4) of the
Act will utilize a 3-percent add-on in
place of the 6 percent add-on that was
being used according to our policy in
effect as of CY 2018. For the CY 2019
OPPS, we followed the same policy
finalized in the CY 2019 PFS final rule
(83 FR 59661 to 59666). Since CY 2020,
we have continued to utilize a 3 percent
add-on instead of a 6 percent add-on for
drugs that are paid based on WAC
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pursuant to our authority under section
1833(t)(14)(A)(iii)(II) of the Act (84 FR
61318 and 85 FR 86039), which
provides, in part, that the amount of
payment for a SCOD is the average price
of the drug in the year established under
section 1847A of the Act. We also apply
this provision to non-SCOD separately
payable drugs. Because we establish the
average price for a drug paid based on
WAC under section 1847A of the Act as
WAC plus 3 percent instead of WAC
plus 6 percent, we believe it is
appropriate to price separately payable
drugs paid based on WAC at the same
amount under the OPPS. Our policy to
pay for drugs and biologicals at WAC
plus 3 percent, rather than WAC plus 6
percent, applies whenever WAC-based
pricing is used for a drug or biological
under 1847A(c)(4). We refer readers to
the CY 2019 PFS final rule (83 FR 59661
to 59666) for additional background on
this policy.
Consistent with our current policy,
payments for separately payable drugs
and biologicals are included in the
budget neutrality adjustments, under
the requirements in section 1833(t)(9)(B)
of the Act. Also, the budget neutral
weight scalar is not applied in
determining payments for these
separately payable drugs and
biologicals.
We note that separately payable drug
and biological payment rates listed in
Addenda A and B to this proposed rule
(available on the CMS website 85), which
illustrate the proposed CY 2024
payment based on the ASP methodology
for separately payable nonpass-through
drugs and biologicals and the ASP
methodology for pass-through drugs and
biologicals, reflect either ASP
information that is the basis for
calculating payment rates for drugs and
biologicals in the physician’s office
setting effective April 1, 2023, or WAC,
AWP, or mean unit cost from CY 2022
claims data and updated cost report
information available for this CY 2024
OPPS/ASC proposed rule. In general,
these published payment rates are not
the same as the actual January 2024
payment rates. This is because payment
rates for drugs and biologicals with ASP
information for January 2024 will be
determined through the standard
quarterly process where ASP data
submitted by manufacturers for the
third quarter of CY 2023 (July 1, 2023,
through September 30, 2023) will be
used to set the payment rates that are
released for the quarter beginning in
January 2024 in December 2023. In
addition, payment rates for drugs and
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biologicals in Addenda A and B to this
proposed rule, for which there was no
ASP, WAC, or AWP information
available for April 2023, are based on
mean unit cost in the available CY 2022
claims data. If new pricing information
becomes available for payment for the
quarter beginning in January 2024, we
will price payment for these drugs and
biologicals based on their newly
available information. Finally, there
may be drugs and biologicals that have
ASP, WAC, or AWP information
available for the CY 2024 OPPS/ASC
proposed rule (reflecting April 2023
ASP data) that do not have ASP, WAC,
or AWP information available for the
quarter beginning in January 2024.
These drugs and biologicals would then
be paid based on mean unit cost data
derived from CY 2022 hospital claims.
Therefore, the proposed payment rates
listed in Addenda A and B to this
proposed rule are not for January 2024
payment purposes and are only
illustrative of the CY 2024 OPPS
payment methodology using the most
recently available information at the
time of issuance of this proposed rule.
For CY 2024, we are not proposing
any changes to our policies for payment
for separately payable drugs and
biologicals; and we are continuing our
payment policy that has been in effect
since CY 2013 to pay for separately
payable drugs and biologicals in
accordance with section
1833(t)(14)(A)(iii)(II) of the Act (the
statutory default).
We are, however, proposing to amend
the regulation text to reflect our
longstanding policies for calculating the
Medicare program payment and
copayment amounts for separately
payable drugs and biologicals by adding
a new paragraph (d) to § 419.41.
b. Biosimilar Biological Products
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(1) Provisions of the Inflation Reduction
Act Relating to Biologicals
The Inflation Reduction Act (Pub. L.
117–169, August 16, 2022) (hereinafter
referred to as ‘‘IRA’’) contains two
provisions that affect payment limits for
biosimilar biological products
(hereinafter referred to as
‘‘biosimilars’’): section 11402 of the IRA
amends the payment limit for new
biosimilars furnished on or after July 1,
2024, during the initial period when
ASP data is not available. Section 11403
of the IRA makes changes to the
payment limit for certain biosimilars
with an ASP that is not more than the
ASP of the reference biological for a
period of 5 years. We implemented
section 11403 of the IRA under program
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instruction 86 87, as permitted under
section 1847A(c)(5)(C) of the Act.
Section 11402 of the IRA amended
section 1847A(c)(4) of the Act by adding
subparagraph (B), which limits the
payment amount for biosimilars during
the initial period described in section
1847A(c)(4)(A). The provision requires
that for new biosimilars furnished on or
after July 1, 2024, during the initial
period when ASP data is not available,
the payment limit for the biosimilar is
the lesser of (1) an amount not to exceed
103 percent of the WAC of the
biosimilar or the Medicare Part B drug
payment methodology in effect on
November 1, 2003, or (2) 106 percent of
the lesser of the WAC or ASP of the
reference biological, or in the case of a
selected drug during a price
applicability period, 106 percent of the
maximum fair price of the reference
biological. We refer readers to the CY
2024 PFS proposed rule for the
discussion of the proposed changes to
the regulation at § 414.904 to codify
section 11402 of the IRA.
Section 11403 of the IRA amended
section 1847A(b)(8) of the Act by
establishing a temporary payment
increase for qualifying biosimilar
biological products (hereinafter referred
to as ‘‘qualifying biosimilars’’) furnished
during the applicable 5-year period.88
Section 1847(b)(8)(B)(iii) of the Act
defines ‘‘qualifying biosimilar biological
product’’ as a biosimilar biological
product (as described in section
1847A(b)(1)(C) of the Act) with an ASP
(as described in section
1847A(b)(8)(A)(i) of the Act) less than
the ASP of the reference biological for
a calendar quarter during the applicable
5-year period. Section 11403 of the IRA
requires that a qualifying biosimilar be
paid at ASP plus 8 percent of the
reference biological’s ASP rather than 6
percent during the applicable 5-year
period. Section 1847A(b)(8)(B)(ii) of the
Act defines the applicable 5-year period
for a qualifying biosimilar for which
payment has been made using ASP (that
is, payment under section 1847A(b)(8)
of the Act) as of September 30, 2022, as
the 5-year period beginning on October
1, 2022. For a qualifying biosimilar for
which payment is first made using ASP
during the period beginning October 1,
2022, and ending December 31, 2027,
the statute defines the applicable 5-year
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house-bill/5376/text?q=%7B%22search
%22%3A%5B%22inflation+reduction+act
%22%2C%22inflation%22%2C%22
reduction%22%2C%22act%22%5D%7D&r=1&s=1.
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period as the 5-year period beginning on
the first day of such calendar quarter of
such payment. We refer readers to the
CY 2024 PFS proposed rule for the
discussion of the proposed changes to
the regulations at §§ 414.902 and
414.904 to codify section 11403 of the
IRA.
Section 1833(t)(14)(A)(iii) of the Act
provides for payment of separately
covered outpatient drugs (SCODs), and
currently, CMS pays under the OPPS for
SCODs consistent with the payment
methodology set forth in section
1833(t)(14)(A)(iii)(II) of the Act (the
statutory default). Through rulemaking,
CMS adopted a policy to apply the
statutory default payment methodology
to separately payable drugs and
biologicals that are not SCODs (70 FR
68715 through 68716). Under this
authority, the payment rate for SCODs
and applicable separately payable drugs
and biologicals is determined in
accordance with sections 1842(o) and
1847A of the Act, as calculated and
adjusted by the Secretary as necessary
for purposes of paragraph (14). Because
our current policy is to pay for
separately payable drugs and biologicals
at payment amounts determined under
section 1847A, we propose that, for a
separately payable biosimilar that is
new for purposes of section
1847A(c)(4)(A), the OPPS payment
amount would be the amount
determined under section 1847A,
subject to the payment limit in section
1847A(c)(4)(A). We also propose that,
for a separately payable biosimilar that
meets the definition of a ‘‘qualifying
biosimilar biological product’’ for
purposes of section 1847A(b)(8)(B)(iii)
of the Act, the OPPS payment amount
for the biosimilar would be the amount
determined under section 1847A,
subject to the temporary payment
increase under section
1847A(b)(8)(B)(iii). We propose to
codify OPPS payment for biosimilars
consistent with sections 1847A(c)(4)(A)
and 1847A(b)(8)(B)(iii) by adding new
paragraphs (f) and (g) to the regulation
at § 419.41. The proposed regulation
text cross-references the regulation text
included in the PFS proposed rule,
which proposes to codify the
requirements in sections 1847A(c)(4)(A)
and 1847A(b)(8)(B)(iii). We refer readers
to the PFS proposed rule for more
information about those proposed
regulations.
(2) Proposal to Except Biosimilars From
the OPPS Packaging Threshold When
Their Reference Biologicals Are
Separately Paid
Medicare Part B spending for
biologicals and biosimilars has
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significantly outpaced the spending for
non-biologic drugs for the past 16 years.
According to a 2020 report from the
Assistant Secretary for Planning and
Evaluation (ASPE), the spending for
biologicals and biosimilars represented
77 percent of Medicare Part B
prescription drug spending in CY
2017.89 In a 2020 MedPAC report, the
top 10 Part B drugs based on spending
were all biologicals, and spending on
them in the HOPD represented 39
percent of total HOPD drug spending in
CY 2019.90 Although Part B drug
spending for biologicals and biosimilars
has grown tremendously in the past 16
years, we also recognize that there is
evidence that the entry of biosimilars
into the market has contributed to lower
aggregate spending for the Medicare
program.91
Congress has made legislative changes
related to payment for biosimilars. First,
it amended the Social Security Act to
provide for payment of biosimilars in
the Affordable Care Act (ACA) and more
recently, in the IRA, to update payment
for certain biosimilars. In particular,
section 3139 of the ACA amended
section 1847A(b) by adding a new
paragraph (8), which provides that the
payment amount for a biosimilar
biological product is the biosimilar’s
ASP and 6 percent of the reference
biological’s ASP.92 And as explained
previously, section 11402 of the IRA
changed the payment limit for
biosimilars during the initial period
when ASP data is not available and
section 11403 of the IRA temporarily
increased the payment limit for certain
biosimilars.
Our overarching policy goal is to
create incentives for efficiency and
selection of the least costly products
while still meeting a beneficiary’s
clinical needs and to protect the longterm solvency of the Part B Trust Fund.
When we established a policy to pay for
biosimilars, we intended to promote the
use of biosimilars as a less expensive
89 Assistant Secretary for Planning and
Evaluation. ‘‘Medicare Part B Drugs: Trends in
Spending and Utilization, 2006–2017.’’ November,
2020. Available at https://aspe.hhs.gov/sites/
default/files/private/pdf/264416/Part-B-DrugsTrends-Issue-Brief.pdf.
90 Medicare Payment Advisory Commission. July
2021 Data Book: Health Care Spending and the
Medicare Program. July 2021. Available at https://
www.medpac.gov/wp-content/uploads/import_
data/scrape_files/docs/default-source/data-book/
july2021_medpac_databook_sec.pdf.
91 Medicare Payment Advisory Commission. July
2022 Data Book: Health Care Spending and the
Medicare Program. July 2022. Available at https://
www.medpac.gov/wp-content/uploads/2022/07/
July2022_MedPAC_DataBook_Sec10_v2_SEC.pdf.
92 https://www.congress.gov/111/plaws/publ148/
PLAW-111publ148.pdf.
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alternative to their reference biologicals.
For CY 2016 and CY 2017, we finalized
a policy to pay for biosimilar biological
products based on the payment
allowance of the product as determined
under section 1847A of the Act and to
subject nonpass-through biosimilar
biological products to our annual
threshold-packaged policy (for CY 2016,
80 FR 70445 through 70446; and for CY
2017, 81 FR 79674). In the CY 2018
OPPS/ASC final rule with comment
period (82 FR 59351), we explained
that, consistent with our established
OPPS drug, biological, and
radiopharmaceutical payment policy,
HCPCS coding for biosimilar biological
products will be based on policy
established under the CY 2018 PFS final
rule with comment period (82 FR 53182
to 53187), where CMS finalized a policy
to implement separate HCPCS codes for
biosimilar biological products. We also
clarified that all biosimilar biological
products will be eligible for passthrough payment and not just the first
biosimilar biological product for a
reference product.
Our threshold packaging policy’s
intent is to create incentives for
efficiency, but we have concerns that
packaging biosimilars when the
reference biological or other marketed
biosimilars are separately paid may
create financial incentives for providers
to select more expensive, but clinically
similar, products. In most cases, a
biosimilar either has pass-through status
or is separately payable. However, there
have been a few instances where
biosimilars are packaged. For example,
in CY 2021, we noted that HCPCS code
Q5105 (Injection, epoetin alfa-epbx,
biosimilar, (Retacrit) (for esrd on
dialysis), 100 units), was on passthrough status through September 2021.
HCPCS code Q5105 is a biosimilar for
HCPCS code Q4081 (injection, epoetin
alfa, 1000 units (for esrd on dialysis))
and HCPCS code Q4081 is currently
packaged under the OPPS. After HCPCS
code Q5105’s pass-through status
expired, payment for HCPCS code
Q5105 was packaged because its per day
cost fell below our packaging threshold
of $130 for CY 2021. In CY 2023,
payment for HCPCS code Q5101
(Injection, filgrastim-sndz, biosimilar,
(zarxio), 1 microgram) is packaged
because its per day cost fell below our
packaging threshold of $135 for CY
2023. HCPCS code Q5101 is the
biosimilar for HCPCS code J1442
(Injection, filgrastim (g-csf), excludes
biosimilars, 1 microgram), which is
currently separately payable with a
status indicator ‘‘K.’’
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Packaging payment for both of these
biosimilars is consistent with our policy
since CY 2018 to subject non-pass
through biosimilars to the OPPS
threshold-packaging policy. However,
we believe this policy may create
incentives to use the more expensive
reference product or biosimilars that are
separately payable, as hospitals would
be paid less for using the thresholdpackaged biosimilar. For example, the
CY 2023 threshold packaging of the
biosimilar described by HCPCS code
Q5101 (Injection, filgrastim-sndz,
biosimilar, (zarxio), 1 microgram) may
have created a financial incentive for
providers to select the separately paid
reference biological or the separately
paid filgrastim biosimilar over the
packaged filgrastim biosimilar, which is
inconsistent with our policy goal of
encouraging efficiency and promoting
use of biosimilars as lower cost
alternatives to their reference
biologicals. Accordingly, for CY 2024,
we propose to except biosimilars from
the OPPS threshold packaging policy
when their reference biologicals are
separately paid, meaning we would pay
separately for these biosimilars even if
their per-day cost is below the threshold
packaging policy. We believe the
threshold packaging exception for
biosimilars when their reference
biologicals are separately paid would
preserve our policy intent to promote
biosimilar use as a lower cost alternative
to higher cost reference biologicals.
In addition, if a reference product’s
per-day cost falls below the threshold
packaging policy, we propose that all
the biosimilars related to the reference
product would be similarly packaged
regardless of whether their per-day costs
are above the threshold. This would
allow for consistent treatment of similar
biological products in the unusual
circumstance in which a biosimilar is
priced above the reference biological.
For the purpose of identifying
biosimilar(s) related to a reference
biological product, we would rely on
the product’s FDA approval under
section 351(k) of the Public Health
Service Act. For example, filgrastimsndz (Zarxio), filgrastim-aafi (Nivestym),
and filgrastim-ayow (Releuko) are
biosimilars related to filgrastim
(Neupogen).93
(3) Comment Solicitation on
Packaging Policy for Reference
Biologicals and Biosimilars
93 https://purplebooksearch.fda.gov/
results?query=filgrastim&title=Zarxio.
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While we have proposed to except
threshold packaging of biosimilars when
their reference biologicals are separately
paid in this proposed rule, we are also
soliciting comment on the packaging of
payment for a reference biological and
its biosimilar(s) into the payment for the
associated service or procedure when
the per-day cost of the reference
biological, or any of its biosimilar(s), is
less than or equal to the applicable
OPPS drug packaging threshold. While
both our proposed policy and the policy
described by this comment solicitation
share the goal of consistent treatment of
similar biologic products, the method to
achieve that goal differs. Our proposed
policy would result in biosimilars being
paid separately if their reference
biologic is paid separately, whereas here
we seek comment on a policy that
would result in packaged payment for a
biologic if the reference biologic or any
of its biosimilars have per day costs
below the drug packaging threshold.
For example, for purposes of this
comment solicitation, if a biosimilar’s
per-day cost is above the threshold and
separately paid but its reference product
is packaged, the biosimilar (and all its
related biosimilar(s)) would be
packaged.
Additionally, we seek comment on
other ways to structure payment for
biologicals and biosimilars that would
encourage efficiency while maintaining
beneficiary access.
3. Payment Policy for Therapeutic
Radiopharmaceuticals
In the CY 2023 OPPS/ASC final rule
with comment period, we adopted as
final our proposal to continue our
longstanding payment policy for
therapeutic radiopharmaceuticals for CY
2023 and subsequent years.
Accordingly, we are continuing this
payment policy for therapeutic
radiopharmaceuticals in CY 2024. We
pay for separately payable therapeutic
radiopharmaceuticals under the ASP
methodology adopted for separately
payable drugs and biologicals. If ASP
methodology (ASP, WAC, and AWP)
information is unavailable for a
therapeutic radiopharmaceutical, we
base therapeutic radiopharmaceutical
payment on mean unit cost data derived
from hospital claims. The rationale
outlined in the CY 2010 OPPS/ASC
final rule with comment period (74 FR
60524 through 60525) for applying the
principles of separately payable drug
pricing to therapeutic
radiopharmaceuticals continues to be
appropriate for nonpass-through,
separately payable therapeutic
radiopharmaceuticals. Therefore, we are
paying for all nonpass-through,
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separately payable therapeutic
radiopharmaceuticals at ASP plus 6
percent (or applicable WAC or AWP
amount) based on the statutory default
described in section
1833(t)(14)(A)(iii)(II) of the Act. For a
full discussion of ASP-based payment
for therapeutic radiopharmaceuticals,
we refer readers to the CY 2010 OPPS/
ASC final rule with comment period (74
FR 60520 through 60521).
Consistent with the policy we
adopted for CY 2023 and subsequent
years, for CY 2024 we will rely on the
most recently available mean unit cost
data derived from hospital claims data
for payment rates for therapeutic
radiopharmaceuticals for which ASP
methodology (ASP, WAC, and AWP)
data are unavailable and to update the
payment rates for separately payable
therapeutic radiopharmaceuticals
according to our usual process for
updating the payment rates for
separately payable drugs and biologicals
on a quarterly basis if updated ASP
methodology (ASP, WAC, and AWP)
information is unavailable. For a
complete history of the OPPS payment
policy for therapeutic
radiopharmaceuticals, we refer readers
to the CY 2005 OPPS final rule with
comment period (69 FR 65811), the CY
2006 OPPS final rule with comment
period (70 FR 68655), and the CY 2010
OPPS/ASC final rule with comment
period (74 FR 60524).
The proposed CY 2024 payment rates
for nonpass-through, separately payable
therapeutic radiopharmaceuticals are
included in Addenda A and B of this
proposed rule (which are available on
the CMS website).94
4. Payment for Blood Clotting Factors
For CY 2023, we provided payment
for blood clotting factors under the same
methodology as other nonpass-through
separately payable drugs and biologicals
under the OPPS and continued paying
an updated furnishing fee (87 FR 71969
through 71970). That is, for CY 2023, we
provided payment for blood clotting
factors under the OPPS at ASP plus 6
percent, plus an additional payment for
the furnishing fee. We note that when
blood clotting factors are provided in
physicians’ offices or other settings for
which Medicare makes payment under
Part B, a furnishing fee is also applied
to the payment. The CY 2023 updated
furnishing fee was $0.250 per unit.
In the CY 2023 OPPS/ASC final rule
with comment period, we adopted as
final our proposal for CY 2023 and
subsequent years to pay for blood
94 https://www.cms.gov/medicare/medicare-feefor-service-payment/hospitaloutpatientpps.
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clotting factors at ASP plus 6 percent,
consistent with our payment policy for
other nonpass-through, separately
payable drugs and biologicals, and to
pay an updated furnishing fee. Our
policy to pay a furnishing fee for blood
clotting factors under the OPPS is
consistent with the methodology
applied in the physician’s office and in
the inpatient hospital setting. These
methodologies were first articulated in
the CY 2006 OPPS final rule with
comment period (70 FR 68661) and later
discussed in the CY 2008 OPPS/ASC
final rule with comment period (72 FR
66765). The proposed furnishing fee
update is based on the percentage
increase in the Consumer Price Index
(CPI) for medical care for the 12-month
period ending with June of the previous
year. Because the Bureau of Labor
Statistics releases the applicable CPI
data after the PFS and OPPS/ASC
proposed rules are published, we are
not able to include the actual updated
furnishing fee in the proposed rules.
Therefore, in accordance with our
policy as finalized in the CY 2008
OPPS/ASC final rule with comment
period (72 FR 66765), we will announce
the actual figure for the percent change
in the applicable CPI and the updated
furnishing fee calculated based on that
figure through applicable program
instructions and posting on our website
at: https://www.cms.gov/Medicare/
Medicare-Fee-for-Service-Part-B-Drugs/
McrPartBDrugAvgSalesPrice/
index.html.
5. Payment for Nonpass-Through Drugs,
Biologicals, and Radiopharmaceuticals
with HCPCS Codes But Without OPPS
Hospital Claims Data
In the CY 2023 OPPS/ASC final rule
with comment period, we adopted as
final our proposal to continue our
longstanding payment policy for
nonpass-through drugs, biologicals, and
radiopharmaceuticals with HCPCS
codes but without OPPS hospital claims
data for CY 2023 and subsequent years.
For CY 2024, we will continue to use
the same payment policy as in CY 2023
for nonpass-through drugs, biologicals,
and radiopharmaceuticals with HCPCS
codes but without OPPS hospital claims
data. For a detailed discussion of the
payment policy and methodology, we
refer readers to the CY 2016 OPPS/ASC
final rule with comment period (80 FR
70442 through 70443). Consistent with
our policy, because we have no claims
data and must determine if these
products exceed the per-day cost
threshold, we estimated the average
number of units of each product that
would typically be furnished to a
patient during 1 day in the hospital
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outpatient setting and utilized the ASP
methodology to determine their
proposed payment status indicators. We
refer readers to Table 40 below for the
proposed CY 2024 status indicator for
each of the nonpass-through drugs,
biologicals, and radiopharmaceuticals
with HCPCS codes but without OPPS
hospital claims data which are also
listed in Addendum B to this proposed
rule, which is available on the CMS
website.95
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6. Proposed OPPS Payment
Methodology for 340B Purchased Drugs
and Biologicals
a. Overview
Under the OPPS, we generally set
payment rates for separately payable
drugs and biologicals under section
1833(t)(14)(A) of the Act. Section
1833(t)(14)(A)(iii)(II) of the Act provides
that, if hospital acquisition cost data is
not available, the payment amount is
the average price for the drug in a year
established under section 1842(o) of the
Act, which cross-references section
1847A of the Act, which generally sets
a default rate of ASP plus 6 percent for
certain drugs and biologicals. The
provision also provides that the average
price for the drug or biological in the
year as established under section 1847A
of the Act is calculated and adjusted by
the Secretary as necessary for purposes
of paragraph (14). As described below,
beginning in CY 2018, the Secretary
adjusted the 340B drug payment rate to
ASP minus 22.5 percent to approximate
a minimum average discount for 340B
drugs and biologicals, which was based
on findings of the GAO 96 and
96 Government Accountability Office. ‘‘Medicare
Part B Drugs: ‘‘Action Needed to Reduce Financial
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MedPAC 97 that 340B hospitals were
acquiring drugs and biologicals at a
significant discount under HRSA’s 340B
Drug Pricing Program. We direct readers
to the CY 2018 OPPS/ASC final rule
with comment period for a more
detailed discussion of the 340B drug
payment policy (82 FR 52493 to 52511).
This policy has been the subject of
extensive litigation, including before the
Supreme Court of the United States. On
June 15, 2022, the Supreme Court held
in American Hospital Association v.
Becerra, 142 S. Ct. 1896, that if CMS has
not conducted a survey of hospitals’
acquisition costs, it may not vary the
payment rates for outpatient
prescription drugs by hospital group.
While the Supreme Court’s decision
addressed payment rates for CYs 2018
and 2019, it had implications for
subsequent payment rates. Therefore,
for CY 2023, we finalized a policy to
Incentives to Prescribe 340B Drugs at Participating
Hospitals.’’ June 2015. Available at https://
www.gao.gov/assets/gao-15-442.pdf.
97 Medicare Payment Advisory Commission.
March 2016 Report to the Congress: Medicare
Payment Policy. March 2016. Available at Medicare
Payment Advisory Commission. March 2016 Report
to the Congress: Medicare Payment Policy. March
2016. Available at https://www.medpac.gov/
document/http-www-medpac-gov-docs-defaultsource-reports-may-2015-report-to-the-congressoverview-of-the-340b-drug-pricing-program-pdf/.
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revert to the default payment rate,
which is generally ASP plus 6 percent,
for 340B acquired drugs and biologicals
and finalized a policy to pay for 340B
acquired drugs and biologicals no
differently than we pay for drugs and
biologicals that are not acquired through
the 340B program. We also finalized a
budget neutrality adjustment to the CY
2023 OPPS conversion factor of 0.9691
percent rather than the 0.9596 percent
adjustment we had proposed. This
adjustment offset the prior increase of
3.19 percent that was applied to the
conversion factor when we
implemented the 340B payment policy
in CY 2018 in a budget neutral manner
and ensured the CY 2023 conversion
factor was equivalent to the conversion
factor that would be in place if the 340B
drug payment policy had never been
implemented.
After the publication of the proposed
CY 2023 OPPS rule, on September 28,
2022, the District Court issued a final
judgment vacating the 340B
reimbursement rate for the remainder of
2022, which the District Court
explained would automatically
reestablish the default rate for 340Bacquired drugs and biologicals. The
agency took the necessary steps,
including issuing instructions to
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Medicare contractors and updating drug
payment files, to implement that
September 28, 2022 decision and has
since paid the default rate, which is
generally ASP plus 6 percent, for 340B
acquired drugs and biologicals.98
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b. Payment for 340B Drugs and
Biologicals in CYs 2018 Through 2022
For full descriptions of our OPPS
payment policy for drugs and
biologicals acquired under the 340B
program beginning in CY 2018, we refer
readers to the CY 2018 OPPS/ASC final
rule with comment period (82 FR 59353
through 59371); the CY 2019 OPPS/ASC
final rule with comment period (83 FR
59015 through 59022); the CY 2021
OPPS/ASC final rule with comment
period (85 FR 86042 through 86055); the
CY 2022 OPPS/ASC final rule with
comment period (86 FR 63640 through
63649); and the CY 2023 OPPS/ASC
final rule with comment period (87 FR
71970 through 71976).
In July, 2023, CMS published a
proposed rule, referred to as ‘‘remedy
proposed rule’’ to address the reduced
payment amounts to 340B hospitals
under the reimbursement rates in the
final OPPS rules for CYs 2018 through
2022 and to comply with the statutory
requirement to maintain budget
neutrality under the OPPS. The remedy
proposed rule does not propose changes
to our CY 2024 OPPS drug payment
policy nor the CY 2024 OPPS
conversion factor, but it does propose
changes to the calculation of the OPPS
conversion factor beginning in CY 2025.
We believe our proposed remedy rule is
consistent with the Supreme Court’s
decision in American Hospital
Association and the District Court’s
remand order. We refer readers to the
340B remedy proposed rule for a full
description of this proposed remedy
policy as well as for when comments are
due to that proposed rule. This
document can be found in the Federal
Register and on the CMS website.99
c. CY 2024 Proposed 340B Drug
Payment Policy
For CY 2024, consistent with our
policy finalized for CY 2023, we
propose to continue to pay the statutory
default rate, which is generally ASP
plus 6 percent, for 340B acquired drugs
and biologicals. The payment for 340B
acquired drugs and biologicals will not
differ from the payment rate for drugs
98 Vacating Differential Payment Rate for 340BAcquired Drugs in 2022 Outpatient Prospective
Payment System Final Rule with Comment Period.
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and biologicals not acquired through the
340B program. We believe this policy is
appropriate given the Supreme Court
decision discussed previously.
In the CY 2023 OPPS/ASC final rule
with comment period, we maintained
the requirement that 340B hospitals
report the ‘‘JG’’ (Drug or biological
acquired with 340B drug pricing
program discount, reported for
informational purposes) or ‘‘TB’’ (Drug
or biological acquired with 340B drug
pricing program discount, reported for
informational purposes for select
entities) modifiers to identify drugs and
biologicals acquired through the 340B
Program for informational purposes (87
FR 71974). We explained that we
believed maintaining both modifiers
would reduce provider burden
compared to shifting to a single
modifier, as all providers can continue
utilizing the modifier (either ‘‘JG’’ or
‘‘TB’’) that they had been using for the
previous five calendar years. On
December 20, 2022, we issued ‘‘Part B
Inflation Rebate Guidance: Use of 340B
Modifiers,’’ which, in accordance with
section 1847A(i) of the Act, requires all
340B covered entities, including
hospital-based and non-hospital-based
entities, to report the applicable
modifier for separately payable drugs
and biologicals acquired through the
340B Program.100 Section 1847A(i) of
the Act, as added by the Inflation
Reduction Act, requires the Secretary to
establish a Part B inflation rebate by
manufacturers of certain single source
drugs and biologicals with prices
increasing faster than the rate of
inflation. Section 1847A(i)(3)(B)(ii)(I) of
the Act specifically excludes units of
drugs and biologicals for which the
manufacturer provides a discount under
the 340B program from the units of
drugs and biologicals for which a
manufacturer otherwise may have a Part
B inflation rebate liability. Effective
implementation of the Part B inflation
rebate requires CMS to identify units of
drugs and biologicals acquired through
the 340B Program so they can be
subtracted from the total number of
otherwise rebatable units as applicable.
This guidance explained that the ‘‘JG’’
and ‘‘TB’’ modifiers provide an existing
mechanism to identify drugs and
biologicals acquired through the 340B
Program that is familiar to most 340B
covered entities paid under the OPPS,
and stated that it did not change the
requirements in the CY 2023 OPPS/ASC
final rule with comment period (i.e.,
that 340B covered entity hospitals
should continue to use the modifiers
100 https://www.cms.gov/files/document/part-binflation-rebate-guidance340b-modifierfinal.pdf.
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they used previously to identify 340B
drugs and biologicals). For claims with
dates of service beginning no later than
January 1, 2024, the guidance instructed
all 340B covered entities to report the
appropriate modifier, including those
not currently reporting the ‘‘JG’’ or ‘‘TB’’
modifier, such as Ryan White clinics
and hemophilia clinics, which should
report the ‘‘JG’’ modifier on separately
payable Part B claim lines for drugs and
biologicals acquired through the 340B
Program.
Although we stated in the CY 2023
OPPS/ASC final rule with comment
period and in the ‘‘Part B Inflation
Rebate Guidance: Use of 340B
Modifiers’’ that hospital-based 340B
covered entities should continue to use
the modifier they used previously
(either the ‘‘JG’’ or ‘‘TB’’ modifier), we
now believe utilizing a single modifier
will allow for greater simplicity,
especially because both modifiers are
used for the same purpose: to identify
separately payable drugs and biologicals
acquired under the 340B Program.
Requiring hospitals to report a single
modifier would allow CMS to continue
to identify and exclude 340B-acquired
drugs and biologicals from the
definition of units for the purpose of
Part B inflation rebate liability, while
eliminating the need to use two
modifiers for the same purpose.
Additionally, we believe this proposal
would lessen the burden on providers as
they would only have to report one
modifier for all scenarios in which a
340B drug is acquired. Accordingly, we
propose that all 340B covered entity
hospitals paid under the OPPS would
report the ‘‘TB’’ modifier effective
January 1, 2025, even if the hospital
previously reported the ‘‘JG’’ modifier.
The ‘‘JG’’ modifier would remain
effective through December 31, 2024.
Hospitals that currently report the ‘‘JG’’
modifier could choose to continue to
use it in CY 2024 or choose to transition
to use of the ‘‘TB’’ modifier during that
year. Beginning on January 1, 2025, the
‘‘JG’’ modifier would be deleted and
hospitals would be required to report
drugs and biologicals acquired through
the 340B program using the ‘‘TB’’
modifier. Additionally, beginning
January 1, 2025, we would revise the
‘‘TB’’ modifier descriptor (Drug or
biological acquired with 340B drug
pricing program discount, reported for
informational purposes for select
entities) to no longer include ‘‘. . . for
select entities’’ as all entities would
report this modifier after this date. We
note that this proposal, if finalized,
would update the December 20, 2022,
guidance titled ‘‘Part B Inflation Rebate
Guidance: Use of the 340B
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Modifiers.’’ 101 Additionally, CMS plans
to further update this guidance to align
the modifier requirements for 340B
covered entity providers and suppliers
not paid under the OPPS with proposed
modifier requirement changes for 340B
covered entity hospitals paid under the
OPPS.
For more information on the Medicare
Part B inflation rebate program, please
visit ‘‘Inflation Rebates in Medicare.’’
ddrumheller on DSK120RN23PROD with PROPOSALS2
7. High Cost/Low Cost Threshold for
Packaged Skin Substitutes
a. Background
In the CY 2014 OPPS/ASC final rule
with comment period (78 FR 74938), we
unconditionally packaged skin
substitute products into their associated
surgical procedures as part of a broader
policy to package all drugs and
biologicals that function as supplies
when used in a surgical procedure. As
part of the policy to package skin
substitutes, we also finalized a
methodology that divides the skin
substitutes into a high-cost group and a
low-cost group, to ensure adequate
resource homogeneity among APC
assignments for the skin substitute
application procedures (78 FR 74933).
In the CY 2015 OPPS/ASC final rule
with comment period (79 FR 66886), we
stated that skin substitutes are best
characterized as either surgical supplies
or devices because of their required
surgical application and because they
share significant clinical similarity with
other surgical devices and supplies.
Skin substitutes assigned to the highcost group are described by HCPCS
codes 15271 through 15278. Skin
substitutes assigned to the low-cost
group are described by HCPCS codes
C5271 through C5278. Geometric mean
costs for the various procedures are
calculated using only claims for the skin
substitutes that are assigned to each
group. Specifically, claims billed with
HCPCS code 15271, 15273, 15275, or
15277 are used to calculate the
geometric mean costs for procedures
assigned to the high-cost group, and
claims billed with HCPCS code C5271,
C5273, C5275, or C5277 are used to
calculate the geometric mean costs for
procedures assigned to the low-cost
group (78 FR 74935).
Each of the HCPCS codes described
earlier are assigned to one of the
following three skin procedure APCs
according to the geometric mean cost for
the code: APC 5053 (Level 3 Skin
Procedures): HCPCS codes C5271,
C5275, and C5277; APC 5054 (Level 4
Skin Procedures): HCPCS codes C5273,
101 https://www.cms.gov/files/document/part-binflation-rebate-guidance340b-modifierfinal.pdf.
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15271, 15275, and 15277; or APC 5055
(Level 5 Skin Procedures): HCPCS code
15273. In CY 2023, the payment rate for
APC 5053 (Level 3 Skin Procedures) was
$580.95, the payment rate for APC 5054
(Level 4 Skin Procedures) was
$1,725.86, and the payment rate for APC
5055 (Level 5 Skin Procedures) was
$3,253.04. This information is also
available in Addenda A and B of the CY
2023 final rule with comment period (87
FR 71748) (the final rule and Addenda
A and B are available on the CMS
website (https://www.cms.gov/
Medicare/Medicare-Fee-for-ServicePayment/HospitalOutpatientPPS/
Hospital-Outpatient-Regulations-andNotices)).
We have continued the high cost/low
cost categories policy since CY 2014,
and we propose to continue it for CY
2024. Under the current policy, skin
substitutes in the high-cost category are
reported with the skin substitute
application CPT codes, and skin
substitutes in the low-cost category are
reported with the analogous skin
substitute HCPCS C-codes. For a
discussion of the CY 2014 and CY 2015
methodologies for assigning skin
substitutes to either the high-cost group
or the low-cost group, we refer readers
to the CY 2014 OPPS/ASC final rule
with comment period (78 FR 74932
through 74935) and the CY 2015 OPPS/
ASC final rule with comment period (79
FR 66882 through 66885).
For a discussion of the high cost/low
cost methodology that was adopted in
CY 2016 and has been in effect since
then, we refer readers to the CY 2016
OPPS/ASC final rule with comment
period (80 FR 70434 through 70435).
Beginning in CY 2016 and in
subsequent years, we adopted a policy
where we determined the high cost/low
cost status for each skin substitute
product based on either a product’s
geometric mean unit cost (MUC)
exceeding the geometric MUC threshold
or the product’s per day cost (PDC) (the
total units of a skin substitute
multiplied by the mean unit cost and
divided by the total number of days)
exceeding the PDC threshold. We
assigned each skin substitute that
exceeded either the MUC threshold or
the PDC threshold to the high-cost
group. In addition, we assigned any skin
substitute with a MUC or a PDC that did
not exceed either the MUC threshold or
the PDC threshold to the low-cost group
(87 FR 71976).
However, some skin substitute
manufacturers have raised concerns
about significant fluctuation in both the
MUC threshold and the PDC threshold
from year to year using the methodology
developed in CY 2016. The fluctuation
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in the thresholds may result in the
reassignment of several skin substitutes
from the high-cost group to the low-cost
group, which, under current payment
rates, can be a difference of over $1,000
in the payment amount for the same
procedure. In addition, these interested
parties were concerned that the
inclusion of cost data from skin
substitutes with pass-through payment
status in the MUC and PDC calculations
would artificially inflate the thresholds.
Skin substitute interested parties
requested that CMS consider
alternatives to the current methodology
used to calculate the MUC and PDC
thresholds and whether it might be
appropriate to establish a new cost
group in between the low-cost group
and the high-cost group to allow for
assignment of moderately priced skin
substitutes to a newly created middle
group.
We share the goal of promoting
payment stability for skin substitute
products and their related procedures as
price stability allows hospitals using
such products to more easily anticipate
future payments associated with these
products. We have attempted to limit
year-to-year shifts for skin substitute
products between the high-cost and
low-cost groups through multiple
initiatives implemented since CY 2014,
including: establishing separate skin
substitute application procedure codes
for low-cost skin substitutes (78 FR
74935); using a skin substitute’s MUC
calculated from outpatient hospital
claims data instead of an average of ASP
plus 6 percent as the primary
methodology to assign products to the
high-cost or low-cost group (79 FR
66883); and establishing the PDC
threshold as an alternate methodology
to assign a skin substitute to the highcost group (80 FR 70434 through 70435).
To allow additional time to evaluate
concerns and suggestions from
interested parties about the volatility of
the MUC and PDC thresholds, in the CY
2018 OPPS/ASC proposed rule (82 FR
33627), we proposed that a skin
substitute that was assigned to the highcost group for CY 2017 would be
assigned to the high-cost group for CY
2018, even if it did not exceed the CY
2018 MUC or PDC thresholds. We
finalized this policy in the CY 2018
OPPS/ASC final rule with comment
period (82 FR 59347). For more detailed
information and discussion regarding
the goals of this policy and the
subsequent comment solicitations in CY
2019 and CY 2020 regarding possible
alternative payment methodologies for
graft skin substitute products, please
refer to the CY 2018 OPPS/ASC final
rule with comment period (82 FR
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59347); CY 2019 OPPS/ASC final rule
with comment period (83 FR 58967 to
58968); and the CY 2020 OPPS/ASC
final rule with comment period (84 FR
61328 to 61331).
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b. Proposals for Packaged Skin
Substitutes for CY 2024
For CY 2024, consistent with our
policy since CY 2016, we propose to
continue to determine the high-cost/
low-cost status for each skin substitute
product based on either a product’s
geometric MUC exceeding the geometric
MUC threshold or the product’s PDC
(the total units of a skin substitute
multiplied by the MUC and divided by
the total number of days) exceeding the
PDC threshold. Consistent with the
methodology as established in the CY
2014 OPPS/ASC through CY 2018
OPPS/ASC final rules with comment
period, we analyzed CY 2022 claims
data to calculate the MUC threshold (a
weighted average of all skin substitutes’
MUCs) and the PDC threshold (a
weighted average of all skin substitutes’
PDCs). The proposed CY 2024 MUC
threshold is $47 per cm2 (rounded to the
nearest $1) and the proposed CY 2024
PDC threshold is $817 (rounded to the
nearest $1). Also, the availability of a
HCPCS code for a particular human cell,
tissue, or cellular or tissue-based
product (HCT/P) does not mean that
that product is appropriately regulated
solely under section 361 of the PHS Act
and the FDA regulations in 21 CFR part
1271. Manufacturers of HCT/Ps should
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consult with the FDA Tissue Reference
Group (TRG) or obtain a determination
through a Request for Designation (RFD)
on whether their HCT/Ps are
appropriately regulated solely under
section 361 of the PHS Act and the
regulations in 21 CFR part 1271.
For CY 2024, as we did for CY 2023,
we propose to assign each skin
substitute that exceeds either the MUC
threshold or the PDC threshold to the
high-cost group. In addition, we propose
to assign any skin substitute that does
not exceed either the MUC threshold or
the PDC threshold to the low-cost group
except that we propose that any skin
substitute product that was assigned to
the high-cost group in CY 2023 would
be assigned to the high-cost group for
CY 2024, regardless of whether it
exceeds or falls below the CY 2024 MUC
or PDC threshold. This policy was
established in the CY 2018 OPPS/ASC
final rule with comment period (82 FR
59346 through 59348).
For CY 2024, we propose to continue
to assign skin substitutes with passthrough payment status to the high-cost
category. We propose to assign skin
substitutes with pricing information but
without claims data to calculate a
geometric MUC or PDC to either the
high-cost or low-cost category based on
the product’s ASP plus 6 percent
payment rate as compared to the MUC
threshold. If ASP is not available, we
propose to use WAC plus 3 percent to
assign a product to either the high-cost
or low-cost category. Finally, if neither
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ASP nor WAC is available, we propose
to use 95 percent of AWP to assign a
skin substitute to either the high-cost or
low-cost category. We propose to
continue to use WAC plus 3 percent
instead of WAC plus 6 percent to
conform to our proposed policy
described in section V.B.2.b of this
proposed rule to establish a payment
rate of WAC plus 3 percent for
separately payable drugs and biologicals
that do not have ASP data available. We
propose that any skin substitute product
that is assigned a code in the HCPCS
A2XXX series would be assigned to the
high-cost skin substitute group
including new products without pricing
information. New skin substitutes
without pricing information that are not
assigned a code in the HCPCS A2XXX
series would be assigned to the low-cost
category until pricing information is
available to compare to the CY 2024
MUC and PDC thresholds. For a
discussion of our existing policy under
which we assign skin substitutes
without pricing information that are not
assigned a code in the HCPCS A2XXX
series to the low-cost category until
pricing information is available, we
refer readers to the CY 2016 OPPS/ASC
final rule with comment period (80 FR
70436).
Table 41 includes the proposed CY
2024 cost category assignment for each
skin substitute product.
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8. Radioisotopes Derived From NonHighly Enriched Uranium (Non-HEU)
Sources
Radioisotopes are widely used in
modern medical imaging, particularly
for cardiac imaging and predominantly
for the Medicare population. Some of
the Technetium-99 (Tc-99m), the
radioisotope used in the majority of
such diagnostic imaging services, has
been produced in legacy reactors
outside of the United States using
highly enriched uranium (HEU).
The United States wanted to eliminate
domestic reliance on these reactors and
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has been promoting the conversion of
all medical radioisotope production to
non-HEU sources. Alternative methods
for producing Tc-99m without HEU are
technologically and economically
viable, but it was expected that this
change in the supply source for the
radioisotope used for modern medical
imaging would introduce new costs into
the payment system that were not
accounted for in the historical claims
data.
Therefore, beginning in CY 2013, we
finalized a policy to provide an
additional payment of $10 for the
marginal cost for radioisotopes
produced by non-HEU sources (77 FR
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68323). Under this policy, hospitals
report HCPCS code Q9969 (Tc-99m from
non-highly enriched uranium source,
full cost recovery add-on per study
dose) once per dose along with any
diagnostic scan or scans furnished using
Tc-99m as long as the Tc-99m doses
used can be certified by the hospital to
be at least 95 percent derived from nonHEU sources (77 FR 68323).
We stated in the CY 2013 OPPS/ASC
final rule with comment period (77 FR
68321) that our expectation was that
this additional payment would be
needed for the duration of the industry’s
conversion to alternative methods of
producing Tc-99m without HEU. We
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also stated that we would reassess, and
propose if necessary, on an annual basis
whether such an adjustment continued
to be necessary and whether any
changes to the adjustment were
warranted (77 FR 68321). A 2016 report
from the National Academies of
Sciences, Engineering, and Medicine
anticipated the conversion of Tc-99m
production from non-HEU sources
would be completed at the end of
2019.102 However, the Secretary of
Energy issued a certification effective
January 2, 2020, stating that there
continued to be an insufficient global
supply of molybdenum-99 (Mo-99),
which is the source of Tc-99m,
produced without the use of HEU,
available to satisfy the domestic U.S.
market (85 FR 3362). The January 2,
2020 certification was to remain in
effect for up to 2 years.
The Secretary of Energy issued a new
certification regarding the supply of
non-HEU-sourced Mo-99 effective
January 2, 2022 (86 FR 73270). This
certification stated that there was a
sufficient global supply of Mo-99
produced without the use of HEU
available to meet the needs of patients
in the United States. The Department of
Energy also expected that the last HEU
reactor that produces Mo-99 for medical
providers in the United States would
finish its conversion to a non-HEU
reactor by December 31, 2022. In CY
2019, we stated that we would reassess
the non-HEU incentive payment policy
once conversion to non-HEU sources is
closer to completion or has been
completed (83 FR 58979). There is now
a sufficient supply of non-HEU-sourced
Mo-99 in the United States, and there is
no available supply of HEU-sourced Mo99 in the United States. In the CY 2023
OPPS/ASC final rule with comment
period, we stated that we believed the
conversion to non-HEU sources of Tc99m had reached a point where it was
necessary to reassess our policy of
providing an additional payment of $10
for the marginal cost for radioisotopes
produced by non-HEU sources (87 FR
71987).
In the OPPS, diagnostic
radiopharmaceuticals are packaged into
the cost of the associated diagnostic
imaging procedure no matter the per
day cost of the radiopharmaceutical.
The cost of the radiopharmaceutical is
included as a part of the cost of the
diagnostic imaging procedure and is
reported through Medicare claims data.
Medicare claims data used to set
102 National Academies of Sciences, Engineering,
and Medicine. 2016. Molybdenum-99 for Medical
Imaging. Washington, DC: The National Academies
Press. Available at: https://doi.org/10.17226/23563.
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payment rates under the OPPS generally
is from 2 years prior to the payment
year.
As we explained in the CY 2023
OPPS/ASC final rule with comment
period (87 FR 71987), the claims data
we would use to set payment rates for
CY 2024 (likely CY 2022 claims data)
contain claims for diagnostic
radiopharmaceuticals that reflect both
HEU-sourced Tc-99m and non-HEUsourced Tc-99m, rather than
radiopharmaceuticals sourced solely
from non-HEU Tc-99m. The cost of
HEU-sourced Tc-99m is substantially
lower than the cost of non-HEU-sourced
Tc-99m. Therefore, we explained that
providers who use
radiopharmaceuticals in CY 2024 that
contain only non-HEU-sourced Tc-99m
might not receive a payment that is
reflective of the radiopharmaceutical’s
current cost without the add-on
payment. We believed that extending
the additional $10 add-on payment
described by HCPCS code Q9969 for
non-HEU-sourced Tc-99m through the
end of CY 2024 would ensure adequate
payment for non-HEU-sourced Tc-99m.
Starting in CY 2025, we believed the
Medicare claims data utilized to set
payment rates (likely CY 2023 claims
data) would only include claims for
diagnostic radiopharmaceuticals that
utilized non-HEU-sourced Tc-99m,
meaning the data would reflect the full
cost of the Tc-99m diagnostic
radiopharmaceuticals that would be
used by providers in CY 2025. As a
result, we believed there would no
longer be a need for the additional $10
add-on payment for CY 2025 or future
years.
This policy was based on the
Secretary of Energy’s certification that
the last HEU reactor that produces Mo99 for medical providers in the United
States would finish its conversion to a
non-HEU reactor by December 31, 2022,
and that all Tc-99m used for
radiopharmaceuticals in 2023 would be
produced from non-HEU sources.
However, we understand that the
conversion of the last HEU reactor that
produces Tc-99m to a non-HEU reactor
did not occur until March 2023, so it is
possible that some claims for diagnostic
radiopharmaceuticals in CY 2023 would
report the cost of HEU-sourced Tc-99m.
This means that in CY 2025, as in CY
2024, there is the possibility that the
payment rate for procedures using
diagnostic radiopharmaceuticals could
be lower than the costs providers will
face for these procedures because
providers will only have access to nonHEU-sourced Tc-99m.
We believe that extending the
additional $10 add-on payment
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described by HCPCS code Q9969 for
non-HEU-sourced Tc-99m through the
end of CY 2025 rather than the end of
CY 2024, as we previously finalized,
would ensure adequate payment for
non-HEU-sourced Tc-99m now that the
conversion from HEU-sourced Tc-99m
to non-HEU-sourced Tc-99m is
complete. Starting in CY 2026, the
Medicare claims data utilized to set
payment rates (likely CY 2024 claims
data) will only include claims for
diagnostic radiopharmaceuticals that
utilized non-HEU-sourced Tc-99m,
which means the data will more closely
reflect the cost of the Tc-99m diagnostic
radiopharmaceuticals that will be used
by providers in CY 2026. As a result,
there will no longer be a need for the
additional $10 add-on payment for CY
2026 or future years.
We propose to continue the additional
$10 payment through December 31,
2025, as beginning in CY 2026, the
Medicare claims data used to set
payment rates will reflect the full cost
of non-HEU-sourced Tc-99m.
C. Requirement in the Physician Fee
Schedule CY 2024 Proposed Rule for
HOPDs and ASCs To Report Discarded
Amounts of Certain Single-Dose or
Single-Use Package Drugs
Section 90004 of the Infrastructure
Investment and Jobs Act (Pub. L. 117–
9, November 15, 2021) (‘‘the
Infrastructure Act’’) amended section
1847A of the Act to re-designate
subsection (h) as subsection (i) and
insert a new subsection (h), which
requires manufacturers to provide a
refund to CMS for certain discarded
amounts from a refundable single-dose
container or single-use package drug.
The CY 2024 PFS proposed rule
includes proposals to operationalize
section 90004 of the Infrastructure Act,
including a proposal that impacts
hospital outpatient departments
(HOPDs) and ambulatory surgical
centers (ASCs). Similar to our CY 2023
notice in the OPPS/ASC proposed rule
(87 FR 71988), we want to ensure
interested parties are aware of these
proposals and know to refer to the
Physician Fee Schedule (PFS) proposed
rule for a full description of the
proposed policy. Interested parties are
asked to submit comments on any
proposals related to implementation of
section 90004 of the Infrastructure Act
on the CY 2024 PFS proposed rule.
Public comments on these proposals
will be addressed in the CY 2024 PFS
final rule with comment period. We
note that this same notice appears in
section XIII.D.3 of this proposed rule.
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VI. Proposed Estimate of OPPS
Transitional Pass-Through Spending
for Drugs, Biologicals,
Radiopharmaceuticals, and Devices
A. Amount of Additional Payment and
Limit on Aggregate Annual Adjustment
Section 1833(t)(6)(E) of the Act limits
the total projected amount of
transitional pass-through payment for
drugs, biologicals, and categories of
devices for a given year to an
‘‘applicable percentage,’’ currently not
to exceed 2.0 percent of total program
payments estimated to be made for all
covered services under the OPPS
furnished for that year. If we estimate
before the beginning of the calendar
year that the total amount of passthrough payments in that year would
exceed the applicable percentage,
section 1833(t)(6)(E)(iii) of the Act
requires a uniform prospective
reduction in the amount of each of the
transitional pass-through payments
made in that year to ensure that the
limit is not exceeded. We estimate the
pass-through spending to determine
whether payments exceed the
applicable percentage and the
appropriate pro rata reduction to the
conversion factor for the projected level
of pass-through spending in the
following year to ensure that total
estimated pass-through spending for the
prospective payment year is budget
neutral, as required by section
1833(t)(6)(E) of the Act.
For devices, developing a proposed
estimate of pass-through spending in CY
2024 entails estimating spending for two
groups of items. The first group of items
consists of device categories that are
currently eligible for pass-through
payment and that will continue to be
eligible for pass-through payment in CY
2024. The CY 2008 OPPS/ASC final rule
with comment period (72 FR 66778)
describes the methodology we have
used in previous years to develop the
pass-through spending estimate for
known device categories continuing into
the applicable update year. The second
group of items consists of devices that
we know are newly eligible, or project
may be newly eligible, for device passthrough payment in the remaining
quarters of CY 2023 or beginning in CY
2024. The sum of the proposed CY 2024
pass-through spending estimates for
these two groups of device categories
equals the proposed total CY 2024 passthrough spending estimate for device
categories with pass-through payment
status. We determined the device passthrough estimated payments for each
device category based on the amount of
payment as required by section
1833(t)(6)(D)(ii) of the Act, and as
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outlined in previous rules, including the
CY 2014 OPPS/ASC final rule with
comment period (78 FR 75034 through
75036). We note that, beginning in CY
2010, the pass-through evaluation
process and pass-through payment
methodology for implantable biologicals
newly approved for pass-through
payment beginning on or after January
1, 2010, that are surgically inserted or
implanted (through a surgical incision
or a natural orifice) use the device passthrough process and payment
methodology (74 FR 60476). As has
been our past practice (76 FR 74335), in
the proposed rule, we proposed to
include an estimate of any implantable
biologicals eligible for pass-through
payment in our estimate of pass-through
spending for devices. Similarly, we
finalized a policy in CY 2015 that
applications for pass-through payment
for skin substitutes and similar products
be evaluated using the medical device
pass-through process and payment
methodology (76 FR 66885 through
66888). Therefore, as we did beginning
in CY 2015, for CY 2024, we also
propose to include an estimate of any
skin substitutes and similar products in
our estimate of pass-through spending
for devices.
For drugs and biologicals eligible for
pass-through payment, section
1833(t)(6)(D)(i) of the Act establishes the
pass-through payment amount as the
amount by which the amount
authorized under section 1842(o) of the
Act (or, if the drug or biological is
covered under a competitive acquisition
contract under section 1847B of the Act,
an amount determined by the Secretary
equal to the average price for the drug
or biological for all competitive
acquisition areas and year established
under such section as calculated and
adjusted by the Secretary) exceeds the
portion of the otherwise applicable fee
schedule amount that the Secretary
determines is associated with the drug
or biological. Consistent with current
policy, we propose to apply a rate of
ASP plus 6 percent to most drugs and
biologicals for CY 2024, and therefore
our estimate of drug and biological passthrough payment for CY 2024 for this
group of items is $100 million.
Payment for certain drugs, specifically
diagnostic radiopharmaceuticals and
contrast agents without pass-through
payment status, is packaged into
payment for the associated procedures,
and these products are not separately
paid. In addition, we policy-package all
non pass-through drugs, biologicals, and
radiopharmaceuticals that function as
supplies when used in a diagnostic test
or procedure, drugs and biologicals that
function as supplies when used in a
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surgical procedure, drugs and
biologicals used for anesthesia, and
other categories of drugs and
biologicals, as discussed in section
V.B.1.c of this proposed rule. Consistent
with current policy, propose that all of
these policy-packaged drugs and
biologicals with pass-through payment
status would generally be paid at ASP
plus 6 percent, like other pass-through
drugs and biologicals, for CY 2024, less
the policy-packaged drug APC offset
amount described below. Our estimate
of passthrough payment for policypackaged drugs and biologicals with
pass-through payment status approved
prior to CY 2024 is not $0. This is
because the pass-through payment
amount and the fee schedule amount
associated with the drug or biological
will not be the same, unlike for
separately payable drugs and
biologicals. In section V.A.6 of this
proposed rule, we discuss our policy to
determine if the costs of certain policypackaged drugs or biologicals are
already packaged into the existing APC
structure. If we determine that a policypackaged drug or biological approved
for pass-through payment resembles
predecessor drugs or biologicals already
included in the costs of the APCs that
are associated with the drug receiving
passthrough payment, we propose to
offset the amount of pass-through
payment for the policy-packaged drug or
biological. For these drugs or
biologicals, the APC offset amount is the
portion of the APC payment for the
specific procedure performed with the
pass-through drug or biological, which
we refer to as the policy-packaged drug
APC offset amount. Consistent with
current policy, if we determine that an
offset is appropriate for a specific
policy-packaged drug or biological
receiving pass-through payment, we
propose to reduce our estimate of passthrough payments for these drugs or
biologicals by the APC offset amount.
Similar to pass-through spending
estimates for devices, the first group of
drugs and biologicals requiring a passthrough payment estimate consists of
those products that were recently made
eligible for pass-through payment and
that will continue to be eligible for passthrough payment in CY 2024. The
second group contains drugs and
biologicals that we know are newly
eligible, or project will be newly
eligible, in the remaining quarters of CY
2023 or beginning in CY 2024. The sum
of the CY 2024 pass-through spending
estimates for these two groups of drugs
and biologicals equals the total CY 2024
pass-through spending estimate for
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drugs and biologicals with pass-through
payment status.
B. Proposed Estimate of Pass-Through
Spending for CY 2024
For CY 2024, we propose to set the
applicable pass-through payment
percentage limit at 2.0 percent of the
total projected OPPS payments for CY
2024, consistent with section
1833(t)(6)(E)(ii)(II) of the Act and our
OPPS policy from CY 2004 through CY
2023 (87 FR 719889). The pass-through
payment percentage limit is calculated
using pass-through spending estimates
for devices and for drugs and
biologicals.
For the first group of devices,
consisting of device categories that are
currently eligible for pass-through
payment and will continue to be eligible
for pass-through payment in CY 2024,
there are 7 active categories for CY 2024.
The active categories are described by
HCPCS codes C1747, C1761, C1826,
C1827, C1831, C1832, and C1833. Based
on the information from the device
manufacturers, we estimate that HCPCS
code C1747 will cost $37.5 million in
pass-through expenditures in CY 2024,
HCPCS code C1761 will cost $19.6
million in pass-through expenditures in
CY 2024, HCPCS code C1826 will cost
$7.4 million in pass-through
expenditures in CY 2024, HCPCS code
C1827 will cost $28.8 million in passthrough expenditures in CY 2024,
HCPCS code C1831 will cost $163,436
in pass-through expenditures in CY
2024, HCPCS code C1832 will cost
$37,603 in pass-through expenditures in
CY 2024, and HCPCS code C1833 will
cost $281,238 in pass-through
expenditures in CY 2024. Therefore, we
propose an estimate for the first group
of devices of $93.7 million.
In estimating our proposed CY 2024
pass-through spending for device
categories in the second group, we
included: device categories that we
assumed at the time of the development
of the proposed rule would be newly
eligible for pass-through payment in CY
2024; additional device categories that
we estimated could be approved for
pass-through status after the
development of this proposed rule and
before January 1, 2024; and contingent
projections for new device categories
established in the second through fourth
quarters of CY 2024. For CY 2024, we
propose to use the general methodology
described in the CY 2008 OPPS/ASC
final rule with comment period (72 FR
66778), while also taking into account
recent OPPS experience in approving
new pass-through device categories. For
this proposed rule, the proposed
estimate of CY 2024 pass-through
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spending for this second group of device
categories is $40.4 million.
To estimate proposed CY 2024 passthrough spending for drugs and
biologicals in the first group,
specifically those drugs and biologicals
recently made eligible for pass-through
payment and continuing on passthrough payment status for at least one
quarter in CY 2024, we propose to use
the CY 2022 Medicare hospital
outpatient claims data regarding their
utilization, information provided in the
respective pass-through applications,
other historical hospital claims data,
pharmaceutical industry information,
and clinical information regarding these
drugs and biologicals to project the CY
2024 OPPS utilization of the products.
For the known drugs and biologicals
(excluding policy-packaged diagnostic
radiopharmaceuticals, contrast agents,
drugs, biologicals, and
radiopharmaceuticals that function as
supplies when used in a diagnostic test
or procedure, and drugs and biologicals
that function as supplies when used in
a surgical procedure) that will continue
to have pass-through payment status in
CY 2024, we estimate the pass-through
payment amount as the difference
between ASP plus 6 percent and the
payment rate for non pass-through drugs
and biologicals that will be separately
paid. Because we propose to apply a
payment rate of ASP plus 6 percent to
most drugs and biologicals in this
proposed rule, the proposed payment
rate difference between the pass-through
payment amount and the non passthrough payment amount is $0 for this
group of drugs.
Because payment for policy-packaged
drugs and biologicals is packaged if the
product is not paid separately due to its
pass-through payment status, we
propose to include in the CY 2024 passthrough estimate the difference between
payment for the policy-packaged drug or
biological at ASP plus 6 percent (or
WAC plus 6 percent, or 95 percent of
AWP, if ASP or WAC information is not
available) and the policy packaged drug
APC offset amount, if we determine that
the policy-packaged drug or biological
approved for pass-through payment
resembles a predecessor drug or
biological already included in the costs
of the APCs that are associated with the
drug receiving pass-through payment,
which we estimate for CY 2024 for the
first group of policy-packaged drugs to
be $90 million.
To estimate proposed CY 2024 passthrough spending for drugs and
biologicals in the second group (that is,
drugs and biologicals that we knew at
the time of development of this
proposed rule were newly eligible or
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recently became eligible for passthrough payment in CY 2023, additional
drugs and biologicals that we estimated
could be approved for pass-through
status subsequent to the development of
this proposed rule and before January 1,
2024, and projections for new drugs and
biologicals that could be initially
eligible for pass-through payment in the
second through fourth quarters of CY
2024), we propose to use utilization
estimates from pass-through applicants,
pharmaceutical industry data, clinical
information, recent trends in the perunit ASPs of hospital outpatient drugs,
and projected annual changes in service
volume and intensity as our basis for
making the CY 2024 pass-through
payment estimate. We also propose to
consider the most recent OPPS
experience in approving new passthrough drugs and biologicals. Using
our proposed methodology for
estimating CY 2024 pass-through
payments for this second group of
drugs, we calculated a proposed
spending estimate for this second group
of drugs and biologicals of
approximately $10 million.
We estimate for this proposed rule
that the amount of pass-through
spending for the device categories and
the drugs and biologicals that are
continuing to receive pass-through
payment in CY 2024 and those device
categories, drugs, and biologicals that
first become eligible for pass-through
payment during CY 2024 would be
approximately $234.1 million
(approximately $134.1 million for
device categories and approximately
$100 million for drugs and biologicals)
which represents 0.26 percent of total
projected OPPS payments for CY 2024
(approximately $88.6 billion).
Therefore, we estimate that passthrough spending in CY 2024 would not
amount to 2.0 percent of total projected
OPPS CY 2024 program spending.
VII. Proposed OPPS Payment for
Hospital Outpatient Visits and Critical
Care Services
For CY 2024, we propose to continue
our current clinic and emergency
department (ED) hospital outpatient
visits payment policies. For a
description of these policies, we refer
readers to the CY 2016 OPPS/ASC final
rule with comment period (80 FR
70448). We also propose to continue our
payment policy for critical care services
for CY 2024. For a description of this
policy, we refer readers to the CY 2016
OPPS/ASC final rule with comment
period (80 FR 70449), and for the
history of this payment policy, we refer
readers to the CY 2014 OPPS/ASC final
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rule with comment period (78 FR
75043).
As we stated in the CY 2022 OPPS/
ASC final rule with comment period (86
FR 63663), the volume control method
for clinic visits furnished by nonexcepted off-campus provider-based
departments (PBDs) applies for CY 2023
and subsequent years. More specifically,
we finalized a policy to continue to
utilize a PFS-equivalent payment rate
for the hospital outpatient clinic visit
service described by HCPCS code G0463
when it is furnished by these
departments for CY 2023 and beyond.
The PFS-equivalent rate for CY 2024 is
40 percent of the proposed OPPS
payment. Under this policy, these
departments will be paid approximately
40 percent of the OPPS rate for the
clinic visit service in CY 2024.
In the CY 2023 OPPS/ASC final rule
with comment period (87 FR 71748), we
finalized a policy that excepted offcampus provider-based departments
(PBDs) (departments that bill the
modifier ‘‘PO’’ on claim lines) of rural
Sole Community Hospitals (SCHs), as
described under 42 CFR 412.92 and
designated as rural for Medicare
payment purposes, are exempt from the
clinic visit payment policy that applies
a Physician Fee Schedule-equivalent
payment rate for the clinic visit service,
as described by HCPCS code G0463,
when provided at an off-campus PBD
excepted from section 1833(t)(21) of the
Act. For the full discussion of this
policy, we refer readers to the CY 2023
OPPS/ASC final rule with comment
period (87 FR 72047 through 72051).
For CY 2024, we propose to continue to
exempt excepted off-campus PBDs of
rural SCHs from the clinic visit payment
policy. We will continue to monitor the
effect of this change in Medicare
payment policy, including on the
volume of these types of OPD services.
VIII. Payment for Partial
Hospitalization and Intensive
Outpatient Services
This section discusses proposed
payment for partial hospitalization
services as well as intensive outpatient
services. Since CY 2000, Medicare has
paid for partial hospitalization services
under the OPPS. Beginning in CY 2024,
as authorized by section 4124 of the
Consolidated Appropriations Act
(CAA), 2023 (Pub. L. 117–328),
Medicare will begin paying for intensive
outpatient services furnished by
hospital outpatient departments,
community mental health centers,
federally qualified health centers and
rural health clinics. Additional
background on the partial
hospitalization and intensive outpatient
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benefits is included in the following
paragraphs.
A. Partial Hospitalization
1. Background
A partial hospitalization program
(PHP) is an intensive outpatient
program of psychiatric services
provided as an alternative to inpatient
psychiatric care for individuals who
have an acute mental illness, which
includes, but is not limited to,
conditions such as depression,
schizophrenia, and substance use
disorders. Section 1861(ff)(1) of the Act
defines partial hospitalization services
as the items and services described in
paragraph (2) prescribed by a physician
and provided under a program
described in paragraph (3) under the
supervision of a physician pursuant to
an individualized, written plan of
treatment established and periodically
reviewed by a physician (in
consultation with appropriate staff
participating in such program), which
sets forth the physician’s diagnosis, the
type, amount, frequency, and duration
of the items and services provided
under the plan, and the goals for
treatment under the plan. Section
1861(ff)(2) of the Act describes the items
and services included in partial
hospitalization services. Section
1861(ff)(3)(A) of the Act specifies that a
PHP is a program furnished by a
hospital to its outpatients or by a
community mental health center
(CMHC), as a distinct and organized
intensive ambulatory treatment service,
offering less than 24-hour-daily care, in
a location other than an individual’s
home or inpatient or residential setting.
Section 1861(ff)(3)(B) of the Act defines
a CMHC for purposes of this benefit. We
refer readers to sections 1833(t)(1)(B)(i),
1833(t)(2)(B), 1833(t)(2)(C), and
1833(t)(9)(A) of the Act and 42 CFR
419.21, for additional information
regarding PHP.
Partial hospitalization program
policies and payment have been
addressed under OPPS since CY 2000.
In CY 2008, we began efforts to
strengthen the PHP benefit through
extensive data analysis, along with
policy and payment changes by
implementing two refinements to the
methodology for computing the PHP
median. For a detailed discussion on
these policies, we refer readers to the
CY 2008 OPPS/ASC final rule with
comment period (72 FR 66670 through
66676). In CY 2009, we implemented
several regulatory, policy, and payment
changes. For a detailed discussion on
these policies, we refer readers to the
CY 2009 OPPS/ASC final rule with
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49697
comment period (73 FR 68688 through
68697). In CY 2010, we retained the
two-tier payment approach for partial
hospitalization services and used only
hospital-based PHP data in computing
the PHP APC per diem costs, upon
which PHP APC per diem payment rates
are based (74 FR 60556 through 60559).
In CY 2011 (75 FR 71994), we
established four separate PHP APC per
diem payment rates: two for CMHCs
(APC 0172 and APC 0173) and two for
hospital-based PHPs (APC 0175 and
APC 0176) and instituted a 2-year
transition period for CMHCs to the
CMHC APC per diem payment rates. For
a detailed discussion, we refer readers
to section X.B of the CY 2011 OPPS/
ASC final rule with comment period (75
FR 71991 through 71994). In CY 2012,
we determined the relative payment
weights for partial hospitalization
services provided by CMHCs based on
data derived solely from CMHCs and the
relative payment weights for partial
hospitalization services provided by
hospital-based PHPs based exclusively
on hospital data (76 FR 74348 through
74352). In the CY 2013 OPPS/ASC final
rule with comment period, we finalized
our proposal to base the relative
payment weights that underpin the
OPPS APCs, including the four PHP
APCs (APCs 0172, 0173, 0175, and
0176), on geometric mean costs rather
than on the median costs. For a detailed
discussion on this policy, we refer
readers to the CY 2013 OPPS/ASC final
rule with comment period (77 FR 68406
through 68412).
In the CY 2014 OPPS/ASC proposed
rule (78 FR 43621 through 43622) and
CY 2015 OPPS/ASC final rule with
comment period (79 FR 66902 through
66908), we continued to apply our
established policies to calculate the four
PHP APC per diem payment rates based
on geometric mean per diem costs using
the most recent claims data for each
provider type. For a detailed discussion
on this policy, we refer readers to the
CY 2014 OPPS/ASC final rule with
comment period (78 FR 75047 through
75050). In the CY 2016, we described
our extensive analysis of the claims and
cost data and ratesetting methodology,
corrected a cost inversion that occurred
in the final rule data with respect to
hospital-based PHP providers and
renumbered the PHP APCs. In CY 2017
OPPS/ASC final rule with comment
period (81 FR 79687 through 79691), we
continued to apply our established
policies to calculate the PHP APC per
diem payment rates based on geometric
mean per diem costs and finalized a
policy to combine the Level 1 and Level
2 PHP APCs for CMHCs and for
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hospital-based PHPs. We also
implemented an eight-percent outlier
cap for CMHCs to mitigate potential
outlier billing vulnerabilities. For a
comprehensive description of PHP
payment policy, including a detailed
methodology for determining PHP per
diem amounts, we refer readers to the
CY 2016 and CY 2017 OPPS/ASC final
rules with comment period (80 FR
70453 through 70455 and 81 FR 79678
through 79680, respectively).
In the CYs 2018 and 2019 OPPS/ASC
final rules with comment period (82 FR
59373 through 59381, and 83 FR 58983
through 58998, respectively), we
continued to apply our established
policies to calculate the PHP APC per
diem payment rates based on geometric
mean per diem costs, designated a
portion of the estimated 1.0 percent
hospital outpatient outlier threshold
specifically for CMHCs, and proposed
updates to the PHP allowable HCPCS
codes. We finalized these proposals in
the CY 2020 OPPS/ASC final rule with
comment period (84 FR 61352).
In the CY 2020 OPPS/ASC final rule
with comment period (84 FR 61339
through 61350), we finalized a proposal
to use the calculated CY 2020 CMHC
geometric mean per diem cost and the
calculated CY 2020 hospital-based PHP
geometric mean per diem cost, but with
a cost floor equal to the CY 2019 final
geometric mean per diem costs as the
basis for developing the CY 2020 PHP
APC per diem rates. Also, we continued
to designate a portion of the estimated
1.0 percent hospital outpatient outlier
threshold specifically for CMHCs,
consistent with the percentage of
projected payments to CMHCs under the
OPPS, excluding outlier payments.
In the April 30, 2020 interim final
rule with comment (85 FR 27562
through 27566), effective as of March 1,
2020 and for the duration of the COVID–
19 Public Health Emergency (PHE),
hospital and CMHC staff were permitted
to furnish certain outpatient therapy,
counseling, and educational services
(including certain PHP services),
incident to a physician’s services, to
beneficiaries in temporary expansion
locations, including the beneficiary’s
home, so long as the location meets all
conditions of participation to the extent
not waived. A hospital or CMHC can
furnish such services using
telecommunications technology to a
beneficiary in a temporary expansion
location if that beneficiary is registered
as an outpatient. In the CY 2023 OPPS/
ASC final rule (87 FR 72247), we
confirmed these provisions as final,
including that they apply only for the
duration of the COVID–19 PHE. On May
11, 2023, the COVID–19 PHE ended,
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and accordingly, these flexibilities
ended as well.
In the CY 2021 OPPS/ASC final rule
with comment period (85 FR 86073
through 86080), we continued our
current methodology to utilize cost
floors, as needed. Since the final
calculated geometric mean per diem
costs for both CMHCs and hospitalbased PHPs were significantly higher
than each proposed cost floor, a floor
was not necessary at the time, and we
did not finalize the proposed cost floors
in the CY 2021 OPPS/ASC final rule
with comment period.
In the CY 2022 OPPS/ASC final rule
with comment period (86 FR 63665
through 63666), we explained that we
observed a number of changes, likely as
a result of the COVID–19 PHE, in the CY
2020 OPPS claims that we would have
ordinarily used for CY 2022 ratesetting,
and this included changes in the claims
for partial hospitalization. We explained
that significant decreases in utilization
and in the number of hospital-based
PHP providers who submitted CY 2020
claims led us to believe that CY 2020
data were not the best overall
approximation of expected PHP services
in CY 2022. Therefore, we finalized our
proposal to calculate the PHP per diem
costs using the year of claims consistent
with the calculations that would be
used for other OPPS services, by using
the CY 2019 claims and the cost reports
that were used for CY 2021 final
rulemaking to calculate the CY 2022
PHP per diem costs. In addition, for CY
2022 and subsequent years, we finalized
our proposal to use cost and charge data
from the Hospital Cost Report
Information System (HCRIS) as the
source for the CMHC cost-to-charge
ratios (CCRs), instead of using the
Outpatient Provider Specific File
(OPSF) (86 FR 63666).
In the CY 2023 OPPS/ASC final rule
with comment period (87 FR 71995), we
explained that we continued to observe
a decrease in the number of hospitalbased and CMHC PHP days in our
trimmed dataset due to the continued
effects of COVID–19, however, the
Medicare outpatient service volumes
appeared to be returning to more
normal, pre-pandemic levels. Therefore,
we finalized our proposal to use the
latest available CY 2021 claims, but use
the cost information from prior to the
COVID–19 PHE for calculating the CY
2023 CMHC and hospital-based PHP
APC per diem costs. The application of
the OPPS standard methodology,
including the effect of budget
neutralizing all other OPPS policy
changes unique to CY 2023, resulted in
the final calculated CMHC PHP APC
payment rate being unexpectedly lower
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than the CY 2022 final CMHC PHP APC
rate. Therefore, in the interest of
accurately paying for CMHC PHP
services, under the unique
circumstances of budget neutralizing all
other OPPS policy changes for CY 2023,
and in keeping with our longstanding
goal of protecting continued access to
PHP services provided by CMHCs by
ensuring that CMHCs remain a viable
option as providers of mental health
care in the beneficiary’s own
community, we finalized utilizing the
equitable adjustment authority of
section 1833(t)(2)(E) of the Act to
appropriately pay for CMHC PHP
services at the same payment rate as for
CY 2022, that is, $142.70. In addition,
we clarified the payment under the
OPPS for new HCPCS codes that
designate non-PHP services provided for
the purposes of diagnosis, evaluation, or
treatment of a mental health disorder
and are furnished to beneficiaries in
their homes by clinical staff of the
hospital would not be recognized as
PHP services, however, none of the PHP
regulations would preclude a patient
that is under a PHP plan of care from
receiving other reasonable and
medically necessary non-PHP services
from a hospital (87 FR 72001 and
72002).
Section 4124(a) of Division FF of the
CAA, 2023 amends section 1861(ff)(1) of
the Act to modify the definition of
partial hospitalization services
furnished on or after January 1, 2024.
Specifically, section 4124(a) of the CAA,
2023 amends section 1861(ff)(1) of the
Act by adding to the current definition
that partial hospitalization services are
‘‘for an individual determined (not less
frequently than monthly) by a physician
to have a need for such services for a
minimum of 20 hours per week.’’ We
discuss these revisions to the definition
of partial hospitalization services in the
following section, section VIII.A.2, of
this proposed rule.
2. Revisions to PHP Physician
Certification Requirements
As amended by section 4124(a) of the
CAA, 2023, section 1861(ff)(1) requires
that a physician determine that each
patient needs a minimum of 20 hours of
PHP services per week, and this
determination must occur no less
frequently than monthly. We propose to
codify this requirement in regulation as
an additional requirement for the
physician certification applicable for
PHP services that we would add to
§ 424.24(e)(1)(i). We are not proposing
any changes to the existing physician
certification requirements for PHP,
including that the patient would require
inpatient hospitalization if they did not
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receive PHP services, which would
remain at § 424.24(e)(1)(i).
Existing regulations at § 410.43 set
forth conditions and exclusions that
apply for partial hospitalization
services. Under § 410.43(a)(3), partial
hospitalization services are services that
are furnished in accordance with a
physician certification and plan of care
as specified under § 424.24(e).
Additionally, current patient eligibility
criteria at § 410.43(c)(1) state that partial
hospitalization programs are intended
for patients who require a minimum of
20 hours per week of therapeutic
services as evidenced in their plan of
care. Because partial hospitalization
services are already required to be
furnished in accordance with a
physician certification and plan of care,
we believe it is appropriate to include
this 20-hour minimum weekly
requirement as a physician certification
requirement at § 424.24(e)(1)(i). We note
that we do not believe this proposed
change to the regulation would create a
new requirement for PHPs from a
practical perspective, as the change to
the definition of partial hospitalization
services made by the CAA, 2023 is
consistent with the longstanding 20hour minimum weekly regulatory
requirement at § 410.43(c)(1) that
Medicare has applied to PHP.
We propose to modify the regulation
at § 424.24(e)(1)(i) to require the
physician certification for PHP services
include a certification that the patient
requires such services for a minimum of
20 hours per week. Current regulations
at § 424.24(e)(3)(ii) require an initial
recertification after 18 days, with
subsequent recertifications of PHP
services no less frequently than every 30
days. We believe this interval is
consistent with the CAA, 2023
requirement that the physician’s
determination of the need for PHP
services at least 20 hours per week must
occur no less frequently than monthly.
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B. Intensive Outpatient Program
Services
1. Establishment of Intensive Outpatient
Services Benefit by Section 4124 of the
CAA, 2023
Section 4124(b) of the CAA, 2023
established Medicare coverage for
intensive outpatient services effective
for items and services furnished on or
after January 1, 2024. Section
4124(b)(1)(A) of the CAA, 2023
amended section 1832(a)(2)(J) of the Act
to add intensive outpatient services to
the scope of covered benefits provided
by CMHCs, and section 4124(b)(1)(B)
amended section 1861(s)(2)(B) to add
intensive outpatient services to the
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definition of ‘‘medical and other health
services’’, specifically, as a service
furnished ‘‘incident to a physicians’
services.’’
Intensive outpatient services are
furnished under an intensive outpatient
program (IOP). Similar to PHP, an IOP
is a distinct and organized outpatient
program of psychiatric services
provided for individuals who have an
acute mental illness, which includes,
but is not limited to, conditions such as
depression, schizophrenia, and
substance use disorders. Generally
speaking, an IOP is thought to be less
intensive than a PHP, and the statutory
definition of IOP services reflects this
difference in intensity. Specifically,
section 4124(b)(2)(B) of the CAA, 2023
amended section 1861(ff) of the Act to
add a new paragraph (4) to define the
term ‘‘intensive outpatient services’’ as
having the same meaning as ‘‘partial
hospitalization services’’ in paragraph
(1). In particular, intensive outpatient
services are the items and services
described in paragraph (2) prescribed by
a physician for an individual
determined (not less frequently than
once every other month) by a physician
to have a need for such services for a
minimum of 9 hours per week and
provided under a program described in
paragraph (3) under the supervision of
a physician pursuant to an
individualized, written plan of
treatment established and periodically
reviewed by a physician (in
consultation with appropriate staff
participating in such program), which
sets forth the physician’s diagnosis, the
type, amount, frequency, and duration
of the items and services provided
under the plan, and the goals for
treatment under the plan. For patients of
an IOP, section 1835(a)(2)(F)(i) of the
Act does not apply, that is, individuals
receiving IOP would not require
inpatient psychiatric care in the absence
of such services. Lastly, section
4124(b)(2)(B) of the CAA, 2023 further
added to section 1861(ff)(4)(C), which
cross-references paragraph (3), that an
IOP is a program furnished by a hospital
to its outpatients, or by a community
mental health center (CMHC), a
Federally qualified health center
(FQHC), or a rural health clinic (RHC),
as a distinct and organized intensive
ambulatory treatment service, offering
less than 24-hour-daily care, in a
location other than an individual’s
home or inpatient or residential setting.
Section 4124(c) of the CAA, 2023
amends section 1834 of the Act by
adding a new paragraph (5) to
subsection (o) and a new paragraph (3)
to subsection (y), which include special
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payment rules for intensive outpatient
services furnished in FQHCs and RHCs,
which are discussed in greater detail in
section VIII.F of this proposed rule.
This proposed rule includes proposals
to establish payment and program
requirements for the IOP benefit in all
of the above-described settings. Section
VIII.B.2 of this proposed rule discusses
the proposed scope of benefits for IOP
services, and section VIII.B.3 of this
proposed rule discusses proposed
physician certification requirements.
Section VIII.C of this proposed rule
discusses proposed coding and billing
for both PHP and IOP services under the
OPPS beginning in CY 2024. Section
VIII.D of this proposed rule discusses
the proposed payment methodology.
Section VIII.E of this proposed rule
discusses proposed outlier policy for
CMHCs. Section VIII.F of this proposed
rule discusses proposed payment for
IOP in FQHCs and RHCs, and Section
VIII.G of this proposed rule discusses
proposed payment for IOP in Opioid
Treatment Programs (OTPs).
2. IOP Scope of Benefits
Section 1861(ff)(2) of the Act
describes the items and services
available under the IOP benefit. These
items and services include: individual
and group therapy with physicians or
psychologists (or other mental health
professionals to the extent authorized
under State law); occupational therapy
requiring the skills of a qualified
occupational therapist; services of social
workers, trained psychiatric nurses, and
other staff trained to work with
psychiatric patients; drugs and
biologicals furnished for therapeutic
purposes (which cannot, as determined
in accordance with regulations, be selfadministered); individualized activity
therapies that are not primarily
recreational or diversionary; family
counseling (the primary purpose of
which is treatment of the individual’s
condition); patient training and
education (to the extent that training
and educational activities are closely
and clearly related to individual’s care
and treatment); diagnostic services; and
such other items and services as the
Secretary may provide (excluding meals
and transportation) that are reasonable
and necessary for the diagnosis or active
treatment of the individual’s condition,
reasonably expected to improve or
maintain the individual’s condition and
functional level and to prevent relapse
or hospitalization, and furnished
pursuant to such guidelines relating to
frequency and duration of services as
the Secretary shall by regulation
establish, taking into account accepted
norms of medical practice and the
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reasonable expectation of patient
improvement.
Consistent with the statutory
definition of intensive outpatient
services under section 1861(ff)(2) of the
Act, we propose to add regulations at 42
CFR 410.44 to set forth the conditions
and exclusions that would apply for
intensive outpatient services. Consistent
with the existing regulations for partial
hospitalization services, we propose to
require that intensive outpatient
services must be furnished in
accordance with a physician
certification and plan of care. However,
where partial hospitalization requires
the physician to certify that the services
are instead of inpatient hospitalization,
intensive outpatient program services
are not intended for those who
otherwise need an inpatient level of
care. That is, section 1861(ff)(4)(A) of
the Act, as added by section 4124 of the
CAA, 2023, states that for intensive
outpatient services, section
1835(a)(2)(F)(i) shall not apply. As
further discussed in section VIII.B.3 of
this proposed rule, we propose to add
language to the regulation at § 424.24(d),
which is currently reserved, that would
set forth the physician certification and
plan of care requirements for intensive
outpatient services.
Additionally, we propose to revise
certain existing regulations at § 410.2,
§ 410.3, § 410.10, § 410.27, § 410.150,
and § 419.21 to add a regulatory
definition of intensive outpatient
services and to include intensive
outpatient services in the regulations for
medical and other health services paid
for under Medicare Part B, and in the
case of § 419.21, under the OPPS. We
propose to create regulations at
§ 410.111 to establish the requirements
for coverage of IOP services furnished in
CMHCs, and at § 410.173 to establish
conditions of payment for IOP services
furnished in CMHCs. Lastly, we propose
to revise § 410.155 to exclude IOP
services from the outpatient mental
health treatment limitation, consistent
with the statutory requirement of
section 1833(c)(2) of the Act, as
amended by section 4124(b)(3) of the
CAA, 2023. We discuss these proposed
changes in the following paragraphs.
a. Proposed Definition of Intensive
Outpatient Services
We propose the following definition
at § 410.2 for intensive outpatient
services: Intensive outpatient services
means a distinct and organized
intensive ambulatory treatment program
that offers less than 24-hour daily care
other than in an individual’s home or in
an inpatient or residential setting and
furnishes the services as described in
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§ 410.44. Intensive outpatient services
are not required to be provided in lieu
of inpatient hospitalization. We note
that the proposed definition for
intensive outpatient services is
consistent with the statutory
requirements of section 1861(ff)(3)(A),
which apply to both IOP and PHP
services. Accordingly, the proposed
definition is largely consistent with the
existing regulatory definition of partial
hospitalization services. However, in
accordance with section 1861(ff)(4)(A)
of the Act, as added by the CAA, 2023,
we are including a clarification in the
regulatory definition of ‘‘intensive
outpatient services’’ that they are not
required to be provided in lieu of
inpatient hospitalization. We are
including this clarification in order to
more clearly differentiate between the
definitions of partial hospitalization and
intensive outpatient at § 410.2.
The conditions and exclusions for
partial hospitalization services are
included in the regulation at § 410.43.
We propose that the conditions and
exclusions for intensive outpatient
services would be included in new
regulations at § 410.44.
At new § 410.44, we propose to
establish regulatory language for
intensive outpatient services that is
consistent with the existing language for
partial hospitalization conditions and
exclusions and the statutory definition
of intensive outpatient services.
Specifically, under § 410.44(a) we
propose that IOP services are services
that: (1) are reasonable and necessary for
the diagnosis or active treatment of the
individual’s condition; (2) are
reasonably expected to improve or
maintain the individual’s condition and
functional level and to prevent relapse
or hospitalization; (3) are furnished in
accordance with a physician
certification and plan of care as
specified under new regulations at
§ 424.24(d); and include any of the
services listed in § 410.44(a)(4). Under
§ 410.44(a)(4), we include a list of the
types of services that we propose would
be covered as intensive outpatient
services:
• Individual and group therapy with
physicians or psychologists or other
mental health professionals to the extent
authorized under State law.
• Occupational therapy requiring the
skills of a qualified occupational
therapist, provided by an occupational
therapist, or under appropriate
supervision of a qualified occupational
therapist by an occupational therapy
assistant as specified in part 484 of this
chapter.
• Services of social workers, trained
psychiatric nurses, and other staff
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trained to work with psychiatric
patients.
• Drugs and biologicals furnished for
therapeutic purposes, subject to the
limitations specified in § 410.29.
• Individualized activity therapies
that are not primarily recreational or
diversionary.
• Family counseling, the primary
purpose of which is treatment of the
individual’s condition.
• Patient training and education, to
the extent the training and educational
activities are closely and clearly related
to the individual’s care and treatment.
• Diagnostic services.
The proposed list at § 410.44(a)(4) is
based on the list of items and services
described in section 1861(ff)(2) of the
Act. We note that 1861(ff)(2) of the Act
also provides that intensive outpatient
services may include such other items
and services as the Secretary may
provide (but in no event to include
meals and transportation). As discussed
in section VIII.C of this proposed rule,
we solicit comments on whether
additional codes should be added to the
list of services recognized as appropriate
for PHP and IOP.
We further note that both the statute
at section 1861(ff)(2)(C) of the Act and
our proposed regulation at
§ 410.44(a)(4)(iii) refer to ‘‘trained
psychiatric nurses, and other staff
trained to work with psychiatric
patients.’’ Under our longstanding
policy for partial hospitalization
services, we have considered nurses and
other staff trained to work with patients
within their state scope of practice who
are receiving treatment for substance
use disorder (SUD) to be included under
this statutory definition and the
regulatory definition of PHP at
§ 410.43(a)(4). We have heard from
interested parties that there could be a
misconception that Medicare does not
cover PHP for the treatment of SUD. We
are clarifying that, in general,
notwithstanding the requirement that
PHP services are provided in lieu of
inpatient hospitalization, Medicare
covers PHP for the treatment of SUD,
and we consider services that are for the
treatment of SUD and behavioral health
generally to be consistent with the
statutory and regulatory definition of
PHP. We are taking this opportunity to
clarify that the terms ‘‘trained
psychiatric nurses, and other staff
trained to work with psychiatric
patients,’’ as used in § 410.43(a)(4) and
§ 410.44(a)(4) would include trained
SUD nurses and other staff trained to
work with SUD patients. Under
§ 410.44(b), we propose that the
following services are separately
covered and not paid as intensive
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outpatient services: (1) physician
services; (2) physician assistant services;
(3) nurse practitioner and clinical nurse
specialist services; (4) qualified
psychologist services; and (5) services
furnished to residents of a skilled
nursing facility (SNF). We note that
these proposed exclusions are
consistent with the services excluded
from payment as partial hospitalization
program services at § 410.43(b). The
services listed under §§ 410.43(b) and
410.44(b) would be paid under the
applicable systems for such services.
Lastly, under § 410.44(c), we propose
to establish patient eligibility criteria for
intensive outpatient services.
Specifically, we propose that intensive
outpatient services are intended for
patients who: (1) require a minimum of
9 hours per week of therapeutic services
as evidenced in their plan of care; (2)
are likely to benefit from a coordinated
program of services and require more
than isolated sessions of outpatient
treatment; (3) do not require 24-hour
care; (4) have an adequate support
system while not actively engaged in the
program; (5) have a mental health
diagnosis; (6) are not judged to be
dangerous to self or others; and (7) have
the cognitive and emotional ability to
participate in the active treatment
process and can tolerate the intensity of
the intensive outpatient program.
We note that these proposed patient
eligibility criteria at § 410.44(c) are
consistent with the existing partial
hospitalization patient eligibility criteria
at § 410.43(c). With respect to the
proposed criterion of a ‘‘mental health
diagnosis’’, we are clarifying that a
mental health diagnosis would include
SUD and behavioral health diagnoses
generally under both the existing partial
hospitalization regulation at
§ 410.43(c)(5) and the proposed
intensive outpatient services regulation
at § 410.44(c)(5). As discussed earlier in
this section, this inclusion of SUD and
behavioral health diagnoses as among
the patient eligibility criteria for PHP
services is consistent with our
longstanding policy. However, we have
noted that interested parties have raised
concerns that this policy may not be
clear. Therefore, we are clarifying that
the term ‘‘mental health diagnosis’’ as
used at both §§ 410.43(c)(5) and
410.44(c)(5) would include SUD and
behavioral health diagnoses.
b. Coverage of IOP as Medical and Other
Health Services Paid Under Part B
We propose to amend the regulation
at § 410.10(c) to add a reference to
‘‘intensive outpatient services’’ to the
list of services that are covered as
medical and other health services under
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Part B, when furnished as hospital or
CAH services incident to a physician’s
professional services. We believe this is
consistent with section 1861(s)(2)(B) of
the Act, as amended by section
4124(b)(1)(B) of the CAA, 2023 to
include ‘‘intensive outpatient services’’
under the definition of medical and
other health services; specifically,
hospital services incident to a
physicians’ services. We note that the
services described at § 410.10(c) are
furnished by a hospital or CAH.
Accordingly, we propose conforming
changes to the regulations at
§§ 410.27(a)(2) and paragraph (e)
introductory text to include references
to intensive outpatient services.
c. Technical Changes To Codify
Requirements for IOP at CMHCs
We propose technical changes to the
regulations at 42 CFR parts 488 and 489.
First, we propose to add the statutory
basis for IOP at CMHCs at § 488.2. The
proposed technical revision would add
section 1832(a)(2)(J) of the Act, which
sets forth the statutory basis of intensive
outpatient services provided by CMHCs
at § 488.2.
We also propose to revise the
provision at 42 CFR 489.2(c)(2) so that
CMHCs may enter into provider
agreements to furnish intensive
outpatient services. We propose to
revise the current requirement that
allows for CMHCs to enter into provider
agreements only for the provision of
partial hospitalization services. The
proposed revisions to this provision
would allow CMHCs to enter into
provider agreements only to furnish
partial hospitalization services and
intensive outpatient services.
d. Technical Changes To Codify
Coverage of IOP at CMHCs
We propose several technical changes
and additions to the regulations at
§§ 410.2, 410.3, 410.111, and 410.150.
First, we propose to revise the
definition of ‘‘Community Mental
Health Center (CMHC)’’ at § 410.2 to
refer to intensive outpatient services.
Specifically, we propose to revise the
regulation to state that a CMHC is an
entity that provides day treatment or
other partial hospitalization services or
intensive outpatient services, or
psychosocial rehabilitation services.
Second, we propose to revise the
definition of ‘‘Participating’’ at § 410.2
to refer to intensive outpatient services
as services that CMHCs can provide.
Specifically, we propose that
‘‘Participating’’ refers to a CMHC that
has in effect an agreement to participate
in Medicare, but only for the purposes
of providing partial hospitalization
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services and intensive outpatient
services. We are clarifying that this
proposed definition would allow a
CMHC to be considered a participating
provider of both partial hospitalization
services and intensive outpatient
services, but would not require a CMHC
to provide both types of services in
order to be considered participating.
In addition, we propose to revise the
scope of benefits provision at
§ 410.3(a)(2) to provide that the covered
services for which the Medicare Part B
supplementary medical insurance (SMI)
program helps pay include partial
hospitalization services and intensive
outpatient services provided by CMHCs.
We believe these proposed changes are
consistent with the scope of benefits
provision at section 1832(a)(2)(J) of the
Act, as amended by section
4124(b)(1)(A) of the CAA, 2023 to
include intensive outpatient services, as
well as the proposed CMHC conditions
of participation at § 485.918(b)(1)(iii).
We refer readers to section XVII.B.5 of
this proposed rule for discussion on the
proposed amendments to regulations at
§ 485.918(b)(1)(iii).
In addition, subpart E of § 410
includes requirements for Community
Mental Health Centers (CMHCs)
Providing Partial Hospitalization
Services. We propose to modify the
Subpart E heading to include a reference
to intensive outpatient services as well.
Under subpart E, we propose to add a
new § 410.111 to set forth Requirements
for coverage of intensive outpatient
services furnished in CMHCs. We
propose that Medicare Part B would
cover IOP services furnished by or
under arrangements made by a CMHC if
the CMHC has in effect a provider
agreement and the services are
prescribed by a physician and furnished
under the general supervision of a
physician, and subject to the proposed
physician certification and plan of care
requirements under § 424.24(d).
Additionally, we propose to revise
§ 410.150(b)(13) to include a reference
to intensive outpatient services.
Specifically, we propose that payment
would be made to a CMHC on an
individual’s behalf for partial
hospitalization services or intensive
outpatient services furnished by or
under arrangements made by the CMHC.
Lastly, we propose to amend
§ 419.21(c) to refer to intensive
outpatient services provided by CMHCs
as services for which payment is made
under the OPPS. This proposed
amendment would be consistent with
current regulations at § 419.21(c), which
include partial hospitalization services
provided by CMHCs. We note that
further discussion of our proposed
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e. Exclusion of Intensive Outpatient
Services From the Outpatient Mental
Health Treatment Limitation
Section 1833(c)(2) of the Act, as
amended by section 4124(b)(3) of the
CAA, 2023, excludes intensive
outpatient services that are not directly
provided by a physician from the term
‘‘treatment’’ for the purposes of the
outpatient mental health treatment
limitation under section 1833(c)(1) of
the Act, similar to partial
hospitalization services. Accordingly,
we propose to amend the regulations at
§ 410.155(b)(2)(iii) to state that intensive
outpatient services not directly
provided by a physician are not subject
to the outpatient mental health
treatment limitation.
3. IOP Certification and Plan of Care
Requirements
Section 4124(b)(2)(B) of the CAA,
2023 amended section 1861(ff) of the
Act by adding a new paragraph (4) to
define intensive outpatient services as
the items and services prescribed by a
physician for an individual determined
(not less frequently than once every
other month) by a physician to have a
need for such services for a minimum of
9 hours per week. This certification
must occur no less frequently than once
every other month, and there is no
requirement to certify that IOP patients
would need inpatient hospitalization if
they did not receive such services,
which is required for PHP patients.
We propose to codify the content of
the certification and plan of treatment
requirements for intensive outpatient
services at § 424.24(d). Specifically, we
propose to mirror the PHP content of
certification and plan of care treatment
requirements at § 424.24(e), with the
following exceptions: require the
content of certification to include
documentation that the individual
requires such services for a minimum of
9 hours per week (with no requirement
for the patient to need inpatient
psychiatric care if the IOP services were
not provided). The physician’s
certification of the patient’s need for
either IOP or PHP services should be
based on the physician’s determination
of the patient’s needs and whether the
patient meets the IOP or PHP patient
eligibility criteria under § 410.44(c) or
§ 410.43(c), respectively. We note that
the physician’s certification should
certify the patient’s need for either IOP
or PHP, and that patients participating
in an IOP or PHP should not be under
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any other IOP or PHP plan of care for
the same date of service. The patient’s
individualized plan of treatment should
address all of the conditions that are
being treated by the IOP or PHP.
Additionally, we propose to require in
the regulation at § 424.24(d)(3)(ii) that
the recertification of IOP services occur
no less frequently than every 60 days.
We believe the IOP recertification
timing of no less frequently than every
60 days is consistent with the
requirement in the statute that an
individual be determined by a physician
to have a need for IOP services ‘‘not less
frequently than once every other
month’’ because the minimum number
of days for two consecutive months is
59 days. We believe that a consistent 60day interval would be the most
appropriate way to implement the
statutory recertification requirement for
IOP.
We are soliciting public comments on
whether it would be appropriate to
consider finalizing a shorter interval for
the first recertification and for
subsequent recertification for IOP
patients. For example, we request
comments on whether we should
consider requiring an initial
recertification by the 30th day of IOP
services, and no less frequently than
every 60 days thereafter. We request that
commenters provide as much detail as
possible about the rationale for a shorter
recertification interval, if appropriate.
Lastly, we would make conforming
changes to § 424.24(b) to add a reference
to paragraph (d)(1) in the list of
paragraphs that specify the content for
which physician certification is
required for medical and other health
services furnished by providers (and not
exempted under § 424.24(a)) which are
paid for under Medicare Part B.
C. Coding and Billing for PHP and IOP
Services Under the OPPS
We considered the similarities
between the types of items and services
covered by both PHP and IOP, and the
larger continuum of care, when
developing the proposed list of services
that we believe would appropriately
identify the range of services that IOPs
provide to Medicare beneficiaries. Since
the statutory definitions of both IOP and
PHP generally include the same types of
items and services covered, we believe
it is appropriate to align the programs
using a consistent list of services, so that
level of intensity would be the only
differentiating factor between partial
hospitalization services and intensive
outpatient services.
Currently, hospital outpatient
departments use condition code 41 to
indicate that a claim is for partial
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hospitalization services. CMHCs do not
currently use a condition code on the
bill type used—that is, 76X—to indicate
that a claim is for partial hospitalization
services, because they are only
considered a provider of services for
partial hospitalization; and therefore,
partial hospitalization services are
identified by the 76X bill type. In order
to differentiate between IOP and PHP
for billing purposes, the National
Uniform Billing Committee (NUBC) is
has approved a new condition code,
condition code 92, to identify intensive
outpatient claims. Therefore, we
propose to require hospitals and CMHCs
to report condition code 92 on claims to
indicate that a claim is for intensive
outpatient services. We propose to
continue to require hospitals to report
condition code 41 for partial
hospitalization claims. Additionally,
because CMHCs would be permitted to
provide both PHP and IOP beginning
January 1, 2024, we also propose to
require CMHCs to report condition code
41 for partial hospitalization claims. We
believe that this requirement would
better allow us to identify which claims
are for PHP and which are for IOP. We
are soliciting comment on these
proposed reporting requirements for
PHP and IOP.
Under current policy, PHPs submit
claims with HCPCS codes to identify the
services provided during each PHP day.
Therefore, we worked in conjunction
with physicians to develop a proposed
consolidated list of all HCPCS codes
that we believe would appropriately
identify the full range of services that
both IOPs and PHPs provide to
Medicare beneficiaries. For reference,
Table 42 includes the current list of
HCPCS codes that are recognized for
PHP payment. For CY 2024, we propose
to add certain codes to the list, change
the descriptions of other codes, and
remove one code from the list. The list
of proposed consolidated HCPCS codes
is included in Table 43.
We recognize that the level of
intensity of mental health services a
patient requires may vary over time;
therefore, we believe utilizing a
consolidated list of HCPCS codes to
identify services under both the IOP and
PHP benefits would ensure a smooth
transition for patients when a change in
the intensity or their services is
necessary to best meet their needs. For
example, a patient receiving IOP
services may experience an acute
mental health need that necessitates
more intense services through a PHP.
Alternatively, an IOP patient that no
longer requires the level of intensity
provided by the IOP can access less
intense mental health services, such as
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individual mental health services.
Therefore, we propose to add several
HCPCS codes to the list in Table 43 that
are currently recognized as mental
We propose to maintain all of the
codes in Table 42, except for one code.
We propose to remove 90865
Narcosynthesis, because we do not
believe this code is widely used in the
provision of PHP, and we do not
anticipate it would be widely used in
the provision of IOP in the future. We
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health codes under the OPPS, but are
not recognized for PHP payment.
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propose that the HCPCS codes listed in
Table 43 would be payable when
furnished by PHPs or IOPs.
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We propose to add 18 codes to the list
of recognized PHP/IOP codes, as shown
in Table 43. These codes are currently
recognized as mental health codes
under the OPPS, and we believe it
would be appropriate to recognize them
for PHP and IOP as well. Additionally,
we propose to update the descriptions
of five existing Level II HCPCS codes
that are currently recognized for PHP to
also refer to IOP.
As shown in Table 43, we propose to
add CPT code 90853 Group
psychotherapy to the list of service
codes recognized for PHP and IOP. We
believe there could be overlap between
90853 and two existing Level II HCPCS
codes for PHP group psychotherapy,
specifically G0410 and G0411. We are
considering whether it would be
appropriate to remove G0410 and G0411
from the list of recognized service codes
for PHP and IOP, and retain only CPT
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code 90853. We are soliciting comments
on this topic, and we are interested in
hearing specific reasons commenters
believe support either keeping G0410
and G0411 on the list or removing them.
We are particularly interested in
understanding whether it would be
appropriate to maintain these codes on
a temporary basis to provide a transition
for existing PHPs that are using these
codes.
We propose to use the list of HCPCS
in Table 43 to determine the number of
services per PHP or IOP day, and
therefore to determine the APC per diem
payment amount for each day, as
discussed in section VIII.D of this
proposed rule. In addition, as discussed
in section VIII.D of this proposed rule,
we propose to calculate the costs for 3service and 4-service days based on the
list of HCPCS in Table 43. We remind
readers that currently, to qualify for
payment at the applicable PHP APC
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(5853 or 5863) one service must be from
the Partial Hospitalization Primary list.
Table 44 identifies the services that are
currently included in the Partial
Hospitalization Primary list and those
which we propose to add based on our
analysis of the services included on
days with three and four services from
the proposed list in Table 43. We
propose to maintain this requirement for
CY 2024 and subsequent years to qualify
for payment at the PHP or IOP APC.
Thus, we propose that to qualify for
payment for an IOP APC, at least one
service must be from the Partial
Hospitalization and Intensive
Outpatient Primary list. Specifically, we
propose that to qualify for payment for
the IOP APC (5851, 5852, 5861 or 5862)
or the PHP APC (5853, 5854, 5863, or
5864) one service must be from the
Partial Hospitalization and Intensive
Outpatient Primary list.
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In the future, in the event there are
new codes that represent the PHP and
IOP services described under
§ 410.43(a)(4) and § 410.44(a)(4),
respectively, we propose that we would
add such codes to Table 43 through subregulatory guidance, and that these
codes would be payable when furnished
by a PHP or IOP. We note that coding
updates frequently occur outside of the
standard rulemaking timeline. We
propose this sub-regulatory process in
order to pay expeditiously when new
codes are created that describe any of
the services enumerated at § 410.43(a)(4)
and § 410.44(a)(4), which PHPs and
IOPs, respectively, would provide. We
would identify codes to be added subregulatorily if a new code is crosswalked to a previously included code,
or if the code descriptor is substantially
similar to a descriptor for a code on the
list or describes a service on the list.
Any additional services not described at
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§ 410.43(a)(4) or § 410.44(a)(4) would be
added to the lists in regulation through
notice and comment rulemaking.
We invite public comment on the
proposed consolidated list of HCPCS
codes that would be payable when
furnished in a PHP and IOP; and any
additional codes that we should
consider adding. Specifically, we are
interested in hearing from commenters
if there are any other existing codes that
CMS should consider adding to the list,
or new codes that CMS should consider
creating, to describe specific services
not appropriately described by the
codes in Table 43. For example, we are
particularly interested in and are
soliciting comment on whether it would
be appropriate to include caregiverfocused services in the list of recognized
services for PHP and IOP. We have
identified the following HCPCS codes
describing services related to caregivers:
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• 96202 multiple-family group
behavior management/modification
training for parents(s) guardians(s)
caregivers(s) with a mental or physical
health diagnosis, administered by a
physician or other QHP without the
patient present, face to face up to 60
minutes.
• 96203 each additional 15 minutes.
• 96161 administration of caregiverfocused health risk assessment
instrument (that is, depression
inventory) for the benefit of the patient,
with scoring and documentation, per
standardized instrument.
• 9X015 CAREGIVER TRAING 1ST 30
MIN
• 9X016 CAREGIVER TRAING EA
ADDL 15
• 9X017 GROUP CAREGIVER
TRAINING
We note that the CMHC conditions of
participation at § 485.916(b) and (c)
already include references to the role of
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caregivers in the development and
implementation of the individualized
treatment plan for PHP patients, and we
refer readers to section XVII.B.4 of this
proposed rule for discussion of
proposed amendments to the
regulations at § 485.916(d). We are
soliciting comments on whether it
would be appropriate to include costs
for such services in the calculation of
PHP and IOP per diem payment rates.
We note that if we were to include such
services, we believe it would be
appropriate to exclude them from the
determination of the number of services
provided per day, but we could include
such services in the calculation of cost
per day for determining the PHP and
IOP payment rates.
Additionally, we are soliciting
comments on peer services, and
whether these would be appropriate to
include for PHPs and IOPs. Peer support
workers are people who have been
successful in the recovery process who
help others experiencing similar
situations. Through shared
understanding, respect, and mutual
empowerment, peer support workers
help people become and stay engaged in
the recovery process and reduce the
likelihood of relapse. Peer support
services can effectively extend the reach
of treatment beyond the clinical setting
into the everyday environment of those
seeking a successful, sustained recovery
process. Peer support workers typically
engage in a wide range of activities,
including: advocating for people in
recovery; sharing resources and building
skills; building community and
relationships; leading recovery groups;
and mentoring and setting goals.103 We
are interested in information about any
available codes that would
appropriately describe such services.
In addition, we are soliciting
comments on whether it would be
appropriate to add services related to
coordinating a patient’s discharge from
a PHP or IOP, or their transition from
one level of care to another. We note
that current regulations require
physicians, hospitals, and CMHCs to
address discharge planning for PHP
patients, and we would propose the
same requirements for IOP patients.
Specifically, physician recertification
requirements for PHP at
§ 424.24(e)(3)(iii)(C) state that the
physician’s recertification must address
treatment goals for coordination of
services to facilitate discharge from the
partial hospitalization program. We
propose the same requirement for IOP at
§ 424.24(d)(3)(iii)(C). Additionally,
103 https://www.samhsa.gov/brss-tacs/recoverysupport-tools/peers.
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hospital CoPs at § 482.43, which apply
to hospital outpatient departments
providing PHP and IOP, and CMHC
CoPs at § 485.914(e) require appropriate
discharge planning to meet each
patient’s needs. We are soliciting
comments on whether the codes
proposed in Table 43 represent the
services that PHPs and IOPs provide to
support transition and discharge
planning for their patients, or whether
we should consider additional codes.
We ask commenters to provide as much
detail as possible about the nature of
any additional services, and whether
there are any existing codes that could
describe such services.
Lastly, we note that our analysis of
PHP claims showed that the provision
of testing and diagnostic services is very
low among PHPs, although such
services are covered under the PHP
benefit and we propose to include them
in Table 43 and cover such services
under the IOP benefit as well. We note
that our analysis of non-PHP days with
3 and 4 services, which we believe
could represent IOP days in the future,
shows a higher provision of testing and
diagnostic services than is found among
PHP days. We believe that testing and
diagnostic services would be included
as component services of PHPs and
IOPs, and we are interested in
information from the public about why
PHPs are not more frequently billing for
these services. In particular, we
welcome information from commenters
about whether there are specific
challenges that PHPs face in providing
these services, as well as whether there
are different codes, other than those
proposed in Table 43 that could better
describe the testing and diagnostic
services that are provided to PHP
patients. In addition, we are interested
in understanding whether these services
are typically provided by an entity other
than the PHP, such as by a referring
provider.
D. Proposed Payment Rate Methodology
for PHP and IOP
In summary, we propose for CY 2024
to revise our methodology for
calculating PHP payment rates. We
propose to establish four separate PHP
APC per diem payment rates: one for
CMHCs for 3-service days and another
for CMHCs for 4-service days (APC 5853
and APC 5854, respectively), and one
for hospital-based PHPs for 3-service
days and another for hospital-based
PHPs for 4-service days (APC 5863 and
APC 5864, respectively). In addition, for
hospital-based PHPs, we propose to
calculate payment rates using the
broader OPPS data set, instead of
hospital-based PHP data only, because
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we believe using the broader OPPS data
set would allow CMS to capture data
from claims not identified as PHP, but
that also include the service codes and
intensity required for a PHP day.
Because we propose to establish
consistent coding and payment between
the PHP and IOP benefits, we propose
to consider all OPPS data for PHP days
and non-PHP days that include 3 or
more of the same service codes. We
propose to establish four separate IOP
APC per diem payment rates at the same
rates we propose for PHP APCs: one for
CMHCs for 3-service days and another
for CMHCs for 4-service days (APC 5851
and APC 5852, respectively), and one
for hospital-based IOPs for 3-service
days and another for hospital-based
IOPs for 4-service days (APC 5861 and
APC 5862, respectively).
1. Background
The standard PHP day is typically
four services or more per day. We
currently provide payment for three
services a day for extenuating
circumstances when a beneficiary
would be unable to complete a full day
of PHP treatment. As we stated in the
CY 2008 OPPS/ASC final rule with
comment period (72 FR 66672), it was
never our intention that days with only
three units of service should represent
the number of services provided in a
typical PHP day. Our intention was to
cover days that consisted of three units
of service only in certain limited
circumstances. For example, as we
noted in the CY 2009 OPPS/ASC
proposed rule (73 FR 41513), we believe
3-service days may be appropriate when
a patient is transitioning towards
discharge (or days when a patient who
is transitioning at the beginning of his
or her PHP stay). Another example of
when it may be appropriate for a
program to provide only three units of
service in a day is when a patient is
required to leave the PHP early for the
day due to an unexpected medical
appointment.
2. Current Payment Rate Methodology
for PHP
Since CY 2017, our longstanding
policy has been to pay PHP on a per
diem basis for days that include three or
more PHP services, which are identified
using a defined list of codes in the
Healthcare Common Procedure Coding
System (HCPCS). We currently (for CY
2023) utilize two separate PHP APC per
diem payment rates: CMHC PHP APC
5853 (Partial Hospitalization (three or
More Services Per Day)) using only
CMHC data, and hospital-based PHP
APC 8563 (Partial Hospitalization (three
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or More Services Per Day)) using only
hospital-based PHP data.
Under longstanding OPPS policy, the
hospital-based PHP APC per diem
payment amount is also applied as a
daily mental health cap, which serves as
an upper limit on payment per day for
individual OPPS mental health services.
Under the current methodology, for CY
2023, hospital-based PHPs are paid a
per diem rate of $268.22 for three or
more PHP services per day, and CMHCs
are paid a per diem rate of $142.70 for
three or more PHP services per day. We
refer readers to the PHP ratesetting
methodology described in section
VIII.B.2 of the CY 2016 OPPS/ASC final
rule with comment period (80 FR 70462
through 70466) for information on the
current calculation of geometric mean
per diem costs and payment rates for
PHP APCs 5853 and 5863, and the CY
2017 OPPS/ASC final rule with
comment period (81 FR 79680 through
79687) and the CY 2022 OPPS/ASC
final rule with comment period (86 FR
63665 through 63666) for information
on modifications incorporated into the
PHP ratesetting methodology.
We note that under our current
methodology, we have historically
prepared the data by first applying PHPspecific trims and data exclusions and
assessing CCRs. We direct the reader to
the CY 2016 OPPS/ASC final rule with
comment period (80 FR 70463 through
70465) for a more complete discussion
of these trims, data exclusions, and CCR
adjustments. In prior rules, we have
typically included a discussion of PHPspecific data trims, exclusions, and CCR
adjustments; we are not including that
discussion in this proposed rule. These
PHP-specific data trims and exclusions
addressed limitations as well as
anomalies in the PHP data. However, as
discussed in the following section, we
propose for CY 2024 to calculate
hospital-based PHP payment rates for 3
services per day and 4 services per day
based on cost per day using the broader
OPPS data set. Accordingly, we propose
not to apply PHP-specific trims and data
exclusions, but rather to apply the same
trims and data exclusions consistent
with the OPPS. Additional information
about the data trims, data exclusions,
and CCR adjustments applicable to the
data used for this proposed rule can be
found online at https://www.cms.gov/
Medicare/Medicare-Fee-for-ServicePayment/HospitalOutpatientPPS/
index.html).104
104 Click on the link labeled ‘‘CY 2024 OPPS/ASC
Notice of Proposed Rulemaking’’, which can be
found under the heading ‘‘Hospital Outpatient
Prospective Payment System Rulemaking’’ and
open the claims accounting document link at the
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3. Proposed CY 2024 Payment Rate
Methodology for PHP and IOP
As noted previously, the CAA, 2023
established IOP within the continuum
of care, and the statute makes reference
to weekly hour requirements.
Specifically, IOP patients are required to
be certified by a physician as needing at
least 9 hours of services per week; while
PHP patients are required to be certified
by a physician as needing at least 20
hours of services per week.
While no IOP benefit existed prior to
the CAA, 2023, we note that the types
of items and services included in IOP
have been, and are, paid for by Medicare
either as part of the PHP benefit or
under the OPPS more generally.
Additionally, prior to the CAA, 2023,
CMS had begun gathering information
from interested parties on IOP under
Medicare. In the CY 2023 OPPS/ASC
proposed rule (87 FR 44679), we issued
a comment solicitation on intensive
outpatient mental health treatment,
including SUD treatment furnished by
IOPs, to collect information regarding
whether there are any gaps in coding
that may be limiting access to needed
levels of care for treatment of mental
health disorders or SUDs for Medicare
beneficiaries, and specific information
about IOP services, such as the settings
of care in which these programs
typically furnish services, the range of
services typically offered, and the range
of practitioner types that typically
furnish these services.
Along with the requirements for IOP
mandated by the CAA, 2023, we took
into consideration information we
received from the comment solicitation
to construct an appropriate data set to
develop proposed rates for IOP. Since
IOPs furnish the same types of services
as PHP, just at a lower intensity, we
believe it is appropriate to use the same
data and methodology for calculating
payment rates for both PHP and IOP for
CY 2024. At this time, although PHP
claims can be specifically identified,
there is no specific identifier or billing
code to indicate IOP services. However,
hospitals are permitted to furnish and
bill for many of these services as
outpatient services under the OPPS.
Thus, we analyzed a broader set of data
that includes both PHP and non-PHP
days with 3 or more services in order to
calculate proposed payment for PHP
services. In order to establish consistent
payment between PHP and IOP, we
propose to set IOP payment rates at the
same rates as PHP. The primary goal in
developing the proposed payment rate
methodology for IOP and PHP services
bottom of the page, which is labeled ‘‘2024 NPRM
OPPS Claims Accounting (PDF)’’.
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is to pay providers an appropriate
amount relative to the patients’ needs,
and to avoid cost inversion in future
years.
For CY 2024, we propose to calculate
hospital-based PHP payment rates for 3
services per day and 4 services per day
based on cost per day using the broader
OPPS data set, a change from the
current methodology of using only PHP
data. We believe using the broader
OPPS data set would allow us to capture
data from claims not identified as PHP,
but that include the service codes and
intensity required for a PHP day. The
larger data set would expand the sample
size to allow for more precise rate
calculations. In addition, we propose to
calculate the 3 services per day and 4
services per day PHP rates for CMHCs
and hospital-based programs separately.
We propose to set IOP payment rates for
3 services per day and 4 services per
day equal to the PHP payment rates.
We also propose to set payment rates
for IOP APCs at amounts equal to the
payment rates for PHP APCs. We believe
setting the IOP payment rates equal to
the PHP payments would be appropriate
because IOP is a newly established
benefit, and we do not have definitive
data on utilization. However, both
programs utilize the same services, but
furnish them at different levels of
intensity, with different numbers of
services furnished per day and per
week. depending on the program.
Therefore, we believe it is appropriate to
pay the same per diem rates for IOP and
PHP services unless future data analysis
supports calculating rates
independently.
For beneficiaries in a PHP or IOP, we
propose applying the four-service
payment rate (that is, payment for PHP
APCs 5854 for CMHCs and 5864 for
hospitals, and IOP APCs 5852 for
CMHCs and 5862 for hospitals) for days
with 4 or more services. For days with
three or fewer services, we propose to
apply the three-service payment rate
(that is, payment for PHP APCs 5853 for
CMHCs and 5863 for hospitals, and IOP
APCs 5851 for CMHCs and 5861 for
hospitals), which we note would be a
departure from our current policy.
Under our current policy, we do not
make payment for any PHP days with
fewer than three services, and we have
heard from interested parties that this
policy could discourage treatment of
PHP patients when, due to extenuating
circumstances, they cannot complete a
full day. We believe that paying for a
day with three or fewer services would
allow us to more easily monitor the
actual utilization of services,
particularly IOP. Specifically, we
believe utilizing the three-service
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payment rate (that is, payment for PHP
APCs 5853 for CMHCs and 5863 for
hospitals, and IOP APCs 5851 for
CMHCs and 5861 for hospitals) for days
with three or fewer service would
accommodate occasional instances
when a patient is unable to complete a
full day of PHP or IOP. We expect that
days with fewer than three services
would be very infrequent, and we
intend to monitor the provision of these
days among providers and individual
patients.
Additionally, we propose that the 3
service per day hospital-based PHP APC
per diem payment amount for APC 5863
would also be applied as the daily
mental health cap, which serves as the
upper limit on payment per day for
individual OPPS mental health services.
We believe setting the 3 service per day
hospital-based PHP APC per diem
payment amount as the daily mental
health cap is appropriate because
currently the daily mental health cap is
equal to the payment amount for
hospital-based PHP APC 5863, which is
payment for 3 or more services per day.
Therefore, consistency with the current
daily mental health cap would be
maintained. Additionally, PHP is meant
to be the most intensive mental health
services program, requiring inpatient
care if PHP is not received, and the
daily mental health cap is not expected
to reach such level of intensity. We
believe applying the 3 service per day
hospital-based PHP APC per diem
payment amount for APC 5863 as the
daily mental health cap would preserve
the difference of intensity between PHP
and individual OPPS mental health
services to not incentivize one over the
other. We note that the proposed CY
2024 payment amount for APC 5863
would be comparable to the CY 2023
payment amount for APC 5863, which
is currently applied as the daily mental
health cap.
Lastly, we note that section 4124(c) of
the CAA, 2023 requires that the
payment amount for intensive
outpatient services furnished in FQHCs
and RHCs be equal to the payment
amount that would have been paid for
the same service furnished by a hospital
outpatient department, thus establishing
site-neutral payment for hospital
outpatient departments, FQHCs, and
RHCs. The CAA, 2023 is silent with
respect to the payment methodology for
IOP services provided by CMHCs. Based
on our analysis of CMHC costs, we
continue to observe that CMHCs incur
significantly different costs than
hospitals in the provision of PHP
services, and we anticipate that in the
future there will be significant
differences between CMHCs’ and
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hospitals’ costs of furnishing IOP
services as well. We believe it is
appropriate to continue to recognize the
differences in cost structures for
different providers of PHP. This is of
particular importance not only to the
Medicare program, but also for the
Medicare beneficiaries that CMHCs
serve, who incur a 20 percent copay on
all PHP services under Part B.
Therefore, we propose to continue
calculating CMHC payment rates based
solely on CMHC claims, but we are also
considering whether establishing a siteneutral payment for all providers of IOP
using data from all providers of IOP
would be more appropriate in an effort
to increase access to mental health
services. In order to inform public
awareness, we have calculated
combined payment rates by using the
broader OPPS data from both hospitals
and CMHCs to estimate the costs
associated with providing days with
three and four services from the list of
services in Table 43. These alternative
cost calculations are found in Table 46
in section VIII.D.3.b of this proposed
rule. We are soliciting comments on
whether this approach would be more
appropriate to consider for establishing
payment beginning in CY 2024.
Specifically, we are interested in any
information from commenters on how
IOPs may structure their service days,
and how the differences in cost
structures of CMHCs might affect a siteneutral payment for IOP services. We
are also soliciting comments on any
ways IOP days could differ from PHP
days, and considerations that could
affect payment. The following
paragraphs describe our data analysis,
and proposals for PHP and IOP APCs
beginning in CY 2024.
a. Proposed PHP APC Changes and
Effects on Geometric Mean Per Diem
Costs
For CY 2024 and subsequent years,
we propose a revision to our existing
methodology to calculate the CMHC and
hospital-based PHP geometric mean per
diem costs to incorporate the larger data
set under the OPPS, including PHP and
non-PHP hospital claims for mental
health services. We propose to use the
latest available CY 2022 claims data,
and CY 2021 cost data. This proposal is
consistent with the overall proposed use
of cost data for the OPPS, which is
discussed in section II.A.1.a. of this
proposed rule. In addition, we propose
to establish four separate PHP APC per
diem payment rates: two for CMHCs
(APC 5853 and APC 5854) and two for
hospital-based PHPs (APC 5863 and
APC 5864). Following this proposed
methodology, we propose to use the
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geometric mean per diem cost of $97.59
for CMHCs providing 3-service days
(APC 5853), and the geometric mean per
diem cost of $153.09 for CMHCs
providing 4-service days (APC 5854), as
the basis for developing the CY 2024
CMHC PHP APC per diem rates.
Additionally, we propose to use the
geometric mean per diem cost of
$284.00 for hospital-based providers
providing 3-service days (APC 5863),
and the geometric mean per diem cost
of $368.18 for hospital-based providers
providing 4-service days (APC 5864) as
the basis for developing the CY 2024
hospital-based PHP APC per diem rates.
Lastly, we propose to establish four
separate IOP APC per diem payment
rates: two for CMHCs (APC 5851 and
APC 5852 for 3-service days and 4service days, respectively) and two for
hospital-based IOPs (APC 5861 and APC
5862 for 3-service days and 4-service
days, respectively) using the same above
3-service day and 4-service day
geometric mean per diem costs
proposed for the PHP APC per diem
rates.
b. Development of the PHP and IOP
APC Geometric Mean Per Diem Costs
The types of items and services paid
as PHP (and that will be paid as IOP)
can also be provided outside of those
benefits by hospitals; therefore, we
sought to understand the costs of those
services in our preliminary analysis to
consider options for the proposed
payment rates for IOP services. In
preparation for CY 2024, in
collaboration with physicians, we
developed a consolidated list of all
HCPCS codes that would be appropriate
for identifying IOP and PHP services for
analytic purposes. We refer readers to
section VIII.C of this proposed rule for
more detailed information on the
proposed consolidated list of HCPCS
codes applicable for IOP and PHP
services.
We conducted a preliminary
ratesetting analysis of all CMHC and
hospital claims for patients that had 9
or more hours of behavioral health
services per week. We then identified
IOP as weeks with between 9 and 19
hours of services, and PHP as weeks
with 20 hours or more of services. The
relationship we observed between cost
per day and cost per week suggests that
typical IOP days include about three
services, and typical PHP days include
about four services, which as we noted
previously, is also consistent with the
typical service intensity for PHP.
Next, with this data set, we calculated
the proposed payment rates for hospitalbased providers based on costs for days
with three services and days with four
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services using the data from all OPPS
claims for hospitals, and calculated the
proposed payment rates for CMHCs
based on costs for days with three
services and days with four services
using only the data from CMHC claims.
As discussed in section VIII.B.1.a of the
CY 2022 OPPS/ASC final rule with
comment period (86 FR 63666 through
63668), the costs for CMHC service days
are calculated using cost report
information from HCRIS. Although we
anticipate that IOP weeks would
generally include 9–19 hours of services
and PHP weeks would generally include
20 or more hours of services, we did not
restrict the data for this analysis by
weekly hours. Because IOP is a new
benefit, we do not have definitive data
on utilization. However, if IOP
utilization is similar to the data we
analyzed for beneficiary weeks with 9 to
19 hours of mental health services, then
we expect that IOP days will mostly
include three services or fewer, but may
sometimes include four or more. Given
the uncertainty about how IOPs will
structure their service days in the
future, we believe it is appropriate to
propose 3-service day and 4-service day
APCs for IOP with payment rates that
are the same as the rates for the 3service day and 4-service day APCs we
propose for PHP.
We analyzed all CMHC and hospital
claims data under the OPPS used to set
proposed rates for this CY 2024
proposed rule as described earlier in
this section of this proposed rule. We
identified all patient days that included
three or more services from the list in
Table 43. As discussed in section
VIII.D.3 of this proposed rule, we
propose to calculate PHP payment rates
for days with three services and days
with four services, and we propose to
utilize these proposed PHP payment
rates for the proposed IOP APCs as well.
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We propose to calculate separate rates
for hospitals and CMHCs.
c. Proposed CY 2024 PHP and IOP APC
Geometric Mean Per Diem Costs
Following this proposed structure, the
calculated CY 2024 PHP geometric
mean per diem cost for all CMHCs for
providing 3 services per day is $97.59,
which we propose to use for calculating
the payment rate for the 3-service day
APC, CMHC APC 5853. The calculated
CY 2024 geometric mean per diem cost
for all CMHCs for providing four or
more services per day is $153.09, which
we propose to use for calculating the
payment rate for the 4-service day APC,
CMHC APC 5854. As noted, the
calculated CY 2024 hospital-based PHP
APC geometric mean per diem cost for
hospital-based PHP providers that
provide 3 services per service day is
$284.00, which we propose to use for
calculating the payment rate for the 3service day hospital-based PHP APC
5863. The calculated CY 2024 hospitalbased PHP APC geometric mean per
diem cost for hospital-based PHP
providers that provide 4 services per
day is $368.18, which we propose to use
for calculating the payment rate for the
4-service day hospital-based PHP APC
5864.
Similarly, the calculated CY 2024 IOP
geometric mean per diem cost for all
CMHCs for providing 3 services per day
is $97.59, which we propose to use for
calculating the payment rate for the 3service day APC, CMHC APC 5851. The
calculated CY 2024 geometric mean per
diem cost for all CMHCs for providing
4 or more services per day is $153.09,
which we propose to use for calculating
the payment rate for the 4-service day
APC, CMHC APC 5852. The calculated
CY 2024 hospital-based IOP APC
geometric mean per diem cost for
hospital-based IOP providers that
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provide 3 services per service day is
$284.00, which we propose to use for
calculating the payment rate for the 3service day hospital-based IOP APC
5861. The calculated CY 2024 hospitalbased IOP APC geometric mean per
diem cost for hospital-based IOP
providers that provide 4 services per
day is $368.18, which we propose to use
for calculating the payment rate for the
4-service day hospital-based IOP APC
5862.
We intend to monitor the provision of
services in both PHP and IOP programs
to better understand utilization patterns,
and propose to set equal payment rates
for PHP and IOP services until actual
IOP utilization data becomes available
for CY 2026 ratesetting, at which point
we anticipate reevaluating our payment
rate methodology if necessary.
In addition, we are soliciting
comments on the service mix used to
develop the per diem amounts for both
PHP and IOP. We are interested in
whether the proposed approach is
appropriate, and any feedback
commenters have on the service mix
provided within each program.
The proposed CY 2024 PHP geometric
mean per diem costs are shown in Table
45 and are used to derive the proposed
CY 2024 PHP APC per diem rates for
CMHCs and hospital-based PHPs. As
stated in section VIII.D.3 of this
proposed rule, we propose to use the
same 3-service day and 4-service day
geometric mean per diem PHP costs for
the CY 2024 CMHC and hospital-based
IOP APCs. The proposed CY 2024 PHP
and IOP APC per diem rates are
included in Addendum A to this
proposed rule (which is available on our
website at: https://www.cms.gov/
Medicare/Medicare-Fee-for-ServicePayment/HospitalOutpatientPPS/
Hospital-Outpatient-Regulations-andNotices.html) and in Table 45.
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Alternatively, as discussed earlier in
this section, we are considering
establishing combined payment rates for
hospitals and CMHCs based on the
calculated costs per day for days with 3
services and 4 or more services, using
all OPPS claims. These alternative CY
2024 PHP geometric mean per diem
costs are shown in Table 46.
E. Proposed Outlier Policy for CMHCs
For CY 2024, we propose to update
the calculations of the CMHC outlier
percentage, cutoff point and percentage
payment amount, outlier reconciliation,
outlier payment cap, and fixed dollar
threshold according to previously
established policies to include intensive
outpatient services. These topics are
discussed in more detail. We refer
readers to section II.G.1 of this proposed
rule for our general policies for hospital
outpatient outlier payments.
outlier percentage target amount and
threshold established for hospitals.
Therefore, beginning in CY 2004, we
created a separate outlier policy specific
to the estimated costs and OPPS
payments provided to CMHCs. We
designated a portion of the estimated
OPPS outlier threshold specifically for
CMHCs, consistent with the percentage
of projected payments to CMHCs under
the OPPS each year, excluding outlier
payments, and established a separate
outlier threshold for CMHCs. This
separate outlier threshold for CMHCs
resulted in $1.8 million in outlier
payments to CMHCs in CY 2004 and
$0.5 million in outlier payments to
CMHCs in CY 2005 (82 FR 59381). In
contrast, in CY 2003, more than $30
million was paid to CMHCs in outlier
payments (82 FR 59381).
through 59268), we described the
current outlier policy for hospital
outpatient payments and CMHCs. We
note that we also discussed our outlier
policy for CMHCs in more detail in
section VIII.C of that same final rule (82
FR 59381). We set our projected target
for all OPPS aggregate outlier payments
at 1.0 percent of the estimated aggregate
total payments under the OPPS (82 FR
59267). This same policy was also
reiterated in the CY 2019 OPPS/ASC
final rule with comment period (83 FR
58996), the CY 2020 OPPS/ASC final
rule with comment period (84 FR
61350), and the CY 2021 OPPS/ASC
final rule with comment period (85 FR
86082).
We estimated CMHC per diem
payments and outlier payments for this
proposed rule by using the most recent
available utilization and charges from
CMHC claims, updated CCRs, and the
proposed payment rates for PHP APCs
5853 and 5854. We recognize that
1. Background
As discussed in the CY 2004 OPPS
final rule with comment period (68 FR
63469 through 63470), we noted a
significant difference in the amount of
outlier payments made to hospitals and
CMHCs for PHP services. Given the
difference in PHP charges between
hospitals and CMHCs, we did not
believe it was appropriate to make
outlier payments to CMHCs using the
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2. CMHC Outlier Percentage
In the CY 2018 OPPS/ASC final rule
with comment period (82 FR 59267
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CMHCs would be permitted to provide
and bill for IOP beginning in CY 2024,
and would be paid under IOP APCs
5851 and 5852. However, we have not
included estimates of utilization for
these APCs, because the latest available
claims from CY 2022 do not reflect the
provision of IOP services. For increased
transparency, we are providing a more
detailed explanation of the existing
calculation process for determining the
CMHC outlier percentages. To calculate
the CMHC outlier percentage, we follow
three steps:
• Step 1: We multiply the OPPS
outlier threshold, which is 1.0 percent,
by the total estimated OPPS Medicare
payments (before outliers) for the
prospective year to calculate the
estimated total OPPS outlier payments:
(0.01 × Estimated Total OPPS Payments)
= Estimated Total OPPS Outlier
Payments.
• Step 2: We estimate CMHC outlier
payments by taking each provider’s
estimated costs (based on their
allowable charges multiplied by the
provider’s CCR) minus each provider’s
estimated CMHC outlier multiplier
threshold (we refer readers to section
VIII.C.3 of the CY 2022 OPPS/ASC
proposed rule). That threshold is
determined by multiplying the
provider’s estimated paid days by 3.4
times the total of CMHC PHP APC and
CMHC IOP payment rates. If the
provider’s costs exceed the threshold,
we multiply that excess by 50 percent,
as described in section VIII.E.3 of this
proposed rule, to determine the
estimated outlier payments for that
provider. CMHC outlier payments are
capped at 8 percent of the provider’s
estimated total per diem payments
(including the beneficiary’s copayment),
as described in section VIII.E.5 of this
proposed rule, so any provider’s costs
that exceed the CMHC outlier cap will
have its payments adjusted downward.
After accounting for the CMHC outlier
cap, we sum all of the estimated outlier
payments to determine the estimated
total CMHC outlier payments.
(Each Provider’s Estimated Costs—Each
Provider’s Estimated Multiplier
Threshold) = A. If A is greater than
0, then (A × 0.50) = Estimated
CMHC Outlier Payment (before cap)
= B. If B is greater than (0.08 ×
Provider’s Total Estimated Per Diem
Payments), then cap adjusted B =
(0.08 × Provider’s Total Estimated
Per Diem Payments); otherwise, B =
B. Sum (B or cap- adjusted- B) for
Each Provider = Total CMHC
Outlier Payments.
• Step 3: We determine the
percentage of all OPPS outlier payments
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that CMHCs represent by dividing the
estimated CMHC outlier payments from
Step 2 by the total OPPS outlier
payments from Step 1:
(Estimated CMHC Outlier Payments/
Total OPPS Outlier Payments).
We propose to continue to calculate
the CMHC outlier percentage according
to previously established policies.
However, beginning in CY 2024, CMHCs
will be permitted to provide and bill for
intensive outpatient services for
Medicare patients. Therefore, we
propose to expand the calculation of the
CMHC outlier percentage to include
PHP and IOP, because we anticipate that
total payments will increase for CMHCs
in CY 2024. We propose to maintain our
current methodology for calculating the
CMHC outlier percentage, but to apply
it to payments for IOP services as well
as PHP services beginning in CY 2024.
Therefore, based on our CY 2024
payment estimates, including our
estimates of both PHP and IOP services,
CMHCs are projected to receive 0.01
percent of total hospital outpatient
payments in CY 2024, excluding outlier
payments. We propose to designate
approximately less than 0.01 percent of
the estimated 1.0 percent hospital
outpatient outlier threshold for CMHCs.
This percentage is based upon the
formula given in Step 3.
3. Cutoff Point and Percentage Payment
Amount
As described in the CY 2018 OPPS/
ASC final rule with comment period (82
FR 59381), our policy has been to pay
CMHCs for outliers if the estimated cost
of the day exceeds a cutoff point. In CY
2006, we set the cutoff point for outlier
payments at 3.4 times the highest CMHC
PHP APC payment rate implemented for
that calendar year (70 FR 68551). For CY
2018, the highest CMHC PHP APC
payment rate was the payment rate for
CMHC PHP APC 5853. In addition, in
CY 2002, the final OPPS outlier
payment percentage for costs above the
multiplier threshold was set at 50
percent (66 FR 59889). In CY 2018, we
continued to apply the same 50 percent
outlier payment percentage that applies
to hospitals to CMHCs and continued to
use the existing cutoff point (82 FR
59381). Therefore, for CY 2018, we
continued to pay for partial
hospitalization services that exceeded
3.4 times the CMHC PHP APC payment
rate at 50 percent of the amount of
CMHC PHP APC geometric mean per
diem costs over the cutoff point. For
example, for CY 2018, if a CMHC’s cost
for partial hospitalization services paid
under CMHC PHP APC 5853 exceeded
3.4 times the CY 2018 payment rate for
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CMHC PHP APC 5853, the outlier
payment would be calculated as 50
percent of the amount by which the cost
exceeds 3.4 times the CY 2018 payment
rate for CMHC PHP APC 5853 [0.50 ×
(CMHC Cost ¥(3.4 × APC 5853 rate))].
This same policy was also reiterated in
the CY 2019 OPPS/ASC final rule with
comment period (83 FR 58996 through
58997), CY 2020 OPPS/ASC final rule
with comment period (84 FR 61351), the
CY 2021 OPPS/ASC final rule with
comment period (85 FR 86082 through
86083), the CY 2022 OPPS/ASC final
rule with comment period (86 FR
63670), and the CY 2023 OPPS/ASC
final rule with comment period (87 FR
72004). For CY 2024, we propose to
continue to pay for partial
hospitalization services that exceed 3.4
times the proposed CMHC PHP APC
payment rate at 50 percent of the CMHC
PHP APC geometric mean per diem
costs over the cutoff point. In addition,
we propose to extend this policy to
intensive outpatient services. That is,
for CY 2024, if a CMHC’s cost for partial
hospitalization services paid under
CMHC PHP APCs 5853 or 5854 exceeds
3.4 times the payment rate for the APC
(either CMHC APC 5853 or 5854), the
outlier payment would be calculated as:
[0.50 × (CMHC cost ¥ (3.4 × (PHP APC
payment)))].
Similarly, if a CMHC’s cost for
intensive outpatient services paid under
CMHC IOP APCs 5851 or 5852 exceeds
3.4 times the payment rate for the APC
(either CMHC APCs 5851 or 5852), the
outlier payment would be calculated as:
[0.50 × (CMHC cost ¥ (3.4 × (IOP APC
payment)))].
4. Outlier Reconciliation
In the CY 2009 OPPS/ASC final rule
with comment period (73 FR 68594
through 68599), we established an
outlier reconciliation policy to address
charging aberrations related to OPPS
outlier payments. We addressed
vulnerabilities in the OPPS outlier
payment system that led to differences
between billed charges and charges
included in the overall CCR, which are
used to estimate cost and would apply
to all hospitals and CMHCs paid under
the OPPS. We initiated steps to ensure
that outlier payments appropriately
account for the financial risk when
providing an extraordinarily costly and
complex service, but are only being
made for services that legitimately
qualify for the additional payment.
For a comprehensive description of
outlier reconciliation, we refer readers
to the CY 2023 OPPS/ASC and CY 2019
OPPS/ASC final rules with comment
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period (83 FR 58874 through 58875 and
81 FR 79678 through 79680).
We propose to continue these policies
for partial hospitalization services
provided through PHPs for CY 2024. In
addition, since CMHCs will be
permitted to provide and bill for
intensive outpatient services for
Medicare patients we propose to extend
these policies to include intensive
outpatient services in order to
encompass the full scope of services
that CMHCs will be permitted to
furnish. The current outlier
reconciliation policy requires that
providers whose outlier payments meet
a specified threshold and whose overall
ancillary CCRs change by plus or minus
10 percentage points or more, are
subject to outlier reconciliation,
pending approval of the CMS Central
Office and Regional Office (as
established in the CY 2009 OPPS/ASC
final rule with comment period (73 FR
68596 through 68599)). We note that the
current threshold for outlier
reconciliation for hospitals is $500,000,
and there is no threshold for CMHCs
(that is, all outlier payments are subject
to reconciliation for CMHCs whose
overall ancillary CCRs change by plus or
minus 10 percentage points or more).
The policy also includes provisions
related to CCRs and to calculating the
time value of money for reconciled
outlier payments due to or due from
Medicare, as detailed in the CY 2009
OPPS/ASC final rule with comment
period and in the Medicare Claims
Processing Manual (73 FR 68595
through 68599 and Medicare Claims
Processing internet Only Manual,
Chapter 4, Section 10.7.2 and its
subsections, available at: https://
www.cms.gov/Regulations-andGuidance/Guidance/Manuals/
Downloads/clm104c04.pdf).
5. Outlier Payment Cap
In the CY 2017 OPPS/ASC final rule
with comment period, we implemented
a CMHC outlier payment cap to be
applied at the provider level, such that
in any given year, an individual CMHC
will receive no more than a set
percentage of its CMHC total per diem
payments in outlier payments (81 FR
79692 through 79695). Our analysis of
CY 2014 claims data found that CMHC
outlier payments began to increase
similarly to the way they had prior to
CY 2004. This was due to inflated cost
from three CMHCs that accounted for 98
percent of all CMHC outlier payments
that year and received outlier payments
that ranged from 104 percent to 713
percent of their total per diem
payments. To balance our concern about
disadvantaging CMHCs with our interest
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in protecting the benefit from excessive
outlier payments and to mitigate
potential inappropriate outlier billing
vulnerabilities, we finalized the CMHC
outlier payment cap at 8 percent of the
CMHC’s total per diem payments (81 FR
79694 through 79695) to limit the
impact of inflated CMHC charges on
outlier payments. This outlier payment
cap only affects CMHCs, it does not
affect other provider types (that is,
hospital-based PHPs), and is in addition
to and separate from the current outlier
policy and reconciliation policy in
effect. In the CY 2020 OPPS/ASC final
rule with comment period (84 FR
61351), we finalized a proposal to
continue this policy in CY 2020 and
subsequent years. We propose to
maintain the 8 percent outlier payment
cap for CY 2024 and apply it to both
PHP and IOP payments. We note that
the 8 percent would be calculated as 8
percent of total per diem PHP and IOP
payments for CY 2024. As discussed
earlier in this proposed rule, beginning
in CY 2024, CMHCs will be permitted
to provide and bill for intensive
outpatient services for Medicare
patients. Therefore, we propose to
expand the calculation of the CMHC
outlier cap to include both PHP and
IOP, because we anticipate that total
payments will increase for CMHCs in
CY 2024. Therefore, we propose to
calculate the 8 percent outlier payment
cap for each CMHC in a way that would
encompass the full scope of services
that CMHCs will be permitted to furnish
in CY 2024.
6. Fixed-Dollar Threshold
In the CY 2018 OPPS/ASC final rule
with comment period (82 FR 59267
through 59268), for the hospital
outpatient outlier payment policy, we
set a fixed-dollar threshold in addition
to an APC multiplier threshold. Fixeddollar thresholds are typically used to
drive outlier payments for very costly
items or services, such as cardiac
pacemaker insertions. Currently, for CY
2023, CMHC PHP APC 5853 is the only
APC for which CMHCs may receive
payment under the OPPS, and is for
providing a defined set of services that
are relatively low cost when compared
to other OPPS services. Because of the
relatively low cost of CMHC services
that are used to comprise the structure
of CMHC PHP APC 5853, it is not
necessary to also impose a fixed-dollar
threshold on CMHCs. Therefore, in the
CY 2018 OPPS/ASC final rule with
comment period, we did not set a fixeddollar threshold for CMHC outlier
payments (82 FR 59381). This same
policy was also reiterated in the CY
2020 OPPS/ASC final rule with
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comment period (84 FR 61351), the CY
2021 OPPS/ASC final rule with
comment period (85 FR 86083), the CY
2022 OPPS/ASC final rule with
comment period (86 FR 63508), and the
CY 2023 OPPS/ASC final rule with
comment period (87 FR 72004). We
propose to continue this policy for CY
2024 and not set a fixed-dollar threshold
for the CMHC PHP APCs (5853 or 5854)
or IOP APCs (5851 or 5852).
F. Rural Health Clinics (RHCs) and
Federally Qualified Health Centers
(FQHCs)
1. Background
a. Statutory Background
The Rural Health Clinic Services Act
of 1977 (Pub. L. 95–210, December 13,
1977), amended the Act by enacting
section 1861(aa)(1) of the Act to extend
Medicare and Medicaid entitlement and
payment for primary and emergency
care services furnished at a rural health
clinic (RHC) by physicians and certain
nonphysician practitioners, and for
services and supplies incidental to their
services. ‘‘Nonphysician practitioners’’
included nurse practitioners and
physician assistants. (Subsequent
legislation extended the definition of
covered RHC services to include the
services of clinical psychologists,
clinical social workers, certified nurse
midwives, marriage and family
therapist, and mental health
counselors). The statutory payment
requirements for RHC services are set
forth at section 1833(a)(3) of the Act,
which states that RHCs are paid
reasonable costs, less the amount a
provider may charge as described in
clause of section 1866(a)(2)(A) of the
Act, but in no case may the payment
exceed 80 percent of such costs.
Section 4161 of the Omnibus Budget
Reconciliation Act of 1990 (Pub. L. 101–
508, November 5, 1990) (OBRA 90)
established Federally Qualified Health
Centers (FQHCs) in 1990 to be effective
beginning on October 1, 1991. The law
mandated that FQHCs furnish services
that are typically furnished in an
outpatient setting.
Section 1861(aa)(3) of the Act extends
Medicare and Medicaid entitlement and
payment for those services defined as
RHC services under section 1861(aa)(1)
of the Act, preventive services defined
under section 1861(ddd)(3) of the Act,
and preventive primary health services
that a center is required to provide
under section 330 of the Public Health
Service Act furnished at a FQHC.
Section 1861(aa)(4) of the Act describes
the statutory requirements that FQHCs
must meet to qualify for Medicare
payment. Section 10501(i)(3)(A) of the
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Affordable (Pub. L. 111–148) added
section 1834(o) of the Act to establish a
new system of payment for the costs of
FQHC services under Medicare Part B
(Supplemental Medical Insurance)
based on prospectively set rates. Section
1834(o)(2)(A) of the Act, the FQHC
prospective payment system (PPS) was
effective beginning on October 1, 2014.
In addition, section 10501(i)(3)(B) of the
Affordable Care Act added section
1833(a)(1)(Z) to the Act to specify that
Medicare payment for FQHC services
under section 1834(o) of the Act shall be
80 percent of the lesser of the actual
charge or the amount determined under
section 1834(o) of the Act.
Regulations pertaining to RHC and
FQHC benefits are codified at 42 CFR
part 405 subpart X.
b. Medicare Part B Payment of RHC and
FQHC Services
As provided in 42 CFR part 405,
subpart X of our regulations, RHC and
FQHC visits generally are face-to-face
encounters between a patient and one or
more RHC or FQHC practitioners during
which one or more RHC or FQHC
qualifying services are furnished. RHC
and FQHC practitioners are physicians,
NPs, PAs, CNMs, clinical psychologists
(CPs), and clinical social workers, and
under certain conditions, a registered
nurse or licensed practical nurse
furnishing care to a homebound RHC or
FQHC patient in an area with a shortage
of home health agencies. We note,
effective January 1, 2024, marriage and
family therapist and mental health
counselor services are considered RHC
services in accordance with section
1861(aa)(1)(B) of the Act as amended by
section 4121(b) of CAA, 2023, which is
incorporated into FQHC services
through section 1861(aa)(3)(A) of the
Act. In the CY 2024 PFS proposed rule,
we propose to codify payment for MFTs
and MHCs at § 405.2411. Only
medically necessary medical, mental
health, or qualified preventive health
services that require the skill level of an
RHC or FQHC practitioner are RHC or
FQHC billable visits. Services furnished
by auxiliary personnel (for example,
nurses, medical assistants, or other
clinical personnel acting under the
supervision of the RHC or FQHC
practitioner) are considered incident to
the visit and are included in the pervisit payment.
Section 130 of the Consolidated
Appropriations Act, 2021 (CAA, 2021)
(Pub. L. 116–260, December 27, 2020),
updated section 1833(f) of the Act by
restructuring the payment limits for
RHCs beginning April 1, 2021. As of
April 1, 2021, all RHCs are subject to
payment limits on the all-inclusive rate
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(AIR), and this limit will be determined
for each RHC in accordance with section
1833(f) of the Act. RHCs generally are
paid an AIR for all medically necessary
medical and mental health services and
qualified preventive health services
furnished on the same day (with some
exceptions). The AIR is subject to a
payment limit, meaning that an RHC
will not receive any payment beyond
the specified limit amount.
FQHCs were paid under the same AIR
methodology until October 1, 2014.
Subsequently, FQHCs began to
transition to the FQHC PPS system, in
which they are paid based on the lesser
of the FQHC PPS rate or their actual
charges. The FQHC PPS rate is adjusted
for geographic differences in the cost of
services by the FQHC PPS geographic
adjustment factor (GAF). The rate is
increased by 34 percent when an FQHC
furnishes care to a patient that is new
to the FQHC, or to a beneficiary
receiving an initial preventive physical
examination (IPPE) or has an annual
wellness visit (AWV).
Both the RHC AIR and FQHC PPS
payment rates were designed to reflect
the cost of all services and supplies that
an RHC or FQHC furnishes to a patient
in a single day. The rates are not
adjusted for the complexity of the
patient health care needs, the length of
the visit, or the number or type of
practitioners involved in the patient’s
care. RHCs and FQHCs are required to
file a cost report annually to determine
their payment rate, which reflects
adjustments for GME payments, bad
debt, and influenza, pneumococcal and
COVID–19 vaccines and covered
monoclonal antibody products used as
pre-exposure prophylaxis prevention of
COVID–19 and their administration.
There are additional payments for
non-face-to-face services for care
management services including chronic
care management (CCM), principal care
management (PCM), chronic pain
management (CPM), general behavior
health integration (GBHI), psychiatric
collaborative care model (CoCM), and
virtual communications (§ 405.2464(c)).
Additionally, for FQHCs,
§ 405.2462(d) describes a
‘‘grandfathered tribal FQHC’’ as a FQHC
that is operated by a tribe or tribal
organization under the ISDEAA; was
billing as if it were a provider-based to
an Indian Health Service (IHS) hospital
on or before April 7, 2000 and is not
currently operating as a provider-based
department of an IHS hospital. We refer
to these tribal FQHCs as ‘‘grandfathered
tribal FQHCs’’ to distinguish them from
freestanding tribal FQHCs that are
currently being paid the lesser of their
charges or the adjusted national FQHC
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PPS rate, and from provider-based tribal
clinics that may have begun operations
subsequent to April 7, 2000.
Under the authority in section 1834(o)
of the Act to include adjustments
determined appropriate by the
Secretary, we revised §§ 405.2462 and
405.2464 to pay these grandfathered
tribal FQHCs on the Medicare
outpatient per visit rate as set annually
by the IHS, and not the FQHC PPS
payment rates (80 FR 71089). Such
payment rates for outpatient medical
care (also referred to as outpatient
hospital services) furnished by the IHS
and tribal facilities is set annually by
the IHS under the authority of sections
321(a) and 322(b) of the Public Health
Service Act (the PHS Act) (42 U.S.C. 248
and 249(b)) (Pub. L. 83–568 (42 U.S.C.
2001(a)), and the IHCIA, based on the
previous year cost reports from Federal
and tribal hospitals. The outpatient per
visit rate is only applicable for those
IHS or tribal facilities that meet the
definition of a provider-based
department as described at § 413.65(m),
or a ‘‘grandfathered’’ tribal FQHC as
described at § 405.2462(d)(1). There is a
higher outpatient per visit rate for IHS
and tribal Medicare visits in Alaska and
a lower general outpatient per visit rate
for IHS/tribal Medicare visits in the
lower 48 States (IHS does not operate
any hospitals or facilities in Hawaii or
the territories, and thus, no rates are set
in those localities). For CY 2023, the
outpatient per visit rate for Medicare
visits in Alaska is $801 and $620 in the
lower 48 States.105
2. Establishment of Intensive Outpatient
Services Benefit by Section 4124 of the
CAA, 2023
a. Section 4124 of the Consolidated
Appropriations Act of 2023
As discussed in section VIII.B.1 of
this proposed rule, section 4124 of
Division FF of the CAA, 2023, entitled
‘‘Ensuring Adequate Coverage of
Outpatient Mental Health Services
Under the Medicare Program,’’
established Medicare coverage for
intensive outpatient program (IOP)
services furnished by a hospital to its
outpatients, or by a community mental
health center (CMHC)), a FQHC or a
RHC, as a distinct and organized
intensive ambulatory treatment service
offering less than 24-hour daily care in
a location other than an individual’s
home or inpatient or residential setting,
effective January 1, 2024.
An IOP is a distinct and organized
outpatient program of psychiatric
services provided for individuals who
105 https://www.govinfo.gov/content/pkg/FR2023-02-27/padf/2023-03896.pdf.
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have an acute mental illness, which
includes, but is not limited to
conditions such as depression,
schizophrenia, and substance use
disorders. Generally speaking, an IOP is
thought to be less intensive than a
partial hospitalization program (PHP).
This new provision mandated several
changes to the RHC and FQHC policies,
including scope of benefits and services,
certification and plan of care
requirements, and special payment rules
for IOP services in RHCs and FQHCs, all
of which are discussed in the
paragraphs below.
3. IOP Scope of Benefits and Scope of
Services in RHC and FQHC Settings
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a. Background
As described in section 1861(aa) of
the Act and codified under §§ 405.2411
and 405.2446, the current scope of
benefits for RHC and FQHC services are
those services covered in a RHC, FQHC,
or other outpatient setting, including a
patient’s place of residence, or a
Medicare-covered Part A skilled nursing
facility (SNF) when provided by a
physician, nurse practitioner, physician
assistant, certified nurse midwife,
clinical psychologist, or a clinical social
worker. RHC/FQHC services may also
be covered for individuals who have
elected hospice when provided by an
RHC/FQHC physician, nurse
practitioner, or physician assistant
employed or under contract with the
RHC or FQHC at the time the services
are furnished, who has been designated
by the patient as his or her attending
physician. Starting January 1, 2024,
services of a marriage and family
therapist (MFT) or mental health
counselor (MHC) are covered under
RHC/FQHC services if such MFT or
MHC is employed or under contract
with the RHC or FQHC at the time the
services are furnished.
As defined in § 405.2415, RHCs and
FQHCs furnish physicians’ services;
services and supplies ‘‘incident to’’ the
services of physicians: Nurse
practitioner (NP), physician assistant
(PA), certified nurse-midwife (CNM),
clinical psychologist (CP), and clinical
social worker (CSW) services; and
services and supplies incident to the
services of NPs, PAs, CNMs, CPs, and
CSWs. They may also furnish diabetes
self-management training and medical
nutrition therapy (DSMT/MNT),
transitional care management (TCM)
services, and in some cases, visiting
nurse services furnished by a registered
professional nurse or a licensed
practical nurse.
Only medically necessary medical,
mental health, or qualified preventive
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health services that require the skill
level of an RHC or FQHC practitioner
are RHC or FQHC billable visits.
Services furnished by auxiliary
personnel (for example, nurses, medical
assistants, or other clinical personnel
acting under the supervision of the RHC
or FQHC practitioner) are considered
incident to the visit and are included in
the per-visit payment.
RHC and FQHC services also include
certain preventive services when
specified in statute or when established
through the National Coverage
Determination (NCD) process. RHCs and
FQHCs are paid for the professional
component of allowable preventive
services when all of the program
requirements are met and frequency
limits (where applicable) have not been
exceeded.
Section 4124(b)(4) of the CAA, 2023,
amended section 1861(aa)(1) of the Act
by adding subparagraph (D) to establish
Medicare Part B coverage for IOP
services as defined in section 1861(ff)(4)
of the Act when these services are
furnished by RHCs, which is
incorporated for FQHCs by reference in
section 1861(aa)(3)(A) of the Act,
effective January 1, 2024. Section
1861(ff)(2) of the Act describes the items
and services available under the PHP
and IOP benefits. These items and
services include: individual and group
therapy with physicians or
psychologists (or other mental health
professionals to the extent authorized
under State law); occupational therapy
requiring the skills of a qualified
occupational therapist; services of social
workers, trained psychiatric nurses, and
other staff trained to work with
psychiatric patients; drugs and
biologicals furnished for therapeutic
purposes (which cannot, as determined
in accordance with regulations, be selfadministered); individualized activity
therapies that are not primarily
recreational or diversionary; family
counseling (the primary purpose of
which is treatment of the individual’s
condition); patient training and
education (to the extent that training
and educational activities are closely
and clearly related to individual’s care
and treatment); diagnostic services; and
such other items and services as the
Secretary may provide (excluding meals
and transportation) that are reasonable
and necessary for the diagnosis or active
treatment of the individual’s condition,
reasonably expected to improve or
maintain the individual’s condition and
functional level and to prevent relapse
or hospitalization, and furnished
pursuant to such guidelines relating to
frequency and duration of services as
the Secretary shall by regulation
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establish, taking into account accepted
norms of medical practice and the
reasonable expectation of patient
improvement.
To be consistent with the scope of
benefits required for IOP services, we
propose to adopt the same standards for
IOP services furnished in RHCs and
FQHCs as described in section VIII.B.2
‘‘IOP Scope of Benefits’’ of this
proposed rule. Specifically, this would
include individual and group therapy,
occupational therapy, drugs and
biologicals furnished for therapeutic
purposes, which cannot be selfadministered, family counseling,
beneficiary education, and diagnostic
services. In order to expand access to
behavioral health treatment for
Medicare beneficiaries and to ensure
continuity of care for IOP services to
best meet patient needs, we propose to
make conforming regulatory changes to
applicable RHC and FQHC regulations
at 42 CFR part 405, subpart X,
specifically,
• At § 405.2401, Scope and
definitions, we propose to amend the
section to add IOP services.
• At § 405.2411, Scope of benefits, we
propose to amend the section to include
IOP services.
• At § 405.2446, Scope of services, we
propose to amend this section to
include IOP services.
b. Certification and Plan of Care
Requirements for IOPs in RHC and
FQHC Settings
Section 4124(b)(2)(B) of the CAA,
2023 amended section 1861(ff) of the
Act to add paragraph (4) to define
intensive outpatient services as the
items and services prescribed by a
physician for an individual determined
(not less frequently than once every
other month) by a physician to have a
need for such services for a minimum of
9 hours per week and provided under a
program described in paragraph (3) (that
is, an outpatient program of mostly
mental health related services and
therapies provided by a hospital or
CMHC on an outpatient basis) under the
supervision of a physician. The services
must be provided pursuant to an
individualized, written plan of
treatment established and periodically
reviewed by a physician (in
consultation with appropriate staff
participating in such program), which
sets forth the physician’s diagnosis, the
type, amount, frequency, and duration
of the items and services provided
under the plan, and the goals for
treatment under the plan. For patients of
an IOP, section 1835(a)(2)(F)(i) of the
Act does not apply, that is, individuals
receiving IOP would not require
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inpatient psychiatric care in the absence
of such services.
In order to be consistent with
physician certification and plan of care
requirements required for IOP furnished
in different care settings, we propose to
adopt the same standards for RHCs and
FQHCs providing such services as
described in section VIII.B.3 ‘‘IOP
Certification and Plan of Care
Requirements’’ of this proposed rule.
Specifically, this would require
physicians to certify that an individual
needs IOP services for a minimum of 9
hours per week and no more than 19
hours per week, as set out in section
4124 of CAA, 2023. This certification
would require documentation to include
that the individual requires such
services for a minimum of 9 hours per
week; require the first certification as of
the 30th day of IOP services; and require
that the certification of IOP services
occur no less frequently than every
other month. Accordingly, we propose
to revise our regulations at 42 CFR part
405, subpart X to specify that for the
purpose of furnishing IOP services
RHCs and FQHCs must similarly meet
the certification and plan of care
requirements at proposed § 424.24(d).
Lastly, we propose to establish the
same patient eligibility criteria for
intensive outpatient services as
described in proposed § 410.44(c).
Specifically, we propose that intensive
outpatient services are intended for
patients who: (1) require a minimum of
9 hours per week of therapeutic services
as evidenced in their plan of care; (2)
are likely to benefit from a coordinated
program of services and require more
than isolated sessions of outpatient
treatment; (3) do not require 24-hour
care; (4) have an adequate support
system while not actively engaged in the
program; (5) have a mental health
diagnosis; (6) are not judged to be
dangerous to self or others; and (7) have
the cognitive and emotional ability to
participate in the active treatment
process and can tolerate the intensity of
the intensive outpatient program.
4. Special Payment Rules for Intensive
Outpatient Services
Under Medicare Part B, payment to
RHCs for services (defined in
§ 405.2411) furnished to beneficiaries is
made on the basis of an all-inclusive
payment methodology subject to a
maximum payment per-visit and annual
reconciliation. Our regulations at
§ 405.2470 provide that RHCs are
required to submit cost reports to allow
the Medicare Administrative Contractor
(MAC) to determine payment in
accordance with 42 CFR part 405,
subpart X, and instructions issued by
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CMS. The beneficiary is responsible for
the Medicare Part B deductible and
coinsurance amounts. Section
1866(a)(2)(A)(ii) of the Act and
implementing regulations at
§ 405.2410(b) establish beneficiary
coinsurance at an amount not to exceed
20 percent of the clinic’s reasonable
charges for covered services.
Under Medicare Part B, FQHCs are
paid under the FQHC PPS for services
(defined in § 405.2446) furnished to
beneficiaries. The statutory payment
requirements for FQHC services are set
forth at section 1834(o) of the Act. In
addition, section 1833(a)(1)(Z) to the
Act requires Medicare payment for
FQHC services, determined under
section 1834(o) of the Act, to be 80
percent of the lesser of the actual charge
or the amount determined under section
1834(o) of the Act. Under the FQHC
PPS, FQHCs are paid based on the lesser
of the FQHC’s actual charge for the
service or the PPS rate
(§ 405.2462(g)(1)). The FQHC PPS rate is
subsequently adjusted for certain
circumstances as described under
§ 405.2464(b)(2). The Medicare Part B
deductible does not apply to FQHC
services. The beneficiary is responsible
for a coinsurance amount of 20 percent
of the lesser of the FQHC’s actual charge
for the service or the adjusted PPS rate.
As we discuss in the CY 2021 PFS
final rule (85 FR 84699 through 84710),
the FQHC PPS base payment is annually
increased by the percentage increase in
the FQHC market basket, which reflects
the operating and capital cost structures
for freestanding FQHC facilities.
Beginning with CY 2017, FQHC PPS
payments were updated using a 2013based FQHC market basket. A complete
discussion of the 2013-based FQHC
market basket can be found in the CY
2017 PFS final rule (81 FR 80393
through 80403). In the CY 2021 PFS
final rule, we finalized the rebasing and
revising of the FQHC market basket to
reflect a 2017 base year. The 2017-based
FQHC market basket is primarily based
on Medicare cost report data for
freestanding FQHCs for 2017, which are
for cost reporting periods beginning on
and after October 1, 2016, and prior to
September 31, 2017. We explained that
we used data from cost reports
beginning in FY 2017 because these data
were the latest available, complete data
for calculating the major cost weights
for the market basket at the time of
rulemaking. We also explained that
CMS updates the market basket
periodically so that the cost weights
reflect a current mix of goods and
services purchased in providing FQHC
services.
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Seven FQHCs that have been
determined to be grandfathered tribal
FQHCs and due to this designation are
paid based on the lesser of the
outpatient per visit rate or their actual
charges, as set out at § 405.2462(f). As
stated above, these grandfathered tribal
FQHCs are paid the outpatient per visit
rate for furnishing FQHC services.
In addition to the normal package of
services, RHCs and FQHCs receive
payment for certain additional services.
In the CY 2022 PFS final rule (86 FR
65205 through 65206), we implemented
section 132 of CAA, 2021, which
amended section 1834(o) of the Act and
added a new section 1834(y) to the Act,
to provide statutory authority for FQHCs
and RHCs, respectively, to receive
payment for hospice attending
physician services. In the CY 2023 PFS
final rule (87 FR 69463, 69737 through
69739) we implemented sections 304(b)
and (c) of division P of the CAA, 2022
(Pub. L. 117–103, March 15, 2022).
Those subsections modified sections
1834(y) and 1834(o)(4) of the Act,
respectively, to delay in-person visit
requirements in order to for RHCs and
FQHCs to receive payment for mental
health visits furnished via
telecommunications technology.
Section 4124(c) of the CAA, 2023
further amended section 1834(o) of the
Act and section 1834(y) of the Act, to
provide special payment rules for both
FQHCs and RHCs, respectively, for
furnishing intensive outpatient services.
Section 4124(c)(1) of the CAA, 2023
amended section 1834(o) of the Act to
add a new paragraph (5)(A) to require
that payment for IOP services furnished
by FQHCs be equal to the amount that
would have been paid under Medicare
for IOP services had they been covered
outpatient department services
furnished by a hospital. In addition,
section 4124(c)(2) of the CAA, 2023
amended section 1834(y) of the Act to
add a new paragraph (3)(A) to require
that payment for IOP services furnished
by RHCs be equal to the amount that
would have been paid under Medicare
for IOP services had they been covered
outpatient department services
furnished by a hospital.
Section VIII.D.3 of this proposed rule
discusses the proposed CY 2024
payment rate methodology for IOP. We
propose to establish two IOP APC per
diem payment rates for hospital-based
IOPs (APC 5861 and APC 5862 for 3service days and 4-service days,
respectively). We believe that it is
appropriate to provide a payment
structure that supports beneficiaries in
an IOP where the utilization is typically
structured to be days with three or fewer
services. Therefore, we propose that the
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rate determined for APC 5861 (Intensive
Outpatient (3 services per day) for
hospital-based IOPs) would be the
payment rate for IOP services furnished
in an RHC. For IOP services furnished
in FQHCs, we propose that that
payment is based on the lesser of a
FQHC’s actual charges or the rate
determined for APC 5861. Additionally,
we propose that grandfathered tribal
FQHCs will continue to have their
payment based on the outpatient per
visit rate when furnishing IOP services.
That is, payment is based on the lesser
of a grandfathered tribal FQHC’s actual
charges or the outpatient per visit rate.
We propose to revise §§ 405.2410,
405.2462 and 405.2464 in the
regulations to reflect the payment
amount for IOP services and how the
Medicare Part B deductible and
coinsurance are applied.
We solicit comment on whether the
payment rate for IOP services furnished
in RHCs and FQHCs should be adjusted
to reflect the variations in costs of
furnishing services in different
geographic areas and what approaches
would be appropriate for determining
the value of the adjustment. We also
solicit comment on whether the
hospital-based IOP APC 5862 for 4service days would be appropriate for
RHCs and FQHCs.
In section VIII.C of this proposed rule,
we discuss coding and billing for PHP
and IOP services under the OPPS. We
explain that beginning January 1, 2024,
the hospital outpatient department and
CMHCs will be able to furnish items and
services of both PHPs and IOPs. We
state that we believe it is appropriate to
align these programs by using a
consolidated list of HCPCS codes would
identify the full range of services that
both IOPs and PHPs provide to
Medicare beneficiaries for billing
purposes. We explain that those settings
paid under the OPPS and that can
furnish either PHP or IOP when
submitting a claim to CMS for payment
would be required to report a new
condition code 92 to differentiate
between PHP and IOP.
While RHCs and FQHCs are not
authorized to furnish PHP services, we
propose to also require RHCs and
FQHCs to report condition code 92 to
identify intensive outpatient claims.
Since RHCs and FQHCs are paid outside
of the RHC AIR methodology and FQHC
PPS, respectively, for IOP services we
believe the condition code reporting
approach would allow us to
operationalize a 3 service per day
payment amount using the final list of
HCPCS codes used to identify the full
range of services for IOP. The list of
proposed HCPCS codes is included in
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Table 43. In addition, we propose to
align with the requirement under the
OPPS, which is in order to qualify for
IOP payment, at least one service must
be from the Intensive Outpatient
Primary list. Table 44 identifies the
proposed list of intensive outpatient
primary services.
Section 4124(c)(1) of the CAA, 2023
amended section 1834(o) of the Act to
add a new paragraph (5)(B) to require
that costs associated with intensive
outpatient services not be used to
determine the amount of payment for
FQHC services under the FQHC PPS.
Likewise, section 4124(c)(2) of the CAA,
2023 amended section 1834(y) of the
Act to add a new paragraph (3)(B) to
require that costs associated with
intensive outpatient services not be
used to determine the amount of
payment for RHC services under the
methodology for all-inclusive rates
(established by the Secretary) under
section 1833(a)(3) of the Act. We
propose conforming revisions under
§ 405.2468. In addition, conforming
revisions will be made to the cost
reporting instructions to account for
these changes.
c. FQHC Supplemental Payments
As discussed in the May 2, 2014 final
rule with comment period (79 FR
25461), section 1833(a)(3)(B)(i)(II) of the
Act requires that FQHCs that contract
with MA organizations be paid at least
the same amount they would have
received for the same service under the
FQHC PPS. This provision ensures
FQHCs are paid at least the Medicare
amount for FQHC services. Therefore, if
the MA organization contract rate is
lower than the amount Medicare would
otherwise pay for FQHC services,
FQHCs that contract with MA
organizations would receive a wraparound payment from Medicare to cover
the difference (see § 422.316). If the MA
organization contract rate is higher than
the amount Medicare would otherwise
pay for FQHC services, there is no
additional payment from Medicare. We
believe that the special payment rule, is
also included in the FQHC PPS rate as
described in section 1834(o) of the Act
and therefore, IOP services are included
in the wrap-around payment. We
propose to make revisions under
§ 405.2469 to reflect these changes.
5. Multiple Visits
a. Background
Currently, RHC and FQHC encounters
with more than one health professional
and multiple encounters with the same
health professional that take place on
the same day and a single location
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49717
constitute a single visit, with the
following exceptions:
• A patient has a medical visit and a
mental health visit on the same day; or
• A patient has an initial preventive
physical exam visit and a separate
medical or mental health visit on the
same day.
Since IOP services are behavioral
health services, we do not believe it
would be appropriate to pay for a
mental health visit and IOP services on
the same day. In the case of a medical
visit, an encounter can include a
medical visit and a mental health visit
or a medical visit and IOP services. An
encounter cannot include two mental
health visits on the same day. As such,
we propose to make amend
§ 405.2463(c) in the regulations to
clarify that we will permit a mental
health visit or IOP services on the same
day as a medical visit.
6. Other Regulatory Updates
In addition to the regulatory changes
described in this section of the rule, we
propose a revision to § 405.2400 to
reflect that 42 CFR part 405, subpart X
is based not only on the provisions of
sections 1833, 1861(aa), 1834(o) of the
Act but also the provisions under
section 1834(y) of the Act. We believe
we inadvertently did not revise the
regulations when the CAA, 2021
amended section 1834 of the Act to add
new paragraph (y), as we discuss in the
CY 2022 PFS final rule (86 FR 65205
through 65206).
G. Modifications Related to Medicare
Coverage for Opioid Use Disorder (OUD)
Treatment Services Furnished by Opioid
Treatment Programs (OTPs)
1. Background
Section 2005 of the Substance UseDisorder Prevention that Promotes
Opioid Recovery and Treatment
(SUPPORT) for Patients and
Communities Act (SUPPORT Act) (Pub.
L. 115–271, October 24, 2018)
established a new Medicare Part B
benefit category for OUD treatment
services furnished by OTPs during an
episode of care beginning on or after
January 1, 2020. In the CY 2020
Physician Fee Schedule (PFS) final rule
(84 FR 62630 through 62677 and 84 FR
62919 through 62926), we implemented
Medicare coverage and provider
enrollment requirements and
established a methodology for
determining the bundled payments for
episodes of care for the treatment of
OUD furnished by OTPs. We established
new codes for and finalized bundled
payments for weekly episodes of care
that include methadone, oral
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buprenorphine, implantable
buprenorphine, injectable
buprenorphine or naltrexone, and nondrug episodes of care, as well as add-on
codes for intake and periodic
assessments, take-home dosages for
methadone and oral buprenorphine, and
additional counseling. For CY 2024, we
propose modifications to the regulations
and policies governing Medicare
coverage and payment for OUD
treatment services furnished by OTPs in
both this proposed rule as well as the
CY 2024 PFS proposed rule.
2. Statutory Authority for Coverage of
Opioid Use Disorder Treatment Services
Provided by OTPs
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Intensive outpatient programs (IOPs)
[American Society of Addiction
Medicine (ASAM) Level 2.1 of Care] are
diverse and flexible programs that can
provide both a step-up and step-down
level of care for the treatment of
substance use disorders. IOPs may offer
a step-down level of care in cases where
a patient has been stabilized in a
hospital facility or residential treatment
program but continues to need services
to maintain or achieve further treatment
progress. IOPs also offer a step-up level
of care in cases where a patient may
need a higher level of care that is more
structured or intensive than what can be
provided in a typical outpatient
treatment setting that offers care on a
less frequent basis.106 IOPs can be
housed in an OTP, specialty addiction
treatment facility, community mental
health center (CHMC), or another
setting.107 According to the National
Substance Use and Mental Health
Services Survey, as of 2021,
approximately 557 OTPs offer IOP
services nationwide (30.1 percent of
SUD treatment facilities offering
OTPs).108 Section 4124 of the CAA,
2023, which was enacted on December
29, 2022, provides for Medicare
coverage and payment for IOP services
in HOPDs, CMHCs, RHCs, and FQHCs.
However, section 4124 of the CAA, 2023
did not address coverage for IOP
services furnished in OTP settings.
106 https://www.ncbi.nlm.nih.gov/books/
NBK64088/.
107 The ASAM National Guideline for the
Treatment of Opioid Use Disorder (2020): https://
sitefinitystorage.blob.core.windows.net/sitefinityproduction-blobs/docs/default-source/guidelines/
npg-jam-supplement.pdf?sfvrsn=a00a52c2_2.
108 Substance Abuse and Mental Health Services
Administration, National Substance Use and Mental
Health Services Survey (N–SUMHSS), 2021:
Annual Detailed Tables. Rockville, MD: Substance
Abuse and Mental Health Services Administration,
2023. Weblink: https://www.samhsa.gov/data/sites/
default/files/reports/rpt39450/2021%20NSUMHSS%20Annual%20Detailed%20Tables_508_
Compliant_2_8_2023.pdf.
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Section 1861(jjj)(1) of the Act defines
Opioid Use Disorder (OUD) treatment
services as items and services that are
furnished by an OTP for the treatment
of opioid use disorder, including FDAapproved opioid agonist and antagonist
medications, dispensing and
administration of such medications,
substance use counseling, individual
and group therapy, toxicology testing,
and other items and services that the
Secretary determines are appropriate
(not including meals or transportation).
For matters related to payment for OUD
treatment services, section 1834(w) of
the Act establishes that the Secretary
shall pay bundled payments to OTPs
when they furnish OUD treatment
services to an individual during an
episode of care. Section 1834(w)(2) of
the Act states that for purposes of
making payments to OTPs, the Secretary
may establish one or more bundles
based on the type of medication
provided (such as buprenorphine,
methadone, naltrexone, or a new
innovative drug), the frequency of
services, the scope of services furnished,
characteristics of the individuals
furnished such services, or other factors
as the Secretary determine[s]
appropriate. We interpret the statutory
language at sections 1861(jjj) and
1834(w) of the Act to grant the Secretary
authority to establish more than one
bundled payment to OTPs for OUD
treatment services furnished during an
episode of care provided that the scope
of services is medically reasonable and
necessary for the treatment of OUD. In
the CY 2020 PFS final rule (84 FR
62644), we finalized a definition of OUD
treatment services as those items and
services that are specifically enumerated
in section 1861(jjj)(1) of the Act and
finalized the weekly bundled payment
for an episode of care. After considering
public comments, under the discretion
granted to the Secretary under section
1861(jjj)(1)(F) of the Act, we also
included additional items and services,
including intake activities and periodic
assessments within the definition of
OUD treatment services specified in 42
CFR 410.67(b) (84 FR 62634). In
addition, under our authority under
section 1834(w) to create one or more
bundled payments, we finalized that we
would utilize add-on codes as a way to
operationalize the creation of more than
one bundled payment by making
payment adjustments to the weekly
bundled payment for the additional
items and services.
Furthermore, CMS aims to ensure that
Medicare beneficiaries have appropriate
access to high quality care for the
treatment of OUD, and that services
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provided to treat SUD under the
Medicare OTP benefit are consistent
with the services that are available in
other settings covered under Medicare
Part B. For example, when CMS first
established payment policy for OTPs
under Medicare Part B in the CY 2020
PFS final rule (84 FR 62630 through
62677 and 84 FR 62919 through 62926),
we considered the available benefits
payable under Medicare at that time in
determining what items to propose to
include in the bundled payment for
OUD treatment services furnished by
OTPs. In light of new legislation (CAA,
2023) granting authority for Medicare
payment of IOP services provided by
other types of health care providers, we
believe it is appropriate to revisit the
range of services covered under the
current benefit for OUD treatment
services furnished by OTPs.
In the CY 2023 PFS proposed rule, we
solicited comments on whether there is
a gap in coding under the PFS or other
Medicare payment systems that may be
limiting access to needed levels of care
for treatment of mental health or
substance use disorder treatment for
Medicare beneficiaries (87 FR 45943
through 45944). Specifically, we sought
information on multiple issues,
including whether there is a gap in
coding under Medicare payment
systems that may be limiting access to
needed levels of care for treatment of
SUD; the extent to which potential gaps
would best be addressed by the creation
of new codes or billing rules; additional
information related to IOP services,
including their settings, scope and types
of offered services, and practitioners
involved; and, other relevant
information to the extent it would
inform our ability to ensure Medicare
beneficiaries have access to this care. In
response, many commenters noted that
IOPs serve as a ‘‘step-up’’ level of care
for individuals in need of more services/
supports, close monitoring, and
structured therapy, but who cannot
stabilize at a lower level of care
provided in an office setting.
Commenters also noted that IOPs
simultaneously serve as a ‘‘step-down’’
level of care for individuals who have
more stabilized biomedical conditions
and may no longer need to be
hospitalized, but cannot be discharged
safely. Commenters mentioned that
IOPs are tailorable to patient
characteristics and are often flexible in
the length, frequency, and days of
treatment, but that typically patients
receive at least 9 hours a week of care.
Moreover, commenters stated that IOPs
may be provided at stand-alone IOP
facilities, OTPs, partial hospitalization
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programs, residential treatment centers,
detoxification centers, or within a
private outpatient office setting.
Commenters further encouraged CMS to
allow coverage for IOP services across
the full continuum of care settings, so
that patients can receive the care they
need in the setting that is most
clinically appropriate. Furthermore,
several commenters emphasized the
importance of ensuring access to care
for IOP services provided in OTP
settings. For example, one commenter
recommended ‘‘that CMS also consider
whether the agency has regulatory
authority to extend coverage of any new
IOP billing codes to OTPs.’’ Other
commenters also preferred the IOP
payment methodology to be amenable
and complementary to the weekly
bundled payment of OTPs, including a
building block methodology with drug
and non-drug components, and add-on
codes for greater clinical complexity. As
a whole, commenters were very
receptive to expanding access to IOP
services in multiple settings of care,
including within OTPs.
Addressing the opioid crisis by
expanding coverage for quality
treatment options and reducing barriers
to care continues to remain a high
priority for CMS. Across the U.S, the
rates of OUD have increased more than
threefold and opioid-related mortality
has increased by almost 18 percent
amongst older adults in the past
decade.109 From 2015–2019, nearly 1.7
million (3 percent of all) Medicare
beneficiaries had a SUD, though only 11
percent of those beneficiaries received
treatment for their condition in a given
year.110 Among Medicare beneficiaries
with a SUD, one-third reported that
financial barriers were a reason for not
receiving treatment. Research from
ASPE indicates that health plans that
offer coverage for a greater number of
IOP services per enrollee experience
higher rates of SUD treatment initiation
and continued engagement within their
enrollee populations.111 This suggests
that IOP services could result in an
increased rate of SUD treatment
initiation and continued engagement.
Therefore, expanding access to IOP
services in other settings and reducing
financial barriers to access to IOP
services through coverage could
potentially increase the number of
Medicare beneficiaries seeking and
completing treatment for a SUD,
including among Medicare beneficiaries
109 https://www.sciencedirect.com/science/
article/pii/S0749379721000921?via%3Dihub.
110 https://doi.org/10.15585/mmwr.mm675152e1.
111 https://aspe.hhs.gov/sites/default/files/
private/pdf/260791/BestSUD.pdf.
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who are members of populations that
have historically been less likely to
receive such treatment. Studies have
shown that among individuals in need
of SUD treatment, Hispanic, Black, and
Asian populations are less likely to
receive outpatient SUD treatment for
their condition than their White
counterparts, suggesting greater barriers
to treatment access for these
populations.112 Other evidence
indicates that Black Americans
significantly underutilize specialty SUD
treatment and are also less likely to
complete their SUD treatment programs
compared to White Americans, but
these disparities are reduced when
Black Americans have access to health
insurance.113 This evidence suggests
that financial barriers impede initiation
and completion of SUD treatment; in
turn, providing health insurance
coverage for SUD treatment services
(such as IOP services) may lessen the
impact of these financial barriers for all
Medicare beneficiaries, including those
who are more likely to experience these
barriers. Some evidence also shows that
zip codes in the U.S. within which there
is at least one OTP tend to have a higher
proportion of residents who are
minorities (Black and Hispanic) and a
lower proportion of White residents,
compared to zip codes in the U.S
without any OTPs,114 and surveys of
services provided by OTPs demonstrate
that the majority of OTPs (82.6 percent)
conduct community outreach services to
those in need of treatment for OUD.115
This suggests that OTPs may be
uniquely positioned to reach minority
populations in need of IOP services,
which would improve their access to
SUD treatment services. In addition,
from 2015 to 2019 and prior to
implementation of the OTP benefit,
Medicare beneficiaries younger than 65
years old were more likely to receive
SUD treatment than those aged 65 years
old or greater, due to more beneficiaries
over age 65 reporting they could not
afford treatment or that the treatment
was not covered by Medicare or other
insurance.116 Even after implementation
of the OTP benefit, eliminating health
disparities in access to SUD treatment
for this older age bracket remains a
112 https://www.samhsa.gov/data/sites/default/
files/reports/rpt35326/2021NSDUHSU
Chartbook102221B.pdf.
113 https://www.sciencedirect.com/science/
article/pii/S0376871619302443.
114 https://pubmed.ncbi.nlm.nih.gov/36645315/.
115 https://www.samhsa.gov/data/sites/default/
files/reports/rpt39450/2021%20NSUMHSS%20Annual%20Detailed%20Tables_508_
Compliant_2_8_2023.pdf.
116 https://www.sciencedirect.com/science/
article/pii/S0749379722001040.
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priority. Therefore, we believe that
expanding access to coverage and
payment under Medicare for IOP
services provided by OTPs may have a
meaningful and positive impact on
health equity, including for Medicare
beneficiaries that may face barriers in
accessing treatment, such as racial/
ethnic minorities and/or beneficiaries
aged 65 or older. Lastly, CMS’
Behavioral Health Strategy includes
multiple stated goals and objectives to
promote person-centered behavioral
health care.117 Expanding access to
coverage and payment under Medicare
for IOP services provided by OTPs may
help strengthen access to SUD
prevention, evidence-based treatment,
and recovery services, as well as
advance the equity and quality of
behavioral health services, which are
consistent with the goals of CMS’
Behavioral Health Strategy.
3. Proposal To Provide Coverage of IOP
Services Furnished by OTPs
a. Proposal To Include IOP Services
Furnished by OTPs in the Definition of
Opioid Use Disorder Treatment Services
In recognition of the evidence
provided in the discussion above, we
understand that some Medicare
beneficiaries may continue to face
barriers in accessing treatment for their
OUD. Additionally, we note that many
OTPs nationwide already provide IOP
services and that IOP services can be
effective in promoting greater treatment
initiation and engagement, which may
improve health outcomes. For these
reasons, and in order to expand access
to behavioral health treatment for
Medicare beneficiaries with OUD and
ensure continuity of care between
different treatment settings and levels of
care, CMS is proposing to establish
payment under Part B for IOP services
furnished by OTPs for the treatment of
OUD for CY 2024 and subsequent years.
As explained previously, section
1861(jjj)(1) of the Act defines Opioid
Use Disorder (OUD) treatment services
as items and services that are furnished
by an OTP for the treatment of opioid
use disorder, including FDA-approved
opioid agonist and antagonist
medications, dispensing and
administration of such medications,
substance use counseling, individual
and group therapy, toxicology testing,
and other items and services that the
Secretary determines are appropriate
(not including meals or transportation).
IOP services are intended to treat
individuals with an acute mental illness
and/or substance use disorder,
117 https://www.cms.gov/cms-behavioral-healthstrategy.
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including those with an OUD. We
believe that IOP services are similar to
the specific services enumerated in
section 1861(jjj)(1) of the Act, and the
services and intensity of care required to
provide intensive outpatient services
under Level 2.1 of the ASAM
continuum of care are a step-up from
the services within the existing OTP
benefit. The ASAM criteria’s strengthbased multidimensional assessment
takes into account a patient’s needs,
obstacles and liabilities, as well as their
strengths, assets, resources, and support
structure; this information is used to
determine the appropriate level of care
across a continuum.118 OTP services
that are currently covered under the
OTP benefit are at the Outpatient (Level
1) level of care, whereas IOP services are
classified as Level 2.1 on ASAM’s
continuum of care. Individuals who
meet the criteria for IOP services
generally require more frequent and
intensive services.
Because the Secretary has discretion
under section 1861(jjj)(1)(F) of the Act
to add other items and services
furnished by an OTP for the treatment
of OUD, as appropriate, we propose to
add a new paragraph (ix) to § 410.67(b)
defining a new category of services
called ‘‘OTP intensive outpatient
services’’ and incorporate OTP intensive
outpatient services in the definition of
OUD treatment services that are covered
under the Part B OTP benefit.
Specifically, we propose to define OTP
intensive outpatient services as those
services specified in proposed 42 CFR
410.44(a)(4) when furnished by an OTP
as part of a distinct and organized
intensive ambulatory treatment program
for the treatment of Opioid Use Disorder
and that offers less than 24-hour daily
care other than in an individual’s home
or in an inpatient or residential setting.
OTP intensive outpatient services are
services that are reasonable and
necessary for the diagnosis or active
treatment of the individual’s condition;
are reasonably expected to improve or
maintain the individual’s condition and
functional level and to prevent relapse
or hospitalization; and are furnished in
accordance with a physician
certification and plan of care. We
propose that in order to qualify as ‘‘OTP
intensive outpatient services,’’ a
physician must certify that the
individual has a need for such services
for a minimum of 9 hours per week and
requires a higher level of care intensity
compared to existing OTP services. The
specific services that we propose would
be considered OTP intensive outpatient
118 https://www.asam.org/asam-criteria/aboutthe-asam-criteria.
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services would include any of the
following:
• Individual and group therapy with
physicians or psychologists or other
mental health professionals to the extent
authorized under State law.
Occupational therapy requiring the
skills of a qualified occupational
therapist, provided by an occupational
therapist, or under appropriate
supervision of a qualified occupational
therapist by an occupational therapy
assistant as specified in part 484 of this
chapter.
• Services of social workers, trained
psychiatric nurses, and other staff
trained to work with psychiatric
patients.
• Drugs and biologicals furnished for
therapeutic purposes, subject to the
limitations specified in § 410.29,
excluding opioid agonist and antagonist
medications that are FDA-approved for
use in treatment of OUD or opioid
antagonist medications for the
emergency treatment of known or
suspected opioid overdose.
• Individualized activity therapies
that are not primarily recreational or
diversionary.
• Family counseling, the primary
purpose of which is treatment of the
individual’s condition.
• Patient training and education, to
the extent the training and educational
activities are closely and clearly related
to the individual’s care and treatment.
• Diagnostic services that are
reasonable and necessary for the
diagnosis or active treatment of the
individual’s condition, with the
exception of toxicology testing.
We propose to exclude FDA-approved
opioid agonist or antagonist medications
for the treatment of OUD or opioid
antagonist medications for the
emergency treatment of known or
suspected opioid overdose, specifically,
methadone, buprenorphine, naltrexone
and naloxone, from the definition of
OTP intensive outpatient services
because these medications are already
included as part of the weekly bundled
payment for an episode of care or as an
adjustment to the bundled payment.
However, we are soliciting comment on
the types of drugs and biologicals that
are furnished as part of an IOP program
(for example, whether IOPs furnish
drugs used for emergent interventions),
and the extent to which these drugs
overlap with medications included in
the existing weekly bundles described
by HCPCS codes G2067 through G2073
and/or add-on codes described by
G2078 (take-home supply of
methadone), G2079 (take-home supply
of oral buprenorphine), G2215 (takehome supply of nasal naloxone), G2216
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(take-home supply of injectable
naloxone), and G1028 (take-home
supply of nasal naloxone; 2-pack of 8mg
per 0.1 mL nasal spray). This
information will help to inform our
consideration of the extent to which the
drugs and biologicals furnished as part
of an IOP program would already be
covered under the drug component of
the weekly bundled payment and the
existing add-on payments or would
need to be reflected in the proposed IOP
add-on payment adjustment discussed
in the next section. Similarly, we
propose to exclude toxicology testing
from the types of diagnostic services
that would be included in the definition
of OTP intensive outpatient services
because toxicology testing is already
included within the definition of opioid
use disorder treatment services and paid
for as part of the weekly bundled
payment for an episode of care.
b. Proposal To Establish a Weekly
Payment Adjustment for IOP Services
Furnished by OTPs
Section 1834(w)(2) of the Act
provides discretion to implement one or
more payment bundles based on the
frequency, scope and characteristics of
the individuals, and other factors as
determined appropriate. Currently,
ASAM classifies OTP services as
outpatient treatment services (under
Level 1 of the continuum of care), which
are typically provided for less than 9
hours a week, or as a step down from
intensive outpatient services, whereas
intensive outpatient services (under
Level 2.1 of the continuum of care) are
typically provided for more than 9
hours a week and no more than 20
hours a week for adults with more
severe needs than those for whom
treatment provided according to Level 1
of the continuum of care is clinically
appropriate.119 In order to appropriately
reflect the more intensive treatment
profile for those individuals receiving
IOP services versus OTP services, we
propose to establish a weekly payment
adjustment via an add-on code for OTP
intensive outpatient services, which is
consistent with the weekly bundled
payment structure under the existing
Medicare OTP benefit. We believe that
a code billed on a weekly basis may
allow greater flexibility with respect to
how IOP services are rendered and how
service hours may be distributed over a
given week to best meet patient needs.
Under this proposal, we propose that an
OTP could bill for the weekly add-on
code for OTP intensive services in the
same week for the same beneficiary as
119 https://americanaddictioncenters.org/rehabguide/asam-criteria-levels-of-care.
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the existing coding describing a weekly
OTP bundle, so long as all applicable
billing requirements for each code are
met. However, we note that under this
proposal, each OTP intensive outpatient
service must be medically reasonable
and necessary and not duplicative of
any service(s) for which OTPs received
a bundled payments for an episode of
care in a given week.
For OTP intensive outpatient services,
we propose to permit OTPs to bill new
HCPCS code GOTP1 (Intensive
outpatient services; minimum of nine
services over a 7-contiguous day period,
which can include individual and group
therapy with physicians or
psychologists (or other mental health
professionals to the extent authorized
under State law); occupational therapy
requiring the skills of a qualified
occupational therapist; services of social
workers, trained psychiatric nurses, and
other staff trained to work with
psychiatric patients; individualized
activity therapies that are not primarily
recreational or diversionary; family
counseling (the primary purpose of
which is treatment of the individual’s
condition); patient training and
education (to the extent that training
and educational activities are closely
and clearly related to individual’s care
and treatment); diagnostic services; list
separately in addition to code for
primary procedure.
We propose to value HCPCS code
GOTP1 based on an assumption of a
typical case of three IOP services
furnished per day for approximately 3
days per week. In response to the
comment solicitation on IOP services in
the CY 2023 PFS proposed rule, many
commenters stated that a typical IOP
treatment plan requires at least 9 hours
of skilled treatment services per week,
which would follow both the treatment
protocol advised by SAMHSA and
ASAM level placement criteria.120
Moreover, the definition of intensive
outpatient services in section
4124(b)(2)(B) of the CAA, 2023 specifies
that in community mental health
centers, hospital-based IOPs, RHCs, and
FQHCs, an individual in need of IOP
services must be certified by a physician
to have a need for such services for a
minimum of 9 hours per week
compared to a minimum of 20 hours per
week in a partial hospitalization service
treatment program. Thus, we believe
that our assumption of 9 services
rendered per week would be consistent
with the minimum requirement in other
120 https://www.ncbi.nlm.nih.gov/books/
NBK64088/;https://store.samhsa.gov/product/TIP47-Substance-Abuse-Clinical-Issues-in-IntensiveOutpatient-Treatment/SMA13-4182.
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care settings and existing clinical
guidance. Therefore, we propose to
calculate the payment rate for add-on
code GOTP1 based on 9 services per
week. We welcome comments on
whether an assumption of 9 services per
week is representative of the typical
number of services furnished to patients
with an OUD who receive IOP services
at OTPs. We propose that by billing
HCPCS code GOTP1, the OTP would be
attesting to the fact that it has furnished
at least nine services for that week that
would otherwise qualify as OTP
intensive outpatient services as
discussed in section VIII.G.3.a of this
proposed rule. We acknowledge that not
all OTP intensive outpatient services
will necessarily be 60 minutes in
duration, or be a time-based service,
therefore, we propose that furnishing
nine OTP intensive outpatient services,
regardless of the length of each service,
would meet the threshold to bill for
HCPCS code GOTP1. We note that this
aspect of our proposal differs from the
proposed requirement for physician
certification, discussed in section
VIII.G.3.c., Certification and Plan of
Care Requirements for IOPs in OTP
settings, of this proposed rule, pursuant
to which a physician must certify that
the individual requires nine hours of
OTP intensive outpatient services, and
not simply nine OTP intensive
outpatient services.
Under this proposal to establish a
weekly add-on payment for OTP
intensive outpatient services, no single
service may be counted more than once
for the purpose of meeting the criteria
for billing for any given code. In other
words, the same service could not be
used to qualify to bill both the weekly
bundle and the add-on payment
adjustment for OTP intensive outpatient
services. Additionally, we recognize
that some services furnished as part of
OTP intensive outpatient services may
be required multiple times a week (e.g.,
occupational therapy, patient education,
family counseling, activity therapies) to
meet individual patient needs and
varying clinical complexity. Such
services of the same type would be
allowable to meet the minimum of 9
services per week, provided that all
services are medically reasonable and
necessary.
This proposal for the calculation of
the payment rate for HCPCS code
GOTP1 is similar to the payment
methodology proposed for IOP services
furnished in other settings. Please see a
more detailed discussion regarding this
payment methodology at section VIII.D
‘‘Proposed Payment Rate Methodology
for PHP and IOP’’ of this proposed rule.
We believe that calculating the payment
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rate for the proposed add-on payment
adjustment for OTP intensive outpatient
services based on the rate provided in
a hospital setting would promote greater
consistency, site neutrality, and parity
with payment rates proposed for IOPs in
a majority of other settings, including
hospital-based IOPs, FQHCs, and RHCs.
Since IOP services have not been
covered or paid under Medicare to date,
CMS does not have direct data to
estimate utilization and costs of IOP
services. However, many of the items
and services included in IOP services
have been and are currently paid for by
Medicare as part of the PHP benefit or
under the OPPS more generally.
Therefore, in our preliminary ratesetting
exercise, we identified, in consultation
with clinicians, a list of HCPCS codes
for services that would be reasonably
included as part of IOP services. Please
see a more comprehensive list of these
HCPCS codes used to inform the
payment methodology during our
preliminary ratesetting exercise in Table
43 within section VIII.C ‘‘Coding and
Billing for PHP and IOP Services under
the OPPS’’ of this proposed rule. The
inclusion of many of these services was
informed by comments we received in
response to comment solicitations in the
CY 2023 OPPS/ASC and PFS proposed
rules. For example, some of these codes
correspond to services for individual
and group therapy, occupational
therapy, individualized activity
therapies, family counseling, and
patient training and education.
For the majority of these identified
HCPCS codes, the most recent
utilization data available was for OPPS
claims paid for dates of service in CY
2022, and the most recent cost data
available was from the cost reports in
CY 2021. Based on this cost and
utilization data from CY 2021 and CY
2022, respectively, the estimated
payment rate for 3-services per day
based on APC 5861 (Intensive
Outpatient (1–3 services) for Hospitalbased IOPs) was $280.80; 3 services per
day for 3 days a week would therefore
be equal to $842.40. Because we are
proposing that OTP intensive outpatient
services include individual and group
therapy, which are also already
included in the non-drug component of
the OTP bundled payments for an
episode of care, we propose to subtract
the amount that corresponds to the
individual and group therapy proposed
rate in the non-drug component of the
OTP bundled payment from our
estimate of $842.40 in order to establish
the amount of the OTP intensive
outpatient services add-on payment.
Specifically, in the CY 2020 PFS final
rule (84 FR 62658), we finalized a
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building block methodology to calculate
the rate for the non-drug component
based on established non-facility rates
for similar services under the Medicare
PFS, the Medicare CLFS, and state
Medicaid programs. For group therapy,
we used CPT code 90853 (Group
psychotherapy (other than of a multiplefamily group)) as a reference code,
which at the time of drafting the CY
2020 PFS final rule, in CY 2019, was
assigned a non-facility rate of $27.39. In
order to account for the application of
the annual update to the non-drug
component, the adjusted amount for
group psychotherapy is currently
$28.36. For individual therapy, in the
CY 2023 PFS final rule (87 FR 69773),
we finalized an update to the reference
code used in the non-drug component to
be based on the CY 2019 non-facility
rate for CPT code 90834 (Psychotherapy,
45 minutes with patient), which was
$91.18, and which we adjusted to
account for the application of the
annual update in the intervening years,
resulting in $94.37. Therefore, we
propose an add-on payment adjustment
of approximately $719.67 for HCPCS
code GOTP1 ($842.40¥($28.36 +
$94.37)). We seek comment on whether
the proposed add-on payment
adjustment accurately reflects the
typical resource costs involved in
furnishing IOP services at OTPs. We
also seek comment on our proposal to
adjust the proposed add-on payment
adjustment to account for individual
and group therapy included in the nondrug component of OTP bundled
payments for an episode of care.
In accordance with the methodology
used to update the payment rate for
other services payable under the OTP
benefit, we propose to apply an annual
update based on the percentage increase
in the Medicare Economic Index (MEI)
to the payment rate HCPCS code
GOTP1, as described in § 414.30.
Additionally, consistent with the
methodology used to determine
payment for non-drug services
furnished under the OTP benefit, we
propose to apply a geographic
adjustment to the payment for HCPCS
code GOTP1 based on the Geographic
Adjustment Factor, as described in
§ 414.26. Furthermore, consistent with
the policy that applies for other OUD
treatment services furnished by OTPs, a
beneficiary copayment amount of zero
would apply for OTP intensive
outpatient services. Lastly, we are also
seeking comment on the impact this
proposal may have on dually eligible
individuals, specifically, the extent to
which this expanded coverage and
payment may supplant Medicaid
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coverage for dually eligible individuals,
versus the extent to which it would
supplement Medicaid if it were
fundamentally different from what
Medicaid covers in a given state.
We recognize that in this proposed
rule, we propose to adopt per diem rates
for IOP services furnished in other
settings, including CMHCs, hospitalbased settings, FQHCs, and RHCs, and
that per diem rates are used in the
payment methodology for IOP services
in some state Medicaid programs.
Therefore, we are also seeking comment
on whether a daily per diem rate based
on 3 service hours per day would be
more appropriate for OTP settings,
especially if one payment methodology
over the other would be less disruptive
to OTPs as it relates to coordination of
benefits. Lastly, we are seeking feedback
about the experiences of furnishing IOP
services within OTP settings, including
the extent to which it is similar to or
different than furnishing IOP services in
other settings. We believe this
additional information may be helpful
to understand the clinical complexity of
patients enrolled in OTPs who are in
need of IOP services for OUD and to
compare the level of care and type of
services that may supplement and/or
exceed those ordinarily provided under
the existing OTP benefit, in order to
help inform potential future rulemaking
on this topic.
We propose to add a new paragraph
(iv) to § 410.67(d)(4)(i)(F) in order to
describe the new adjustment to the
bundled payment for OTP intensive
outpatient services. Additionally, we
propose to amend § 410.67(d)(4)(ii) to
add that the payment amounts for OTP
intensive outpatient services will be
geographically adjusted using the
Geographic Adjustment Factor
described in § 414.26. Lastly, we
propose to amend § 410.67(d)(4)(iii) to
add that payment for OTP intensive
outpatient services will be updated
annually using the Medicare Economic
Index described in § 405.504(d).
c. Certification and Plan of Care
Requirements for IOPs in OTP Settings
In order to be consistent with
physician certification and plan of care
requirements for IOP services furnished
in other settings of care and to ensure,
to the extent possible, that IOP services
are only provided and paid for when
medically necessary and appropriate for
the beneficiary, we propose to adopt the
same standards set forth in
§ 424.24(d)(1) through (3) for OTPs
providing OTP intensive outpatient
services (please see more detailed
discussions of these proposed standards
in section VIII.B.3, IOP Certification and
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Plan of Care Requirements, of this
proposed rule. Specifically, under this
proposal, a physician would be required
to certify that an individual needs OTP
intensive outpatient services for a
minimum of 9 hours per week, which is
consistent with treatment standards
specified by SAMHSA and minimum
hour standards described by ASAM’s
Level 2.1 of care for IOP services.121
This certification would require
documentation in the patient’s medical
record to include that the individual
requires such services for a minimum of
9 hours per week; require the first
recertification as of the 30th day of IOP
services; and require that the
certification of IOP services occur no
less frequently than every other month.
Accordingly, we propose to revise
§ 410.67(c) of our regulations to add a
paragraph (5) to specify that OTPs must
furnish OTP intensive outpatient
services consistent with the
requirements regarding content of
certification, plan of treatment
requirements, and recertification
requirements as set forth under
proposed § 424.24(d)(1) through (3).
Regarding the recertification
requirements, given that OTP services
are billed on a weekly basis, we propose
that the required recertification could
occur any time during an episode of
care in which the 30th day from the
start of IOP services (and every other
month thereafter) falls. We note that in
the CY 2020 PFS final rule (84 FR
62641), we defined an episode of care as
a 1-week (contiguous 7-day) period at
§ 410.67(b). In the CY 2021 PFS final
rule (85 FR 84691), we clarified that
OTPs may choose to apply a standard
billing cycle by setting a particular day
of the week to begin all episodes of care,
or they may choose to adopt weekly
billing cycles that vary across patients,
and we propose to adopt the same
approach here. We welcome comments
on these proposals.
We note that this proposal requires
that the physician certify a need for at
least 9 hours of services per week,
which differs from our proposal that in
order to bill for the add-on payment
adjustment for OTP intensive outpatient
services, the OTP must attest that it
provided 9 such services to the
beneficiary in a week. Given that
services can vary in duration and that
some services are not time-based, we
believe it would be administratively
simpler for OTPs to count the number
of services furnished rather than to
121 https://www.ncbi.nlm.nih.gov/books/
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count the number of hours for purposes
of billing the add-on payment
adjustment for OTP intensive outpatient
services. Additionally, as described in
Section VIII.G.3.b., our proposed
payment rate is based on the number of
services furnished per day, rather than
the number of hours, consistent with the
proposals for IOP payment in other
settings. In contrast, for the purposes of
certification and plan of care
requirements for IOPs in OTP settings,
we believe that requiring a physician to
certify that a beneficiary requires a
minimum of 9 hours of services per
week is consistent with existing clinical
guidance describing the intensity of care
for IOP services.122 Additionally, a
minimum of 9 hours of services per
week is consistent with proposals for
the certification and plan of care
requirements for IOPs in other care
settings. We welcome comments on
both of these proposals, including
whether this distinction accurately
reflects the practice patterns of OTPs
furnishing IOP services.
d. Correction to the OTP Regulation
Text
We also propose to correct a
typographical error at § 410.67(d)(3),
which currently states ‘‘At least one
OUD treatment service described in
paragraphs (b)(1) through (5) of this
section must be furnished to bill for the
bundled payment for an episode of
care.’’ This provision should refer to
paragraphs (i) through (v) of the
definition of OUD treatment service in
paragraph (b). Accordingly, we propose
to correct this sentence to read, ‘‘At least
one OUD treatment service described in
paragraphs (i) through (v) of the
definition of Opioid use disorder
treatment service in paragraph (b) of this
section must be furnished to bill for the
bundled payment for an episode of
care.’’
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H. Payment Rates Under the Medicare
Physician Fee Schedule for
Nonexcepted Items and Services
Furnished by Nonexcepted Off-Campus
Provider-Based Departments of a
Hospital
1. Background
In the CY 2017 OPPS/ASC final rule
with comment period (81 FR 79727) in
the discussion of the proposed
implementation of section 603 of the
Bipartisan Budget Act (BBA) of 2015
(Pub. L. 114–74, November 2, 2015), we
established the PHP payment rate under
122 https://www.ncbi.nlm.nih.gov/books/
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the Medicare Physician Fee Schedule
(MPFS) for nonexcepted off-campus
PBDs as equivalent to the level of
payment made to CMHCs for furnishing
three or more PHP services per day. We
noted that when a beneficiary received
outpatient services in an off-campus
department of a hospital, the total
Medicare payment for those services is
generally higher than when those same
services are provided in a physician’s
office. Similarly, when partial
hospitalization services are provided in
a hospital-based PHP, Medicare pays
more than when those same services are
provided by a CMHC. Our rationale for
adopting the CMHC per diem rate for
APC 5853 as the MPFS payment amount
for nonexcepted PBDs providing PHP
services was because CMHCs are
freestanding entities that are not part of
a hospital, but they provide the same
PHP services as hospital-based PHPs.
This is similar to the differences
between freestanding entities paid
under the MPFS that furnish other
services also provided by hospital-based
entities. Similar to other entities
currently paid for their technical
component services under the MPFS,
we believe CMHCs would typically have
lower cost structures than hospitalbased PHPs, largely due to lower
overhead costs and other indirect costs
such as administration, personnel, and
security. We explained that we believe
that paying for nonexcepted hospitalbased partial hospitalization services at
the lower CMHC per diem rate aligns
with section 603 of the BBA of 2015,
while also preserving access to PHP
services.
PHP services in a day. Similarly, we
also propose to utilize the CMHC rates
for 3-service and 4-service IOP days as
the MPFS rates, depending upon
whether a nonexcepted hospital
outpatient department furnishes 3 or 4
IOP services in a day.
As discussed in section VIII.D of this
proposed rule, we are soliciting
comment on our proposed payment
rates for PHP and IOP services, as well
as whether commenters believe it would
be appropriate to consider establishing
a combined rate for 3-service days in
hospitals and CMHCs, and a combined
rate for 4-service days in hospitals and
CMHCs. We are considering whether it
would be appropriate to apply a
different methodology for calculating
the PHP and IOP rates for nonexcepted
off-campus hospital outpatient
departments and we solicit comments
on alternative methodologies
commenters believe would be
appropriate. For example, we are
considering whether it would be
appropriate to apply the PFS Relativity
Adjuster of 40 percent, which was
established in the CY 2018 PFS rule (82
FR 53030) and which applies to most
other nonexcepted OPPS services
furnished by a nonexcepted off-campus
hospital outpatient department.
Depending on the comments we receive,
we may finalize an alternative
methodology such as the PFS Relativity
Adjuster. We note that if we were to
adopt such a methodology, we would
apply it to both PHP and IOP services.
2. Proposed Payment for PHP and IOP
Furnished by Nonexcepted Off-Campus
Hospital Outpatient Departments
As discussed in section VIII.D of this
proposed rule, we propose to change
our methodology for calculating PHP
payment rates by establishing separate
payment rates for 3-service and 4service days. We also propose to
establish IOP payment rates for 3service and 4-service days beginning in
CY 2024. Because CMHCs have different
cost structures than hospitals, we
propose to establish separate CMHC and
hospital rates for 3-service and 4-service
PHP and IOP days. We propose to
utilize the CMHC rates for PHP and IOP
as the payment rates for PHP and IOP
services furnished by nonexcepted offcampus hospital outpatient
departments. Specifically, we propose
to utilize the separate CMHC rates for 3service and 4-service PHP days as the
MPFS rates, depending upon whether a
nonexcepted off-campus hospital
outpatient department furnishes 3 or 4
A. Background
Established in rulemaking as part of
the initial implementation of the OPPS,
the inpatient only (IPO) list identifies
services for which Medicare will only
make payment when the services are
furnished in the inpatient hospital
setting because of the invasive nature of
the procedure, the underlying physical
condition of the patient, or the need for
at least 24 hours of postoperative
recovery time or monitoring before the
patient can be safely discharged (70 FR
68695). The IPO list was created based
on the premise (rooted in the practice of
medicine at that time), that Medicare
should not pay for procedures furnished
as outpatient services that are performed
on an inpatient basis virtually all of the
time for the Medicare population, for
the reasons described above, because
performing these procedures on an
outpatient basis would not be safe or
appropriate, and therefore not
reasonable and necessary under
Medicare rules (63 FR 47571). Services
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IX. Services That Will Be Paid Only as
Inpatient Services
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included on the IPO list were those
determined to require inpatient care,
such as those that are highly invasive,
result in major blood loss or temporary
deficits of organ systems (such as
neurological impairment or respiratory
insufficiency), or otherwise require
intensive or extensive postoperative
care (65 FR 67826). There are some
services designated as inpatient only
that, given their clinical intensity,
would not be expected to be performed
in the hospital outpatient setting. For
example, we have traditionally
considered certain surgically invasive
procedures on the brain, heart, and
abdomen, such as craniotomies,
coronary-artery bypass grafting, and
laparotomies, to require inpatient care
(65 FR 18456). Designation of a service
as inpatient only does not preclude the
service from being furnished in a
hospital outpatient setting but rather
means that Medicare will not make
payment for the service if it is furnished
to a Medicare beneficiary in the hospital
outpatient setting (65 FR 18443).
Conversely, the fact that a procedure is
not on the IPO list should not be
interpreted to mean the procedure is
only appropriately performed in the
hospital outpatient setting (70 FR
68696).
As part of the annual update process,
we have historically worked with
interested parties, including
professional societies, hospitals,
surgeons, hospital associations, and
beneficiary advocacy groups, to evaluate
the IPO list and to determine whether
services should be added to or removed
from the list. Interested parties are
encouraged to request reviews for a
particular code or group of codes; and
we have asked that their requests
include evidence that demonstrates that
the procedure was performed on an
outpatient basis in a safe and
appropriate manner in a variety of
different types of hospitals—including
but not limited to—operative reports of
actual cases, peer-reviewed medical
literature, community medical
standards and practice, physician
comments, outcome data, and postprocedure care data (67 FR 66740).
We traditionally have used five
longstanding criteria to determine
whether a procedure should be removed
from the IPO list. As noted in the CY
2012 OPPS/ASC final rule with
comment period (76 FR 74353), we
assessed whether a procedure or service
met these criteria to determine whether
it should be removed from the IPO list
and assigned to an APC group for
payment under the OPPS when
provided in the hospital outpatient
setting. We have explained that while
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we only require a service to meet one
criterion to be considered for removal,
satisfying only one criterion does not
guarantee that the service will be
removed; instead, the case for removal
is strengthened with the more criteria
the service meets. The criteria for
assessing procedures for removal from
the IPO list are the following:
1. Most outpatient departments are
equipped to provide the services to the
Medicare population.
2. The simplest procedure described
by the code may be furnished in most
outpatient departments.
3. The procedure is related to codes
that we have already removed from the
IPO list.
4. A determination is made that the
procedure is being furnished in
numerous hospitals on an outpatient
basis.
5. A determination is made that the
procedure can be appropriately and
safely furnished in an ASC and is on the
list of approved ASC services or has
been proposed by us for addition to the
ASC covered procedures list.
In the past, we have requested that
interested parties submit corresponding
evidence in support of their claims that
a code or group of codes met the
longstanding criteria for removal from
the IPO list and was safe to perform on
the Medicare population in the hospital
outpatient setting—including, but not
limited to case reports, operative reports
of actual cases, peer-reviewed medical
literature, medical professional analysis,
clinical criteria sets, and patient
selection protocols. Our clinicians then
thoroughly review all information
submitted within the context of the
established criteria and if, following this
review, we determine that there is
sufficient evidence to confirm that the
code could be safely and appropriately
performed on an outpatient basis, we
assign the service to an APC and
include it as a payable procedure under
the OPPS (67 FR 66740). We determine
the APC assignment for services
removed from the IPO list by evaluating
the clinical similarity and resource costs
of the service compared to other
services paid under the OPPS and
review the Medicare Severity Diagnosis
Related Groups (MS–DRG) rate for the
service under the IPPS, though we note
we would generally expect the cost to
provide a service in the outpatient
setting to be less than the cost to
provide the service in the inpatient
setting.
We stated in prior rulemaking that,
over time, given advances in technology
and surgical technique, we would
continue to evaluate services to
determine whether they should be
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removed from the IPO list. Our goal is
to ensure that inpatient only
designations are consistent with the
current standards of practice. We have
asserted in prior rulemaking that,
insofar as advances in medical practice
mitigate concerns about these
procedures being performed on an
outpatient basis, we would be prepared
to remove procedures from the IPO list
and provide for payment for them under
the OPPS (65 FR 18443). Further, CMS
has at times had to reclassify codes as
inpatient only services with the
emergence of new information.
We refer readers to the CY 2012
OPPS/ASC final rule with comment
period (76 FR 74352 through 74353) for
a full discussion of our historic policies
for identifying services that are typically
provided only in an inpatient setting
and that, therefore, will not be paid by
Medicare under the OPPS, as well as the
criteria we have used to review the IPO
list to determine whether any services
should be removed.
B. Changes to the Inpatient Only (IPO)
List
As stated above, we encourage
interested parties to request reviews for
a particular code or group of codes for
removal from the IPO list. For CY 2024,
we received several requests from
interested parties recommending
particular services to be removed from
the IPO list. Following our clinical
review, we did not find sufficient
evidence that, using the five criteria
listed above, these services meet the
criteria to be removed from the IPO list
for CY 2024. Therefore, we are not
proposing to remove any services from
the IPO list for CY 2024.
We propose to add nine services for
which codes were newly created by the
AMA CPT Editorial Panel for CY 2024
to the IPO list. These new services are
described by the placeholder CPT codes
X114T, 2X002, 2X003, 2X004, 619X1,
7X000, 7X001, 7X002, and 7X003,
which will be effective on January 1,
2024. After clinical review of these
services, we found that they require a
hospital inpatient admission or stay and
thus, we believe they are not
appropriate for payment under the
OPPS. We propose to assign these
services to status indicator ‘‘C’’
(Inpatient Only) for CY 2024.
Additionally, we propose to reassign
CPT code 0646T from status indicator
‘‘E1’’ (not payable by Medicare) to ‘‘C,’’
effective CY 2024. The CPT codes, long
descriptors, and the proposed CY 2024
payment indicators are displayed in
Table 47.
Table 47 below contains the proposed
changes to the IPO list for CY 2024. The
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beginning in CY 2024 is also included
as Addendum E to this proposed rule,
which is available via the internet on
the CMS website.
BILLING CODE 4120–01–P
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complete list of codes describing
services that are proposed to be
designated as inpatient only services
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BILLING CODE 4120–01–C
C. Solicitation of Public Comments on
the Services Described by CPT Codes
43775, 43644, 43645, and 44204
We are soliciting comments regarding
whether the services described by CPT
codes 43775 (Laparoscopy, surgical,
gastric restrictive procedure;
longitudinal gastrectomy (i.e., sleeve
gastrectomy)), 43644 (Laparoscopy,
surgical, gastric restrictive procedure;
with gastric bypass and roux-en-y
gastroenterostomy (roux limb 150 cm or
less)), 43645 (Laparoscopy, surgical,
gastric restrictive procedure; with
gastric bypass and small intestine
reconstruction to limit absorption), and
44204 (Laparoscopy, surgical;
colectomy, partial, with anastomosis)
are appropriate to be removed from the
IPO list. At this time, we do not believe
that we have adequate information to
determine whether the services
described by CPT codes 43775, 43644,
43645, and 44204 can be safely
performed in the hospital outpatient
department setting on the Medicare
population. Therefore, we are
specifically requesting information on
evidence that these services can be
performed safely on the Medicare
population in the outpatient setting. We
are also seeking public comments on
whether the services described by CPT
codes 43775, 43644, 43645, and 44204
specifically meet any of the five criteria
to be removed from the IPO list
mentioned above.
X. Proposed Nonrecurring Policy
Changes
ddrumheller on DSK120RN23PROD with PROPOSALS2
A. Supervision by Nurse Practitioners,
Physician Assistants, and Clinical Nurse
Specialists of Cardiac Rehabilitation,
Intensive Cardiac Rehabilitation, and
Pulmonary Rehabilitation Services
Furnished to Hospital Outpatients
1. Background
Section 51008(a) of the Bipartisan
Budget Act of 2018 (BBA of 2018) (Pub.
L. 115–123) amended section
1861(eee)(1) and (2) of the Act to revise
the definitions of cardiac rehabilitation
(CR) program and intensive cardiac
rehabilitation (ICR) program,
respectively, to provide that services
these programs furnish can be under the
supervision of a physician assistant
(PA), nurse practitioner (NP), or clinical
nurse specialist (CNS). Section 51008(b)
of the BBA of 2018 amended section
1861(fff)(1) of the Act similarly to revise
the definition of a pulmonary
rehabilitation (PR) program to provide
that PR services can be furnished under
the supervision of these same types of
practitioners. Section 51008(c) of the
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BBA of 2018 provides that these
amendments apply to items and services
furnished on or after January 1, 2024.
Before the effective date of these
amendments, only physicians could
supervise services furnished as part of
CR, ICR, and PR programs.
To implement these amendments, we
propose in the CY 2024 PFS proposed
rule to revise the regulations at 42 CFR
410.47 and 410.49, which describe the
conditions of coverage for the CR, ICR
and PR programs, to provide that
physician assistants, nurse practitioners,
and clinical nurse specialists can
supervise CR, ICR and PR program
services. Specifically, the CY 2024 PFS
proposed rule proposes to amend
§§ 410.47 and 410.49 to provide that
supervision of pulmonary rehabilitation,
cardiac rehabilitation and intensive
cardiac rehabilitation services can be
provided by a physician, PA, NP, or
CNS.
2. Proposed Conforming Revisions to
§ 410.27
Correspondingly, to implement the
amendments to section 1861(eee)(1) and
(2) and (fff) of the Act, and to be
consistent with the proposed revisions
to § 410.47 and § 410.49, we propose to
make conforming revisions to § 410.27,
which describes the conditions for
coverage for therapeutic outpatient
hospital or CAH services and supplies
provided incident to a physician’s or
nonphysician practitioner’s service.
Currently, § 410.27(a)(1)(iv)(B)(1)
provides that for PR, CR, and ICR
services, direct supervision must be
furnished by a doctor of medicine or
osteopathy as specified in §§ 410.47 and
410.49. We propose to delete the
reference to a doctor of medicine or
osteopathy and retain the crossreference to §§ 410.47 and 410.49. As
the text remaining following this
deletion would consist solely of crossreferences to the newly revised
§§ 410.47 and 410.49, this would have
the effect of expanding who may
provide supervision for CR, ICR and PR
to include PAs, NPs, and CNSs for
purposes of supervision of PR, CR, and
ICR services under § 410.27.
In the interim final rule with
comment period titled ‘‘Policy and
Regulatory Provisions in Response to
the COVID–19 Public Health
Emergency,’’ published on April 6, 2020
(the April 6th COVID–19 IFC) (85 FR
19230, 19246, 19286), we changed the
regulation at 42 CFR 410.27(a)(1)(iv)(D)
to provide that, during a Public Health
Emergency as defined in 42 CFR
400.200, the presence of the physician
for purposes of the direct supervision
requirement for PR, CR, and ICR
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services includes virtual presence
through audio/video real-time
communications technology when use
of such technology is indicated to
reduce exposure risks for the beneficiary
or health care provider. Specifically, the
required direct physician supervision
can be provided through virtual
presence using audio/video real-time
communications technology (excluding
audio-only) subject to the clinical
judgment of the supervising
practitioner. We further amended
§ 410.27(a)(1)(iv)(D) in the CY 2021
OPPS/ASC final rule with comment
period to provide that this flexibility
continues until the later of the end of
the calendar year in which the PHE as
defined in § 400.200 ends or December
31, 2021 (85 FR 86113 and 86299). In
the CY 2021 OPPS/ASC final rule with
comment period we also clarified that
this flexibility excluded the presence of
the supervising practitioner via audioonly telecommunications technology
(85 FR 86113).
In the CY 2022 PFS final rule, CMS
added CPT codes 93797 (Physician or
other qualified health care professional
services for outpatient cardiac
rehabilitation; without continuous ECG
monitoring (per session)) and 93798
(Physician or other qualified health care
professional services for outpatient
cardiac rehabilitation; with continuous
ECG monitoring (per session)) and
HCPCS codes G0422 (Intensive cardiac
rehabilitation; with or without
continuous ecg monitoring with
exercise, per session) and G0423
(Intensive cardiac rehabilitation; with or
without continuous ecg monitoring;
without exercise, per session) to the
Medicare Telehealth Services List on a
Category 3 basis (86 FR 65055).
In order to effectuate a similar policy
under the OPPS, where PR, CR, and ICR
rehabilitation services could be
furnished during the PHE to
beneficiaries in hospitals under direct
supervision of a physician where the
supervising practitioner is immediately
available to be present via two-way,
audio/video communications
technology, in the CY 2023 OPPS/ASC
final rule with comment period, we
finalized a policy to extend the revised
definition of direct supervision to
include the presence of the supervising
practitioner through two-way, audio/
video telecommunications technology
until December 31, 2023 (87 FR 72019
through 72020). Under the telehealth
flexibilities extended in the CAA, 2023,
these services will remain on the
Medicare Telehealth Services List
through the end of CY 2024. In the
interest of maintaining similar policies
for direct supervision of PR, CR, and
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ICR under the OPPS and PFS, we
propose to further revise
§ 410.27(a)(1)(iv)(B)(1) to allow for the
direct supervision requirement for CR,
ICR, and PR to include virtual presence
of the physician through audio-video
real-time communications technology
(excluding audio-only) through
December 31, 2024 and extend this
policy to the nonphysician
practitioners, that is NPs, PAs, and
CNSs, who are eligible to supervise
these services in CY 2024. We are also
soliciting comments on whether there
are safety and/or quality of care
concerns regarding adopting this policy
beyond the current or proposed
extensions and what policies CMS
could adopt to address those concerns if
the policy were extended beyond 2023.
For the complete discussion of the
proposed revisions to § 410.47 and
§ 410.49, we refer readers to the CY
2024 PFS proposed rule that is
published elsewhere in the Federal
Register.
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B. Payment for Intensive Cardiac
Rehabilitation Services (ICR) Provided
by an Off-Campus, Non-Excepted
Provider Based Department (PBD) of a
Hospital
1. Background on Intensive Cardiac
Rehabilitation
Section 144(a) of the Medicare
Improvements for Patients and
Providers Act of 2008 (MIPPA) (Pub. L.
110–275) made a number of changes to
the Act related to coverage and payment
for pulmonary and cardiac
rehabilitation services furnished to
beneficiaries with chronic obstructive
pulmonary disease and certain other
conditions, effective January 1, 2010.
Specifically, section 144(a)(1)(A) of
MIPPA amended section 1861(s)(2) of
the Act by adding new subparagraphs
(CC) and (DD) to provide for Medicare
Part B coverage of items and services
furnished under a cardiac rehabilitation
(CR) program (as defined in a new
section 1861(eee)(1) of the Act); a
pulmonary rehabilitation (PR) program
(as defined in a new section 1861(fff)(1)
of the Act); and an intensive cardiac
rehabilitation (ICR) program (as defined
in a new section 1861(eee)(4) of the
Act). The amendments made by section
144(a) of MIPPA provide for coverage of
CR, PR, and ICR program services
provided in a physician’s office, in a
hospital on an outpatient basis, and in
other settings determined appropriate
by the Secretary.
Section 144(a)(2) of MIPPA amended
section 1848(j)(3) of the Act to provide
for payment for services furnished in an
ICR program under the PFS and also
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added a new paragraph (5) to section
1848(b) of the Act. Section 1848(b)(5)(A)
requires the Secretary for ICR program
services to substitute the Medicare OPD
fee schedule amount established under
the OPPS for cardiac rehabilitation
(under HCPCS codes 93797 and 93798
for calendar year 2007, or any
succeeding HCPCS codes for cardiac
rehabilitation). For a full discussion of
implementation of the MIPPA
amendments related to coverage and
payment for PR, CR, and ICR programs
under the OPPS, we refer readers to the
CY 2010 OPPS/ASC final rule with
comment period (74 FR 60566 through
60574).
2. Background on Section 603 of the
Bipartisan Budget Act of 2015 and the
PFS Relativity Adjuster
Section 603 of the Bipartisan Budget
Act of 2015 (Pub. L. 114–74) (BBA,
2015) (hereinafter referred to as ‘‘section
603’’) amended section 1833(t) of the
Act by adding a new clause (v) to
paragraph (1)(B) and adding a new
paragraph (21). As a general matter,
under sections 1833(t)(1)(B)(v) and
(t)(21) of the Act, applicable items and
services furnished by certain off-campus
outpatient departments of a provider on
or after January 1, 2017, are not
considered covered OPD services as
defined under section 1833(t)(1)(B) of
the Act for purposes of payment under
the OPPS and are instead paid ‘‘under
the applicable payment system’’ under
Medicare Part B if the requirements for
such payment are otherwise met.
Section 603 amended section
1833(t)(1)(B) of the Act by adding a new
clause (v), which excludes from the
definition of ‘‘covered OPD services’’
applicable items and services (defined
in paragraph (21)(A) of the section) that
are furnished on or after January 1,
2017, by an off-campus PBD, as defined
in paragraph (21)(B) of the section.
In the CY 2017 OPPS/ASC final rule
with comment period (81 FR 79699
through 79719), we adopted a number of
policies to implement section 603.
Broadly, we: (1) defined applicable
items and services in accordance with
section 1833(t)(21)(A) of the Act for
purposes of determining whether such
items and services are covered OPD
services under section 1833(t)(1)(B)(v) of
the Act or whether payment for such
items and services will instead be made
under the applicable payment system
designated under section 1833(t)(21)(C)
of the Act; (2) defined off-campus PBD
for purposes of sections 1833(t)(1)(B)(v)
and (t)(21) of the Act; and (3)
established policies for payment for
applicable items and services furnished
by an off-campus PBD (nonexcepted
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items and services) under section
1833(t)(21)(C) of the Act. To do so, we
finalized policies that define whether
certain items and services furnished by
a given off-campus PBD may be
considered excepted and, thus, continue
to be paid under the OPPS; established
the requirements for the off-campus
PBDs to maintain excepted status (both
for the excepted off-campus PBDs and
for the items and services furnished by
such excepted off-campus PBDs); and
described the applicable payment
system for nonexcepted items and
services (generally, the PFS).
To effectuate payment for
nonexcepted items and services, in the
CY 2017 interim final rule with
comment period (81 FR 79720 through
79729), we established a new set of
payment rates under the PFS that
reflected the relative resource costs of
furnishing the technical component of a
broad range of services to be paid under
the PFS specific to the nonexcepted offcampus PBDs of a hospital. Specifically,
we established a PFS Relativity Adjuster
that is applied to the OPPS rate for the
billed nonexcepted items and services
furnished in a nonexcepted off-campus
PBD in order to calculate payment rates
under the PFS. The PFS Relativity
Adjuster reflects the estimated overall
difference between the payment that
would otherwise be made to a hospital
under the OPPS for the nonexcepted
items and services furnished in
nonexcepted off-campus PBDs and the
resource-based payment under the PFS
for the technical aspect of those services
with reference to the difference between
the facility and nonfacility (office) rates
and policies under the PFS.
Nonexcepted items and services
furnished by nonexcepted off-campus
PBDs are generally paid under the PFS
at the applicable OPPS payment rate
adjusted by the PFS Relativity Adjuster
of 40 percent (that is, 60 percent less
than the OPPS rate) (82 FR 53030).
In the CY 2017 OPPS/ASC final rule
with comment period (81 FR 79719 and
79725), we created modifier ‘‘PN’’ to
collect data for purposes of
implementing section 603 but also to
trigger payment under the newly
adopted PFS-equivalent rates for
nonexcepted items and services.
Nonexcepted off-campus PBDs bill for
nonexcepted items and services on the
institutional claim utilizing modifier
‘‘PN’’ to indicate that an item or service
is a nonexcepted item or service.
For a full discussion of our initial
implementation of section 603, we refer
readers to the CY 2017 OPPS/ASC final
rule with comment period (81 FR 79699
through 79719) and the interim final
rule with comment period (79720
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through 79729). For a detailed
discussion of the current PFS Relativity
Adjuster related to payments under
section 603, we refer readers to the CY
2018 OPPS/ASC final rule with
comment period (82 FR 52356 through
52637) and the CY 2019 PFS final rule
with comment period (82 FR 59505
through 59513).
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3. Proposal To Modify Claims
Processing of HCPCs Codes G0422 and
G0423 To Address an Unintended
Payment Disparity Caused by
Application of the PFS Relativity
Adjuster to ICR Services Furnished by
Off-Campus Non-Excepted PBDs
Hospitals
Since 2010, ICR services provided in
the physician’s office have been paid at
This disparity creates a significant
barrier to beneficiary access to an
already underutilized service. To
eliminate this unintended outcome and
for consistency with the requirement in
section 1848(b)(5)(A) of the Act to
substitute the OPPS rate for CR services
for the PFS rate for ICR services, we
propose to pay for ICR services provided
by an off-campus, non-excepted
provider-based department of a hospital
at 100 percent of the OPPS rate for CR
services (which is also 100 percent of
the PFS rate) rather than at 40 percent
of the OPPS rate. Effective January 1,
2024, we propose to exclude ICR from
the 40 percent Relativity Adjuster policy
at the code level by modifying the
claims processing of HCPCS codes
G0422 (Intensive cardiac rehabilitation;
with or without continuous ECG
monitoring with exercise, per session)
and G0423 (Intensive cardiac
rehabilitation; with or without
continuous ECG monitoring without
exercise, per session) so that 100
percent of the OPPS rate for CR is paid
irrespective of the presence of the ‘‘PN’’
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100 percent of the OPPS rate for CR
services as required by 1848(b)(5). Since
2017, ICR services provided by an offcampus, non-excepted PBD of a hospital
have been paid at the above-described
‘‘PFS-equivalent’’ rate through
application of the PFS Relativity
Adjuster, which was 50 percent of the
OPPS rate in CY 2017 and 40 percent of
the OPPS rate in CY 2018 and thereafter,
consistent with the above-described
implementation of section 603.
This has produced an outcome
inconsistent with the text of section
1848(a)(5)(A) and at odds with the
intent of section 603, which was to
remove the significant disparity in
payment rates for the same services
depending on whether they were
furnished in a physician’s office or an
off-campus, non-excepted PBD of a
hospital. When the PFS Relativity
Adjuster was implemented in 2017,
payment for the ICR service provided in
a physician’s office and a PBD of an offcampus, non-excepted hospital was
already the same pursuant to section
1848(b)(5)(A), which explicitly requires
ICR services provided in a physician’s
office to be paid at the OPPS rate for
cardiac rehabilitation. Consequently,
application of the 40 percent PFS
Relativity Adjuster to payment for ICR
provided by an off-campus, nonexcepted PBD has resulted in an
unintended reimbursement disparity
between the two sites of the service, as
shown in Table 48.
modifier (signifying a service provided
in a non-excepted off-campus providerbased department of a hospital) on the
claim. We solicit comment on whether
there are other services for which the
OPPS rate is unconditionally used
under the PFS, such that these services
should be treated similarly for purposes
of payment to off-campus, non-excepted
provider-based departments of
hospitals.
[covid–19]), any specimen source) (85
FR 27604). In our review of available
HCPCS and CPT codes for the May 8th,
2020 COVID–19 IFC, we did not identify
a prior code that explicitly described the
exact services of symptom assessment
and specimen collection that HOPDs
were undertaking to facilitate
widespread testing for COVID–19. We
believed that HCPCS code C9803 was
necessary to meet the resource
requirements for HOPDs to provide
extensive testing for the duration of the
COVID–19 PHE. This code was created
only to meet the need of the COVID–19
PHE and we stated that we expected to
retire this code at the conclusion of the
COVID–19 PHE (85 FR 27604).
We assigned HCPCS code C9803 to
APC 5731—Level 1 Minor Procedures
effective March 1, 2020 for the duration
of the COVID–19 PHE. In accordance
with Section 1833(t)(2)(B) of the Act,
APC 5731—Level 1 Minor Procedures
contains services similar to HCPCS code
C9803. APC 5731—Level 1 Minor
Procedures has a payment rate of $24.96
for CY 2023. HCPCS code C9803 was
C. OPPS Payment for Specimen
Collection for COVID–19 Tests
In the May 8th, 2020 COVID–19
interim final rule with comment period
titled ‘‘Additional Policy and Regulatory
Revisions in Response to the COVID–19
Public Health Emergency and Delay of
Certain Reporting Requirements for the
Skilled Nursing Facility Quality
Reporting Program’’, we created a new
E/M code to support COVID–19 testing
during the PHE: HCPCS code C9803
(Hospital outpatient clinic visit
specimen collection for severe acute
respiratory syndrome coronavirus 2
(sars–cov–2) (coronavirus disease
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also assigned a status indicator of ‘‘Q1.’’
The Q1 status indicator indicates that
the OPPS will package services billed
under HCPCS code C9803 when billed
with a separately payable primary
service in the same encounter. When
HCPCS code C9803 is billed without
another separately payable primary
service, we explained that we will make
separate payment for the service under
the OPPS. The OPPS also makes
separate payment for HCPCS code
C9803 when it is billed with a clinical
diagnostic laboratory test with a status
indicator of ‘‘A’’ on Addendum B of the
OPPS. On May 11, 2023, the COVID–19
PHE concluded.123 As stated above, we
created HCPCS code C9803 to meet the
need of the COVID–19 PHE and the
resource requirements for HOPDs
during the PHE, and planned to retire
the code following the conclusion of the
PHE. While the code will remain active
for the remainder of CY 2023 for
technical reasons, we do not believe it
is necessary for the code remain active
in CY 2024 now that the PHE has
concluded. Therefore, we propose to
delete HCPCS code C9803 effective
January 1, 2024. We solicit comment on
our proposal to delete this code for CY
2024.
D. Remote Services
When we created HCPCS codes C7900
through C7902, we did not specify
whether they should be used for
individual or group services, preferring
to keep the coding more general while
we gathered information about the use
of these new codes. However, we have
heard from interested parties that, in
instances when a beneficiary is
receiving multiple units of group
therapy a day, it is administratively
burdensome to report and document
each unit of time using multiple codes.
Instead, interested parties requested that
we create a single, untimed code that
can be reported when a beneficiary
receives multiple hours of group
therapy per day. In order to reduce
administrative burden and enhance
access to these services, we propose to
create a new, untimed, HCPCS C-code
describing group therapy. Please see
Table 50 for the proposed C-code and
long descriptor.
1. Mental Health Services Furnished
Remotely by Hospital Staff to
Beneficiaries in Their Homes
In the CY 2023 OPPS final rule with
comment period (87 FR 72012 through
72017), we finalized creation of three
HCPCS C-codes to describe mental
health services furnished by hospital
staff to beneficiaries in their homes
through communications technology.
See Table 49 for the C-code numbers
and their descriptors.
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As we stated in the CY 2023 OPPS
final rule with comment period, when
beneficiaries are in their homes and not
physically within the hospital, the
hospital is not accruing all the costs
associated with an in-person service;
and the full OPPS rate would not
accurately reflect these reduced costs.
We believe that the costs associated
with hospital clinical staff remotely
furnishing a mental health service to a
beneficiary who is in their home using
communications technology more
closely resembles the PFS payment
amount for similar services when
performed in a facility, which reflects
the time and intensity of the
professional work associated with
performing the mental health service
but does not reflect certain practice
expense costs, such as clinical labor,
equipment, or supplies (87 FR 72015).
In keeping with that methodology, we
propose to assign HCPCS code C79XX to
an APC based on the facility payment
amount for a clinically similar service,
CPT code 90853 (Group psychotherapy
(other than of a multiple-family group))
under the PFS. See Table 51 for the
proposed SI and APC assignments and
payment rates for HCPCS code C79XX.
We seek comment on whether HCPCS
code C79XX sufficiently describes group
psychotherapy to the extent that group
psychotherapy would no longer be
reported with HCPCS codes C7900–
C7902, in which case we would need to
refine the code descriptors for HCPCS
codes C7900–C7902 to stipulate that
they are solely for services furnished to
an individual beneficiary. Alternatively,
we are seeking comment on whether or
there are circumstances where
interested parties believe it would be
appropriate to bill for group services
using HCPCS codes C7900–C7902. We
also seek comment on any further
refinements to the code descriptors,
valuation, or billing guidance.
We have also heard from interested
parties that there is confusion about the
presence of the word ‘‘initial’’ in the
descriptors for HCPCS codes C7900 and
C7901 and that this is preventing billing
for remote behavioral health services
furnished subsequent to either the first
15 to 29 minutes or 30 to 60 minutes.
In order to facilitate accurate billing,
regardless of whether the remote mental
health service is being furnished as an
initial or subsequent service, we
propose to revise the code descriptors to
remove the word ‘‘initial.’’ We also
propose to revise the descriptor for
HCPCS code C7902 to limit billing with
HCPCS code C7901. See Table 52 for
revised code descriptors.
BILLING CODE 4120–01–C
receives an in-person service within 6
months prior to the first time the
hospital clinical staff provides the
mental health services remotely; and
that there must be an in-person service
without the use of telecommunications
technology within 12 months of each
mental health service furnished
remotely by the hospital clinical staff.
We also finalized that we would permit
exceptions to the requirement that there
be an in-person service without the use
of communications technology within
12 months of each remotely furnished
mental health service when the hospital
clinical staff member and beneficiary
agree that the risks and burdens of an
in-person service outweigh the benefits
2. Periodic In-Person Visits
In the CY 2023 OPPS final rule with
comment period (87 FR 72017), we
finalized a requirement that payment for
mental health services furnished
remotely to beneficiaries in their homes
using telecommunications technology
may only be made if the beneficiary
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of it. We stated that exceptions to the inperson visit requirement should involve
a clear justification documented in the
beneficiary’s medical record including
the clinician’s professional judgement
that the patient is clinically stable and/
or that an in-person visit has the risk of
worsening the person’s condition,
creating undue hardship on the person
or their family, or would otherwise
result in disengaging with care that has
been effective in managing the person’s
illness. We also finalized that hospitals
must document that the patient has a
regular source of general medical care
and has the ability to obtain any needed
point of care testing, including vital sign
monitoring and laboratory studies. We
finalized that these requirements would
not go into effect until the 152nd day
after the PHE for COVID–19 ends to
maintain consistency with similar
policies implemented for professional
services paid under the PFS, and for
RHCs/FQHCs (87 FR 72018).
Section 4113(d) of the Consolidated
Appropriations Act (CAA), 2023, (Pub.
L. 117–328) extended the delay in
implementing the in-person visit
requirements until January 1, 2025, for
both professionals billing for mental
health services via Medicare telehealth
and for RHCs/FQHCs furnishing remote
mental health visits. As previously
stated, we believe it is important to
maintain consistent requirements for
these policies across payment systems;
therefore we propose to delay the inperson visit requirements for mental
health services furnished remotely by
hospital staff to beneficiaries in their
homes until January 1, 2025.
3. Payment for Outpatient Therapy
Services, Diabetes Self-Management
Training, and Medical Nutrition
Therapy When Furnished by Hospital
Staff to Beneficiaries in Their Homes
Through Communication Technology
The CAA, 2023 extended most
flexibilities for Medicare telehealth
services, including retention of physical
and occupational therapists and speechlanguage pathologists as telehealth
distant site practitioners, through the
end of CY 2024. In the CY 2024 PFS
proposed rule, we propose to continue
to make payment for outpatient therapy
(physical therapy, occupational therapy,
and speech-language pathology)
services, Diabetes Self-Management
Training, and Medical Nutrition
Therapy when furnished via telehealth
by qualified employed staff of
institutional providers through the end
of CY 2024. We note that this proposal
includes outpatient therapy, DSMT, and
MNT services furnished via telehealth
by staff of hospital outpatient
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departments. For further discussion,
please see the CY 2024 PFS proposed
rule.
E. OPPS Payment for Dental Services
Background
Section 1862(a)(12) of the Act
generally precludes payment under
Medicare Parts A or B for any expenses
incurred for services in connection with
the care, treatment, filling, removal, or
replacement of teeth or structures
directly supporting teeth. (Collectively
here, we will refer to ‘‘the care,
treatment, filling, removal, or
replacement of teeth or structures
directly supporting teeth’’ as ‘‘dental
services.’’) In the CY 2023 Physician Fee
Schedule (PFS) final rule (87 FR 69663),
we explained that we believe there are
instances where dental services are so
integral to other medically necessary
services that they are not in connection
with the care, treatment, filling,
removal, or replacement of teeth or
structures directly supporting teeth
within the meaning of section
1862(a)(12) of the Act. Rather, such
dental services are inextricably linked to
the clinical success of an otherwise
covered medical service, and therefore,
are instead substantially related and
integral to that primary medical service.
To provide greater clarity to our current
policies and respond to issues raised by
interested parties, in the CY 2023 PFS
final rule, we finalized: (1) a
clarification of our interpretation of
section 1862(a)(12) of the Act to permit
payment for dental services that are
inextricably linked to, and substantially
related and integral to the clinical
success of, other covered medical
services (hereafter in this discussion,
‘‘inextricably linked to other covered
services’’); (2) clarification and
codification of certain longstanding
Medicare FFS payment policies for
inextricably linked dental services; (3)
that, beginning for CY 2023, Medicare
Parts A and B payment can be made for
certain dental services inextricably
linked to Medicare-covered organ
transplant, cardiac valve replacement,
or valvuloplasty procedures; (4) for CY
2024, that Medicare Part A and B
payment can be made for certain dental
services inextricably linked to
Medicare-covered services for treatment
of head and neck cancers; and (5)
beginning for CY 2023, the
establishment of a process to submit for
our consideration and review additional
dental services that are inextricably
linked to other covered medical services
(87 FR 69670 through 69671). The CY
2023 PFS final rule specified that
Medicare payment for these dental
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services may be made regardless of
whether the services are furnished in an
inpatient or outpatient setting. We
direct readers to the CY 2023 PFS final
rule (87 FR 69663 through 69688) for a
full discussion of these policies as well
as to the CY 2024 PFS proposed rule for
proposals related to dental services.
In the CY 2023 PFS final rule, CMS
identified various examples of HCPCS
codes, mostly Current Dental
Terminology (CDT®) codes, that could
be used to describe the types of dental
services identified in the CY 2023 PFS
final rule for which Medicare payment
can be made when coverage and
payment policy requirements are met
(87 FR 69667). We refer readers to the
PFS Relative Value Files that are
released quarterly on the CMS website
for a comprehensive list of HCPCS
codes, including D-codes, that may be
payable under the PFS, available at
https://www.cms.gov/medicare/
medicare-fee-for-service-payment/
physicianfeesched/pfs-relative-valuefiles.
The policies adopted in the CY 2023
PFS final rule allow payment for certain
dental services performed in outpatient
settings. However, the current dental
codes assigned to APCs for CY 2023 do
not fully describe the dental services
that may be inextricably linked to
covered medical services and payable
under Medicare Part B. Specifically, for
the OPPS for CY 2023, only 57 CDT
codes are assigned to APCs and payable
under the OPPS when coverage and
payment conditions are met. In addition
to the small number of CDT codes
assigned to APCs for CY 2023, there is
also a limited number of CPT codes that
may describe dental services, including
CPT code 41899 (Unlisted px dentalvlr
strux), that are currently assigned to
APCs and payable under the OPPS.
In the CY 2023 OPPS/ASC final rule
with comment period, we created
HCPCS code G0330 to describe facility
services for dental rehabilitation
procedure(s) furnished to patients who
require monitored anesthesia (e.g.,
general, intravenous sedation
(monitored anesthesia care)) and use of
an operating room. We finalized this
code based on extensive public
comments expressing the need for a
coding and payment mechanism to
improve access to covered dental
procedures under anesthesia, especially
dental rehabilitation procedures, an
issue that commenters to the CY 2023
OPPS proposed rule explained is caused
by barriers to securing sufficient
operating room time to furnish these
services. We further noted that HCPCS
code G0330 must only be used to
describe facility fees for dental
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rehabilitation services that meet
Medicare payment and coverage
requirements as interpreted in the CY
2023 PFS final rule. We explained that
HCPCS code G0330 cannot be used to
describe or bill the facility fee for
noncovered dental professional services.
We assigned HCPCS code G0330 to APC
5871 (Dental Procedures) for CY 2023.
We direct readers to the CY 2023 OPPS/
ASC final rule with comment period for
a full discussion on HCPCS code G0330
(87 FR 71882 through 71883). For CY
2024, we do not propose to change the
APC assignment for HCPCS code G0330.
However, we refer readers to the section
XIII of this proposed rule for a proposal
regarding payment for HCPCS code
G0330 under the ASC payment system.
2. Proposed OPPS Payment for
Additional Dental Codes Beginning in
CY 2024
To ensure that dental services can be
paid under the OPPS when consistent
with the policies and clarifications
included in the CY 2023 PFS final rule,
we propose to assign additional dental
codes to APCs for CY 2024. Specifically,
for CY 2024, we propose to assign 229
additional dental codes to clinical APCs
to enable them to be paid for under the
OPPS when payment and coverage
requirements are met. Assigning
additional dental codes to clinical APCs
would result in greater consistency in
Medicare payment for different sites of
service and help ensure patient access
to dental services for which payment
can be made when performed in the
hospital outpatient setting.
Prior to detailing our proposals, we
note two things for readers’ awareness.
First, OPPS payment will only be made
for a dental code that we propose to
assign to an APC for CY 2024 if it is
among the types of dental services for
which payment can be made as
described in the regulation at
§ 411.15(i)(3)(i). As we have consistently
stated in past rules (87 FR 71879) and
quarterly change requests to assign new
codes to APCs (see, e.g., Pub 100–04
Medicare Claims Processing,
Transmittal 11937), the fact that a drug,
device, procedure or service is assigned
a HCPCS code and a payment rate under
the OPPS does not imply coverage by
the Medicare program, but indicates
only how the product, procedure, or
service may be paid if covered by the
program. Medicare Administrative
Contractors (MACs) determine whether
a drug, device, procedure, or other
service meets all program requirements
and conditions for coverage and
payment. Accordingly, we emphasize
that HOPDs would only receive
payment for a dental service assigned to
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an APC when the appropriate MAC
determines that the service meets the
relevant conditions for coverage and
payment.
Second, we anticipate that we would
continue to assess our policies for OPPS
payment for dental services in future
rulemaking. We believe that as we
collect claims data, gather input from
the public and interested parties, and
learn more about the services performed
in the HOPD setting, we will be able to
make more informed decisions
regarding payment rates, APC
assignments, and status indicators for
dental services.
The dental services for which we
propose APC assignments in this
proposed rule are those dental services
described in the CY 2023 PFS final rule
for which Medicare Part B payment can
be made when they are inextricably
linked to other covered services. Based
on the dental services identified in that
final rule, we generated a list of codes
that describe those services for which
we believe we need to propose APC
assignments to ensure payment is
available under the OPPS. To generate
this list, we reviewed the dental codes
that were specifically listed as examples
of payable dental services in the CY
2023 PFS final rule (87 FR 69676). We
also reviewed the clinical vignettes
provided in the CY 2023 PFS final rule
to identify whether there are other
dental codes in addition to the dental
code examples already identified for
which we should propose APC
assignments.
The CY 2023 PFS final rule amended
§ 411.15(i)(3)(i) to allow for payment
under Medicare Part A and Part B for
dental services, furnished in an
inpatient or outpatient setting, that are
inextricably linked to, and substantially
related and integral to the success of,
certain other covered medical services,
including, but not limited to: (1) dental
or oral examination as part of a
comprehensive workup prior to a
Medicare covered organ transplant,
cardiac valve replacement, or
valvuloplasty procedures; and the
necessary diagnostic and treatment
services to eliminate an oral or dental
infection prior to, or contemporaneously
with, the organ transplant, cardiac valve
replacement, or valvuloplasty
procedure; (2) reconstruction of a dental
ridge performed as a result of, and at the
same time as, the surgical removal of a
tumor; (3) the stabilization or
immobilization of teeth in connection
with the reduction of a jaw fracture, and
dental splints only when used in
conjunction with covered treatment of a
covered medical condition such as
dislocated jaw joints; and (4) the
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extraction of teeth to prepare the jaw for
radiation treatment of neoplastic
disease. For CY 2024, we established
that Medicare Parts A and B payment
may also be made for dental services,
such as dental examinations, including
necessary treatments, performed as part
of a comprehensive workup prior to
treatment for head and neck cancers. We
include a proposal in the CY 2024 PFS
proposed rule to codify this example
under § 411.15(i)(3)(i). We identified
dental services described in the
regulation at § 411.15(i)(3)(i) and those
that may be part of a comprehensive
workup prior to treatment for head and
neck cancers that could be payable
under the OPPS if payment and
coverage requirements are met. For
example, consistent with
§ 411.15(i)(3)(A), which describes dental
or oral examinations as part of a
comprehensive workup prior to a
Medicare covered organ transplant,
cardiac valve replacement, or
valvuloplasty procedure, we identified
several codes describing dental
examinations for which we propose
APC assignments (e.g., D0120, D0140,
D0150, D0160, D0170, D0180, D0191,
D0171). Section 411.15(i)(3)(C)
describes services for the stabilization or
immobilization of the teeth in
connection with the reduction of a jaw
fracture, and dental splints only when
used with a covered treatment of a
covered medical condition. We
identified an additional 16 dental codes
(e.g., D7670–D7671; D4322; D5988) that
we believe identify these services and
for which we propose APC assignments.
While it is appropriate for CMS to
assign certain dental codes to APCs for
payment under the OPPS, we do not
believe that every dental code should be
assigned to an APC and made payable
under the OPPS. For instance, there are
services described by CDT codes that
may already be described by existing
CPT codes assigned to clinical APCs.
When this is the case, we propose that
HOPDs would use the existing CPT
codes to bill for the services performed.
We also are not proposing APC
assignments for all dental codes, even if
they describe dental services that are
payable consistent with the policies and
clarifications included in the CY 2023
PFS final rule. This is because under
our regulation at 42 CFR 419.22, the
following services are not paid under
the OPPS (except when packaged as part
of a bundled payment): physician
services that meet the requirements of
42 CFR 415.102(a); nurse practitioner or
clinical nurse specialist services, as
defined in section 1861(s)(2)(K)(ii) of
the Act; physician assistant services, as
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defined in section 1861(s)(2)(K)(i) of the
Act; and services of an anesthetist as
defined in § 410.9. We note that dentists
are considered physicians for purposes
of Medicare payment policy, including
this regulation. There are a number of
existing CDT codes that describe the
professional services of dentists that
could be paid under the PFS (e.g.,
D9990–D9997), but that we do not
believe are appropriate for payment
under the OPPS. Therefore, we do not
propose to assign CDT codes that
describe professional services of
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dentists and other dental professionals
to clinical APCs.
Finally, there are dental codes that we
believe would not meet our current
interpretation of dental services that
may be inextricably linked to other
covered medical services. For instance,
there are CDT codes that describe
removable prosthodontic procedures,
including codes that describe complete
or partial denture procedures (e.g.,
D5110; D5120; D5211–D5214). Because
denture procedures are not covered
medical procedures under Medicare, we
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are not proposing to assign any dental
codes describing denture procedures to
clinical APCs.
In sum, in consultation with medical
experts, we identified 229 dental codes
as appropriate for payment under the
OPPS when relevant conditions for
payment and coverage are met. In
addition to the dental codes already
assigned to APCs, we propose to assign
the 229 additional dental codes listed in
Table 53 below to various clinical APCs
for CY 2024:
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We request comments on the list of
229 dental codes that we propose to
assign to APCs for OPPS payment for
CY 2024. We also request comments on
any additional dental codes that may
fall within the scope of dental services
for which payment is permitted as
explained in the CY 2023 PFS final rule
and provided in § 411.14(i)(3)(i), and for
which payment should be made
available under the OPPS when
payment and coverage requirements are
met.
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3. Proposed APC Assignments for
Additional Dental Codes
In accordance with section
1833(t)(2)(B) of the Act, services
classified within each APC must be
comparable clinically and with respect
to the use of resources. Accordingly,
when considering the appropriateness
of an APC assignment for a code, we
consider the clinical characteristics and
resource costs of the service described
by the code compared to other services
in a clinical APC.
Consistent with our existing
processes, we were able to crosswalk
many of the dental codes to existing
CPT codes assigned to APCs for
purposes of assessing clinical similarity.
For instance, we crosswalked certain
tissue graft procedures (e.g., D4270) to
CPT code 41870 (gum graft). Because
both are surgical procedures where gum
tissue near the area of recession is used
to cover and protect the exposed tooth
root, the codes are clinically similar and
we believe are appropriate for grouping
within the same clinical APC (i.e., APC
5163 (Level 3 ENT Procedures)). We
also found clinical similarities between
several dental imaging services and the
services assigned to the various levels of
the Imaging without Contrast APC series
(i.e., APCs 5521 (Level 1, Imaging
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without Contrast); 5522 (Level 2,
Imaging without Contrast); and 5523
(Level 3, Imaging without Contrast)). For
example, we crosswalked D0210 (Intraor
complete film series) to CPT code 70320
(Full mouth x-ray of teeth) and therefore
propose to assign D0210 to APC 5523
based on the crosswalk analysis.
With regard to resource similarity,
because the 229 dental codes we
propose to assign to APCs for CY 2024
were not previously paid under the
OPPS, we do not have existing claims
information to inform proposed APC
placements based on resource costs. We
considered gathering cost information
from several non-Medicare data sources
to aid in assigning the dental codes to
APCs. For instance, we considered
requesting cost information from the
Department of Veterans Affairs (VA).
However, the VA’s dental
reimbursement rates are proprietary and
are not publicly available.
We also considered requesting data
from State Medicaid agencies but found
the available data too inconsistent and
limited to be useful given that payment
rates vary between states. Additionally,
not every State Medicaid Agency
provides the same dental benefits, so
not every state would have cost
information for each of the dental codes
we propose for OPPS payment. Lastly,
while many State Medicaid Agencies
provide robust information on the
dental benefits covered for Medicaid
beneficiaries in their state, the fee
schedules published by State Medicaid
Agencies most likely include payments
to practitioners only and would not be
informative for our purposes of
assigning payment rates under the
OPPS.
Finally, we considered analyzing
private insurance claims from thirdparty databases but determined that the
cost information available would also
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not be relevant for OPPS ratesetting. For
example, because most dental services
covered by private insurance are
provided in the office setting, there is a
very limited number of claims that
would be relevant for OPPS ratesetting
purposes. Of the limited dental claims
performed in the hospital setting, we
learned that many of the dental services
are performed in combination with
several other services; therefore, it
would be extremely difficult to isolate
the facility fee payment for the dental
services performed.
Although specific cost information is
informative for making proposed APC
assignments, it is not essential. For
example, each quarter, after
consultation with clinical experts, CMS
assigns new CPT codes for which no
cost information is available to APCs
using crosswalk code analyses. Similar
to our process for assigning new codes
to APCs, we used a crosswalk code
analysis and consulted with clinical
experts to propose appropriate APC
assignments for the 229 dental codes. In
our conversations with the clinical
experts, we discussed the clinical
aspects of each dental service and
learned about the resources, including
supplies, used to perform each dental
service, in order to more accurately
identify crosswalk codes and propose
APC assignments for them. We solicit
comments regarding the proposed APC
assignments for the dental codes for CY
2024. We refer readers to Addendum B
to this proposed rule for the proposed
CY 2024 APC assignments and
associated payment rates for the dental
codes. Addendum B is available via the
internet on the CMS website.
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4. Proposed Packaged Payment and
Associated Status Indicators for Dental
Codes
For CY 2024, we propose to package
payments for dental services when they
are performed with another covered
dental or medical service to promote
clinical resource efficiencies, a strategic
goal of the OPPS. Given our
understanding of the nature of dental
practice and in consultation with our
clinical experts, we believe packaged
payments are appropriate for dental
services paid under the OPPS. We are
aware that it is common for several
dental services to be performed together,
or alongside other medical services, and
submitted on one claim. Unlike medical
specialties where often only one
procedure is performed at a time, it is
our understanding that it is common for
a patient to undergo several surgical and
non-surgical dental procedures on
multiple teeth in one day, or for dental
services to be performed
contemporaneously with other medical
services. For example, there are several
non-invasive, non-surgical dental
services, including a dental exam or Xray, which would most likely be
performed together with other more
invasive dental services in the HOPD
setting, rather than on their own.
Because a dental exam or X-ray is likely
to be performed in addition to other
more invasive dental services in the
HOPD setting, we believe packaging
payment for dental codes describing
dental exams and X-rays (e.g., D0380–
D0386) when performed with another
service is appropriate and would further
our strategic goal of encouraging
hospitals to furnish services most
efficiently and to manage their resources
with maximum flexibility. We also are
aware that there are several dental
services that are performed as part of a
primary service, and therefore, we
believe would also result in resource
efficiencies if paid under the OPPS as a
packaged payment. For example, CDT
codes D3110 (pulp cap-direct (excluding
final restoration)) and D3120 (pulp capindirect (excluding final restoration))
are typically performed as part of a
restorative procedure (e.g., a crown or
amalgam). Thus, we believe it is
appropriate to propose to package
payment for CDT codes D3110 and
D3120 with payment for the associated
restorative procedures.
We believe our proposal to package
payment for dental services under the
OPPS is consistent with existing
packaging payment principles in the
OPPS. The OPPS regularly packages
payments for multiple interrelated items
and services into a single payment to
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create incentives for hospitals to furnish
services most efficiently and to manage
their resources with maximum
flexibility. We believe applying these
principles to the furnishing of dental
services in the OPPS is appropriate and
would incentivize clinical resource
efficiencies.
In addition to proposing to package
payment for dental services to promote
clinical resource efficiencies, there are
also several dental services that would
nevertheless be packaged under our
regulation at 42 CFR 419.2(b). For
example, payment for dental services
described by add-on codes, like CDT
code D2953 (each addtnl cast post)
would be packaged under the OPPS
consistent with § 419.2(b)(18).
Therefore, we propose to package
payment for CDT code D2953 with the
procedures with which it is performed.
We refer readers to the regulation at
§ 419.2(b) for a full list of items and
services for which payment is packaged
or conditionally packaged.
For CY 2024, we propose packaging
payment for dental services under the
OPPS by assigning the dental codes to
packaged status indicators. We believe
there are clinical resource efficiencies to
be gained by packaging payments rather
than separately paying for each dental
service performed. We refer readers to
Addendum B to this proposed rule for
the proposed CY 2024 status indicators
for the dental codes. Addendum B is
available via the internet on the CMS
website. For more information on all of
the proposed status indicators for CY
2024, including explanations of the
payment status for each proposed status
indicator, we refer readers to
Addendum D1 to this proposed rule.
5. Summary of OPPS Dental Proposal
and Requests for Comments
In summary, we propose to assign an
additional 229 dental codes describing
various dental services to APCs for CY
2024. We are requesting comments on
the list of codes we have identified for
APC assignment and payment under the
OPPS, including whether any of the 229
dental codes do not meet the
requirements for payment for dental
services included in the CY 2023 PFS
final rule and regulation at
§ 411.15(i)(3)(i). Additionally, we are
requesting comments on the proposed
APC assignments for the dental codes
for CY 2024. Finally, we propose to
make packaged payments for dental
services under the OPPS by assigning
the dental codes describing those dental
services to packaged status indicators.
We believe packaging payment for
dental services will incentivize clinical
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resource efficiencies, and we request
comments on our proposal.
F. Use of Claims and Cost Report Data
for CY 2024 OPPS and ASC Payment
System Ratesetting Due to the PHE
As described in section I.A of this
proposed rule, section 1833(t) of the Act
requires the Secretary to annually
review and update the payment rates for
services payable under the Hospital
OPPS. Specifically, section 1833(t)(9)(A)
of the Act requires the Secretary to
review not less often than annually and
to revise the groups, the relative
payment weights, and the wage and
other adjustments described in
paragraph (2) of the Act to take into
account changes in medical practice,
changes in technology, the addition of
new services, new cost data, and other
relevant information and factors.
When updating the OPPS payment
rates and system for each rulemaking
cycle, we primarily use two sources of
information: the outpatient Medicare
claims data and Healthcare Cost Report
Information System (HCRIS) cost report
data. The claims data source is the
Outpatient Standard Analytic File,
which includes final action Medicare
outpatient claims for services furnished
in a given calendar year. For the OPPS
ratesetting process, our goal is to use the
best available data for ratesetting to
accurately estimate the costs associated
with furnishing outpatient services and
to set appropriate payment rates.
Ordinarily, the best available claims
data are the data from 2 years prior to
the calendar year that is the subject of
rulemaking. For the CY 2024 OPPS/ASC
proposed rule ratesetting, the best
available claims data would typically be
the CY 2022 calendar year outpatient
claims data processed through
December 31, 2022. The cost report data
source is typically the Medicare hospital
cost report data files from the most
recently available quarterly HCRIS file
as we begin the ratesetting process. The
best available cost report data used in
developing the OPPS relative weights
would ordinarily be from cost reports
beginning three fiscal years prior to the
year that is the subject of the
rulemaking. For CY 2024 OPPS
ratesetting, that would be cost report
data from HCRIS extracted in December
2022, which would contain many cost
reports ending in FY 2020 and 2021
based on each hospital’s cost reporting
period.
As discussed in the CY 2022 OPPS/
ASC final rule with comment period,
the standard hospital data we would
have otherwise used for purposes of CY
2022 ratesetting included significant
effects from the COVID–19 PHE, which
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led to a number of concerns with using
this data for CY 2022 ratesetting (86 FR
63751 through 63754). In section X.E of
the CY 2022 OPPS/ASC proposed rule
(86 FR 42188 through 42190), we noted
a number of changes in the CY 2020
OPPS claims data we would ordinarily
have used for ratesetting, likely as a
result of the PHE. These changes
included overall aggregate decreases in
claims volume (particularly those
associated with visits); significant
increases in HCPCS code Q3014
(Telehealth originating site facility fee)
in the hospital outpatient claims; and
increases in certain PHE-related
services, such as HCPCS code C9803,
which describes COVID–19 specimen
collection, and services assigned to APC
5801 (Ventilation Initiation and
Management). As a result of the effects
we observed from COVID–19 PHErelated factors in our claims and cost
report data, as well as the increasing
number of Medicare beneficiaries
vaccinated against COVID–19, which we
believed might make the CY 2022
outpatient experience closer to CY 2019
rather than CY 2020, we believed that
CY 2020 data were not the best overall
approximation of expected outpatient
hospital services in CY 2022. Instead,
we believed that CY 2019 data, as the
most recent complete calendar year of
data prior to the COVID–19 PHE, were
a better approximation of expected CY
2022 hospital outpatient services.
Therefore, in the CY 2022 OPPS/ASC
final rule with comment period, we
established a policy of using CY 2019
claims data and cost reports prior to the
PHE in ratesetting for the CY 2022 OPPS
with certain limited exceptions, such as
where CY 2019 data were not available
(86 FR 63753 through 63754).
For the CY 2023 OPPS proposed rule
ratesetting, we conducted a review
similar to the one we conducted for the
CY 2022 OPPS ratesetting to determine
the degree to which the effects of the
COVID–19 PHE had continued or
subsided in our claims data as well as
what claims and cost report data would
be appropriate for CY 2023 OPPS
ratesetting. In general, we saw that the
PHE had limited effect on the service
and aggregate levels of volume as well
as changes in the site of service of care,
suggesting that, while clinical and
billing patterns had not quite returned
to their pre-PHE levels, they were
beginning to do so.
For the CY 2023 OPPS/ASC final rule,
while the effects of the COVID–19 PHE
remained at both the aggregate and
service levels for certain services, as
discussed in that final rule with
comment period (87 FR 48795 through
48798) and in FY 2023 IPPS proposed
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rule (87 FR 28123 through 28125), we
recognized that future COVID–19
variants may have potentially varying
effects. Therefore, we explained that we
believed it was reasonable to assume
that there would continue to be some
effects of the COVID–19 PHE on the
outpatient claims that we use for OPPS
ratesetting, similar to the CY 2021
claims data. As a result, we proposed
and finalized the use of CY 2021 claims
for CY 2023 OPPS ratesetting.
We also used cost report data for the
CY 2023 OPPS/ASC final rule (87 FR
72021) from the same set of cost reports
we originally used in the CY 2021
OPPS/ASC final rule for ratesetting,
which included cost reporting periods
beginning in CY 2018 in most cases. We
typically would have used the most
updated available cost reports available
in HCRIS in determining the CY 2023
OPPS/APC relative weights, which
would have included cost reports with
reporting periods that overlap with parts
of CY 2020. However, noting that we
observed significant impact at the
service level when incorporating these
cost reports into ratesetting and the
effects on billing/clinical patterns, we
finalized a policy to continue to use the
same set of cost reports that we used in
developing CY 2022 OPPS ratesetting.
For CY 2024 OPPS rulemaking, we
continue to observe some differences at
the aggregate and service level volumes
in the CY 2022 claims data, relative to
the pre-PHE period. However, we
believe that it is reasonable to assume
that there will be minor variations as a
result of the COVID–19 PHE in claims
data we use for ratesetting for the
foreseeable future. As we have found
that the effects are less pronounced,
even relative to CY 2021 claims data
used in CY 2023 OPPS ratesetting, we
anticipate that most of the changes we
observe represent a moderate continued
return to pre-PHE volume and ongoing
changes in clinical practice. As a result,
we believe the CY 2022 claims data are
appropriate for setting CY 2024 OPPS
rates.
For CY 2024, we also evaluated the
impact of using our standard update for
cost reports. If we were to resume our
typical process of using the most
updated cost reports available, we
would predominantly use cost report
data from CY 2021, with some portion
of the cost reports including cost
reporting periods from prior years.
While there are some differences
compared to pre-PHE data, we generally
observed limited impacts. Similar to the
claims data approach, we believe it is
reasonable to assume there will
continue to be a limited influence of the
COVID–19 PHE on the cost report data.
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However, as we continue to receive
more updated cost report data, we
believe that data will better reflect
changes in provider charge and cost
reporting structures. Given these factors,
we believe that using the most recent
cost report data available and resuming
our regular cost report update process is
appropriate for CY 2024 OPPS
ratesetting.
As a result of our expectation that the
CY 2022 claims that we would typically
use are appropriate for establishing the
CY 2024 OPPS rates, we propose to use
the CY 2022 claims for the CY 2024
OPPS/ASC ratesetting process. In
addition, we propose to resume our
typical cost report update process of
including the most recently available
cost report data (primarily including
cost reports with cost reporting periods
including CY 2021). For the reasons
previously discussed, we are generally
not proposing any modifications to our
usual OPPS ratesetting methodologies
with regards to the use of updated
claims and cost report data to account
for the impact of COVID–19 on the
ratesetting data.
G. Comment Solicitation on Payment for
High-Cost Drugs Provided by Indian
Health Service and Tribally-Owned
Facilities
In the CY 2000 Final Rule (65 FR
18433), CMS implemented the
prospective payment system for hospital
outpatient services furnished to
Medicare beneficiaries, as set forth in
section 1833(t) of the Act. In this rule,
we noted that the Outpatient
Prospective Payment System (OPPS)
applies to covered hospital outpatient
services furnished by all hospitals
participating in the Medicare program
with a few exceptions. We identified
one of these exceptions as ‘‘outpatient
services provided by hospitals of the
Indian Health Service (IHS).’’ While we
stated that these services would
‘‘continue to be paid under separately
established rates which are published
annually in the Federal Register,’’ we
indicated that our intent was ‘‘to
develop a plan that will help these
facilities transition to the [O]PPS and
will consult with the IHS to develop
this plan.’’ In the CY 2002 Final Rule
(66 FR 59855), we finalized our revision
to § 419.20 (Hospitals subject to the
hospital outpatient prospective payment
system) by adding paragraph (b)(4)
specifying that hospitals of the IHS are
excluded from the OPPS. However, we
reiterated that this exclusion would
only be in place until we developed a
plan to include IHS hospitals under the
OPPS.
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In the intervening years, IHS and
tribally-owned facilities have been paid
under the separately established AllInclusive Rate (AIR). On an annual
basis, the IHS calculates and publishes,
in the Federal Register, calendar year
reimbursement rates. Due to the higher
cost of living in Alaska, separate rates
are calculated for Alaska and the lower
48 States. For CY 2023, the Medicare
Outpatient per Visit Rate for the lower
48 States is $654 and $862 for Alaska.
IHS and tribally-owned facilities have
continued to expand the breadth of
services that they provide to their
communities. Increasingly, this has
meant providing higher-cost drugs along
with more complex and expensive
services. While the majority of IHS and
tribally-owned facilities appear to be
well served by the AIR, there are
specialty facilities where the AIR might
not be an adequate representation of the
Medicare share of costs. If providing a
drug or service costs a specialty facility
exponentially more than the payment
they receive through the AIR, it may not
be financially feasible for these facilities
to provide that drug or service. For
example, the cost of providing
expensive cancer drugs or oncology
services could greatly exceed payment a
specialty IHS facility receives through
the AIR. We are concerned that, if
payments under the AIR are inadequate
for high-cost drugs, this could
potentially threaten the viability of the
few IHS and tribally-owned hospital
outpatient specialty programs currently
in operation and provide less incentive
to IHS hospitals and tribally-owned
facilities not currently offering specialty
services to begin doing so.
Consequently, we seek comment on a
number of potential policies to address
payment to IHS and tribally-owned
facilities for certain high-cost drugs and
services. We are seeking comment on
whether Medicare should pay separately
for high-cost drugs provided by IHS and
tribally-owned facilities. We would like
input on:
• What universe of drugs would be
appropriate for separate payment? How
could CMS maintain that list and add or
remove drugs from it?
• Would paying separately for all
drugs over a certain cost threshold be
easier to operationalize than paying
separately for a specified list of drugs,
while achieving the same policy
objective? If so, what would be an
appropriate cost threshold and how
should it be updated?
• What would be the appropriate
payment rate for any separately paid
drugs? How should these rates be
updated and should these rates be
updated on an annual basis?
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• Would the standard OPPS Average
Sales Price (ASP) plus 6 percent
payment methodology rate be too high
of a payment rate if tribal and IHS
facilities are able to acquire drugs at a
discounted rate through the Federal
Supply Schedule? Would a payment
rate equivalent to the acquisition cost of
the drug through the Federal Supply
Schedule be a more appropriate
approximation of the cost of these
drugs?
• Should IHS remove the cost of any
separately paid drugs from the
calculation of the AIR? If the cost of
these drugs was not removed from the
AIR, would the government be paying
twice for these drugs?
• How would IHS and tribally-owned
facilities bill for separately paid drugs?
Could they use the UB–04 form like
standard OPPS hospitals?
The OPPS provides outlier payments
to hospitals to help mitigate the
financial risk associated with high-cost
and complex procedures, where a very
costly service could present a hospital
with significant financial loss. We seek
comment on whether an outlier policy
might be an appropriate mechanism for
addressing high-cost drugs and services
provided by IHS and tribally-owned
facilities.
We welcome input from interested
parties on these policy ideas and any
additional payment approaches that
would enhance our ability to provide
equitable payment for high-cost drugs
and services provided by IHS and
tribally-owned facilities.
XI. Proposed CY 2024 OPPS Payment
Status and Comment Indicators
A. Proposed CY 2024 OPPS Payment
Status Indicator Definitions
Payment status indicators (SIs) that
we assign to HCPCS codes and APCs
serve an important role in determining
payment for services under the OPPS.
They indicate whether a service
represented by a HCPCS code is payable
under the OPPS or another payment
system and whether particular OPPS
policies apply to the code.
For CY 2024, we propose to change
the definition of status indicator ‘‘P’’
from ‘‘Partial Hospitalization’’ to
‘‘Partial Hospitalization or Intensive
Outpatient Program’’ in order to account
for the proposed payment of intensive
outpatient services beginning January 1,
2024, as discussed in section VIII.B of
this proposed rule. We are not
proposing to make any other changes to
the existing definitions of status
indicators that were listed in
Addendum D1 to the CY 2023 OPPS/
ASC final rule with comment period,
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which is available on the CMS website
at: https://www.cms.gov/Medicare/
Medicare-Fee-for-Service-Payment/
HospitalOutpatientPPS/HospitalOutpatient-Regulations-and-Notices.
We solicit public comments on the
proposed definitions of the OPPS
payment status indicators for 2024.
The complete list of proposed CY
2024 payment status indicators and
their definitions is displayed in
Addendum D1 to this proposed rule,
which is available on the CMS website
at: https://www.cms.gov/Medicare/
Medicare-Fee-for-Service-Payment/
HospitalOutpatientPPS/HospitalOutpatient-Regulations-and-Notices.
The proposed CY 2024 payment
status indicator assignments for APCs
and HCPCS codes are shown in
Addendum A and Addendum B,
respectively, to this proposed rule,
which are available on the CMS website
at: https://www.cms.gov/Medicare/
Medicare-Fee-for-Service-Payment/
HospitalOutpatientPPS/.
B. Proposed CY 2024 Comment
Indicator Definitions
We propose to use four comment
indicators for the CY 2024 OPPS. These
comment indicators, ‘‘CH,’’ ‘‘NC,’’ ‘‘NI,’’
and ‘‘NP,’’ are in effect for CY 2023; and
we propose to continue their use in CY
2024. The proposed CY 2024 OPPS
comment indicators are as follows:
• ‘‘CH’’—Active HCPCS code in
current and next calendar year, status
indicator and/or APC assignment has
changed; or active HCPCS code that will
be discontinued at the end of the
current calendar year.
• ‘‘NC’’—New code for the next
calendar year or existing code with
substantial revision to its code
descriptor in the next calendar year, as
compared to current calendar year for
which we request comments in the
proposed rule, final APC assignment;
comments will not be accepted on the
final APC assignment for the new code.
• ‘‘NI’’—New code for the next
calendar year or existing code with
substantial revision to its code
descriptor in the next calendar year, as
compared to current calendar year,
interim APC assignment; comments will
be accepted on the interim APC
assignment for the new code.
• ‘‘NP’’—New code for the next
calendar year or existing code with
substantial revision to its code
descriptor in the next calendar year, as
compared to current calendar year,
proposed APC assignment; comments
will be accepted on the proposed APC
assignment for the new code.
The definitions of the proposed OPPS
comment indicators for CY 2024 are
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listed in Addendum D2 to this proposed
rule, which is available on the CMS
website at: https://www.cms.gov/
Medicare/Medicare-Fee-for-ServicePayment/HospitalOutpatientPPS/
index.html.
We solicit public comments on our
proposed definitions of the OPPS
comment indicators for 2024.
XII. MedPAC Recommendations
The Medicare Payment Advisory
Commission (MedPAC) was established
under section 1805 of the Act in large
part to advise the U.S. Congress on
issues affecting the Medicare program.
As required under the statute, MedPAC
submits reports to the Congress no later
than March and June of each year that
present its Medicare payment policy
recommendations. The March report
typically provides discussion of
Medicare payment policy across
different payment systems and the June
report typically discusses selected
Medicare issues. We are including this
section to make stakeholders aware of
certain MedPAC recommendations for
the OPPS and ASC payment systems as
discussed in its March 2023 report.
A. OPPS Payment Rates Update
The March 2023 MedPAC ‘‘Report to
the Congress: Medicare Payment
Policy,’’ recommended that Congress
update Medicare OPPS payment rates
by the amount specified in current law
plus 1 percent. We refer readers to the
March 2023 report for a complete
discussion of this recommendation.124
We appreciate MedPAC’s
recommendation and, as discussed
further in section II.B of this proposed
rule, we propose to increase the OPPS
payment rates by the amount specified
in current law.
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B. Medicare Safety Net Index
The March 2023 MedPAC ‘‘Report to
the Congress: Medicare Payment
Policy,’’ recommended that Congress
should begin a transition to redistribute
disproportionate share hospital and
uncompensated care payments through
the Medicare Safety-Net Index (MSNI).
Additionally, MedPAC recommended
that Congress add $2 billion to the
MSNI pool of funds and distribute such
funds through a percentage add-on to
payments under the IPPS and OPPS.
In light of these recommendations,
and in particular those concerning
safety net hospitals, we look forward to
working with Congress and seek
124 Medicare Payment Advisory Committee.
March 2023 Report to the Congress. Chapter 3:
Hospital inpatient and outpatient services, p. 57.
Available at: https://www.medpac.gov.
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comments on approaches CMS could
take.
C. ASC Cost Data
In the March 2023 MedPAC ‘‘Report
to the Congress: Medicare Payment
Policy,’’ MedPAC reiterated its
longstanding recommendation that
Congress require ASCs to report cost
data to enable the Commission to
examine the growth of ASCs’ costs over
time and analyze Medicare payments
relative to the costs of efficient
providers. MedPAC suggested that such
cost data would allow CMS to examine
whether an existing Medicare price
index is an appropriate proxy for ASC
costs or whether an ASC-specific market
basket should be developed, stating both
the CPI–U and hospital market basket
update likely do not reflect an ASC’s
cost structure. MedPAC contended that
it is feasible for small facilities, such as
ASCs, to provide cost information since
other small facilities, such as home
health agencies, hospices, and rural
health clinics, currently furnish cost
data to CMS. Further, ASCs in
Pennsylvania submit cost and revenue
data annually to a state agency to
estimate margins for those ASCs, and
that, as businesses, ASCs keep records
of their costs for filing taxes and other
purposes.125
While we recognize that the
submission of cost data could place
additional administrative burden on
most ASCs, and we are not proposing
any cost reporting requirements for
ASCs in this proposed rule, we continue
to seek public comment on methods that
would mitigate the burden of reporting
costs on ASCs while also collecting
enough data to reliably use such data in
the determination of ASC costs. Such
cost data would be beneficial in
establishing an ASC-specific market
basket index for updating payment rates
under the ASC payment system.
XIII. Proposed Updates to the
Ambulatory Surgical Center (ASC)
Payment System
A. Background, Legislative History,
Statutory Authority, and Prior
Rulemaking for the ASC Payment
System
For a detailed discussion of the
legislative history and statutory
authority related to payments to ASCs
under Medicare, we refer readers to the
CY 2012 OPPS/ASC final rule with
125 Medicare Payment Advisory Committee.
March 2023 Report to the Congress. Chapter 5:
Ambulatory surgical center services, p. 163.
Available at: https://www.medpac.gov/wp-content/
uploads/2023/03/Ch5_Mar23_MedPAC_Report_To_
Congress_SEC.pdf.
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comment period (76 FR 74377 through
74378) and the June 12, 1998 proposed
rule (63 FR 32291 through 32292). For
a discussion of prior rulemaking on the
ASC payment system, we refer readers
to the CYs 2012 to 2023 OPPS/ASC final
rules with comment period (76 FR
74378 through 74379; 77 FR 68434
through 68467; 78 FR 75064 through
75090; 79 FR 66915 through 66940; 80
FR 70474 through 70502; 81 FR 79732
through 79753; 82 FR 59401 through
59424; 83 FR 59028 through 59080; 84
FR 61370 through 61410; 85 FR 86121
through 86179; 86 FR 63761 through
63815; and 87 FR 72054 through 72096).
B. Proposed ASC Treatment of New and
Revised Codes
1. Background on Process for New and
Revised HCPCS Codes
We update the lists and payment rates
for covered surgical procedures and
covered ancillary services in ASCs in
conjunction with the annual proposed
and final rulemaking process to update
the OPPS and the ASC payment systems
(§ 416.173; 72 FR 42535). We base ASC
payment and policies for most covered
surgical procedures, drugs, biologicals,
and certain other covered ancillary
services on the OPPS payment policies
and we use quarterly change requests
(CRs) to update services paid for under
the OPPS. We also provide quarterly
update CRs for ASC covered surgical
procedures and covered ancillary
services throughout the year (January,
April, July, and October). We release
new and revised Level II HCPCS codes
and recognize the release of new and
revised CPT codes by the American
Medical Association (AMA) and make
these codes effective (that is, the codes
are recognized on Medicare claims) via
these ASC quarterly update CRs. We
recognize the release of new and revised
Category III CPT codes in the July and
January CRs. These updates implement
newly created and revised Level II
HCPCS and Category III CPT codes for
ASC payments and update the payment
rates for separately paid drugs and
biologicals based on the most recently
submitted ASP data. New and revised
Category I CPT codes, except vaccine
codes, are released only once a year, and
are implemented only through the
January quarterly CR update. New and
revised Category I CPT vaccine codes
are released twice a year and are
implemented through the January and
July quarterly CR updates. We refer
readers to Table 41 in the CY 2012
OPPS/ASC proposed rule for an
example of how this process is used to
update HCPCS and CPT codes, which
we finalized in the CY 2012 OPPS/ASC
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final rule with comment period (76 FR
42291; 76 FR 74380 through 74384).
In our annual updates to the ASC list
of, and payment rates for, covered
surgical procedures and covered
ancillary services, we undertake a
review of excluded surgical procedures,
new codes, and codes with revised
descriptors, to identify any that we
believe meet the criteria for designation
as ASC covered surgical procedures or
covered ancillary services. Updating the
lists of ASC covered surgical procedures
and covered ancillary services, as well
as their payment rates, in association
with the annual OPPS rulemaking cycle,
is particularly important because the
OPPS relative payment weights and, in
some cases, payment rates, are used as
the basis for the payment of many
covered surgical procedures and
covered ancillary services under the
revised ASC payment system. This joint
update process ensures that the ASC
updates occur in a regular, predictable,
and timely manner.
Payment for ASC procedures,
services, and items are generally based
on medical billing codes, specifically,
HCPCS codes, that are reported on ASC
claims. The HCPCS is divided into two
principal subsystems, referred to as
Level I and Level II. Level I is comprised
of CPT (Current Procedural
Terminology) codes, a numeric and
alphanumeric coding system
maintained by the AMA, and includes
Category I, II, and III CPT codes. Level
II of the HCPCS, which is maintained by
CMS, is a standardized coding system
that is used primarily to identify
products, supplies, and services not
included in the CPT codes. Together,
Level I and II HCPCS codes are used to
report procedures, services, items, and
supplies under the ASC payment
system. Specifically, we recognize the
following codes on ASC claims:
• Category I CPT codes, which
describe surgical procedures, diagnostic
and therapeutic services, and vaccine
codes;
• Category III CPT codes, which
describe new and emerging
technologies, services, and procedures;
and
• Level II HCPCS codes (also known
as alpha-numeric codes), which are
used primarily to identify drugs,
devices, supplies, temporary
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procedures, and services not described
by CPT codes.
We finalized a policy in the August 2,
2007 final rule (72 FR 42533 through
42535) to evaluate each year all new and
revised Category I and Category III CPT
codes and Level II HCPCS codes that
describe surgical procedures, and to
make preliminary determinations
during the annual OPPS/ASC
rulemaking process regarding whether
or not they meet the criteria for payment
in the ASC setting as covered surgical
procedures and, if so, whether or not
they are office-based procedures. In
addition, we identify new and revised
codes as ASC covered ancillary services
based upon the final payment policies
of the revised ASC payment system. In
prior rulemakings, we refer to this
process as recognizing new codes.
However, this process has always
involved the recognition of new and
revised codes. We consider revised
codes to be new when they have
substantial revision to their code
descriptors that necessitate a change in
the current ASC payment indicator. To
clarify, we refer to these codes as new
and revised in this CY 2024 OPPS/ASC
proposed rule.
We have separated our discussion
below based on when the codes are
released and whether we propose to
solicit public comments in this
proposed rule (and respond to those
comments in the CY 2024 OPPS/ASC
final rule with comment period) or
whether we will be soliciting public
comments in the CY 2024 OPPS/ASC
final rule with comment period (and
responding to those comments in the CY
2025 OPPS/ASC final rule with
comment period).
2. April 2023 HCPCS Codes Proposed
Rule Comment Solicitation
For the April 2023 update, there were
no new CPT codes; however, there were
several new Level II HCPCS codes. In
the April 2023 ASC quarterly update
(Transmittal 11927, dated March 24,
2023, CR 13143), we added several new
Level II HCPCS codes to the list of
covered ancillary services. Table 54
(New Level II HCPCS Codes for
Ancillary Services Effective April 1,
2023) of this proposed rule, lists the
new Level II HCPCS codes that were
implemented April 1, 2023. The
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proposed comment indicators, payment
indicators and payment rates, where
applicable, for these April codes can be
found in Addendum BB to this
proposed rule. The list of ASC payment
indicators and corresponding
definitions can be found in Addendum
DD1 to this proposed rule. These new
codes that are effective April 1, 2023,
are assigned to comment indicator ‘‘NP’’
in Addendum BB to this proposed rule
to indicate that the codes are assigned
to an interim APC assignment and that
comments will be accepted on their
interim APC assignments. The list of
comment indicators and definitions
used under the ASC payment system
can be found in Addendum DD2 to this
proposed rule. We note that the
following ASC addenda are available via
the internet on the CMS website.
• ASC Addendum AA: Proposed ASC
Covered Surgical Procedures for CY
2024 (Including Surgical Procedures for
Which Payment is Packaged),
• ASC Addendum BB: Proposed ASC
Covered Ancillary Services Integral to
Covered Surgical Procedures for CY
2024 (Including Ancillary Services for
Which Payment is Packaged),
• ASC Addendum DD1: Proposed
ASC Payment Indicators (PI) for CY
2024,
• ASC Addendum DD2: Proposed
ASC Comment Indicators (CI) for CY
2024,
• ASC Addendum EE: Proposed
Surgical Procedures to be Excluded
from Payment in ASC for CY 2024, and
• ASC Addendum FF: Proposed ASC
Device Offset Percentages for CY 2024
• Addendum O: Long Descriptors for
New Category I CPT Codes, Category III
CPT Codes, C-codes, and G-Codes
Effective January 1, 2024
We are inviting public comments on
the proposed payment indicators for the
new HCPCS codes that were recognized
as ASC covered ancillary services in
April 2023 through the quarterly update
CRs, as listed in Table 54 (New Level II
HCPCS Codes for Ancillary Services
Effective April 1, 2023) of this proposed
rule. We propose to finalize their
payment indicators in the CY 2024
OPPS/ASC final rule with comment
period.
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3. July 2023 HCPCS Codes Proposed
Rule Comment Solicitation
In the July 2023 ASC quarterly update
(Transmittal 12099, Change Request
13216, dated June 22, 2023), we added
several separately payable CPT and
Level II HCPCS codes to the list of
covered surgical procedures and
covered ancillary services. Table 55
(New HCPCS Codes for Covered
Surgical Procedures and Covered
Ancillary Services Effective July 1,
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2023) of this proposed rule, lists the
new HCPCS codes that are effective July
1, 2023. The proposed comment
indicators, payment indicators, and
payment rates for the codes can be
found in Addendum AA and
Addendum BB to this proposed rule.
The list of ASC payment indicators and
corresponding definitions can be found
in Addendum DD1 to this proposed
rule. These new codes that are effective
July 1, 2023, are assigned to comment
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49745
indicator ‘‘NP’’ in Addendum AA and
BB to this proposed rule to indicate that
the codes are assigned to an interim
APC assignment and that comments will
be accepted on their interim APC
assignments. The list of comment
indicators and definitions used under
the ASC payment system can be found
in Addendum DD2 to this proposed
rule. We note that ASC Addenda AA,
BB, DD1, and DD2 are available via the
internet on the CMS website.
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4. October 2023 HCPCS Codes Final
Rule Comment Solicitation
For CY 2024, consistent with our
established policy, we propose that the
Level II HCPCS codes that will be
effective October 1, 2023, would be
flagged with comment indicator ‘‘NI’’ in
Addendum BB to the CY 2024 OPPS/
ASC final rule with comment period to
indicate that we have assigned the codes
an interim ASC payment status for CY
2023. We will invite public comments
in the CY 2024 OPPS/ASC final rule
with comment period on the interim
payment indicators, which would then
be finalized in the CY 2025 OPPS/ASC
final rule with comment period.
5. January 2024 HCPCS Codes
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a. Level II HCPCS Codes Final Rule
Comment Solicitation
As has been our practice in the past,
we incorporate those new Level II
HCPCS codes that are effective January
1 in the final rule with comment period,
thereby updating the ASC payment
system for the calendar year. We note
that unlike the CPT codes that are
effective January 1 and are included in
the OPPS/ASC proposed rules, and
except for the G-codes listed in
Addendum O to this proposed rule,
most Level II HCPCS codes are not
released until sometime around
November to be effective January 1.
Because these codes are not available
until November, we are unable to
include them in the OPPS/ASC
proposed rules. Therefore, these Level II
HCPCS codes will be released to the
public through the CY 2024 OPPS/ASC
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final rule with comment period, January
2024 ASC Update CR, and the CMS
HCPCS website.
In addition, for CY 2024, we propose
to continue our established policy of
assigning comment indicator ‘‘NI’’ in
Addendum AA and Addendum BB to
the OPPS/ASC final rule with comment
period to the new Level II HCPCS codes
that will be effective January 1, 2024, to
indicate that we are assigning them an
interim payment indicator, which is
subject to public comment. We will be
inviting public comments in the CY
2024 OPPS/ASC final rule with
comment period on the payment
indicator assignments, which would
then be finalized in the CY 2025 OPPS/
ASC final rule with comment period.
b. CPT Codes Proposed Rule Comment
Solicitation
For the CY 2024 ASC update, we
received the CPT codes that will be
effective January 1, 2024, from the AMA
in time to be included in this proposed
rule. The new, revised, and deleted CPT
codes can be found in ASC Addendum
AA and Addendum BB to this proposed
rule (which are available via the internet
on the CMS website). We note that the
new and revised CPT codes are assigned
to comment indicator ‘‘NP’’ in ASC
Addendum AA and Addendum BB of
this proposed rule to indicate that the
code is new for the next calendar year
or the code is an existing code with
substantial revision to its code
descriptor in the next calendar year as
compared to the current calendar year
with a proposed payment indicator
assignment. We will accept comments
and finalize the payment indicators in
the CY 2024 OPPS/ASC final rule with
comment period. Further, we remind
readers that the CPT code descriptors
that appear in Addendum AA and
Addendum BB are short descriptors and
do not describe the complete procedure,
service, or item described by the CPT
code. Therefore, we include the 5-digit
placeholder codes and their long
descriptors for the new CY 2024 CPT
codes in Addendum O to this proposed
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rule (which is available via the internet
on the CMS website) so that the public
can comment on our proposed payment
indicator assignments. The 5-digit
placeholder codes can be found in
Addendum O to this proposed rule,
specifically under the column labeled
‘‘CY 2024 OPPS/ASC Proposed Rule 5Digit AMA/CMS Placeholder Code.’’ We
intend to include the final CPT code
numbers the CY 2024 OPPS/ASC final
rule with comment period.
In summary, we are soliciting public
comments on the proposed CY 2024
payment indicators for the new Category
I and III CPT codes that will be effective
January 1, 2024. Because these codes are
listed in Addendum AA and Addendum
BB with short descriptors only, we are
listing them again in Addendum O with
the long descriptors. We also propose to
finalize the payment indicator for these
codes (with their final CPT code
numbers) in the CY 2024 OPPS/ASC
final rule with comment period. The
proposed payment indicators and
comment indicators for these codes can
be found in Addendum AA and BB to
this proposed rule. The list of ASC
payment indicators and corresponding
definitions can be found in Addendum
DD1 to this proposed rule. The new CPT
codes that will be effective January 1,
2024, are assigned to comment indicator
‘‘NP’’ in Addendum AA and BB to this
proposed rule to indicate that the codes
are assigned to an interim payment
indicator and that comments will be
accepted on their interim ASC payment
assignments. The list of comment
indicators and definitions used under
the ASC payment system can be found
in Addendum DD2 to this proposed
rule. We note that ASC Addenda AA,
BB, DD1, and DD2 are available via the
internet on the CMS website.
Finally, in Table 56, we summarize
our process for updating codes through
our ASC quarterly update CRs, seeking
public comments, and finalizing the
treatment of these new codes under the
ASC payment system.
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We are inviting public comments on
the proposed payment indicators for the
new HCPCS codes newly recognized as
ASC covered surgical procedures and
covered ancillary services effective
April 1, 2023, and July 1, 2023, through
the quarterly update CRs, as listed in
Tables 54 and 55. We propose to finalize
the payment indicators in the CY 2024
OPPS/ASC final rule with comment
period.
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6. ASC Payment and Comment
Indicators
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a. Background
In addition to the payment indicators
that we introduced in the August 2,
2007 ASC final rule, we created final
comment indicators for the ASC
payment system in the CY 2008 OPPS/
ASC final rule with comment period (72
FR 66855). We created Addendum DD1
to define ASC payment indicators that
we use in Addenda AA and BB to
provide payment information regarding
covered surgical procedures and
covered ancillary services, respectively,
under the revised ASC payment system.
The ASC payment indicators in
Addendum DD1 are intended to capture
policy-relevant characteristics of HCPCS
codes that may receive packaged or
separate payment in ASCs, such as
whether they were on the ASC CPL
prior to CY 2008; payment designation,
such as device-intensive or office-based,
and the corresponding ASC payment
methodology; and their classification as
separately payable ancillary services,
including radiology services,
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brachytherapy sources, OPPS passthrough devices, corneal tissue
acquisition services, drugs or
biologicals, or NTIOLs.
We also created Addendum DD2 that
lists the ASC comment indicators. The
ASC comment indicators included in
Addenda AA and BB to the proposed
rules and final rules with comment
period serve to identify, for the revised
ASC payment system, the status of a
specific HCPCS code and its payment
indicator with respect to the timeframe
when comments will be accepted. The
comment indicator ‘‘NI’’ is used in the
OPPS/ASC final rule with comment
period to indicate new codes for the
next calendar year for which the interim
payment indicator assigned is subject to
comment. The comment indicator ‘‘NI’’
also is assigned to existing codes with
substantial revisions to their descriptors
such that we consider them to be
describing new services, and the interim
payment indicator assigned is subject to
comment, as discussed in the CY 2010
OPPS/ASC final rule with comment
period (74 FR 60622).
The comment indicator ‘‘NP’’ is used
in the OPPS/ASC proposed rule to
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indicate new codes for the next calendar
year for which the proposed payment
indicator assigned is subject to
comment. The comment indicator ‘‘NP’’
also is assigned to existing codes with
substantial revisions to their
descriptors, such that we consider them
to be describing new services, and the
proposed payment indicator assigned is
subject to comment, as discussed in the
CY 2016 OPPS/ASC final rule with
comment period (80 FR 70497).
The ‘‘CH’’ comment indicator is used
in Addenda AA and BB to the proposed
rule (these addenda are available via the
internet on the CMS website) to indicate
that the payment indicator assignment
has changed for an active HCPCS code
in the current year and the next
calendar year, for example, if an active
HCPCS code is newly recognized as
payable in ASCs or an active HCPCS
code is discontinued at the end of the
current calendar year. The ‘‘CH’’
comment indicators that are published
in the final rule are provided to alert
readers that a change has been made
from one calendar year to the next, but
do not indicate that the change is
subject to comment.
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In the CY 2021 OPPS/ASC final rule
with comment period, we finalized the
addition of ASC payment indicator
‘‘K5’’—Items, Codes, and Services for
which pricing information and claims
data are not available. No payment
made.—to ASC Addendum DD1 (which
is available via the internet on the CMS
website) to indicate those services and
procedures that CMS anticipates will
become payable when claims data or
payment information becomes available.
b. Proposed ASC Payment and
Comment Indicators for CY 2024
For CY 2024, we propose new and
revised Category I and III CPT codes as
well as new and revised Level II HCPCS
codes. Proposed Category I and III CPT
codes that are new and revised for CY
2024 and any new and existing Level II
HCPCS codes with substantial revisions
to the code descriptors for CY 2024,
compared to the CY 2023 descriptors,
are included in ASC Addenda AA and
BB to this proposed rule and labeled
with comment indicator ‘‘NP’’ to
indicate that these CPT and Level II
HCPCS codes are open for comment as
part of this CY 2024 OPPS/ASC
proposed rule.
For CY 2024, we propose to add two
ASC payment indicators for new
proposed dental codes. Section XIII.D of
this proposed rule describes the
proposed addition of dental codes to the
ASC CPL and ancillary services list for
CY 2024. We propose to add specific
dental payment indicators for more
streamlined claims processing of the
new dental codes, as these codes would
require different billing mechanisms
than non-dental procedures currently on
the CPL. Separate payment indicators
would allow MACs to more quickly and
easily distinguish how these codes need
to be processed. Proposed ASC payment
indicators ‘‘D1’’ and ‘‘D2’’ are for the
new dental codes that would be paid in
CY 2024 and subsequent calendar years
and would be added to Addendum DD1
(which is available via the internet on
the CMS website) to indicate potentially
payable dental services and procedures
in the ASC setting. The first proposed
payment indicator is ‘‘D1’’—‘‘Ancillary
dental service/item; no separate
payment made.’’ The ‘‘D1’’ indicator
would indicate an ancillary dental
procedure that would be performed
integral to a separately payable dental
surgical procedure with a payment
indicator of ‘‘D2.’’ The second proposed
payment indicator is ‘‘D2’’—‘‘Non
office-based dental procedure added in
CY 2024 or later.’’ The ‘‘D2’’ payment
indicator would indicate a separately
payable dental surgical procedure that
would be subject to the multiple
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procedure reduction, but would not be
designated as an office-based covered
surgical procedure. Section XIII.D.2 of
this proposed rule describes how these
payment indicators would be used in
claims processing for dental services.
We solicit comment on these proposed
new payment indicators, including
whether their descriptors are
appropriate and any considerations
interested parties believe we should
take into account when structuring
payment for the procedures for which
we propose to use payment indicators
D1 and D2.
We refer readers to Addenda DD1 and
DD2 of this proposed rule (these
addenda are available via the internet
on the CMS website) for the complete
list of ASC payment and comment
indicators proposed for the CY 2024
update.
C. Payment Policies Under the ASC
Payment System
1. Proposed ASC Payment for Covered
Surgical Procedures
a. Background
Our ASC payment policies for
covered surgical procedures under the
revised ASC payment system are
described in the CY 2008 OPPS/ASC
final rule with comment period (72 FR
66828 through 66831). Under our
established policy, we use the ASC
standard ratesetting methodology of
multiplying the ASC relative payment
weight for the procedure by the ASC
conversion factor for that same year to
calculate the national unadjusted
payment rates for procedures with
payment indicators ‘‘G2’’ and ‘‘A2.’’
Payment indicator ‘‘A2’’ was developed
to identify procedures that were
included on the list of ASC covered
surgical procedures in CY 2007 and,
therefore, were subject to transitional
payment prior to CY 2011. Although the
4-year transitional period has ended and
payment indicator ‘‘A2’’ is no longer
required to identify surgical procedures
subject to transitional payment, we have
retained payment indicator ‘‘A2’’
because it is used to identify procedures
that are exempted from the application
of the office-based designation.
Payment rates for office-based
procedures (payment indicators ‘‘P2,’’
‘‘P3,’’ and ‘‘R2’’) are the lower of the
PFS nonfacility PE RVU-based amount
or the amount calculated using the ASC
standard rate setting methodology for
the procedure. As detailed in section
XIII.C.3.b of this CY 2024 OPPS/ASC
proposed rule, we update the payment
amounts for office-based procedures
(payment indicators ‘‘P2,’’ ‘‘P3,’’ and
‘‘R2’’) using the most recent available
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MPFS and OPPS data. We compare the
estimated current year rate for each of
the office-based procedures, calculated
according to the ASC standard rate
setting methodology, to the PFS
nonfacility PE RVU-based amount to
determine which is lower and,
therefore, would be the current year
payment rate for the procedure under
our final policy for the revised ASC
payment system (§ 416.171(d)).
The rate calculation established for
device-intensive procedures (payment
indicator ‘‘J8’’) is structured so only the
service (non-device) portion of the rate
is subject to the ASC conversion factor.
We update the payment rates for deviceintensive procedures to incorporate the
most recent device offset percentages
calculated under the ASC standard
ratesetting methodology, as discussed in
section XIII.C.4 of this proposed rule.
In the CY 2014 OPPS/ASC final rule
with comment period (78 FR 75081), we
finalized our proposal to calculate the
CY 2014 payment rates for ASC covered
surgical procedures according to our
established methodologies, with the
exception of device removal procedures.
For CY 2014, we finalized a policy to
conditionally package payment for
device removal procedures under the
OPPS. Under the OPPS, a conditionally
packaged procedure (status indicators
‘‘Q1’’ and ‘‘Q2’’) describes a HCPCS
code where the payment is packaged
when it is provided with a significant
procedure but is separately paid when
the service appears on the claim without
a significant procedure. Because ASC
services always include a covered
surgical procedure, HCPCS codes that
are conditionally packaged under the
OPPS are always packaged (payment
indicator ‘‘N1’’) under the ASC payment
system. Under the OPPS, device
removal procedures are conditionally
packaged and, therefore, would be
packaged under the ASC payment
system. There is no Medicare payment
made when a device removal procedure
is performed in an ASC without another
surgical procedure included on the
claim; therefore, no Medicare payment
would be made if a device was removed
but not replaced. To ensure that the
ASC payment system provides separate
payment for surgical procedures that
only involve device removal—
conditionally packaged in the OPPS
(status indicator ‘‘Q2’’)—we have
continued to provide separate payment
since CY 2014 and assign the current
ASC payment indicators associated with
these procedures.
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b. Update to ASC Covered Surgical
Procedure Payment Rates for CY 2024
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We propose to update ASC payment
rates for CY 2024 and subsequent years
using the established rate calculation
methodologies under § 416.171 and
using our definition of device-intensive
procedures, as discussed in section
XIII.C.4 of this proposed rule. As the
proposed OPPS relative payment
weights are generally based on
geometric mean costs, we propose that
the ASC payment system will generally
use the geometric mean cost to
determine proposed relative payment
weights under the ASC standard
methodology. We propose to continue to
use the amount calculated under the
ASC standard ratesetting methodology
for procedures assigned payment
indicators ‘‘A2’’ and ‘‘G2.’’
We propose to calculate payment
rates for office-based procedures
(payment indicators ‘‘P2,’’ ‘‘P3,’’ and
‘‘R2’’) and device-intensive procedures
(payment indicator ‘‘J8’’) according to
our established policies and to identify
device-intensive procedures using the
methodology discussed in section
XIII.C.4 of this proposed rule. Therefore,
we propose to update the payment
amount for the service portion (the nondevice portion) of the device-intensive
procedures using the standard ASC
ratesetting methodology and the
payment amount for the device portion
based on the proposed CY 2024 device
offset percentages that have been
calculated using the standard OPPS
APC ratesetting methodology. We
propose that payment for office-based
procedures would be at the lesser of the
proposed CY 2024 MPFS nonfacility PE
RVU-based amount or the proposed CY
2024 ASC payment amount calculated
according to the ASC standard
ratesetting methodology.
As we did for CYs 2014 through 2023,
for CY 2024, we propose to continue our
policy for device removal procedures,
such that device removal procedures
that are conditionally packaged in the
OPPS (status indicators ‘‘Q1’’ and ‘‘Q2’’)
will be assigned the current ASC
payment indicators associated with
those procedures and will continue to
be paid separately under the ASC
payment system.
c. Proposed Payment for ASC Add-On
Procedures Eligible for Complexity
Adjustments Under the OPPS
In this section, we discuss the policy
to provide increased payment under the
ASC payment system for combinations
of certain ‘‘J1’’ service codes and add-on
procedure codes that are eligible for a
complexity adjustment under the OPPS.
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(1) OPPS C–APC Complexity
Adjustment Policy
Under the OPPS, complexity
adjustments are utilized to provide
increased payment for certain
comprehensive services. As discussed
in section II.A.2.b of this proposed rule,
we apply a complexity adjustment by
promoting qualifying paired ‘‘J1’’
service code combinations or paired
code combinations of ‘‘J1’’ services and
add-on codes from the originating
Comprehensive APC (C–APC) (the C–
APC to which the designated primary
service is first assigned) to the next
higher paying C–APC in the same
clinical family of C–APCs. A ‘‘J1’’ status
indicator refers to a hospital outpatient
service paid through a C–APC. We
package payment for all add-on codes,
which are codes that describe a
procedure or service always performed
in addition to a primary service or
procedure, into the payment for the C–
APC. However, certain combinations of
primary service codes and add-on codes
may qualify for a complexity
adjustment.
We apply complexity adjustments
when the paired code combination
represents a complex, costly form or
version of the primary service when the
frequency and cost thresholds are met.
The frequency threshold is met when
there are 25 or more claims reporting
the code combination, and the cost
threshold is met when there is a
violation of the 2 times rule, as specified
in section 1833(t)(2) of the Act and
described in section III.A.2.b of this
proposed rule, in the originating C–
APC. These paired code combinations
that meet the frequency and cost
threshold criteria represent those that
exhibit materially greater resource
requirements than the primary service.
After designating a single primary
service for a claim, we evaluate that
service in combination with each of the
other procedure codes reported on the
claim that are either assigned to status
indicator ‘‘J1’’ or add-on codes to
determine if there are paired code
combinations that meet the complexity
adjustment criteria. Once we have
determined that a particular
combination of ‘‘J1’’ services, or
combinations of a ‘‘J1’’ service and addon code, represents a complex version
of the primary service because it is
sufficiently costly, frequent, and a
subset of the primary comprehensive
service overall according to the criteria
described above, we promote the claim
to the next higher cost C–APC within
the clinical family unless the primary
service is already assigned to the highest
cost APC within the C–APC clinical
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family or assigned to the only C–APC in
a clinical family. We do not create new
C–APCs with a comprehensive
geometric mean cost that is higher than
the highest geometric mean cost (or
only) C–APC in a clinical family just to
accommodate potential complexity
adjustments. Therefore, the highest
payment for any claim including a code
combination for services assigned to a
C–APC would be the highest paying C–
APC in the clinical family (79 FR
66802).
As previously stated, we package
payment for add-on codes into the C–
APC payment rate. If any add-on code
reported in conjunction with the ‘‘J1’’
primary service code does not qualify
for a complexity adjustment, payment
for the add-on service continues to be
packaged into the payment for the
primary service and the primary service
code reported with the add-on code is
not reassigned to the next higher cost C–
APC. We list the proposed complexity
adjustments for ‘‘J1’’ and add-on code
combinations for CY 2024, along with
all of the other proposed complexity
adjustments, in Addendum J to this
proposed rule (which is available via
the internet on the CMS website at
https://www.cms.gov/Medicare/
Medicare-Fee-for-Service-Payment/
HospitalOutpatientPPS/HospitalOutpatient-Regulations-and-Notices).
(2) CY 2023 ASC Special Payment
Policy for OPPS Complexity-Adjusted
C–APCs
Comprehensive APCs cannot be
adopted in the ASC payment system
due to limitations of the ASC claims
processing systems. Thus, we do not use
the OPPS comprehensive services
ratesetting methodology in the ASC
payment system. Under the standard
ratesetting methodology used for the
ASC payment system, comprehensive
‘‘J1’’ claims that exist under the OPPS
are treated the same as other claims that
contain separately payable procedure
codes. As comprehensive APCs do not
exist under the ASC payment system,
there is not a process similar to the
OPPS complexity adjustment policy in
the ASC payment system to provide
higher payment for more complex code
combinations. In the ASC payment
system, when multiple procedures are
performed together in a single operative
session, most covered surgical
procedures are subject to a 50-percent
reduction for the lower-paying
procedure (72 FR 66830). This multiple
procedure reduction gives providers
additional payment when they perform
multiple procedures during the same
session, while still encouraging
providers to provide necessary services
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as efficiently as possible. Add-on
procedure codes are not separately
payable under the ASC payment system
and are always packaged into the ASC
payment rate for the procedure. Unlike
the multiple procedure discounting
process used for other surgical
procedures in the ASC payment system,
providers do not receive any additional
payment when they perform a primary
service with a service corresponding to
an add-on code in the ASC payment
system.
Before CY 2023 rulemaking, we
received suggestions from commenters
requesting that we explore ways to
increase payment to ASCs when
services corresponding to add-on codes
are performed with procedures, as
certain code combinations may
represent increased procedure
complexity or resource intensity when
performed together. For example, in the
CY 2022 OPPS/ASC final rule with
comment period, one commenter
suggested that we modify the deviceintensive criteria to allow packaged
procedures that trigger a complexity
adjustment under the OPPS to be
eligible for device-intensive status
under the ASC payment system (86 FR
63775). Based on our internal data
review and assessment at that time, our
response to that comment noted that we
did not believe any changes were
warranted to our packaging policies
under the ASC payment system but that
we would consider it in future
rulemaking.
In the CY 2023 OPPS/ASC final rule,
we evaluated the differences in payment
in the OPPS and ASC settings for code
pairs that included a primary procedure
and add-on codes that were eligible for
complexity adjustments under the OPPS
and also performed in the ASC setting.
When we compared the OPPS
complexity-adjusted payment rate of
these primary procedure and add-on
code combinations to the ASC payment
rate for the same code combinations, we
found that the average rate of ASC
payment as a percent of OPPS payment
for these code combinations was
significantly lower than 55 percent. We
recognized that this payment
differential between the C–APCassigned code combinations eligible for
complexity adjustments under the OPPS
and the same code combinations under
the ASC payment system could
potentially create financial
disincentives for providers to offer these
services in the ASC setting, which could
potentially result in Medicare
beneficiaries encountering difficulties
accessing these combinations of services
in ASC settings. As noted above, our
policy did not include additional
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payment for services corresponding to
add-on codes, unlike our payment
policy for multiple surgical procedures
performed together, for which we
provide additional payment under the
multiple procedure reduction. However,
these primary procedure and add-on
code combinations that would be
eligible for a complexity adjustment
under the OPPS represented a more
complex and costly version of the
service, and we believed that providers
not receiving additional payment under
the ASC payment system to compensate
for that increased complexity could lead
to providers not being able to provide
these services in the ASC setting, which
could result in barriers to beneficiary
access.
In order to address this issue, in the
CY 2023 OPPS/ASC final rule (87 FR
72079 to 72080), we finalized a new
ASC payment policy that would apply
to certain code combinations in the ASC
payment system where CMS would pay
for those code combinations at a higher
payment rate to reflect that the code
combination is a more complex and
costlier version of the procedure
performed, similar to the way in which
the OPPS APC complexity adjustment is
applied to certain paired code
combinations that exhibit materially
greater resource requirements than the
primary service. We finalized adding
new regulatory text at § 416.172(h) to
codify this policy.
We finalized that combinations of a
primary procedure code and add-on
codes that are eligible for a complexity
adjustment under the OPPS (as listed in
OPPS Addendum J) would be eligible
for this payment policy in the ASC
setting. Specifically, we finalized that
the ASC payment system code
combinations eligible for additional
payment under this policy would
consist of a separately payable surgical
procedure code and one or more
packaged add-on codes from the ASC
Covered Procedures List (CPL) and
ancillary services list. Add-on codes
were assigned payment indicator ‘‘N1’’
(Packaged service/item; no separate
payment made), as listed in the ASC
addenda.
Regarding eligibility for this special
payment policy, we finalized that we
would assign each eligible code
combination a new C-code, which we
will refer to as an ‘‘ASC complexity
adjustment code,’’ that describes the
primary and the add-on procedure(s)
performed. C-codes are unique
temporary codes and are only valid for
claims for HOPD and ASC services and
procedures. Under our policy, we add
these ASC complexity adjustment codes
to the ASC CPL and the ancillary
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services list, and when ASCs bill an
ASC complexity adjustment code, they
receive a higher payment rate that
reflects that the code combination is a
more complex and costlier version of
the primary procedure performed. We
anticipated that the ASC complexity
adjustment codes eligible for this
payment policy would change slightly
each year, as the complexity adjustment
assignments change under the OPPS;
and we expect we would add new ASC
complexity adjustment codes each year
accordingly. In the CY 2023 OPPS/ASC
final rule with comment period (87 FR
72079 to 72080), we finalized new ASC
complexity adjustment codes to add to
the ASC CPL, which were listed in the
ASC addenda. We also finalized adding
new regulatory text at § 416.172(h)(1),
titled ‘‘Eligibility,’’ to codify this policy.
We finalized the following payment
methodology for this policy, which we
reflected in new § 416.172(h)(2), titled
‘‘Calculation of Payment.’’ The ASC
complexity adjustment codes are subject
to all ASC payment policies, including
the standard ASC payment system
ratesetting methodology, meaning, they
are treated the same way as other
procedure codes in the ASC setting. For
example, the multiple procedure
discounting rules would apply to the
primary procedure in cases where the
services corresponding to the ASC
complexity adjustment code are
performed with another separately
payable covered surgical procedure in
the ASC setting. We finalized using the
OPPS complexity-adjusted C–APC rate
to determine the ASC payment rate for
qualifying code combinations, similar to
how we use OPPS APC relative weights
in the standard ASC payment system
ratesetting methodology. Under the ASC
payment system, we used the OPPS
APC relative payment weights to update
the ASC relative payment weights for
covered surgical procedures since ASCs
do not submit cost reports. We then
scaled those ASC relative weights for
the ASC payment system to ensure
budget neutrality. To calculate the ASC
payment rates for most ASC covered
surgical procedures, we multiplied the
ASC conversion factor by the ASC
relative payment weight. A more
detailed discussion of this methodology
is provided in the in the CY 2008 OPPS/
ASC final rule with comment period (72
FR 66828 through 66831).
We also finalized using the OPPS
complexity-adjusted C–APC rate for
each corresponding code combination to
calculate the OPPS relative weight for
each corresponding ASC complexity
adjustment code, which we believed
would appropriately reflect the
complexity and resource intensity of
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these ASC procedures being performed
together. For ASC complexity
adjustment codes that are not assigned
device-intensive status (discussed
below), we multiply the OPPS relative
weight by the ASC budget neutrality
adjustment (or ASC weight scalar) to
determine the ASC relative weight. We
then multiply the ASC relative weight
by the ASC conversion factor to
determine the ASC payment rate for
each ASC complexity adjustment code.
In short, we apply the standard ASC
ratesetting process to the ASC
complexity adjustment codes. We
finalized adding new § 416.172(h)(2)(i)
to codify this policy.
As discussed in section XIII.C.1.b of
the CY 2023 OPPS/ASC final rule with
comment period (87 FR 44708), certain
ASC complexity adjustment codes
under our policy may include a primary
procedure that also qualifies for deviceintensive status under the ASC payment
system. For primary procedures
assigned device-intensive status that are
a component of an ASC complexity
adjustment code created under this
proposal, we believe it is appropriate for
the ASC complexity adjustment code to
retain the device-intensive status of the
primary procedure as well as the device
portion (or device offset amount) of the
primary procedure and not the device
offset percentage. For example, if the
primary procedure has a device offset
percentage of 31 percent (a device offset
percentage of greater than 30 percent
would be needed to qualify for deviceintensive status) and a device portion
(or device offset amount) of $3,000, ASC
complexity adjustment codes that
included this primary procedure would
be assigned device-intensive status and
a device portion of $3,000 to be held
constant with the OPPS. We apply our
standard ASC payment system
ratesetting methodology to the nondevice portion of the OPPS complexityadjusted APC rate of the ASC
complexity adjustment codes; that is,
we apply the ASC budget neutrality
adjustment and ASC conversion factor.
We believe assigning device-intensive
status and transferring the device
portion from the primary procedure’s
ASC payment rate to the ASC
complexity adjustment code’s ASC
payment rate calculation is consistent
with our treatment of device costs and
determining device-intensive status
under the ASC payment system and is
an appropriate methodology for
determining the ASC payment rate. The
non-device portion would be the
difference between the device portion of
the primary procedure and the OPPS
complexity-adjusted APC payment rate
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for the ASC complexity adjustment code
based on the ASC standard ratesetting
methodology. Although this may yield
results where the device offset
percentage is not greater than 30 percent
of the OPPS complexity-adjusted APC
payment rate, we believe this is an
appropriate methodology to apply
where primary procedures assigned
device-intensive status are a component
of an ASC complexity adjustment code.
As is the case for all device-intensive
procedures, we apply the ASC standard
ratesetting methodology to the OPPS
relative weights of the non-device
portion for any ASC complexity
adjustment code eligible for payment
under this proposal. That is, we would
multiply the OPPS relative weight by
the ASC budget neutrality adjustment
and the ASC conversion factor and sum
that amount with the device portion to
calculate the ASC payment rate. We
finalized adding new § 416.172(h)(2)(ii)
to codify this policy.
In order to include these ASC
complexity adjustment codes in the
budget neutrality calculations for the
ASC payment system, we estimated the
potential utilization for these ASC
complexity adjustment codes. We do
not have claims data for packaged codes
in the ASC setting because ASCs do not
report packaged codes under the ASC
payment system. Therefore, we finalized
estimating CY 2023 ASC utilization
based upon how often these
combinations are performed in the
HOPD setting. Specifically, we used the
ratio of the primary procedure volume
to add-on procedure volume from CY
2021 OPPS claims and applied that ratio
against ASC primary procedure
utilization to estimate the increased
spending as a result of our proposal for
budget neutrality purposes. We believed
this method would provide a reasonable
estimate of the utilization of these code
combinations in the ASC setting, as it is
based on the specific code combination
utilization in the OPPS. We anticipated
that we would continue this estimation
process until we have sufficient claims
data for the ASC complexity adjustment
codes that can be used to more
accurately calculate code combination
utilization in ASCs, likely for the CY
2025 rulemaking.
For CY 2024, we propose to continue
the special payment policy and
methodology for OPPS complexityadjusted C–APCs that was finalized in
the CY 2023 OPPS/ASC final rule with
comment period (87 FR 72078 through
72080). The full list of the proposed
ASC complexity adjustment codes for
CY 2024 can be found in the ASC
addenda and the supplemental policy
file, which also includes both the
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existing ASC complexity adjustment
codes and proposed additions, is
published with the proposed rule on the
CMS website at https://www.cms.gov/
medicare/medicare-fee-for-servicepayment/ascpayment/asc-regulationsand-notices. Because the complexity
adjustment assignments change each
year under the OPPS, the proposed list
of ASC complexity adjustment codes
eligible for this proposed payment
policy has changed slightly from the
previous year.
d. Proposed Low Volume APCs and
Limit on ASC Payment Rates for
Procedures Assigned to Low Volume
APCs
As stated in section XIII.D.1.b of this
proposed rule, the ASC payment system
generally uses OPPS geometric mean
costs under the standard methodology
to determine proposed relative payment
weights under the standard ASC
ratesetting methodology. In the CY 2022
OPPS/ASC final rule with comment
period (86 FR 63743 through 63747), we
adopted a universal Low Volume APC
policy for CY 2022 and subsequent
calendar years. Under our policy, we
expanded the low volume adjustment
policy that is applied to procedures
assigned to New Technology APCs to
also apply to clinical and brachytherapy
APCs. Specifically, a clinical APC or
brachytherapy APC with fewer than 100
claims per year would be designated as
a Low Volume APC. For items or
services assigned to a Low Volume APC,
we use up to four years of claims data
to establish a payment rate for the APC
as we currently do for low volume
services assigned to New Technology
APCs. The payment rate for a Low
Volume APC or a low volume New
Technology procedure would be based
on the highest of the median cost,
arithmetic mean cost, or geometric mean
cost calculated using multiple years of
claims data.
Based on claims data available for this
proposed rule, we propose to designate
four clinical APCs and five
brachytherapy APCs as Low Volume
APCs under the ASC payment system.
The four clinical APCs and five
brachytherapy APCs shown in Table 57
of this proposed rule met our criteria of
having fewer than 100 single claims in
the claims year (CY 2022 for this
proposed rule) and therefore, we
propose that they would be subject to
our universal Low Volume APC policy
and the APC cost metric would be based
on the greater of the median cost,
arithmetic mean cost, or geometric mean
cost using up to 4 years of claims data.
Eight of the nine APCs were designated
as low volume APCs in CY 2023. In
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addition, based on data for this CY 2024
OPPS/ASC proposed rule, APC 2642
(Brachytx, stranded, C–131) meets our
criteria to be designated a Low Volume
APC, and we propose to designate it as
such for CY 2024.
2. Payment for Covered Ancillary
Services
regarding the payment indicator
assignment for procedures that are
conditionally packaged in the OPPS
(status indicators ‘‘Q1’’ and ‘‘Q2’’).
Under the OPPS, a conditionally
packaged procedure describes a HCPCS
code where the payment is packaged
when it is provided with a significant
procedure but is separately paid when
the service appears on the claim without
a significant procedure. Because ASC
services always include a surgical
procedure, HCPCS codes that are
conditionally packaged under the OPPS
are generally packaged (payment
indictor ‘‘N1’’) under the ASC payment
system (except for device removal
procedures, as discussed in the CY 2022
OPPS/ASC proposed rule (86 FR
42083)). Thus, our policy generally
aligns ASC payment bundles with those
under the OPPS (72 FR 42495). In all
cases, in order for ancillary items and
services also to be paid, the ancillary
items and services must be provided
integral to the performance of ASC
covered surgical procedures for which
the ASC bills Medicare.
Our ASC payment policies generally
provide separate payment for drugs and
biologicals that are separately paid
under the OPPS at the OPPS rates and
package payment for drugs and
biologicals for which payment is
packaged under the OPPS. However, as
discussed in the CY 2022 OPPS/ASC
final rule with comment period, for CY
2022, we finalized a policy to
unpackage and pay separately at ASP
plus 6 percent for the cost of non-opioid
pain management drugs and biologicals
that function as a supply when used in
a surgical procedure as determined by
CMS under § 416.174 (86 FR 63483).
We generally pay for separately
payable radiology services at the lower
a. Background
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Our payment policies under the ASC
payment system for covered ancillary
services generally vary according to the
particular type of service and its
payment policy under the OPPS. Our
overall policy provides separate ASC
payment for certain ancillary items and
services integrally related to the
provision of ASC covered surgical
procedures that are paid separately
under the OPPS and provides packaged
ASC payment for other ancillary items
and services that are packaged or
conditionally packaged (status
indicators ‘‘N,’’ ‘‘Q1,’’ and ‘‘Q2’’) under
the OPPS.
In the CY 2013 OPPS/ASC rulemaking
(77 FR 45169 and 77 FR 68457 through
68458), we further clarified our policy
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of the PFS nonfacility PE RVU-based (or
technical component) amount or the
rate calculated according to the ASC
standard ratesetting methodology (72 FR
42497). However, as finalized in the CY
2011 OPPS/ASC final rule with
comment period (75 FR 72050),
payment indicators for all nuclear
medicine procedures (defined as CPT
codes in the range of 78000 through
78999) that are designated as radiology
services that are paid separately when
provided integral to a surgical
procedure on the ASC list are set to
‘‘Z2’’ so that payment is made based on
the ASC standard ratesetting
methodology rather than the MPFS
nonfacility PE RVU amount (‘‘Z3’’),
regardless of which is lower
(§ 416.171(d)(1)).
Similarly, we also finalized our policy
to set the payment indicator to ‘‘Z2’’ for
radiology services that use contrast
agents so that payment for these
procedures will be based on the OPPS
relative payment weight using the ASC
standard ratesetting methodology and,
therefore, will include the cost for the
contrast agent (§ 416.171(d)(2)).
ASC payment policy for
brachytherapy sources mirrors the
payment policy under the OPPS. ASCs
are paid for brachytherapy sources
provided integral to ASC covered
surgical procedures at prospective rates
adopted under the OPPS or, if OPPS
rates are unavailable, at contractorpriced rates (72 FR 42499). Since
December 31, 2009, ASCs have been
paid for brachytherapy sources provided
integral to ASC covered surgical
procedures at prospective rates adopted
under the OPPS.
Our ASC policies also provide
separate payment for: (1) certain items
and services that CMS designates as
contractor-priced, including, but not
limited to, the procurement of corneal
tissue; and (2) certain implantable items
that have pass-through payment status
under the OPPS. These categories do not
have prospectively established ASC
payment rates according to ASC
payment system policies (72 FR 42502
and 42508 through 42509; § 416.164(b)).
Under the ASC payment system, we
have designated corneal tissue
acquisition and hepatitis B vaccines as
contractor-priced. Corneal tissue
acquisition is contractor-priced based
on the invoiced costs for acquiring the
corneal tissue for transplantation.
Hepatitis B vaccines are contractorpriced based on invoiced costs for the
vaccine.
Devices that are eligible for passthrough payment under the OPPS are
separately paid under the ASC payment
system and are contractor-priced. Under
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the revised ASC payment system (72 FR
42502), payment for the surgical
procedure associated with the passthrough device is made according to our
standard methodology for the ASC
payment system, based on only the
service (non-device) portion of the
procedure’s OPPS relative payment
weight if the APC weight for the
procedure includes other packaged
device costs. We also refer to this
methodology as applying a ‘‘device
offset’’ to the ASC payment for the
associated surgical procedure. This
ensures that duplicate payment is not
provided for any portion of an
implanted device with OPPS passthrough payment status.
In the CY 2015 OPPS/ASC final rule
with comment period (79 FR 66933
through 66934), we finalized that,
beginning in CY 2015, certain diagnostic
tests within the medicine range of CPT
codes for which separate payment is
allowed under the OPPS are covered
ancillary services when they are integral
to an ASC covered surgical procedure.
We finalized that diagnostic tests within
the medicine range of CPT codes
include all Category I CPT codes in the
medicine range established by CPT,
from 90000 to 99999, and Category III
CPT codes and Level II HCPCS codes
that describe diagnostic tests that
crosswalk or are clinically similar to
procedures in the medicine range
established by CPT. In the CY 2015
OPPS/ASC final rule with comment
period, we also finalized our policy to
pay for these tests at the lower of the
PFS nonfacility PE RVU-based (or
technical component) amount or the
rate calculated according to the ASC
standard ratesetting methodology (79 FR
66933 through 66934). We finalized that
the diagnostic tests for which the
payment is based on the ASC standard
ratesetting methodology be assigned to
payment indicator ‘‘Z2’’ and revised the
definition of payment indicator ‘‘Z2’’ to
include a reference to diagnostic
services and those for which the
payment is based on the PFS nonfacility
PE RVU-based amount be assigned
payment indicator ‘‘Z3,’’ and revised the
definition of payment indicator ‘‘Z3’’ to
include a reference to diagnostic
services.
b. Proposed Payment for Covered
Ancillary Services for CY 2024
We propose to update the ASC
payment rates and to make changes to
ASC payment indicators, as necessary,
to maintain consistency between the
OPPS and ASC payment system
regarding the packaged or separately
payable status of services and the
proposed CY 2024 OPPS and ASC
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payment rates and subsequent years’
payment rates. We also propose to
continue to set the CY 2024 ASC
payment rates and subsequent years’
payment rates for brachytherapy sources
and separately payable drugs and
biologicals equal to the OPPS payment
rates for CY 2024 and subsequent years’
payment rates.
Covered ancillary services and their
proposed payment indicators for CY
2024 are listed in Addendum BB of this
proposed rule (which is available via
the internet on the CMS website). For
those covered ancillary services where
the payment rate is the lower of the rate
under the ASC standard rate setting
methodology and the PFS proposed
rates (similar to our office-based
payment policy), the proposed payment
indicators and rates set forth in this
proposed rule are based on a
comparison using the proposed PFS
rates effective January 1, 2024. For a
discussion of the PFS rates, we refer
readers to the CY 2024 PFS proposed
rule, which is available on the CMS
website at: https://www.cms.gov/
Medicare/Medicare-Fee-for-ServicePayment/PhysicianFeeSched/PFSFederal-Regulation-Notices.html.
3. Covered Surgical Procedures
Designated as Office-Based Procedures
a. Background
In the August 2, 2007 ASC final rule,
we finalized our policy to designate as
‘‘office-based’’ those procedures that are
added to the ASC Covered Procedures
List (CPL) in CY 2008 or later years that
we determine are furnished
predominantly (more than 50 percent of
the time) in physicians’ offices based on
consideration of the most recent
available volume and utilization data for
each individual procedure code and/or,
if appropriate, the clinical
characteristics, utilization, and volume
of related codes. In that rule, we also
finalized our policy to exempt all
procedures on the CY 2007 ASC list
from application of the office-based
classification (72 FR 42512). The
procedures that were added to the ASC
CPL beginning in CY 2008 that we
determined were office-based were
identified in Addendum AA to that rule
with payment indicator ‘‘P2’’ (Officebased surgical procedure added to ASC
list in CY 2008 or later with MPFS
nonfacility PE RVUs; payment based on
OPPS relative payment weight); ‘‘P3’’
(Office-based surgical procedures added
to ASC list in CY 2008 or later with
MPFS nonfacility PE RVUs; payment
based on MPFS nonfacility PE RVUs); or
‘‘R2’’ (Office-based surgical procedure
added to ASC list in CY 2008 or later
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b. CY 2024 Proposed Office-Based
Procedures
In developing this CY 2024 OPPS/
ASC proposed rule, we followed our
policy to annually review and update
the covered surgical procedures for
which ASC payment is made and to
identify new procedures that may be
appropriate for ASC payment (described
in detail in section XIII.C.1.d of this
proposed rule), including their potential
designation as office-based. Historically,
we would also review the most recent
claims volume and utilization data (CY
2022 claims) and the clinical
characteristics for all covered surgical
procedures that are currently assigned a
payment indicator in CY 2023 of ‘‘G2’’
(Non office-based surgical procedure
added in CY 2008 or later; payment
based on OPPS relative payment weight)
as well as for those procedures assigned
one of the temporary office-based
payment indicators, specifically ‘‘P2,’’
‘‘P3,’’ or ‘‘R2’’ in the CY 2022 OPPS/
ASC final rule with comment period (86
FR 63769 through 63773).
In our CY 2022 OPPS/ASC final rule
with comment period (86 FR 63770), we
discussed that we, historically, review
the most recent claims volume and
utilization data and clinical
characteristics for all covered surgical
procedures that were assigned a
payment indicator of ‘‘G2’’ for CY 2021.
For the CY 2022 OPPS/ASC final rule
with comment period, the most recent
claims volume and utilization data was
CY 2020 claims. However, given our
concerns with the use of CY 2020 claims
data as a result of the COVID–19 PHE
as further discussed in the CY 2022
OPPS/ASC final rule with comment
period (86 FR 63751 through 63754), we
adopted a policy to not review CY 2020
claims data and did not assign
permanent office-based designations to
covered surgical procedures that were
assigned a payment indicator of ‘‘G2’’ in
CY 2021 (86 FR 63770 through 63771).
As discussed further in section X.D of
the CY 2023 OPPS/ASC proposed rule
(87 FR 44680 through 44682), in our
review of the CY 2021 outpatient claims
available for ratesetting for this CY 2023
OPPS proposed rule, we observed that
many outpatient service volumes have
partially returned to their pre-PHE
levels; and it is reasonable to assume
that there will continue to be some
effects of the COVID–19 PHE on the
outpatient claims that we use for OPPS
ratesetting. As a result, we proposed to
use the CY 2021 claims for CY 2023
OPPS ratesetting. Similarly, in the CY
2023 OPPS/ASC proposed rule (87 FR
44705 through 44708), we proposed to
resume our historical practice and
review the most recent claims and
utilization data, in this case data from
CY 2021 claims, for determining officebased assignments under the ASC
payment system.
Our review of the CY 2022 volume
and utilization data of covered surgical
procedures currently assigned a
payment indicator of ‘‘G2’’ (Non officebased surgical procedure added in CY
2008 or later; payment based on OPPS
relative payment weight) resulted in the
identification of two surgical procedures
that we believed met the criteria for
designation as permanently officebased. The data indicate that these
procedures are performed more than 50
percent of the time in physicians’
offices, and the services are of a level of
complexity consistent with other
procedures performed routinely in
physicians’ offices. The CPT codes that
we propose to permanently designate as
office-based for CY 2024 are listed in
Table 58.
As discussed in the August 2, 2007
ASC final rule (72 FR 42533 through
42535), we finalized our policy to
designate certain new surgical
procedures as temporarily office-based
until adequate claims data are available
to assess their predominant sites of
service, whereupon if we confirm their
office-based nature, the procedures are
without MPFS nonfacility PE RVUs;
payment based on OPPS relative
payment weight), depending on whether
we estimated the procedure would be
paid according to the ASC standard
ratesetting methodology based on its
OPPS relative payment weight or at the
MPFS nonfacility PE RVU-based
amount.
Consistent with our final policy to
annually review and update the ASC
CPL to include all covered surgical
procedures eligible for payment in
ASCs, each year we identify covered
surgical procedures as either
temporarily office-based (these are new
procedure codes with little or no
utilization data that we have determined
are clinically similar to other
procedures that are permanently officebased), permanently office-based, or
nonoffice-based, after taking into
account updated volume and utilization
data.
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permanently assigned to the list of
office-based procedures. In the absence
of claims data, we use other available
information, including our clinical
advisors’ judgment, predecessor CPT
and Level II HCPCS codes, information
submitted by representatives of
specialty societies and professional
associations, and information submitted
by commenters during the public
comment period.
We reviewed CY 2022 volume and
utilization data for nine surgical
procedures designated as temporarily
office-based in the CY 2023 OPPS/ASC
final rule with comment period and
temporarily assigned one of the office-
based payment indicators, specifically
‘‘P2,’’ ‘‘P3,’’ or ‘‘R2.’’ As shown in Table
59, for four of the nine surgical
procedures, there were greater than 50
claims available and the volume and
utilization data indicated these four
procedures were performed
predominantly in the office setting.
Therefore, we propose to no longer
designate the four procedures as
temporarily office-based but to
permanently designate these procedures
as office-based and assign one of the
office-based payment indicators,
specifically ‘‘P2,’’ ‘‘P3,’’ or ‘‘R2.’’
Additionally, for one of the nine
surgical procedures, there were greater
than 50 claims available; and the
volume and utilization data indicated
that this procedure—CPT code 64454
(Injection(s), anesthetic agent(s) and/or
steroid; genicular nerve branches,
including imaging guidance, when
performed)—is not performed
predominantly in the office setting.
Therefore, as shown in Table 59, we
propose to no longer designate this
procedure as temporarily office-based.
For CY 2024, we propose to assign this
procedure a payment indicator of ‘‘G2’’
(Non office-based surgical procedure
added in CY 2008 or later; payment
based on OPPS relative payment
weight).
For four of the nine procedures that
were designated as temporarily officebased in the CY 2023 OPPS/ASC final
rule with comment period and
temporarily assigned one of the officebased payment indicators, specifically
‘‘P2,’’ ‘‘P3,’’ or ‘‘R2,’’ there were fewer
than 50 claims; therefore, there was an
insufficient amount to determine if the
office setting was the predominant
setting of care for these procedures.
Therefore, as shown in Table 60, we
propose to continue to designate such
procedures as temporarily office-based
for CY 2024 and assign one of the officebased payment indicators.
For CY 2024, we propose to designate
three new CY 2024 CPT codes for ASC
covered surgical procedures as
temporarily office-based—CPT
placeholder codes 6X000, 64XX4, and
X170T. After reviewing the clinical
characteristics, utilization, and volume
of related procedure codes or
predecessor codes, we determined that
the predecessor code for CPT
placeholder code 6X000
(Suprachoroidal space injection of
pharmacologic agent (separate
procedure)) is CPT code 0465T
(Suprachoroidal injection of a
pharmacologic agent (does not include
supply of medication)), which was
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which is also designated as temporarily
office-based. Lastly, CPT placeholder
code X170T (Low-intensity
extracorporeal shock wave therapy
involving corpus cavernosum, low
energy) is most similar to CPT code
0101T (Extracorporeal shock wave
involving musculoskeletal system, not
otherwise specified) which is
designated as an office-based surgical
procedure. Therefore, as shown in Table
60, we propose to designate these three
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new CPT codes as temporarily officebased for CY 2024.
The procedures for which the
proposed office-based designation for
CY 2024 is temporary are indicated by
an asterisk in Addendum AA to this
proposed rule (which is available via
the internet on the CMS website at
https://www.cms.gov/Medicare/
Medicare-Fee-for-Service-Payment/
ASCPayment/ASC-Regulations-andNotices).
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designated as an office-based procedure.
Additionally, CPT placeholder code
64XX4 (Revision or removal of
neurostimulator electrode array,
peripheral nerve, with integrated
neurostimulator) is most similar to CPT
code 0588T (Revision or removal of
integrated single device
neurostimulation system including
electrode array and receiver or pulse
generator, including analysis,
programming, and imaging guidance
when performed, posterior tibial nerve),
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4. Device-Intensive ASC Covered
Surgical Procedures
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a. Background
We refer readers to the CY 2019
OPPS/ASC final rule with comment
period (83 FR 59040 through 59041), for
a summary of our existing policies
regarding ASC covered surgical
procedures that are designated as
device-intensive.
b. CY 2024 Proposed Device Intensive
Procedures
In the CY 2019 OPPS/ASC final rule
with comment period (83 FR 59040
through 59043), for CY 2019, we
modified our criteria for deviceintensive procedures to better capture
costs for procedures with significant
device costs. We adopted a policy to
allow procedures that involve surgically
inserted or implanted, high-cost, singleuse devices to qualify as deviceintensive procedures. In addition, we
modified our criteria to lower the device
offset percentage threshold from 40
percent to 30 percent. The device offset
percentage is the percentage of device
costs within a procedure’s total costs.
Specifically, for CY 2019 and
subsequent years, we adopted a policy
that device-intensive procedures would
be subject to the following criteria:
• All procedures must involve
implantable or insertable devices
assigned a CPT or HCPCS code;
• The required devices (including
single-use devices) must be surgically
inserted or implanted; and
• The device offset amount must be
significant, which is defined as
exceeding 30 percent of the procedure’s
mean cost. Corresponding to this change
in the cost criterion, we adopted a
policy that the default device offset for
new codes that describe procedures that
involve the implantation of medical
devices will be 31 percent beginning in
CY 2019. For new codes describing
procedures that are payable when
furnished in an ASC and involve the
implantation of a medical device, we
adopted a policy that the default device
offset would be applied in the same
manner as the policy we adopted in
section IV.B.2 of the CY 2019 OPPS/
ASC final rule with comment period (83
FR 58944 through 58948). We amended
§ 416.171(b)(2) of the regulations to
reflect these new device criteria.
In addition, as also adopted in section
IV.B.2 of the CY 2019 OPPS/ASC final
rule with comment period, to further
align the device-intensive policy with
the criteria used for device pass-through
status, we specified, for CY 2019 and
subsequent years, that for purposes of
satisfying the device-intensive criteria, a
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device-intensive procedure must
involve a device that:
• Has received FDA marketing
authorization, has received an FDA
investigational device exemption (IDE)
and has been classified as a Category B
device by FDA in accordance with 42
CFR 405.203 through 405.207 and
405.211 through 405.215, or meets
another appropriate FDA exemption
from premarket review;
• Is an integral part of the service
furnished;
• Is used for one patient only;
• Comes in contact with human
tissue;
• Is surgically implanted or inserted
(either permanently or temporarily); and
• Is not any of the following:
++ Equipment, an instrument,
apparatus, implement, or item of this
type for which depreciation and
financing expenses are recovered as
depreciable assets as defined in Chapter
1 of the Medicare Provider
Reimbursement Manual (CMS Pub. 15–
1); or
++ A material or supply furnished
incident to a service (for example, a
suture, customized surgical kit, scalpel,
or clip, other than a radiological site
marker).
In the CY 2022 OPPS/ASC final rule
with comment period (86 FR 63773
through 63775), we modified our
approach to assigning device-intensive
status to surgical procedures under the
ASC payment system. First, we adopted
a policy of assigning device-intensive
status to procedures that involve
surgically inserted or implanted, highcost, single-use devices if their device
offset percentage exceeds 30 percent
under the ASC standard ratesetting
methodology, even if the procedure is
not designated as device-intensive
under the OPPS. Second, we adopted a
policy that if a procedure is assigned
device-intensive status under the OPPS,
but has a device offset percentage below
the device-intensive threshold under the
standard ASC ratesetting methodology,
the procedure will be assigned deviceintensive status under the ASC payment
system with a default device offset
percentage of 31 percent. The policies
were adopted to provide consistency
between the OPPS and ASC payment
system and provide a more appropriate
payment rate for surgical procedures
with significant device costs under the
ASC payment system.
In the CY 2023 OPPS/ASC final rule
with comment period (87 FR 72078
through 72080), we finalized our policy
to create certain C-codes, or ASC
complexity adjustment codes that
describe certain combinations of a
primary covered surgical procedure as
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well as a packaged (payment indicator
= ‘‘N1’’) procedure that are otherwise
eligible for a complexity adjustment
under the OPPS (as listed in Addendum
J). Each ASC complexity adjustment
code’s APC assignment is based on its
corresponding OPPS complexity
adjustment code’s APC assignment. In
the CY 2023 OPPS/ASC final rule with
comment period, we stated our belief
that it would be appropriate for these
ASC complexity adjustment codes to
qualify for device-intensive status under
the ASC payment system if the primary
procedure of the code was also
designated as device-intensive. Under
our current policy, the ASC complexity
adjustment code would retain the
device portion of the primary procedure
(also called the ‘‘device offset amount’’)
and not the device offset percentage.
Therefore, for device-intensive ASC
complexity adjustment codes, we set the
device portion of the combined
procedure equal to the device portion of
the primary procedure and calculate the
device offset percentage by dividing the
device portion by the ASC complexity
adjustment code’s APC payment rate.
Further, we apply our standard ASC
payment system ratesetting
methodology to the non-device portion
of the ASC complexity adjustment
code’s APC payment rate; that is, we
multiply the OPPS relative weight by
the ASC budget neutrality adjustment
and the ASC conversion factor and sum
that amount with the device portion to
calculate the ASC payment rate.
We are not proposing any changes
related to designating surgical
procedures as device-intensive under
the ASC payment system for CY 2024.
c. Adjustment to ASC Payments for No
Cost/Full Credit and Partial Credit
Devices
Our ASC payment policy for costly
devices implanted or inserted in ASCs
at no cost/full credit or partial credit is
set forth in § 416.179 of our regulations,
and is consistent with the OPPS policy
that was in effect until CY 2014. We
refer readers to the CY 2008 OPPS/ASC
final rule with comment period (72 FR
66845 through 66848) for a full
discussion of the ASC payment
adjustment policy for no cost/full credit
and partial credit devices. ASC payment
is reduced by 100 percent of the device
offset amount when a hospital furnishes
a specified device without cost or with
a full credit and by 50 percent of the
device offset amount when the hospital
receives partial credit in the amount of
50 percent or more of the cost for the
specified device.
Effective CY 2014, under the OPPS,
we finalized our proposal to reduce
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OPPS payment for applicable APCs by
the full or partial credit a provider
receives for a device, capped at the
device offset amount. Although we
finalized our proposal to modify the
policy of reducing payments when a
hospital furnishes a specified device
without cost or with full or partial credit
under the OPPS, in the CY 2014 OPPS/
ASC final rule with comment period (78
FR 75076 through 75080), we finalized
our proposal to maintain our ASC
policy for reducing payments to ASCs
for specified device-intensive
procedures when the ASC furnishes a
device without cost or with full or
partial credit. Unlike the OPPS, there is
currently no mechanism within the ASC
claims processing system for ASCs to
submit to CMS the amount of the actual
credit received when furnishing a
specified device at full or partial credit.
Therefore, under the ASC payment
system, we finalized our proposal for
CY 2014 to continue to reduce ASC
payments by 100 percent or 50 percent
of the device offset amount when an
ASC furnishes a device without cost or
with full or partial credit, respectively.
Under current ASC policy, all ASC
device-intensive covered surgical
procedures are subject to the no cost/
full credit and partial credit device
adjustment policy. Specifically, when a
device-intensive procedure is performed
to implant or insert a device that is
furnished at no cost or with full credit
from the manufacturer, the ASC
appends the HCPCS ‘‘FB’’ modifier on
the line in the claim with the procedure
to implant or insert the device. The
contractor reduces payment to the ASC
by the device offset amount that we
estimate represents the cost of the
device when the necessary device is
furnished without cost or with full
credit to the ASC. We continue to
believe that the reduction of ASC
payment in these circumstances is
necessary to pay appropriately for the
covered surgical procedure furnished by
the ASC.
In the CY 2019 OPPS/ASC final rule
with comment period (83 FR 59043
through 59044) we adopted a policy to
reduce the payment for a deviceintensive procedure for which the ASC
receives partial credit by one-half of the
device offset amount that would be
applied if a device was provided at no
cost or with full credit if the credit to
the ASC is 50 percent or more (but less
than 100 percent) of the cost of the new
device. The ASC will append the
HCPCS ‘‘FC’’ modifier to the HCPCS
code for the device-intensive surgical
procedure when the facility receives a
partial credit of 50 percent or more (but
less than 100 percent) of the cost of a
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device. To report that the ASC received
a partial credit of 50 percent or more
(but less than 100 percent) of the cost of
a new device, ASCs have the option of
either: (1) submitting the claim for the
device-intensive procedure to their
Medicare contractor after the
procedure’s performance, but prior to
manufacturer acknowledgment of credit
for the device, and subsequently
contacting the contractor regarding a
claim adjustment, once the credit
determination is made; or (2) holding
the claim for the device implantation or
insertion procedure until a
determination is made by the
manufacturer on the partial credit and
submitting the claim with the ‘‘FC’’
modifier appended to the implantation
procedure HCPCS code if the partial
credit is 50 percent or more (but less
than 100 percent) of the cost of the
device. Beneficiary coinsurance would
be based on the reduced payment
amount. As finalized in the CY 2015
OPPS/ASC final rule with comment
period (79 FR 66926), to ensure our
policy covers any situation involving a
device-intensive procedure where an
ASC may receive a device at no cost or
receive full credit or partial credit for
the device, we apply our ‘‘FB’’/‘‘FC’’
modifier policy to all device-intensive
procedures.
In the CY 2019 OPPS/ASC final rule
with comment period (83 FR 59043
through 59044) we stated we would
reduce the payment for a deviceintensive procedure for which the ASC
receives partial credit by one-half of the
device offset amount that would be
applied if a device was provided at no
cost or with full credit, if the credit to
the ASC is 50 percent or more (but less
than 100 percent) of the cost of the
device. In the CY 2020 OPPS/ASC final
rule with comment period, we finalized
continuing our existing policies for CY
2020. We note that we inadvertently
omitted language that this policy would
apply not just in CY 2019 but also in
subsequent calendar years. We intended
to apply this policy in CY 2019 and
subsequent calendar years. Therefore,
we finalized our proposal to apply our
policy for partial credits specified in the
CY 2019 OPPS/ASC final rule with
comment period (83 FR 59043 through
59044) in CY 2022 and subsequent
calendar years (86 FR 63775 through
63776). Specifically, for CY 2022 and
subsequent calendar years, we would
reduce the payment for a deviceintensive procedure for which the ASC
receives partial credit by one-half of the
device offset amount that would be
applied if a device was provided at no
cost or with full credit, if the credit to
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the ASC is 50 percent or more (but less
than 100 percent) of the cost of the
device. To report that the ASC received
a partial credit of 50 percent or more
(but less than 100 percent) of the cost of
a device, ASCs have the option of either:
(1) submitting the claim for the device
intensive procedure to their Medicare
contractor after the procedure’s
performance, but prior to manufacturer
acknowledgment of credit for the
device, and subsequently contacting the
contractor regarding a claim adjustment,
once the credit determination is made;
or (2) holding the claim for the device
implantation or insertion procedure
until a determination is made by the
manufacturer on the partial credit and
submitting the claim with the ‘‘FC’’
modifier appended to the implantation
procedure HCPCS code if the partial
credit is 50 percent or more (but less
than 100 percent) of the cost of the
device. Beneficiary coinsurance would
be based on the reduced payment
amount. We are not proposing any
changes to our policies related to no/
cost full credit or partial credit devices
for CY 2024.
5. Requirement in the Physician Fee
Schedule CY 2024 Proposed Rule for
HOPDs and ASCs To Report Discarded
Amounts of Certain Single-Dose or
Single-Use Package Drugs
Section 90004 of the Infrastructure
Investment and Jobs Act (Pub. L. 117–
9, November 15, 2021) (‘‘the
Infrastructure Act’’) amended section
1847A of the Act to re-designate
subsection (h) as subsection (i) and
insert a new subsection (h), which
requires manufacturers to provide a
refund to CMS for certain discarded
amounts from a refundable single-dose
container or single-use package drug.
The CY 2024 PFS proposed rule
includes proposals to operationalize
section 90004 of the Infrastructure Act,
including a proposal that impacts
hospital outpatient departments
(HOPDs) and ambulatory surgical
centers (ASCs). Similar to our CY 2023
notice in the OPPS/ASC proposed rule
(87 FR 71988), we wanted to ensure
interested parties were aware of these
proposals and knew to refer to the CY
2024 Physician Fee Schedule proposed
rule for a full description of the
proposed policy. Interested parties are
asked to submit comments on any
proposals to implement Section 90004
of the Infrastructure Act to the CY 2024
PFS proposed rule. Public comments on
these proposals will be addressed in the
CY 2024 PFS final rule with comment
period. We note that this same notice
appears in section V.C of this proposed
rule.
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6. Payment Amount and Beneficiary
Coinsurance for Part B Rebatable Drugs
On August 16, 2022, the Inflation
Reduction Act of 2022 (IRA) (Pub. L.
117–169) was signed into law. Section
11101 of the IRA requires a Part B
inflation rebate for a Part B rebatable
drug if the Medicare payment amount,
which is generally ASP plus 6 percent,
if the drug rises at a rate that is faster
than the rate of inflation. It also
establishes changes to the Medicare
payment rate and beneficiary
coinsurance for such drugs under the
ASC payment system. We refer the
reader to the discussion of this proposed
policy and proposed changes to the
regulatory text, which are discussed in
further detail in section II.H.I of this
proposed rule.
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D. Proposed Additions to ASC Covered
Surgical Procedures and Covered
Ancillary Services Lists
1. Additions to the List of ASC Covered
Surgical Procedures
Section 1833(i)(1) of the Act requires
us, in part, to specify, in consultation
with appropriate medical organizations,
surgical procedures that are
appropriately performed on an inpatient
basis in a hospital but that can also be
safely performed in an ASC, a CAH, or
an HOPD, and to review and update the
list of ASC covered surgical procedures
at least every 2 years. We evaluate the
ASC covered procedures list (ASC CPL)
each year to determine whether
procedures should be added to or
removed from the list, and changes to
the list are often made in response to
specific concerns raised by
stakeholders.
Under our regulations at §§ 416.2 and
416.166, covered surgical procedures
furnished on or after January 1, 2022,
are surgical procedures that meet the
general standards specified in
§ 416.166(b) and are not excluded under
the general exclusion criteria specified
in § 416.166(c). Specifically, under
§ 416.166(b), the general standards
provide that covered surgical
procedures are surgical procedures
specified by the Secretary and
published in the Federal Register and/
or via the internet on the CMS website
that are separately paid under the OPPS,
that would not be expected to pose a
significant safety risk to a Medicare
beneficiary when performed in an ASC,
and for which standard medical practice
dictates that the beneficiary would not
typically be expected to require active
medical monitoring and care at
midnight following the procedure.
Section 416.166(c) sets out the general
exclusion criteria used under the ASC
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payment system to evaluate the safety of
procedures for performance in an ASC.
The general exclusion criteria provide
that covered surgical procedures do not
include those surgical procedures that:
(1) generally result in extensive blood
loss; (2) require major or prolonged
invasion of body cavities; (3) directly
involve major blood vessels; (4) are
generally emergent or life-threatening in
nature; (5) commonly require systemic
thrombolytic therapy; (6) are designated
as requiring inpatient care under
§ 419.22(n); (7) can only be reported
using a CPT unlisted surgical procedure
code; or (8) are otherwise excluded
under § 411.15.
In the CY 2019 OPPS/ASC final rule
with comment period (83 FR 59029
through 59030), we defined a surgical
procedure under the ASC payment
system as any procedure described
within the range of Category I CPT
codes that the CPT Editorial Panel of the
AMA defines as ‘‘surgery’’ (CPT codes
10000 through 69999) (72 FR 42476), as
well as procedures that are described by
Level II HCPCS codes or by Category I
CPT codes or by Category III CPT codes
that directly crosswalk or are clinically
similar to procedures in the CPT
surgical range that we determined met
the general standards established in
previous years for addition to the ASC
CPL.
For a detailed discussion of the
history of our policies for adding
surgical procedures to the ASC CPL, we
refer readers to the CY 2021, CY 2022,
and CY 2023 OPPS/ASC final rules with
comment period (85 FR 86143 through
86145; 86 FR 63777 through 63805, 87
FR 72068 through 72076).
2. Proposed Changes to the List of ASC
Covered Surgical Procedures for CY
2024
Our current policy, which includes
consideration of the general standards
and exclusion criteria we have
historically used to determine whether
a surgical procedure should be added to
the ASC CPL, is intended to ensure that
surgical procedures added to the ASC
CPL can be performed safely in the ASC
setting on the typical Medicare
beneficiary. In the CY 2023 OPPS/ASC
final rule with comment period, we
received requests to add dental surgeries
furnished in the ASC setting to the ASC
CPL (87 FR 71882). In response to these
public comments, we noted that if a
dental service is covered under
Medicare Part B and meets the criteria
for the ASC CPL (set forth at 42 CFR
416.166), then it could be added to the
ASC CPL, and that we would take
additional dental procedures into
consideration for future rulemaking. For
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CY 2024, we conducted a review of
procedures that currently are paid under
the OPPS and not included on the ASC
CPL. We also assessed procedures
against our regulatory safety criteria at
§ 416.166. Based upon this review, we
propose to update the ASC CPL by
adding 26 dental surgical procedures to
the list for CY 2024, as shown in Table
61 below.
After reviewing the clinical
characteristics of these procedures, as
well as consulting with stakeholders
and multiple clinical advisors, we
determined that these procedures are
separately paid under the OPPS, would
not be expected to pose a significant risk
to beneficiary safety when performed in
an ASC, and would not be expected to
require active medical monitoring and
care of the beneficiary at midnight
following the procedure. These
procedures are clinically similar to
procedures in the CPT surgical range
that we determined met the general
standards for addition to the ASC CPL.
These procedures are not excluded from
being included on the ASC CPL because
they do not generally result in extensive
blood loss, require major or prolonged
invasion of body cavities, commonly
require systemic thrombolytic therapy,
or directly involve major blood vessels;
are not generally emergent or lifethreatening in nature or designated as
requiring inpatient care; or can only be
reported using a CPT unlisted surgical
procedure code or are otherwise
excluded under Medicare. Therefore, we
believe these procedures may all be
appropriately performed in an ASC and
propose to include them on the ASC
CPL for CY 2024.
We note that there are statutory and
regulatory limitations regarding
Medicare coverage and payment for
dental services. Section 1862(a)(12) of
the Act generally precludes Medicare
Part A or Part B payment for services in
connection with the care, treatment,
filling, removal, or replacement of teeth
or structures directly supporting teeth
(collectively referred to in this section
as ‘‘dental services’’). The regulation at
§ 411.15(i) similarly prohibits payment
for dental services. In the CY 2023 PFS
final rule (87 FR 69663), we explained
that there are certain instances where
dental services are so integral to other
medically necessary services that they
are not in connection with dental
services within the meaning of section
1862(a)(12) of the Act. Rather, such
dental services are inextricably linked
to, and substantially related to the
clinical success of, other covered
services (hereafter in this section,
‘‘inextricably linked’’). To provide
greater clarity to current policies, the CY
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2023 PFS final rule finalized: (1) a
clarification of our interpretation of
section 1862(a)(12) of the Act to permit
payment for dental services that are
inextricably linked to other covered
services; (2) clarification and
codification of certain longstanding
Medicare FFS payment policies for
dental services that are inextricably
linked to other covered services; (3)
that, beginning for CY 2023, Medicare
Parts A and B payment can be made for
certain dental services inextricably
linked to Medicare-covered organ
transplant, cardiac valve replacement,
or valvuloplasty procedures; and, (4)
beginning for CY 2024, that Medicare
Parts A and B payment can be made for
certain dental services inextricably
linked to Medicare-covered services for
treatment of head and neck cancers (87
FR 69670 through 69671). For the ASC
setting, services must meet all
applicable Medicare conditions for
coverage and payment to be paid by
Medicare, including those as specified
under the CY 2023 PFS final rule (87 FR
69687 through 69688) and § 411.15(i)(3).
Medicare payment may be made in the
ASC setting for dental services for
which payment may be made under
Medicare Part B, paid under the OPPS,
and that meet the ASC CPL criteria. The
fact that a drug, device, procedure, or
service is assigned a HCPCS code and a
payment rate under the ASC payment
system indicates only how the product,
procedure, or service may be paid if
covered by the program. MACs will be
involved in the final decision regarding
whether a drug, device, procedure, or
other service meets all program
requirements and conditions for
coverage and payment. Therefore, even
if a code describing a dental service has
an associated payment rate on the ASC
CPL, Medicare will only make payment
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for the service if it meets applicable
requirements. We also clarify that
adding dental procedures to the ASC
CPL does not serve as a coverage
determination for dental services under
general anesthesia. We direct readers to
the CY 2024 PFS proposed rule for
additional discussion of Medicare
coverage and payment for dental
services, which is available on the CMS
website at: https://www.cms.gov/
Medicare/Medicare-Fee-for-ServicePayment/PhysicianFeeSched/PFSFederal-Regulation-Notices.html.
HCPCS code G0330 covers facility
services for dental rehabilitation
procedure(s) performed on a patient
who requires monitored anesthesia (e.g.,
general, intravenous sedation
(monitored anesthesia care)) and use of
an operating room. While G0330 has a
broader code descriptor than most of the
dental codes proposed to be added to
the ASC CPL, we propose to add G0330
to the ASC CPL. We also propose that
it can only be billed when accompanied
by at least one covered ancillary dental
service on a specific and definitive list
of CDT codes, which can be found in
ASC Addendum BB with payment
indicator ‘‘D1.’’ 126 Performance of at
least one of these covered ancillary
services is integral to each of the
surgical procedures that correspond to
G0330. For example, if a patient
requires a full mouth debridement to
enable a comprehensive periodontal
evaluation and diagnosis on a
subsequent visit, as described by
covered ancillary code CDT code D4355,
or to enable excision of a gum lesion, as
described by CPT 41827, and this
procedure needs to be performed under
anesthesia due to patient-specific
circumstances, the ASC would bill
126 See section XIII.B.6.b for a detailed discussion
of payment indicators ‘‘D1’’ and ‘‘D2.’’
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G0330 with covered ancillary code
D4355 to perform the debridement
under anesthesia or G0330 with covered
ancillary code 41827 to perform the
excision service under anesthesia.
Additionally, as previously noted, when
G0330 is billed on a claim, MACs would
determine whether payment can be
made for the procedure under
§ 411.15(i)(3), and whether the
procedure was reasonable and
medically necessary before providing
payment for the procedure. This claims
processing mechanism is discussed in
further detail in the covered ancillary
services section (section XIII.D.2 of this
proposed rule). Procedures assigned to
payment indicator ‘‘D2’’, other than
HCPCS code G0330, are not required to
be billed with a covered ancillary
procedure assigned to payment
indicator ‘‘D1’’ in order to receive
payment for the procedure.
We continue to focus on maximizing
patient access to care by adding
procedures to the ASC CPL when
appropriate. While expanding the ASC
CPL offers benefits, such as preserving
the capacity of hospitals to treat more
acute patients and promoting site
neutrality, we also believe that any
additions to the CPL should be added in
a carefully calibrated fashion to ensure
that the procedure is safe to be
performed in the ASC setting for a
typical Medicare beneficiary. We expect
to continue to gradually expand the
ASC CPL, as medical practice and
technology continue to evolve and
advance in future years. We encourage
stakeholders to submit procedure
recommendations to be added to the
ASC CPL, particularly if there is
evidence that these procedures meet our
criteria and can be safely performed in
the ASC setting.
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3. Covered Ancillary Services
Covered ancillary services are
specified in § 416.164(b) and, as stated
previously, are eligible for separate ASC
payment. As provided at § 416.164(b),
we make separate ASC payments for
ancillary items and services when they
are provided integral to ASC covered
surgical procedures that include the
following: (1) brachytherapy sources; (2)
certain implantable items that have
pass-through payment status under the
OPPS; (3) certain items and services that
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we designate as contractor-priced,
including, but not limited to,
procurement of corneal tissue; (4)
certain drugs and biologicals for which
separate payment is allowed under the
OPPS; (5) certain radiology services for
which separate payment is allowed
under the OPPS; and (6) non-opioid
pain management drugs that function as
a supply when used in a surgical
procedure. Payment for ancillary items
and services that are not paid separately
under the ASC payment system is
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packaged into the ASC payment for the
covered surgical procedure.
In the CY 2019 OPPS/ASC final rule
with comment period (83 FR 59062
through 59063), consistent with the
established ASC payment system policy
(72 FR 42497), we finalized the policy
to update the ASC list of covered
ancillary services to reflect the payment
status for the services under the OPPS
and to continue this reconciliation of
packaged status for subsequent calendar
years. As discussed in prior rulemaking,
maintaining consistency with the OPPS
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may result in changes to ASC payment
indicators for some covered ancillary
services. For example, if a covered
ancillary service was separately paid
under the ASC payment system in CY
2023, but will be packaged under the CY
2024 OPPS, we would also package the
ancillary service under the ASC
payment system for CY 2024 to
maintain consistency with the OPPS.
Comment indicator ‘‘CH’’ is used in
Addendum BB (which is available via
the internet on the CMS website) to
indicate covered ancillary services for
which we proposed a change in the ASC
payment indicator to reflect a proposed
change in the OPPS treatment of the
service for CY 2024.
In the CY 2022 OPPS/ASC final rule
with comment period, we finalized our
proposal to revise 42 CFR 416.164(b)(6)
to include, as ancillary items that are
integral to a covered surgical procedure
and for which separate payment is
allowed, non-opioid pain management
drugs and biologicals that function as a
supply when used in a surgical
procedure as determined by CMS (86 FR
63490).
New CPT and HCPCS codes for
covered ancillary services for CY 2024
can be found in section XIII.B of this
proposed rule. All ASC covered
ancillary services and their proposed
payment indicators for CY 2024 are also
included in Addendum BB to this
proposed rule (which is available via
the internet on the CMS website).
Claims Processing Limitations for
Covered Ancillary Procedures
Performed With G0330
HCPCS code G0330 (Facility services
for dental rehabilitation procedure(s)
performed on a patient who requires
monitored anesthesia (e.g., general,
intravenous sedation (monitored
anesthesia care) and use of an operating
room)) is a proposed addition to the
ASC CPL for CY 2024, as discussed in
section XIII.D.1 of this proposed rule. In
ASC Addendum BB, there is a specific
and definitive list of covered ancillary
dental services with proposed payment
indicator of ‘‘D1.’’ For CY 2024, we
propose that G0330 could only be billed
with a covered ancillary procedure that
has the proposed payment indicator of
‘‘D1,’’ indicating an ancillary dental
service or item with no separate
payment made. This limitation would
ensure that only covered ancillary
services we have evaluated for safety in
the ASC setting can be performed with
G0330. While HCPCS code G0330 must
be billed with a covered ancillary
procedure with a proposed payment
indicator of ‘‘D1’’, these covered
ancillary procedures can be billed with
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procedures other than G0330. When
billed with procedures other than
G0330, these procedures would be
packaged in accordance with our policy
for covered ancillary procedures. The
fact that a drug, device, procedure, or
service is assigned a HCPCS code and a
payment rate under the ASC payment
system indicates only how the product,
procedure, or service may be paid if
covered by the program. MACs will be
involved in the final decision regarding
whether a drug, device, procedure, or
other service meets all program
requirements and conditions for
coverage and payment. Therefore, even
if a code describing a dental service has
an associated payment rate on the ASC
CPL, Medicare will only make payment
for the service if it meets applicable
requirements. More detail on the
proposed ASC dental indicators can be
found in section XIII.B.6 of this
proposed rule.
E. ASC Payment Policy for Non-Opioid
Post-Surgery Pain Management Drugs,
Biologicals, and Devices
1. Background on OPPS/ASC NonOpioid Pain Management Packaging
Policies
On October 24, 2018, the Substance
Use-Disorder Prevention that Promotes
Opioid Recovery and Treatment for
Patients and Communities (SUPPORT)
Act (Pub. L. 115–271) was enacted.
Section 1833(t)(22)(A)(i) of the Act, as
added by section 6082(a) of the
SUPPORT Act, states that the Secretary
must review payments under the OPPS
for opioids and evidence based nonopioid alternatives for pain management
(including drugs and devices, nerve
blocks, surgical injections, and
neuromodulation) with a goal of
ensuring that there are not financial
incentives to use opioids instead of nonopioid alternatives. As part of this
review, under section 1833(t)(22)(A)(iii)
of the Act, the Secretary must consider
the extent to which revisions to such
payments (such as the creation of
additional groups of covered outpatient
department (OPD) services to separately
classify those procedures that utilize
opioids and non-opioid alternatives for
pain management) would reduce the
payment incentives for using opioids
instead of non-opioid alternatives for
pain management. In conducting this
review and considering any revisions,
the Secretary must focus on covered
OPD services (or groups of services)
assigned to C–APCs, APCs that include
surgical services, or services determined
by the Secretary that generally involve
treatment for pain management. If the
Secretary identifies revisions to
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payments pursuant to section
1833(t)(22)(A)(iii) of the Act, section
1833(t)(22)(C) of the Act requires the
Secretary to, as determined appropriate,
begin making revisions for services
furnished on or after January 1, 2020.
Revisions under this paragraph are
required to be treated as adjustments for
purposes of paragraph (9)(B) of the Act,
which requires any adjustments to be
made in a budget neutral manner.
Section 1833(i)(8) of the Act, as added
by section 6082(b) of the SUPPORT Act,
requires the Secretary to conduct a
similar type of review as required for
the OPPS and to make revisions to the
ASC payment system in an appropriate
manner, as determined by the Secretary.
For a detailed discussion of
rulemaking on non-opioid alternatives
prior to CY 2020, we refer readers to the
CYs 2018 and 2019 OPPS/ASC final
rules with comment period (82 FR
59345; 83 FR 58855 through 58860).
For the CY 2020 OPPS/ASC proposed
rule (84 FR 39423 through 39427), as
required by section 1833(t)(22)(A)(i) of
the Act, we reviewed payments under
the OPPS for opioids and evidencebased non-opioid alternatives for pain
management (including drugs and
devices, nerve blocks, surgical
injections, and neuromodulation) with a
goal of ensuring that there are not
financial incentives to use opioids
instead of non-opioid alternatives. For
the CY 2020 OPPS/ASC proposed rule
(84 FR 39423 through 39427), we
proposed to continue our policy to pay
separately at ASP plus 6 percent for
non-opioid pain management drugs that
function as surgical supplies in the
performance of surgical procedures
when they are furnished in the ASC
setting and to continue to package
payment for non-opioid pain
management drugs that function as
surgical supplies in the performance of
surgical procedures in the hospital
outpatient department setting.
In the CY 2020 OPPS/ASC final rule
with comment period (84 FR 61173
through 61180), after reviewing data
from stakeholders and Medicare claims
data, we did not find compelling
evidence to suggest that revisions to our
OPPS payment policies for non-opioid
pain management alternatives were
necessary for CY 2020. We finalized our
proposal to continue to unpackage and
pay separately at ASP plus 6 percent for
non-opioid pain management drugs that
function as surgical supplies when
furnished in the ASC setting for CY
2020. Under this policy, for CY 2020,
the only drug that qualified for separate
payment in the ASC setting as a nonopioid pain management drug that
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functions as a surgical supply was
Exparel.
In the CY 2021 OPPS/ASC final rule
with comment period (85 FR 85896
through 85899), we continued the
policy to pay separately at ASP plus 6
percent for non-opioid pain
management drugs that function as
surgical supplies in the performance of
surgical procedures when they were
furnished in the ASC setting and to
continue to package payment for nonopioid pain management drugs that
function as surgical supplies in the
performance of surgical procedures in
the hospital outpatient department
setting for CY 2021. For CY 2021, only
Exparel and Omidria met the criteria as
non-opioid pain management drugs that
function as surgical supplies in the ASC
setting, and received separate payment
under the ASC payment system.
In the CY 2022 OPPS/ASC final rule
with comment period (86 FR 63483), we
finalized a policy to unpackage and pay
separately at ASP plus 6 percent for
non-opioid pain management drugs that
function as surgical supplies when they
are furnished in the ASC setting, are
FDA-approved, have an FDA-approved
indication for pain management or as an
analgesic, and have a per-day cost above
the OPPS/ASC drug packaging
threshold; and we finalized our
proposed regulation text changes at 42
CFR 416.164(a)(4) and (b)(6),
416.171(b)(1), and 416.174 as proposed.
BILLING CODE 4120–01–P
BILLING CODE 4120–01–C
plus 6 percent for non-opioid pain
management drugs that function as
surgical supplies when they are
furnished in the ASC setting, are FDAapproved, have an FDA-approved
indication for pain management or as an
analgesic, and have a per-day cost above
the OPPS drug packaging threshold
beginning on or after January 1, 2022.
For CY 2024, the OPPS drug packaging
threshold is proposed to be $140. For
more information on the drug packaging
threshold, see section V.B.1.a of this CY
2024 OPPS/ASC proposed rule.
In the CY 2023 OPPS/ASC final rule,
we finalized a clarification of our policy
by codifying the two additional criteria
for separate payment for non-opioid
pain management drugs and biologicals
that function as surgical supplies in the
regulatory text at § 416.174 as a
technical change. First, we finalized at
2. Proposed CY 2024 Qualification
Evaluation for Separate Payment of
Non-Opioid Pain Management Drugs
and Biologicals That Function as a
Surgical Supply
As noted above, in the CY 2022
OPPS/ASC final rule with comment
period, we finalized a policy to
unpackage and pay separately at ASP
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In the CY 2023 OPPS/ASC final rule
with comment period (87 FR 72089), we
determined that five products were
eligible for separate payment in the ASC
setting under our final policy for CY
2022. We noted that future products, or
products not discussed in that
rulemaking that may be eligible for
separate payment under this policy,
would be evaluated in future
rulemaking (86 FR 63496). Table 62 lists
the five drugs that met our finalized
criteria established in CY 2022 to
receive separate payment under the ASC
payment system when furnished in the
ASC setting for CY 2023 as described in
the CY 2023 final rule with comment
period (86 FR 63496).
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new § 416.174(a)(3) that non-opioid
pain management drugs or biologicals
that function as a supply in a surgical
procedure are eligible for separate
payment if the drug or biological does
not have transitional pass-through
payment status under § 419.64. In the
case where a drug or biological
otherwise meets the requirements under
§ 416.174 and has transitional passthrough payment status that will expire
during the calendar year, the drug or
biological would qualify for separate
payment under § 416.174 during such
calendar year on the first day of the next
calendar year quarter after its passthrough status expires. Second, we
finalized that new § 416.174(a)(4) would
reflect that the drug or biological must
not already be separately payable in the
OPPS or ASC payment system under a
policy other than the one specified in
§ 416.174.
The following sections include the
non-opioid alternatives of which we are
aware and our evaluations of whether
these non-opioid alternatives meet the
criteria established at § 416.174. We
welcome stakeholder comment on these
evaluations.
(a) Proposed Annual Eligibility ReEvaluations of Non-Opioid Alternatives
That Were Separately Paid in the ASC
Setting During CY 2023
In the CY 2023 final rule with
comment period, we finalized that five
drugs would receive separate payment
in the ASC setting for CY 2023 under
the policy for non-opioid pain
management drugs and biologicals that
function as surgical supplies (86 FR
63496). These drugs are described by
HCPCS code C9290 (Injection,
bupivacaine liposome, 1 mg), J1096
(Dexamethasone, lacrimal ophthalmic
insert, 0. mg), HCPCS code J1097
(Phenylephrine 10.16 mg/ml and
ketorolac 2.88 mg/ml ophthalmic
irrigation solution, 1 ml), HCPCS code
C9089 (Bupivacaine, collagen-matrix
implant, 1 mg), and HCPCS code C9144
(Injection, bupivacaine (posimir), 1
mg)).
We re-evaluated these products
outlined in the previous paragraph
against the criteria specified in
§ 416.174, including the technical
clarifications we proposed to that
section, to determine whether they
continue to qualify for separate payment
in CY 2024. Based on our evaluation, we
propose that the drugs described by
HCPCS codes C9290, J1096, J1097, and
C9089 continue to meet the required
criteria and should receive separate
payment in the ASC setting. We propose
that the drug described by HCPCS code
C9144 would not receive separate
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payment in the ASC setting under this
policy, as this drug will be separately
payable during CY 2024 under OPPS
transitional pass-through status. Please
see section V.A (OPPS Transitional
Pass-Through Payment for Additional
Costs of Drugs, Biologicals, and
Radiopharmaceuticals) of this CY 2024
OPPS/ASC proposed rule for additional
details on the pass-through status of
HCPCS code C9144. We welcome
comment on our evaluations below.
(b) Proposed Eligibility Evaluation for
the Separate Payment of Exparel
Based on our internal review, we
believe that Exparel, described by
HCPCS code C9290 (Injection,
bupivacaine liposome, 1 mg), meets the
criteria described at § 416.174; and we
propose to continue paying separately
for it under the ASC payment system for
CY 2024. Exparel was approved by the
FDA with a New Drug Application
(NDA #022496) under section 505(c) of
the Federal Food, Drug, and Cosmetic
Act on October 28, 2011.127 Exparel’s
FDA-approved indication is ‘‘in patients
6 years of age and older for single-dose
infiltration to produce postsurgical local
analgesia’’ and ‘‘in adults as an
interscalene brachial plexus nerve block
to produce postsurgical regional
analgesia.’’ 128 No component of Exparel
is opioid-based. Accordingly, we
propose that Exparel meets the criterion
described at § 416.174(a)(1). Under the
methodology described at V.B.1.a. of
this proposed rule, the per-day cost of
Exparel exceeds the proposed $140 perday cost threshold. Therefore, we
propose that Exparel meets the criterion
described at § 416.174(a)(2).
Additionally, Exparel will not have
transitional pass-through payment
status under § 419.64 in CY 2024, nor
will it be otherwise separately payable
in the OPPS or ASC payment system in
CY 2024 under a policy other than the
one specified in § 416.174. Therefore,
we propose that Exparel meets the
criteria in the regulation text at
§ 416.174(a)(3) and (4).
Based on the above discussion, we
believe that Exparel meets the criteria
described at § 416.174; and we propose
to continue making separate payment
for it as a non-opioid pain management
drug that functions as a supply in a
surgical procedure under the ASC
payment system for CY 2024.
127 Exparel. FDA Letter. 28 October 2011. https://
www.accessdata.fda.gov/drugsatfda_docs/
appletter/2011/022496s000ltr.pdf.
128 Exparel. FDA Package Insert. 22 March 2021.
https://www.accessdata.fda.gov/drugsatfda_docs/
label/2021/022496s035lbl.pdf.
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49765
(c) Proposed Eligibility Evaluation for
the Separate Payment of Omidria
Based on our internal review, we
believe that Omidria, described by
HCPCS code J1097 (Phenylephrine
10.16 mg/ml and ketorolac 2.88 mg/ml
ophthalmic irrigation solution, 1 ml),
meets the criteria described at
§ 416.174(a), and we propose to
continue paying separately for it under
the ASC payment system for CY 2024.
Omidria was approved by the FDA with
a New Drug Application (NDA #205388)
under section 505(c) of the Federal
Food, Drug, and Cosmetic Act on May
30, 2014.129 Omidria’s FDA-approved
indication is as ‘‘an alpha 1-adrenergic
receptor agonist and nonselective
cyclooxygenase inhibitor indicated for:
Maintaining pupil size by preventing
intraoperative miosis; Reducing
postoperative pain.’’ 130 No component
of Omidria is opioid-based.
Accordingly, we propose that Omidria
meets the criterion described at
§ 416.174(a)(1). Under the methodology
described at V.B.1.a. of this proposed
rule, the per-day cost of Omidria
exceeds the proposed $140 per-day cost
threshold. Therefore, we propose that
Omidria meets the criterion described at
§ 416.174(a)(2). Additionally, we believe
that Omidria will not have transitional
pass-through payment status under
§ 419.64 in CY 2024, nor will it be
otherwise separately payable in the
OPPS or ASC payment system in CY
2024 under a policy other than the one
specified in § 416.174. Therefore, we
propose that Omidria meets the criteria
in the regulation text at § 416.174(a)(3)
and (4).
Based on the above discussion, we
propose that Omidria meets the criteria
described at § 416.174 and should
receive separate payment as a nonopioid pain management drug that
functions as a supply in a surgical
procedure under the ASC payment
system for CY 2024.
(d) Proposed Eligibility Evaluation for
the Separate Payment of Xaracoll
Based on our internal review, we
believe Xaracoll, described by C9089
(Bupivacaine, collagen-matrix implant,
1 mg), meets the criteria described at
§ 416.174(a), and we propose to
continue paying separately for it under
the ASC payment system for CY 2023.
Xaracoll was approved by the FDA with
a New Drug Application (NDA #
129 Omidria. FDA Letter. 30 May 2014. https://
www.accessdata.fda.gov/drugsatfda_docs/
appletter/2014/205388Orig1s000ltr.pdf.
130 Omidria. FDA Package Insert. December 2017.
https://www.accessdata.fda.gov/drugsatfda_docs/
label/2017/205388s006lbl.pdf.
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209511) under section 505(c) of the
Federal Food, Drug, and Cosmetic Act
on August 28, 2020.131 Xaracoll is
‘‘indicated in adults for placement into
the surgical site to produce postsurgical
analgesia for up to 24 hours following
open inguinal hernia repair.’’ 132 No
component of Xaracoll is opioid-based.
Accordingly, we propose that Xaracoll
meets the criterion described at
§ 416.174(a)(1). Under the methodology
described at V.B.1.a. of this proposed
rule, the per-day cost of Xaracoll
exceeds the proposed $140 per-day cost
threshold. Therefore, we propose that
Xaracoll meets the criterion described at
§ 416.174(a)(2). Additionally, at this
time we do not believe that Xaracoll
will have transitional pass-through
payment status under § 419.64 in CY
2024, nor do we believe it will
otherwise be separately payable in the
OPPS or ASC payment system under a
policy other than the one specified in
§ 416.174. Therefore, we propose that
Xaracoll meets the criteria in the
regulation text at § 416.174(a)(3) and (4).
Based on the above discussion, we
propose that Xaracoll meets the criteria
described at § 416.174 and should
receive separate payment as a nonopioid pain management drug that
functions as a supply in a surgical
procedure under the ASC payment
system for CY 2024.
Act on November 30, 2018.133
Dextenza’s FDA-approved indication is
as ‘‘a corticosteroid indicated for the
treatment of ocular pain following
ophthalmic surgery’’ and ‘‘the treatment
of ocular itching associated with allergic
conjunctivitis.’’ 134 No component of
Dextenza is opioid-based. Accordingly,
we propose that Dextenza meets the
criterion described at § 416.174(a)(1).
Under the methodology described at
V.B.1.a. of this proposed rule, the perday cost of Dextenza exceeds the
proposed $140 per-day cost threshold.
Therefore, we propose that Dextenza
meets the criterion described at
§ 416.174(a)(2). Additionally, we believe
that Dextenza will not have transitional
pass-through payment status under
§ 419.64 in CY 2024, nor do we believe
it will otherwise be separately payable
in the OPPS or ASC payment system
under a policy other than the one
specified in § 416.174. Therefore, we
propose that Dextenza meets the criteria
in the regulation text at § 416.174(a)(3)
and (4).
Based on the above discussion, we
propose that Dextenza meets the criteria
described at § 416.174 and should
receive separate payment as a nonopioid pain management drug that
functions as a supply in a surgical
procedure under the ASC payment
system for CY 2024.
(e) Proposed Eligibility Evaluation for
the Separate Payment of Dextenza
Based on our internal review, we
believe Dextenza, described by HCPCS
code J1096 (Dexamethasone, lacrimal
ophthalmic insert, 0.1 mg), meets the
criteria described at § 416.174; and we
propose to provide separate payment for
it under the ASC payment system for CY
2024. Dextenza was approved by the
FDA with a New Drug Application
(NDA # 208742) under section 505(c) of
the Federal Food, Drug, and Cosmetic
(f) Proposed Eligibility Evaluation for
the Separate Payment of Posimir
Based on our internal review, we do
not believe that Posimir, described by
HCPCS code C9144 (Injection,
bupivacaine (Posimir), 1 mg), meets the
criteria described at § 416.174(a); and
we do not propose to continue paying
separately for it under the ASC payment
system for CY 2024. Posimir was
approved by the FDA with a New Drug
Application (NDA # 204803) under
section 505(c) of the Federal Food, Drug,
131 Xaracoll. FDA Letter. August 2020. https://
www.accessdata.fda.gov/drugsatfda_docs/
appletter/2020/209511Orig1s000ltr.pdf.
132 Xaracoll. FDA Labeling. August 2020. https://
www.accessdata.fda.gov/drugsatfda_docs/label/
2020/209511s000lbl.pdf.
133 Dextenza. FDA Letter. November 2018. https://
www.accessdata.fda.gov/drugsatfda_docs/nda/
2018/208742Orig1s000Approv.pdf.
134 Dextenza. FDA Labeling. October 2021.
https://www.accessdata.fda.gov/drugsatfda_docs/
label/2021/208742s007lbl.pdf.
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and Cosmetic Act on February 1,
2021.135 Posimir contains an amide
local anesthetic and is indicated in
adults for administration into the
subacromial space under direct
arthroscopic visualization to produce
post-surgical analgesia for up to 72
hours following arthroscopic
subacromial decompression.’’ 136
No component of Posimir is opioidbased. Accordingly, we propose that
Posimir meets the criterion described at
§ 416.174(a)(1). Under the methodology
described at V.B.1.a. of this proposed
rule, the per-day cost of Posimir exceeds
the proposed $140 per-day cost
threshold. Therefore, we propose that
Posimir meets the criterion described at
§ 416.174(a)(2). However, Posimir will
have transitional pass-through payment
status under § 419.64 in CY 2024, and
it will be otherwise separately payable
in the OPPS or ASC payment system in
CY 2024 under a policy other than the
one specified in § 416.174. Therefore,
we propose that Posimir does not meet
the criteria at the regulation text at
§ 416.174(a)(3) and (4).
Based on the above discussion, we
propose that Posimir does not meet the
criteria in the regulation text at
§ 416.174(a)(3) and (4), and should not
receive separate payment as a nonopioid pain management drug that
functions as a supply in a surgical
procedure under the ASC payment
system for CY 2024. However, HCPCS
code C9144 will continue to receive
separate payment under its pass-through
status as outlined in section V of this
proposed rule.
Table 63 below lists the four drugs
that we propose as eligible to receive
separate payment as a non-opioid pain
management drug that functions as a
supply in a surgical procedure under
the ASC payment system for CY 2024.
135 Posimir. FDA Approval Letter. https://
www.accessdata.fda.gov/drugsatfda_docs/
appletter/2021/204803Orig1s000ltr.pdf.
136 Posimir. FDA Package Insert. https://
www.accessdata.fda.gov/drugsatfda_docs/label/
2022/204803Orig1s001lbl.pdf.
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We solicit comment on additional
non-opioid pain management drugs and
biologicals that function as surgical
supplies that may meet the criteria
specified in § 416.174 and qualify for
separate payment under the ASC
payment system. We encouraged
commenters to include an explanation
of how the drug or biological meets the
eligibility criteria in § 416.174. If we
find that any additional drugs or
biologicals described by commenters do
satisfy the criteria established at
§ 416.174, we will finalize their separate
payment status for CY 2024 in the ASC
setting in the CY 2024 OPPS/ASC final
rule with comment period.
ddrumheller on DSK120RN23PROD with PROPOSALS2
F. Comment Solicitation on Access to
Non-Opioid Treatments for Pain Relief
Under the OPPS and ASC Payment
System
1. Background on Access to Non-Opioid
Treatments for Pain Relief
The Consolidated Appropriations Act
(CAA), 2023 (Pub. L. 117–328), was
signed into law on December 29, 2022.
Section 4135(a) and (b) of the CAA,
2023, titled Access to Non-Opioid
Treatments for Pain Relief, amended
section 1833(t)(16) and section 1833(i)
of the Social Security Act, respectively,
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to provide for temporary additional
payments for non-opioid treatments for
pain relief (as that term is defined in
section 1833(t)(16)(G)(i) of the Act). In
particular, section 1833(t)(16)(G)
provides that with respect to a nonopioid treatment for pain relief
furnished on or after January 1, 2025,
and before January 1, 2028, the
Secretary shall not package payment for
the non-opioid treatment for pain relief
into payment for a covered OPD service
(or group of services) and shall make an
additional payment for the non-opioid
treatment for pain relief as specified in
clause (ii) of that section. Clauses (ii)
and (iii) of section 1833(t)(16)(G) of the
Act provide for the amount of additional
payment and set a limitation on that
amount.
Paragraph (10) of section 1833(i) of
the Act cross-references the OPPS
provisions about the additional payment
amount and payment limitation for nonopioid treatments for pain relief and
applies them to payment under the ASC
payment system. In particular,
subparagraph (A) of paragraph (10) of
section 1833(i) of the Act, as added by
section 4135(b) of the CAA, 2023,
provides that in the case of surgical
services furnished on or after January 1,
2025, and before January 1, 2028,
additional payments shall be made
under the ASC payment system for non-
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opioid treatments for pain relief in the
same amount provided in clause (ii) and
subject to the limitation in clause (iii) of
section 1833(t)(16)(G) of the Act for the
OPPS. Subparagraph (B) of section
1833(i)(10) of the Act provides that a
drug or biological that meets the
requirements of 42 CFR 416.174 and is
a non-opioid treatment for pain relief
shall also receive additional payment in
the amount provided in clause (ii) and
subject to the limitation in clause (iii) of
section 1833(t)(16)(G) of the Act.
Because the additional payments are
required to begin on January 1, 2025, we
plan to include our proposals to
implement the section 4135
amendments in the CY 2025 OPPS/ASC
proposed rule. We specifically seek
comment on the issues discussed in the
following sections as well as comments
on the implementation of all facets of
this provision.
2. CY 2025 Comment Solicitation
a. Potential Qualifying Drugs,
Biologicals, and Devices
In preparation for implementing
section 4135 of the CAA, 2023, for CY
2025, we seek comment on any drug,
biological, or medical device that a
commenter believes would meet the
definition of a non-opioid treatment for
pain relief under section
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3. Comment Solicitation on New
Products That Meet the Criteria
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1833(t)(16)(G)(iv) of the Act. We
encourage commenters to submit
appropriate FDA documentation,
published peer-reviewed literature, or
other evidence-based support, if
applicable, to illustrate why the
commenters believe the drug, biological,
or medical device meets the definition
of a non-opioid treatment for pain relief.
For these products, we also solicit
comment on appropriate codes and
descriptors if no HCPCS codes currently
exist for the product. We note that we
will evaluate these products, including
the information submitted by
commenters, and propose additional
payments, subject to the payment
limitation, for those that meet the
definition of a non-opioid treatment for
pain relief in the CY 2025 OPPS/ASC
rulemaking cycle, rather than during the
CY 2024 OPPS/ASC final rule with
comment period.
ddrumheller on DSK120RN23PROD with PROPOSALS2
b. Evidence Requirement for Medical
Devices
Section 1833(t)(16)(G)(iv)(II)(bb) of the
Act specifies an additional requirement
for medical devices to meet the
definition of non-opioid treatment for
pain relief. This section requires that a
medical device demonstrate the ability
to replace, reduce, or avoid
intraoperative or postoperative opioid
use or the quantity of opioids prescribed
in a clinical trial or through data
published in a peer-reviewed journal.
As the statute requires information
from a clinical trial or data published in
a peer-reviewed journal, we seek
comment on the best way to obtain and
evaluate that information. We also seek
comment on how we should assess
information from a clinical trial or data
published in a peer-reviewed journal,
including how to assess for conflicts of
interest or integrity concerns, whether
to focus on outcomes rather than
surrogate endpoints, and whether to
require that all decreases in opioid use
be statistically and clinically significant
compared to the usual standard of care
(rather than placebo).
c. Amount of Payment
Section 1833(t)(16)(G)(ii)(I) of the Act
states that, subject to the limitation in
clause (iii), the amount of payment for
a non-opioid treatment for pain relief
that is a drug or biological product is the
amount of payment for such drug or
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biological determined under section
1847A of the Act that exceeds the
portion of the otherwise applicable
Medicare OPD fee schedule that the
Secretary determines is associated with
the drug or biological. As this language
is very similar to the transitional passthrough language at section
1833(t)(6)(D)(i) of the Act, we anticipate
implementing a similar payment
methodology for drugs and biologicals
under this future policy.
Section 1833(t)(16)(G)(ii)(II) of the Act
states that the amount of payment for a
non-opioid treatment for pain relief that
is a medical device is the amount of the
hospital’s charges for the device,
adjusted to cost, that exceeds the
portion of the otherwise applicable
Medicare OPD fee schedule that the
Secretary determines is associated with
the device. As this language is very
similar to the transitional pass-through
language at section 1833(t)(6)(D)(ii) of
the Act, we anticipate implementing a
similar payment methodology for
medical devices under this future
policy.
Section 1833(i)(10) of the Act
provides that the same payment rate
shall apply in the ASC setting as the
rates described in section
1833(t)(16)(G)(ii) of the Act for hospital
outpatient departments, subject to the
limitation in section 1833(t)(16)(G)(iii)
of the Act.
d. Payment Limitation
Section 1833(t)(16)(G)(iii) of the Act
states that the additional payment
amount specified in clause (ii), and as
described in the previous section, shall
not exceed the estimated average of 18
percent of the OPD fee schedule amount
for the OPD service (or group of
services) with which the non-opioid
treatment for pain relief is furnished, as
determined by the Secretary. We are
seeking comment on how we should
determine the OPD service or groups of
services with which non-opioid
treatments for pain relief are furnished
for purposes of calculating the payment
limitation for each treatment.
Specifically, we seek comment on the
scenarios outlined below.
Additionally, we welcome other
recommendations from interested
parties consistent with the statutory
requirements.
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Scenario 1: Payment Limitation Based
on the Top Five Services by Volume
With Known Claims Data
As demonstrated in this example
(Table 64), one possible approach is to
use the top five services associated with
a hypothetical drug, biological, or
medical device, to determine the
volume-weighted payment rate and the
payment limit, based on the most recent
claims data available. For the nonopioids that are currently separately
paid, we predict that the majority of
utilization is focused in the top five
mostly frequently performed services,
thus using the top five services would
provide a representative estimate for the
payment limit. However, we solicit
comment on this prediction and
welcome input from commenters if they
believe another number of procedures,
or another metric, would be appropriate
to determine the list of procedures in
which the payment limitation would be
calculated.
For this example, we would begin by
identifying the top five services by
volume that package this drug,
biological, or device into their payment
rate. Second, we would calculate the
volume-weighted payment rate per
claim, which would be $700 in the
example below. Third, we would apply
the 18 percent payment limit per
clinical dose, rather than per HCPCS
dosage unit, which is $126 in the case
below. We would apply this payment
limit to the clinical dose received by the
beneficiary as the payment limit applies
to the total amount of payment, rather
than the HCPCS dosage unit payment,
which may only represent a small
fraction of the total amount of payment.
This means that even if the non-opioid
treatment for pain relief had an amount
of additional payment under section
1833(t)(16)(G)(ii) of the Act that was
greater than $126 per dose, it would be
limited to $126 by 1833(t)(16)(G)(iii) of
the Act. In this example, this non-opioid
treatment for pain relief would not be
subject to the threshold packaging
policy in section V.B.1.a. of this
proposed rule even though its payment
falls below the proposed CY 2024 drug
packaging threshold of $140, per section
1833(t)(16)(G)(i) of the Act, and would
also be separately paid when used
during a comprehensive APC (C–APC)
procedure in the HOPD setting.
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Scenario 2: Payment Limit Without
Claims Data
Additionally, we seek comment on
the best approach for determining a
payment limit, pursuant to section
1833(t)(16)(G)(iii) of the Act for drugs,
biologicals, and devices when there are
no known claims data, such as for
newly FDA-approved and marketed
products. CMS could propose the
services with which a product would be
expected to be furnished and would
typically be packaged absent this policy
during calendar year rulemaking, based
on expected clinical use patterns.
Determining the service, or group of
services, to use to calculate the payment
limit could be accomplished through
engagement with interested parties and
a review by CMS Medical Officers and
clinical staff. Absent engagement from
interested parties, CMS could make its
determination of the service, or group of
services, to use to calculate the payment
limit based on expected clinical use
patterns. CMS could then adjust the
services that are used to calculate the
payment limit as claims data becomes
available in subsequent years. We seek
comment on this approach as well as
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other approaches of interest to
commenters.
We welcome comment from
interested parties on the
implementation of all facets of section
4135. We will include proposals to
implement the section 4135
amendments in the CY 2025 OPPS/ASC
proposed rule.
G. Proposed New Technology
Intraocular Lenses (NTIOLs)
New Technology Intraocular Lenses
(NTIOLs) are intraocular lenses that
replace a patient’s natural lens that has
been removed in cataract surgery and
that also meet the requirements listed in
§ 416.195.
1. NTIOL Application Cycle
Our process for reviewing
applications to establish new classes of
NTIOLs is as follows:
• Applicants submit their NTIOL
requests for review to CMS by the
annual deadline. For a request to be
considered complete, we require
submission of the information requested
in the guidance document titled
‘‘Application Process and Information
Requirements for Requests for a New
Class of New Technology Intraocular
Lenses (NTIOLs) or Inclusion of an IOL
in an Existing NTIOL Class’’ posted on
the CMS website at: https://
www.cms.gov/Medicare/Medicare-Feefor-Service-Payment/ASCPayment/
NTIOLs.html.
• We announce annually, in the
proposed rule updating the ASC and
OPPS payment rates for the following
calendar year, a list of all requests to
establish new NTIOL classes accepted
for review during the calendar year in
which the proposal is published. In
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accordance with section 141(b)(3) of
Public Law 103–432 and our regulations
at § 416.185(b), the deadline for receipt
of public comments is 30 days following
publication of the list of requests in the
proposed rule.
• In the final rule with comment
period updating the ASC and OPPS
payment rates for the following calendar
year, we—
++ Provide a list of determinations
made as a result of our review of all new
NTIOL class requests and public
comments.
++ When a new NTIOL class is
created, identify the predominant
characteristic of NTIOLs in that class
that sets them apart from other IOLs
(including those previously approved as
members of other expired or active
NTIOL classes) and that is associated
with an improved clinical outcome.
++ Set the date of implementation of
a payment adjustment in the case of
approval of an IOL as a member of a
new NTIOL class prospectively as of 30
days after publication of the ASC
payment update final rule, consistent
with the statutory requirement.
++ Announce the deadline for
submitting requests for review of an
application for a new NTIOL class for
the following calendar year.
2. Requests To Establish New NTIOL
Classes for CY 2024
We did not receive any requests for
review to establish a new NTIOL class
for CY 2024 by March 1, 2023, the due
date published in the CY 2023 OPPS/
ASC final rule with comment period (87
FR 72091).
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We welcome comments on this
approach. We seek comment on whether
utilizing the top five services by volume
is an appropriate method by which to
establish this payment limit. We also
seek comment on additional
methodologies, such as determining the
payment limit based on the top 10
services by volume, by total payment
rather than volume, or any number of
services with more than a certain
percentage of overall utilization, such as
10 percent.
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3. Payment Adjustment
The current payment adjustment for a
5-year period from the implementation
date of a new NTIOL class is $50 per
lens. Since implementation of the
process for adjustment of payment
amounts for NTIOLs in 1999, we have
not revised the payment adjustment
amount, and we do not propose to
revise the payment adjustment amount
for CY 2024.
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H. Proposed Calculation of the ASC
Payment Rates and the ASC Conversion
Factor
1. Background
In the August 2, 2007 ASC final rule
(72 FR 42493), we established our
policy to base ASC relative payment
weights and payment rates under the
revised ASC payment system on APC
groups and the OPPS relative payment
weights. Consistent with that policy and
the requirement at section
1833(i)(2)(D)(ii) of the Act that the
revised payment system be
implemented so that it would be budget
neutral, the initial ASC conversion
factor (CY 2008) was calculated so that
estimated total Medicare payments
under the revised ASC payment system
in the first year would be budget neutral
to estimated total Medicare payments
under the prior (CY 2007) ASC payment
system (the ASC conversion factor is
multiplied by the relative payment
weights calculated for many ASC
services in order to establish payment
rates). That is, application of the ASC
conversion factor was designed to result
in aggregate Medicare expenditures
under the revised ASC payment system
in CY 2008 being equal to aggregate
Medicare expenditures that would have
occurred in CY 2008 in the absence of
the revised system, taking into
consideration the cap on ASC payments
in CY 2007, as required under section
1833(i)(2)(E) of the Act (72 FR 42522).
We adopted a policy to make the system
budget neutral in subsequent calendar
years (72 FR 42532 through 42533;
§ 416.171(e)).
We note that we consider the term
‘‘expenditures’’ in the context of the
budget neutrality requirement under
section 1833(i)(2)(D)(ii) of the Act to
mean expenditures from the Medicare
Part B Trust Fund. We do not consider
expenditures to include beneficiary
coinsurance and copayments. This
distinction was important for the CY
2008 ASC budget neutrality model that
considered payments across the OPPS,
ASC, and MPFS payment systems.
However, because coinsurance is almost
always 20 percent for ASC services, this
interpretation of expenditures has
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minimal impact for subsequent budget
neutrality adjustments calculated within
the revised ASC payment system.
In the CY 2008 OPPS/ASC final rule
with comment period (72 FR 66857
through 66858), we set out a step-bystep illustration of the final budget
neutrality adjustment calculation based
on the methodology finalized in the
August 2, 2007 ASC final rule (72 FR
42521 through 42531) and as applied to
updated data available for the CY 2008
OPPS/ASC final rule with comment
period. The application of that
methodology to the data available for
the CY 2008 OPPS/ASC final rule with
comment period resulted in a budget
neutrality adjustment of 0.65.
For CY 2008, we adopted the OPPS
relative payment weights as the ASC
relative payment weights for most
services and, consistent with the final
policy, we calculated the CY 2008 ASC
payment rates by multiplying the ASC
relative payment weights by the final
CY 2008 ASC conversion factor of
$41.401. For covered office-based
surgical procedures, covered ancillary
radiology services (excluding covered
ancillary radiology services involving
certain nuclear medicine procedures or
involving the use of contrast agents, as
discussed in section XIII.D.2 of the CY
2023 OPPS/ASC proposed rule (87 FR
44715 through 44716)), and certain
diagnostic tests within the medicine
range that are covered ancillary services,
the established policy is to set the
payment rate at the lower of the MPFS
unadjusted nonfacility PE RVU-based
amount or the amount calculated using
the ASC standard ratesetting
methodology. Further, as discussed in
the CY 2008 OPPS/ASC final rule with
comment period (72 FR 66841 through
66843), we also adopted alternative
ratesetting methodologies for specific
types of services (for example, deviceintensive procedures).
As discussed in the August 2, 2007
ASC final rule (72 FR 42517 through
42518) and as codified at § 416.172(c) of
the regulations, the revised ASC
payment system accounts for geographic
wage variation when calculating
individual ASC payments by applying
the pre-floor and pre-reclassified IPPS
hospital wage indexes to the laborrelated share, which is 50 percent of the
ASC payment amount based on a GAO
report of ASC costs using 2004 survey
data. Beginning in CY 2008, CMS
accounted for geographic wage variation
in labor costs when calculating
individual ASC payments by applying
the pre-floor and pre-reclassified
hospital wage index values that CMS
calculates for payment under the IPPS,
using updated Core Based Statistical
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Areas (CBSAs) issued by OMB in June
2003.
The reclassification provision in
section 1886(d)(10) of the Act is specific
to hospitals. We believe that using the
most recently available pre-floor and
pre-reclassified IPPS hospital wage
indexes results in the most appropriate
adjustment to the labor portion of ASC
costs. We continue to believe that the
unadjusted hospital wage indexes,
which are updated yearly and are used
by many other Medicare payment
systems, appropriately account for
geographic variation in labor costs for
ASCs. Therefore, the wage index for an
ASC is the pre-floor and pre-reclassified
hospital wage index under the IPPS of
the CBSA that maps to the CBSA where
the ASC is located.
Generally, OMB issues major
revisions to statistical areas every 10
years, based on the results of the
decennial census. On February 28, 2013,
OMB issued OMB Bulletin No. 13–01,
which provides the delineations of all
Metropolitan Statistical Areas,
Metropolitan Divisions, Micropolitan
Statistical Areas, Combined Statistical
Areas, and New England City and Town
Areas in the United States and Puerto
Rico based on the standards published
on June 28, 2010, in the Federal
Register (75 FR 37246 through 37252)
and 2010 Census Bureau data. (A copy
of this bulletin may be obtained at:
https://www.whitehouse.gov/sites/
whitehouse.gov/files/omb/bulletins/
2013/b13-01.pdf.) In the FY 2015 IPPS/
LTCH PPS final rule (79 FR 49951
through 49963), we implemented the
use of the CBSA delineations issued by
OMB in OMB Bulletin 13–01 for the
IPPS hospital wage index beginning in
FY 2015.
OMB occasionally issues minor
updates and revisions to statistical areas
in the years between the decennial
censuses. On July 15, 2015, OMB issued
OMB Bulletin No. 15–01, which
provides updates to and supersedes
OMB Bulletin No. 13–01 that was issued
on February 28, 2013. OMB Bulletin No.
15–01 made changes that are relevant to
the IPPS and ASC wage index. We refer
readers to the CY 2017 OPPS/ASC final
rule with comment period (81 FR
79750) for a discussion of these changes
and our implementation of these
revisions. (A copy of this bulletin may
be obtained at https://
www.whitehouse.gov/sites/
whitehouse.gov/files/omb/bulletins/
2015/15-01.pdf.)
On August 15, 2017, OMB issued
OMB Bulletin No. 17–01, which
provided updates to and superseded
OMB Bulletin No. 15–01 that was issued
on July 15, 2015. We refer readers to the
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CY 2019 OPPS/ASC final rule with
comment period (83 FR 58864 through
58865) for a discussion of these changes
and our implementation of these
revisions. (A copy of this bulletin may
be obtained at https://
www.whitehouse.gov/sites/
whitehouse.gov/files/omb/bulletins/
2017/b-17-01.pdf.)
On April 10, 2018, OMB issued OMB
Bulletin No. 18–03, which superseded
the August 15, 2017 OMB Bulletin No.
17–01. On September 14, 2018, OMB
issued OMB Bulletin 18–04, which
superseded the April 10, 2018 OMB
Bulletin No. 18–03. A copy of OMB
Bulletin No. 18–03 may be obtained at
https://www.whitehouse.gov/wpcontent/uploads/2018/04/OMBBULLETIN-NO.-18-03-Final.pdf. A copy
of OMB Bulletin No. 18–04 may be
obtained at https://
www.whitehouse.gov/wpcontent/
uploads/2018/90/Bulletin-18-04.pdf.
On March 6, 2020, OMB issued
Bulletin No. 20–01, which provided
updates to and superseded OMB
Bulletin No. 18–04 that was issued on
September 14, 2018. (For a copy of this
bulletin, we refer readers to the
following website: https://
www.whitehouse.gov/wp-content/
uploads/2020/03/Bulletin-20-01.pdf.)
The proposed CY 2024 ASC wage
indexes fully reflect the OMB labor
market area delineations (including the
revisions to the OMB labor market
delineations discussed above, as set
forth in OMB Bulletin Nos. 13–01, 15–
01, 17–01, 18–03, 18–04, and 20–01).
We note that, in certain instances, there
might be urban or rural areas for which
there is no IPPS hospital that has wage
index data that could be used to set the
wage index for that area. For these areas,
our policy has been to use the average
of the wage indexes for CBSAs (or
metropolitan divisions as applicable)
that are contiguous to the area that has
no wage index (where ‘‘contiguous’’ is
defined as sharing a border). For
example, for CY 2024, we are applying
a proxy wage index based on this
methodology to ASCs located in CBSA
25980 (Hinesville-Fort Stewart, GA).
When all of the areas contiguous to
the urban CBSA of interest are rural and
there is no IPPS hospital that has wage
index data that could be used to set the
wage index for that area, we determine
the ASC wage index by calculating the
average of all wage indexes for urban
areas in the State (75 FR 72058 through
72059). In other situations, where there
are no IPPS hospitals located in a
relevant labor market area, we apply our
current policy of calculating an urban or
rural area’s wage index by calculating
the average of the wage indexes for
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CBSAs (or metropolitan divisions where
applicable) that are contiguous to the
area with no wage index.
2. Calculation of the ASC Payment Rates
a. Updating the ASC Relative Payment
Weights for CY 2024 and Future Years
We update the ASC relative payment
weights each year using the national
OPPS relative payment weights (and
PFS nonfacility PE RVU-based amounts,
as applicable) for that same calendar
year and uniformly scale the ASC
relative payment weights for each
update year to make them budget
neutral (72 FR 42533). The OPPS
relative payment weights are scaled to
maintain budget neutrality for the
OPPS. We then scale the OPPS relative
payment weights again to establish the
ASC relative payment weights. To
accomplish this, we hold estimated total
ASC payment levels constant between
calendar years for purposes of
maintaining budget neutrality in the
ASC payment system. That is, we apply
the weight scalar to ensure that
projected expenditures from the
updated ASC payment weights in the
ASC payment system are equal to what
would be the current expenditures
based on the scaled ASC payment
weights. In this way, we ensure budget
neutrality and that the only changes to
total payments to ASCs result from
increases or decreases in the ASC
payment update factor.
Where the estimated ASC
expenditures for an upcoming year are
higher than the estimated ASC
expenditures for the current year, the
ASC weight scalar is reduced, in order
to bring the estimated ASC expenditures
in line with the expenditures for the
baseline year. This frequently results in
ASC relative payment weights for
surgical procedures that are lower than
the OPPS relative payment weights for
the same procedures for the upcoming
year. Therefore, over time, even if
procedures performed in the HOPD and
ASC receive the same update factor
under the OPPS and ASC payment
system, payment rates under the ASC
payment system would increase at a
lower rate than payment for the same
procedures performed in the HOPD as a
result of applying the ASC weight scalar
to ensure budget neutrality.
As discussed in section II.A.1.a of this
proposed rule, we are using the CY 2022
claims data to be consistent with the
OPPS claims data for this proposed rule.
Consistent with our established policy,
we propose to scale the CY 2024 relative
payment weights for ASCs according to
the following method. Holding ASC
utilization, the ASC conversion factor,
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49771
and the mix of services constant from
CY 2022, we propose to compare the
estimated total payment using the CY
2023 ASC relative payment weights
with the estimated total payment using
the CY 2024 ASC relative payment
weights to take into account the changes
in the OPPS relative payment weights
between CY 2023 and CY 2024.
Additionally, in light of our policy to
provide a higher ASC payment rate
through the use of ASC complexity
adjustment codes for certain primary
procedures when performed with addon packaged services, we incorporate
estimated total spending and estimated
utilization for these codes in our budget
neutrality calculation. We estimated in
the CY 2023 OPPS/ASC final rule with
comment period (87 FR 72094) that the
impact on CY 2023 estimated total
payments from our proposed CY 2023
ASC complexity adjustment codes
would be $5 million in spending and we
propose to incorporate this $5 million in
estimated CY 2023 total payments for
the budget neutrality calculation of this
proposed rule. For estimated CY 2024
total payments, we propose to
incorporate the estimated total spending
and estimated utilization related to our
proposed CY 2024 ASC complexity
adjustment codes. In this proposed rule,
we estimate the additional CY 2024
spending related to our proposed ASC
complexity adjustment codes will be $5
million.
We propose to use the ratio of
estimated CY 2023 to estimated CY 2024
total payments (the weight scalar) to
scale the ASC relative payment weights
for CY 2024. The proposed CY 2024
ASC weight scalar is 0.8649. Consistent
with historical practice, we propose to
scale, using this method, the ASC
relative payment weights of covered
surgical procedures, covered ancillary
radiology services, and certain
diagnostic tests within the medicine
range of CPT codes, which are covered
ancillary services for which the ASC
payment rates are based on OPPS
relative payment weights.
We propose that we would not scale
ASC payment for separately payable
covered ancillary services that have a
predetermined national payment
amount (that is, their national ASC
payment amounts are not based on
OPPS relative payment weights), such
as drugs and biologicals that are
separately paid or services that are
contractor-priced or paid at reasonable
cost in ASCs. Any service with a
predetermined national payment
amount would be included in the ASC
budget neutrality comparison, but
scaling of the ASC relative payment
weights would not apply to those
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services. The ASC payment weights for
those services without predetermined
national payment amounts (that is,
those services with national payment
amounts that would be based on OPPS
relative payment weights) would be
scaled to eliminate any difference in the
total payment between the current year
and the update year.
For any given year’s ratesetting, we
typically use the most recent full
calendar year of claims data to model
budget neutrality adjustments. We
propose to use the CY 2022 claims data
to model our budget neutrality
adjustment for CY 2024.
b. Updating the ASC Conversion Factor
Under the OPPS, we typically apply
a budget neutrality adjustment for
provider-level changes, most notably a
change in the wage index values for the
upcoming year, to the conversion factor.
Consistent with our final ASC payment
policy, for the CY 2017 ASC payment
system and subsequent years, in the CY
2017 OPPS/ASC final rule with
comment period (81 FR 79751 through
79753), we finalized our policy to
calculate and apply a budget neutrality
adjustment to the ASC conversion factor
for supplier-level changes in wage index
values for the upcoming year, just as the
OPPS wage index budget neutrality
adjustment is calculated and applied to
the OPPS conversion factor. For CY
2024, we calculated the proposed
adjustment for the ASC payment system
by using the most recent CY 2022 claims
data available and estimating the
difference in total payment that would
be created by introducing the proposed
CY 2024 ASC wage indexes.
Specifically, holding CY 2022 ASC
utilization, service-mix, and the
proposed CY 2024 national payment
rates after application of the weight
scalar constant, we calculated the total
adjusted payment using the CY 2023
ASC wage indexes and the total
adjusted payment using the proposed
CY 2024 ASC wage indexes. We used
the 50 percent labor-related share for
both total adjusted payment
calculations. We then compared the
total adjusted payment calculated with
the CY 2023 ASC wage indexes to the
total adjusted payment calculated with
the proposed CY 2024 ASC wage
indexes and applied the resulting ratio
of 1.0017 (the proposed CY 2024 ASC
wage index budget neutrality
adjustment) to the CY 2023 ASC
conversion factor to calculate the
proposed CY 2024 ASC conversion
factor.
Section 1833(i)(2)(D)(v) of the Act
requires that the ASC conversion factor
be reduced by a productivity adjustment
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in each calendar year. Section
1886(b)(3)(B)(xi)(II) of the Act defines
the productivity adjustment to be equal
to the 10-year moving average of
changes in annual economy-wide
private nonfarm business multifactor
productivity (MFP). We finalized the
methodology for calculating the
productivity adjustment in the CY 2011
PFS final rule with comment period (75
FR 73394 through 73396) and revised it
in the CY 2012 PFS final rule with
comment period (76 FR 73300 through
73301) and the CY 2016 OPPS/ASC
final rule with comment period (80 FR
70500 through 70501). The proposed
productivity adjustment for CY 2024
was projected to be 0.2 percentage
point, as published in the FY 2024
IPPS/LTCH PPS proposed rule (88 FR
27005) based on IGI’s 2022 fourth
quarter forecast.
Section 1833(i)(2)(C)(i) of the Act
requires that, if the Secretary has not
updated amounts established under the
revised ASC payment system in a
calendar year, the payment amounts
shall be increased by the percentage
increase in the Consumer Price Index
for all urban consumers (CPI–U), U.S.
city average, as estimated by the
Secretary for the 12-month period
ending with the midpoint of the year
involved. The statute does not mandate
the adoption of any particular update
mechanism, but it requires the payment
amounts to be increased by the CPI–U
in the absence of any update. Because
the Secretary updates the ASC payment
amounts annually, we adopted a policy,
which we codified at § 416.171(a)(2)(ii),
to update the ASC conversion factor
using the CPI–U for CY 2010 and
subsequent calendar years.
In the CY 2019 OPPS/ASC final rule
with comment period (83 FR 59075
through 59080), we finalized a policy to
apply the productivity-adjusted hospital
market basket update to ASC payment
system rates for an interim period of 5
years (CY 2019 through CY 2023),
during which we would assess whether
there is a migration of the performance
of procedures from the hospital setting
to the ASC setting as a result of the use
of a productivity-adjusted hospital
market basket update, as well as
whether there are any unintended
consequences, such as less than
expected migration of the performance
of procedures from the hospital setting
to the ASC setting. The most recent
available full year of claims data to
assess the expected migration applying
the hospital market basket update
during the interim period would fall
within the period from CY 2019 through
CY 2022. However, the impact of the
COVID–19 PHE on health care
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utilization, in particular in CY 2020,
was tremendously profound,
particularly for elective surgeries,
because many beneficiaries avoided
healthcare settings when possible to
avoid possible infection from the SARS–
CoV–2 virus. As a result, it is nearly
impossible to disentangle the effects
from the COVID–19 PHE in our analysis
of whether the higher update factor for
the ASC payment system caused
increased migration to the ASC setting.
To analyze whether procedures
migrated from the hospital setting to the
ASC setting, we need to use claims data
from a period during which the COVID–
19 PHE had less of an impact on health
care utilization. Therefore, for this CY
2024 OPPS/ASC proposed rule, we
propose to extend the 5-year interim
period an additional 2 years, that is,
through CY 2024 and CY 2025. We
believe hospital outpatient and ASC
utilization data from CYs 2023 and 2024
will enable us to more accurately
analyze whether the application of the
hospital market basket update to the
ASC payment system had an effect on
the migration of services from the
hospital setting to the ASC setting. We
propose to revise our regulations at 42
CFR 416.171(a)(2)(iii) and (iv), which
establish the annual update to the ASC
conversion factor, to reflect this 2-year
extension. We also propose to revise our
regulations at § 416.171(a)(2)(vi) and
(vii), which establish the 2.0 percentage
point reduction for ASCs that fail to
meet the standards for reporting ASC
quality measures, and
§ 416.171(a)(2)(viii)(B) and (C), which
establish the productivity adjustment, to
reflect this 2-year extension.
For CY 2024, in accordance with our
proposed revisions to
§ 416.171(a)(2)(iii), (vi), and (viii)(B), we
propose to utilize the hospital market
basket update of 3.0 percent reduced by
the productivity adjustment of 0.2
percentage point, resulting in a
proposed productivity-adjusted hospital
market basket update factor of 2.8
percent for ASCs meeting the quality
reporting requirements. Therefore, we
propose to apply a 2.8 percent
productivity-adjusted hospital market
basket update factor to the CY 2023 ASC
conversion factor for ASCs meeting the
quality reporting requirements to
determine the CY 2024 ASC payment
amounts. The ASCQR Program affected
payment rates beginning in CY 2014
and, under this program, there is a 2.0
percentage point reduction to the
update factor for ASCs that fail to meet
the ASCQR Program requirements. We
refer readers to section XIV.E of the CY
2019 OPPS/ASC final rule with
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comment period (83 FR 59138 through
59139) and section XIV.E of this
proposed rule for a detailed discussion
of our policies regarding payment
reduction for ASCs that fail to meet
ASCQR Program requirements. We
propose to utilize the inpatient hospital
market basket percentage increase of 3.0
percent reduced by 2.0 percentage
points for ASCs that do not meet the
quality reporting requirements and then
reduced by the 0.2 percentage point
productivity adjustment. Therefore, we
propose to apply a 0.8 percent
productivity-adjusted hospital market
basket update factor to the CY 2023 ASC
conversion factor for ASCs not meeting
the quality reporting requirements. We
also propose that if more recent data are
subsequently available (for example, a
more recent estimate of the inpatient
hospital market basket percentage
increase or productivity adjustment), we
would use such data, if appropriate, to
determine the CY 2024 ASC update for
the CY 2024 OPPS/ASC final rule with
comment period.
For CY 2024, we propose to adjust the
CY 2023 ASC conversion factor
($51.854) by the proposed wage index
budget neutrality factor of 1.0017 in
addition to the productivity-adjusted
hospital market basket update of 2.8
percent discussed above, which results
in a proposed CY 2024 ASC conversion
factor of $53.397 for ASCs meeting the
quality reporting requirements. For
ASCs not meeting the quality reporting
requirements, we propose to adjust the
CY 2023 ASC conversion factor
($51.854) by the proposed wage index
budget neutrality factor of 1.0017 in
addition to the quality reporting/
productivity-adjusted hospital market
basket update of 0.8 percent discussed
above, which results in a proposed CY
2024 ASC conversion factor of $52.358.
3. Display of the Proposed CY 2024 ASC
Payment Rates
Addenda AA and BB to this proposed
rule (which are available on the CMS
website) display the proposed ASC
payment rates for CY 2024 for covered
surgical procedures and covered
ancillary services, respectively. The
proposed payment rates included in
Addenda AA and BB to this proposed
rule reflect the full ASC proposed
payment update and not the reduced
payment update used to calculate
payment rates for ASCs not meeting the
quality reporting requirements under
the ASCQR Program.
These Addenda contain several types
of information related to the proposed
CY 2024 payment rates. Specifically, in
Addendum AA, a ‘‘Y’’ in the column
titled ‘‘To be Subject to Multiple
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Procedure Discounting’’ indicates that
the surgical procedure would be subject
to the multiple procedure payment
reduction policy. As discussed in the
CY 2008 OPPS/ASC final rule with
comment period (72 FR 66829 through
66830), most covered surgical
procedures are subject to a 50 percent
reduction in the ASC payment for the
lower-paying procedure when more
than one procedure is performed in a
single operative session.
For CY 2021, we finalized adding a
new column to ASC Addendum BB
titled ‘‘Drug Pass-Through Expiration
during Calendar Year’’ where we flag
through the use of an asterisk each drug
for which pass-through payment is
expiring during the calendar year (that
is, on a date other than December 31st).
The values displayed in the column
titled ‘‘Proposed CY 2024 Payment
Weight’’ are the proposed relative
payment weights for each of the listed
services for CY 2024. The proposed
relative payment weights for all covered
surgical procedures and covered
ancillary services where the ASC
payment rates are based on OPPS
relative payment weights were scaled
for budget neutrality. Therefore, scaling
was not applied to the device portion of
the device-intensive procedures;
services that are paid at the MPFS
nonfacility PE RVU-based amount;
separately payable covered ancillary
services that have a predetermined
national payment amount, such as drugs
and biologicals and brachytherapy
sources that are separately paid under
the OPPS; or services that are
contractor-priced or paid at reasonable
cost in ASCs. This includes separate
payment for non-opioid pain
management drugs.
To derive the proposed CY 2024
payment rate displayed in the
‘‘Proposed CY 2024 Payment Rate’’
column, each ASC payment weight in
the ‘‘Proposed CY 2024 Payment
Weight’’ column was multiplied by the
proposed CY 2024 conversion factor.
The conversion factor includes a budget
neutrality adjustment for changes in the
wage index values and the annual
update factor as reduced by the
productivity adjustment. The proposed
CY 2024 ASC conversion factor uses the
CY 2024 productivity-adjusted hospital
market basket update factor of 2.8
percent (which is equal to the proposed
inpatient hospital market basket
percentage increase of 3.0 percent
reduced by the proposed productivity
adjustment of 0.2 percentage point).
In Addendum BB, there are no
relative payment weights displayed in
the ‘‘Proposed CY 2024 Payment
Weight’’ column for items and services
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with predetermined national payment
amounts, such as separately payable
drugs and biologicals. The ‘‘Proposed
CY 2024 Payment’’ column displays the
proposed CY 2024 national unadjusted
ASC payment rates for all items and
services. The proposed CY 2024 ASC
payment rates listed in Addendum BB
for separately payable drugs and
biologicals are based on the most
recently available data used for payment
in physicians’ offices.
Addendum EE to this proposed rule
provides the HCPCS codes and short
descriptors for surgical procedures that
are finalized to be excluded from
payment in ASCs for CY 2024.
Addendum FF to this proposed rule
displays the OPPS payment rate (based
on the standard ratesetting
methodology), the device offset
percentage for determining deviceintensive status (based on the standard
ratesetting methodology), and the device
portion of the ASC payment rate for CY
2024 for covered surgical procedures.
XIV. Hospital Outpatient Quality
Reporting (OQR) Program
Requirements, Proposals, and Requests
for Comment
A. Background
We seek to promote higher quality,
more efficient, and equitable healthcare
for patients. Consistent with these goals,
we have implemented quality reporting
programs for multiple care settings,
including the Hospital Outpatient
Quality Reporting (OQR) Program for
hospital outpatient care.
We refer readers to the CY 2011
Outpatient Prospective Payment System
(OPPS) and Ambulatory Surgical Center
(ASC) payment system final rule (75 FR
72064 through 72065) for a detailed
discussion of the statutory history of the
Hospital OQR Program. We refer readers
to the CYs 2008 through 2023 OPPS/
ASC final rules for detailed discussions
of the regulatory history of the Hospital
OQR Program (72 FR 66860 through
66875; 73 FR 68758 through 68779; 74
FR 60629 through 60656; 75 FR 72064
through 72110; 76 FR 74451 through
74492; 77 FR 68467 through 68492; 78
FR 75090 through 75120; 79 FR 66940
through 66966; 80 FR 70502 through
70526; 81 FR 79753 through 79797; 82
FR 59424 through 59445; 83 FR 59080
through 59110; 84 FR 61410 through
61420; 85 FR 86179 through 86187; 86
FR 63822 through 63875; and 87 FR
72096 through 72117).
We have codified certain
requirements under the Hospital OQR
Program at 42 CFR 419.46. We refer
readers to section XIV.F of this
proposed rule for a detailed discussion
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of the payment reduction for hospitals
that fail to meet Hospital OQR Program
requirements.
B. Hospital OQR Program Quality
Measures
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1. Retention, Removal, Replacement, or
Suspension of Quality Measures From
the Hospital OQR Program Measure Set
We refer readers to § 419.46(i) for our
policies regarding: (1) measure
retention; (2) immediate measure
removal; and (3) measure removal,
suspension, or replacement through the
rulemaking process. We propose to
amend our immediate measure removal
policy codified at § 419.46(i)(2) to
replace references to ‘‘QualityNet’’ with
‘‘CMS-designated information system’’
or ‘‘CMS website,’’ and to make other
conforming technical edits, to
accommodate recent and future systems
requirements and mitigate confusion for
program participants.
We invite public comment on this
proposal.
a. Proposed Removal of the Left Without
Being Seen Measure Beginning With the
CY 2024 Hospital OQR Reporting Period
We refer readers to the CY 2011
OPPS/ASC final rule (75 FR 72088
through 72089) where we adopted the
Left Without Being Seen (LWBS)
measure beginning with the CY 2013
payment determination. The LWBS
measure was initially endorsed by a
consensus-based entity (CBE) in 2008.
This process measure assesses the
percent of patients who leave the
emergency department (ED) without
being evaluated by a physician,
advanced practice nurse, or physician’s
assistant. Our rationale for adopting the
LWBS measure was that patients leaving
without being seen was an indicator of
ED overcrowding (75 FR 72089).
Endorsement of the measure was
removed in 2012 because the measure
steward did not choose to resubmit the
measure to maintain endorsement. We
continued to retain the LWBS measure
because our data showed variation/gap
in performance and improvement.
However, over the last few years, our
routine measure monitoring and
evaluation indicated: (1) limited
evidence linking the measure to
improved patient outcomes; (2) that
increased LWBS rates may reflect poor
access to timely clinic-based care rather
than intrinsic systemic issues within the
ED; 137 and (3) unintended effects on
137 Li DR, Brennan JJ, Kreshak AA, et al. (2019).
Patients who leave the emergency department
without being seen and their follow-up behavior: a
retrospective descriptive analysis. J Emerg Med,
57(1), 106–13. https://doi.org/10.1016/
j.jemermed.2019.03.051.
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LWBS rates caused by other policies,
programs, and initiatives may lead to
skewed measure performance.138 139 140
We recognize that LWBS performance
issues could be due to inefficient patient
flow in the ED for a variety of reasons
or due to insufficient community
resources, which result in higher ED
patient volumes that lead to long wait
times and patients deciding to leave
without being seen. These patients’
reasoning for visiting the ED is often not
severe enough that they would want to
wait if the ED is crowded. Additionally,
we do not believe that the LWBS
measure provides enough specificity to
give value because it does not provide
granularity for actionable meaningful
data toward quality improvement.
We believe, based on these findings,
that this measure meets the measure
removal factor 2 (that is, performance or
improvement on a measure does not
result in better patient outcomes), as
codified under § 419.46(i)(3)(i)(B).
ED performance and care continues to
be an important topic area of the
Hospital OQR Program. We believe the
Median Time from ED Arrival to ED
Departure for Discharged ED Patients
measure (Median Time for Discharged
ED Patients measure) is better for
measuring ED performance and care.
The Median Time for Discharged ED
Patients measure, adopted for reporting
in the Hospital OQR Program, provides
more meaningful data compared to the
LWBS measure because the measure
presents more granular data on length of
time of ED throughput. Additionally,
the Median Time for Discharged ED
Patients measure provides useful
information to facilities for
improvement efforts because the
measure is stratified, showing the
median time from ED departure for
discharged ED patients in four different
strata in the Hospital Outpatient
Department (HOPD) setting. These
improvement efforts by facilities could
ultimately reduce the number of
patients who leave without being seen.
Based on the above assessment and
rationale, we believe the LWBS measure
does not provide enough evidence to
138 Allen L, Cong TG, & Kosali S. (2022). The
Impact of Medicaid Expansion on Emergency
Department Wait Times. Health Services Research,
57(2), 294–99. https://doi.org/10.1111/14756773.13892.
139 Roby N, Smith H, Hurdelbrink J, et al. (2022).
Characteristics and Retention of Emergency
Department Patients Who Left without Being Seen
(LWBS). Internal and Emergency Medicine, 17(2),
551–58. https://doi.org/10.1007/S11739-021-02775Z.
140 Yoo MJ, Schauer SG, & Trueblood WE. (2022).
‘Swab and Go’ Impact on Emergency Department
Left without Being Seen Rates.’’ The American
Journal of Emergency Medicine, 57(July): 164–65.
https://doi.org/10.1016/J.AJEM.2021.11.043.
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promote quality of care and improved
patient outcomes to justify retaining the
measure in the Hospital OQR Program.
Therefore, we propose to remove the
LWBS measure from the program
beginning with the CY 2024 reporting
period/CY 2026 payment determination.
We invite public comment on our
proposal.
2. Modifications to Previously Adopted
Measures
In this proposed rule, we propose to
modify three previously adopted
measures beginning with CY 2024
reporting period/CY 2026 payment
determination: (1) COVID–19
Vaccination Coverage Among
Healthcare Personnel (HCP) measure; (2)
Cataracts: Improvement in Patient’s
Visual Function Within 90 Days
Following Cataract Surgery measure;
and (3) Appropriate Follow-Up Interval
for Normal Colonoscopy in Average
Risk Patients measure.
a. Proposed Modification of the COVID–
19 Vaccination Coverage Among Health
Care Personnel (HCP) Measure
Beginning With the CY 2024 Reporting
Period/CY 2026 Payment Determination
(1) Background
On January 31, 2020, the Secretary of
the Department of Health and Human
Services (HHS) declared a public health
emergency (PHE) for the United States
in response to the global outbreak of
SARS–COV–2, a then novel coronavirus
that causes a disease named
‘‘coronavirus disease 2019’’ (COVID–
19).141 Subsequently, the COVID–19
Vaccination Coverage Among Health
Care Personnel (HCP) measure was
adopted across multiple quality
reporting programs, including the
Hospital OQR Program (86 FR 63824
through 63833).142 COVID–19 has
continued to spread domestically and
around the world with more than 102.7
million cases and 1.1 million deaths in
the United States alone as of February
141 U.S. Dept. of Health and Human Services,
Office of the Assistant Secretary for Preparedness
and Response. (2020). Determination that a Public
Health Emergency Exists. Available at: https://
www.phe.gov/emergency/news/healthactions/phe/
Pages/2019-nCoV.aspx
142 The ASCQR Program (86 FR 63875 through
63833), the Hospital IQR Program (86 FR 45374
through 45382), the Inpatient Psychiatric Facility
Quality Reporting Program (86 FR 42633 through
42640), the PPS-Exempt Cancer Hospital Quality
Reporting Program (86 FR 45428 through 45434),
the Long-Term Care Hospital Quality Reporting
Program (86 FR 45438 through 45446), the Skilled
Nursing Facility Quality Reporting Program (86 FR
42480 through 42489), the End-Stage Renal Disease
Quality Incentive Program (87 FR 67244 through
67248), and the Inpatient Rehabilitation Facility
Quality Reporting Program (86 FR 42385 through
42396).
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13, 2023.143 The Secretary renewed the
PHE on April 21, 2020, and then every
three months thereafter, with the final
renewal on February 9, 2023.144 The
PHE expired on May 11, 2023; however,
the public health response to COVID–19
remains a public health priority
including vaccination efforts.145
We stated in the CY 2022 OPPS/ASC
final rule (86 FR 63825), and in our
‘‘Revised Guidance for Staff Vaccination
Requirements,’’ that vaccination is a
critical part of the nation’s strategy to
effectively counter the spread of
COVID–19.146 147 148 We continue to
believe it is important to incentivize and
track HCP vaccination through quality
measurement across care settings,
including the HOPD setting, to protect
health care workers, patients, and
caregivers, and to help sustain the
ability of HCP in each of these care
settings to continue serving their
communities. Studies indicate higher
levels of population-level vaccine
effectiveness in preventing COVID–19
infection among HCP and other
frontline workers in multiple industries,
with vaccines having a 90 percent
effectiveness in preventing symptomatic
and asymptomatic infection from
December 2020 through August 2021.149
Since the Food and Drug
143 Centers for Disease Control and Prevention.
COVID Data Tracker. Accessed February 13, 2023.
Available at: https://covid.cdc.gov/covid-datatracker/#datatracker-home.
144 U.S. Dept. of Health and Human Services.
Office of the Assistant Secretary for Preparedness
and Response. (2023). Renewal of Determination
that a Public Health Emergency Exists. Available at:
https://aspr.hhs.gov/legal/PHE/Pages/COVID199Feb2023.aspx.
145 U.S. Dept. of Health and Human Services. Fact
Sheet: COVID–19 Public Health Emergency
Transition Roadmap. February 9, 2023. Available at:
https://www.hhs.gov/about/news/2023/02/09/factsheet-covid-19-public-health-emergency-transitionroadmap.html.
146 Centers for Medicare and Medicaid Services.
(October 26, 2022). Revised Guidance for Staff
Vaccination Requirements. Available at: https://
www.cms.gov/files/document/qs0-23-02-all.pdf.
147 Centers for Disease Control and Prevention.
(September 24, 2021). Morbidity and Mortality
Weekly Report (MMWR). Comparative Effectiveness
of Moderna, Pfizer-BioNTech, and Janssen (Johnson
& Johnson) Vaccines in Preventing COVID–19
Hospitalizations Among Adults Without
Immunocompromising Conditions—United States,
March–August 2021. Available at: https://cdc.gov/
mmwr/volumes/70/wr/mm7038e1.htm?s_
cid=mm7038e1_w.
148 Centers for Medicare and Medicaid Services.
(October 26, 2022). Revised Guidance for Staff
Vaccination Requirements. Available at: https://
www.cms.gov/files/document/qs0-23-02-all.pdf.
149 Centers for Disease Control and Prevention.
(August 27, 2021). Morbidity and Mortality Weekly
Report (MMWR). Effectiveness of COVID–19
Vaccines in Preventing SARS–COV–2 Infection
Among Frontline Workers Before and During
B.1.617.2 (Delta) Variant Predominance—Eight U.S.
Locations, December 2020–August 2021. Available
at: https://www.cdc.gov/mmwr/volumes/70/wr/
mm7034e4.htm.
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Administration (FDA) issued emergency
use authorizations (EUAs) for selected
initial and primary vaccines for adults,
vaccines have been highly effective in
real-world conditions at preventing
COVID–19 in HCP with up to 96 percent
efficacy for fully vaccinated HCP,
including those at risk for severe
infection and those in racial and ethnic
groups disproportionately affected by
COVID–19.150 151 152 153 Overall, data
demonstrate that COVID–19 vaccines
are effective and prevent severe disease,
hospitalization, and death from COVID–
19 infection.154
When we adopted the COVID–19
Vaccination Coverage Among HCP
measure in the CY 2022 OPPS/ASC final
rule (86 FR 63875 through 63883), we
acknowledged that the measure did not
address booster shots for COVID–19
vaccination (86 FR 63881) though the
FDA authorized, and the Centers for
Disease Control and Prevention (CDC)
recommended, additional doses and
booster doses of the COVID–19 vaccine
for certain individuals, particularly
those who are immunocompromised
due to age or condition or who are
living or working in high-risk settings,
such as HCP (86 FR 63881). However,
we also stated that we believed the
numerator of the measure was
sufficiently broad to include potential
future boosters as part of a ‘‘complete
vaccination course’’ (86 FR 63881).
Since then, new variants of SARS–
COV–2 have emerged around the world
and within the United States.
Specifically, the Omicron variant (and
its related subvariants) is listed as a
variant of concern by the CDC because
it spreads more easily than earlier
150 Pilishivi T, Gierke R, Fleming-Dutra KE, et al.
(2022). Effectiveness of mRNA Covid–19 Vaccine
among U.S. Health Care Personnel. New England
Journal of Medicine, 385(25), e90. https://doi.org/
10.1056/NEJMoa2106599.
151 Centers for Disease Control and Prevention.
(2021). Morbidity and Mortality Weekly Report
(MMWR). Monitoring Incidence of COVID–19
Cases, Hospitalizations, and Deaths, by Vaccination
Status—13 U.S. Jurisdictions, April 4–July 17, 2021.
Available at: https://www.cdc.gov/mmwr/volumes/
70/wr/mm7037e1.htm.
152 Centers for Medicare and Medicaid Services.
(October 26, 2022). Revised Guidance for Staff
Vaccination Requirements. Available at: https://
www.cms.gov/files/document/qs0-23-02-all.pdf.
153 Food and Drug Administration. (2020). FDA
Takes Key Action in Fight Against COVID–19 By
Issuing Emergency Use Authorization for First
COVID–19 Vaccine. Available at: https://
www.fda.gov/news-events/press-announcements/
fda-takes-key-action-fight-against-covid-19-issuingemergency-use-authorization-first-covid-19.
154 McGarry BE, Barnett ML, Grabowski DC, et al.
(2022). Nursing Home Staff Vaccination and Covid–
19 Outcomes. New England Journal of Medicine,
386(4), 397–398. https://doi.org/10.1056/
NEJMc2115674.
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variants.155 Vaccine manufacturers have
responded to the Omicron variant by
developing bivalent COVID–19
vaccines, which include a component of
the original virus strain to provide broad
protection against COVID–19 and a
component of the Omicron variant to
provide better protection against
COVID–19 caused by the Omicron
variant.156 Booster doses of the bivalent
COVID–19 vaccine have proven
effective at increasing immune response
to SARS–COV–2 variants, including
Omicron, particularly in individuals
who are more than 6 months removed
from receipt of their primary series.157
These booster doses are associated with
a greater reduction in infections among
HCP and their patients relative to those
who only received primary series
vaccination, with a rate of breakthrough
infections among HCP who received
only the two-dose regimen of 21.4
percent compared to a rate of 0.7
percent among boosted HCP.158 159 160
Data from the existing COVID–19
Vaccination Coverage Among HCP
measure demonstrate clinically
significant variation in booster dose
vaccination rates across HOPDs.
We believe that vaccination remains
the most effective means to prevent the
worst consequences of COVID–19,
including severe illness, hospitalization,
and death. Given the availability of
vaccine efficacy data, EUAs issued by
the FDA for bivalent boosters, continued
presence of SARS–COV–2 in the United
States, and variance among rates of
booster dose vaccination, it is important
to modify the COVID–19 Vaccination
Coverage Among HCP measure for HCP
155 Centers for Disease Control and Prevention.
(2021). Variants of the Virus. Available at: https://
www.cdc.gov/coronavirus/2019-ncov/variants/
index.html.
156 Food and Drug Administration. (2022).
COVID–19 Bivalent Vaccine Boosters. Available at:
https://www.fda.gov/emergency-preparedness-andresponse/coronavirus-disease-2019-covid-19/covid19-bivalent-vaccines.
157 Chalkias S, Harper C, Vrbicky K, et al. (2022).
A Bivalent Omicron-Containing Booster Vaccine
against Covid–19. New England Journal of
Medicine, 387(14), 1279–1291. https://doi.org/
10.1056/NEJMoa2208343.
158 Prasad N, Derado G, Nanduri SA, et al. (May
2022). Effectiveness of a COVID–19 Additional
Primary or Booster Vaccine Dose in Preventing
SARS–CoV–2 Infection Among Nursing Home
Residents During Widespread Circulation of the
Omicron Variant—United States, February 14–
March 27, 2022. Morbidity and Mortality Weekly
Report (MMWR). 71(18), 633–637. Available online
at: https://www.cdc.gov/mmwr/volumes/71/wr/
mm7118a4.htm.
159 Oster Y, Benenson S, Nir-Paz R, et al. (2022).
The effect of a third BNT162b2 vaccine on
breakthrough infections in health care workers: a
cohort analysis. Clinical Microbiology and
Infection, 28(5), 735.e1–735.e3. https://doi.org/
10.1016/j.cmi.2022.01.019.
160 Ibid.
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to receive primary series and booster
vaccine doses in a timely manner per
CDC’s recommendation that bivalent
COVID–19 vaccine booster doses might
improve protection against SARS–CoV–
2 Omicron sublineages.161
We propose to modify the COVID–19
Vaccination Coverage Among HCP
measure to utilize the term ‘‘up to date’’
in the HCP vaccination definition. We
also propose to update the numerator to
specify the timeframes within which an
HCP is considered up to date with CDC
recommended COVID–19 vaccines,
including booster doses, beginning with
CY 2024 reporting period/CY 2026
payment determination for the Hospital
OQR Program.
We note that as we stated in the CY
2022 OPPS/ASC final rule (86 FR
63877), the COVID–19 Vaccination
Coverage Among HCP measure is a
process measure that assesses HCP
vaccination coverage rates and not an
outcome measure for which hospitals
are held responsible for a particular
outcome. We propose to adopt the same
modification to versions of the measure
that we have adopted for other quality
reporting programs.162
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(2) Overview of Measure
The COVID–19 Vaccination Coverage
Among HCP measure is a process
measure developed by the CDC to track
COVID–19 vaccination coverage among
HCPs in various settings and are
reported via the CDC’s National
Healthcare Safety Network (NHSN). We
refer readers to the CY 2022 OPPS/ASC
final rule with comment period (86 FR
63827 through 63828) for more
information on the initial review of the
measure by the Measure Applications
Partnership (MAP).163 We included an
updated version of the measure on the
Measures Under Consideration (MUC)
list for the 2022–2023 pre-rulemaking
cycle for consideration by the MAP. In
December 2022, during the MAP’s
161 Centers for Medicare and Medicaid Services.
(October 26, 2022). Revised Guidance for Staff
Vaccination Requirements. Available at: https://
www.cms.gov/files/document/qs0-23-02-all.pdf.
162 The Hospital Inpatient Quality Reporting
Program, the Long-Term Care Hospital Quality
Reporting Program and the PPS-Exempt Cancer
Hospital Quality Reporting Program (88 FR 27074)
as well as the Inpatient Psychiatric Facility Quality
Reporting Program (88 FR 21290), the Skilled
Nursing Facility Quality Reporting Program (88 FR
21332), the End-Stage Renal Disease Quality
Incentive Program (87 FR 67244), and the Inpatient
Rehabilitation Facility Quality Reporting Program
(88 FR 20985).
163 Interested parties convened by the consensusbased entity will provide input and
recommendations on the Measures under
Consideration (MUC) list as part of the prerulemaking process required by section 1890A of
the Act. We refer readers to https://p4qm.org/
PRMR-MSR for more information.
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Hospital Workgroup discussion, the
workgroup stated that the revision of the
current measure captures up to date
vaccination information in accordance
with the CDC’s updated
recommendations for additional and
booster doses since the measure’s initial
development. Additionally, the Hospital
Workgroup appreciated that the respecified measure’s target population is
broader and simplified from seven
categories of HCP to four.164 During the
MAP’s Health Equity Advisory Group
review, the group highlighted the
importance of COVID–19 vaccination
measures and questioned whether the
proposed revised measure excludes
individuals with contraindications to
FDA authorized or approved COVID–19
vaccines, and if the measure would be
stratified by demographic factors. The
measure developer confirmed that HCP
with contraindications to the vaccines
are excluded from the measure
denominator but stated that the measure
would not be stratified since the data
are submitted at an aggregate rather than
an individual level. The MAP Rural
Health Advisory Group expressed
concerns about data collection burden,
citing that collection is performed
manually.165 We note that when
reviewed by the MAP, reporting for
contract personnel providing care or
services not specifically included in the
measure denominator was fully
optional, whereas this reporting is now
required to complete NHSN data entry,
but is not included in the measure
calculation.
The developer also noted that the
model used for this measure is based on
the Influenza Vaccination Coverage
Among HCP measure (CBE #0431).166
We refer readers to sections XXIV.B and
XXVI of this proposed rule for
additional detail on the burden and
impact of this proposal.
The proposed revised measure
received conditional support for
rulemaking from the MAP pending (1)
testing indicating the measure is reliable
and valid, and (2) endorsement by the
CBE. The MAP noted that the previous
version of the measure received
endorsement from the CBE (CBE
#3636) 167 and that the measure steward
164 Centers for Medicare & Medicaid Services.
Pre-rulemaking MUC lists and map reports. The
Measures Management System. Available at:
https://mmshub.cms.gov/measure-lifecycle/
measure-implementation/pre-rulemaking/lists-andreports.
165 Ibid.
166 In previous years, we referred to the
consensus-based entity (CBE) by corporate name.
We have updated this language to refer to the CBE
more generally.
167 Centers for Medicare and Medicaid Services.
Measures Inventory Tool. Available at: https://
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(CDC) intends to submit the updated
measure for endorsement.168
(a) Measure Specifications
This measure is calculated quarterly
by averaging the hospital’s most
recently submitted and self-selected 1
week of data. The measure includes at
least 1 week of data collection a month
for each of the 3 months in a quarter.
The denominator is calculated as the
aggregated number of HCP eligible to
work in the hospital for at least 1 day
during the week of data collection,
excluding denominator-eligible
individuals with contraindications as
defined by the CDC for all 3 months in
a quarter.169 Facilities report the
following four categories of HCP to the
NHSN:
• Employees: This includes all
persons who receive a direct paycheck
from the reporting facility (that is, on
the facility’s payroll), regardless of
clinical responsibility or patient
contact.)
• Licensed independent practitioners
(LIPs): This includes only physicians
(MD, DO), advanced practice nurses,
and physician assistants who are
affiliated with the reporting facility but
are not directly employed by it (that is,
they do not receive a paycheck from the
reporting facility), regardless of clinical
responsibility or patient contact. Postresidency fellows are also included in
this category if they are not on the
facility’s payroll.
• Adult students/trainees and
volunteers: This includes medical,
nursing, or other health professional
students, interns, medical residents, or
volunteers aged 18 or older who are
affiliated with the facility but are not
directly employed by it (that is, they do
not receive a paycheck from the
facility), regardless of clinical
responsibility or patient contact.
• Other contract personnel: Contract
personnel are defined as persons
providing care, treatment, or services at
the facility through a contract who do
not fall into any of the previously
discussed denominator categories. This
cmit.cms.gov/cmit/#/
MeasureView?variantId=11670§ionNumber=1.
168 The measure steward owns and maintains a
measure while a measure developer develops,
implements, and maintains a measure. In this case,
the CDC serves as both the measure steward and
measure developer. For more information on
measure development, we refer readers to: Centers
for Medicare and Medicaid Services (2023). Roles
in Measure Development. Available at: https://
mmshub.cms.gov/about-quality/new-to-measures/
roles.
169 Centers for Disease Control and Prevention.
(2022). Contraindications and precautions.
Available at: https://www.cdc.gov/vaccines/covid19/clinical-considerations/interim-considerationsus.html#contraindications.
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also includes vendors providing care,
treatment, or services at the facility who
may or may not be paid through a
contract. Facilities are required to enter
data on other contract personnel for
submission in the NHSN application,
but data for this category are not
included in the HCP COVID–19 Vaccine
measure.170
We are not proposing to modify the
denominator exclusions. The numerator
is calculated as the cumulative number
of HCP in the denominator population
who are considered up to date with CDC
recommended COVID–19 vaccine.
Guidance issued by the CDC defines the
term ‘‘up to date’’ as meeting the CDC’s
criteria on the first day of the applicable
reporting quarter. The current definition
of ‘‘up to date’’ can be found at: https://
www.cdc.gov/nhsn/pdfs/hps/covidvax/
UpToDateGuidance-508.pdf.
We propose that public reporting of
the modified version of the COVID–19
Vaccination Coverage Among HCP for
the Hospital OQR Program would begin
with the Fall 2024 Care Compare
refresh, or as soon as technically
feasible.
(b) CBE Endorsement
The current version of the measure in
the Hospital OQR Program received CBE
endorsement (CBE #3636) on July 26,
2022.171 The measure steward (CDC) is
pursuing endorsement for the modified
version of this measure.
ddrumheller on DSK120RN23PROD with PROPOSALS2
(3) Data Submission and Reporting
We refer readers to the CY 2022
OPPS/ASC final rule (86 FR 63879
through 63883) for information on data
submission and reporting of this
measure. While we are not proposing
any changes to the data submission or
reporting process, we propose that
reporting of the updated, modified
version of this measure would begin
with the CY 2024 reporting period for
the Hospital OQR Program. Under the
data submission and reporting process,
hospitals would collect the numerator
and denominator for the COVID–19
Vaccination Coverage Among HCP
measure for at least one self-selected
week during each month of the
reporting quarter and submit the data to
the NHSN Healthcare Personnel Safety
(HPS) Component before the quarterly
170 For more details on the reporting of other
contract personnel, we refer readers to the NHSN
COVID–19 Vaccination Protocol, Weekly COVID–19
Vaccination Module for Healthcare Personnel
available at: https://www.cdc.gov/nhsn/pdfs/hps/
covidvax/protocol-hcp-508.pdf.
171 Centers for Medicare & Medicaid Services.
Measure Specifications for Hospital Workgroup for
the 2022 MUC List. Available at: https://
mmshub.cms.gov/sites/default/files/map-hospitalmeasure-specifications-manual-2022.pdf.
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deadline to meet Hospital OQR Program
requirements. If a hospital submits more
than one week of data in a month, the
most recent week’s data would be used
to calculate the measure. For example,
if first and third week data are
submitted, the third week data would be
used. Each quarter, the CDC would
calculate a single quarterly COVID–19
HCP vaccination coverage rate for each
hospital, which would be calculated by
taking the average of the data from the
three weekly rates submitted by the
hospital for that quarter. CMS would
publicly report each quarterly COVID–
19 HCP vaccination coverage rate as
calculated by the CDC (86 FR 63878).
We refer readers to section XV.B of this
proposed rule for the same proposal for
the Ambulatory Surgical Center Quality
Reporting (ASCQR) Program.
We invite public comment on this
proposal.
b. Proposed Modification of Survey
Instrument Use for the Cataracts:
Improvement in Patient’s Visual
Function Within 90 Days Following
Cataract Surgery Measure Beginning
With the Voluntary CY 2024 Reporting
Period
(1) Background
In the CY 2014 OPPS/ASC final rule
(78 FR 75102 through 75103), we
finalized the adoption of the Cataracts:
Improvement in Patient’s Visual
Function Within 90 Days Following
Cataract Surgery (the Cataracts Visual
Function) measure, beginning with the
CY 2014 reporting period/CY 2016
payment determination. This measure
assesses the percentage of patients aged
18 years and older who had cataract
surgery and had improvement in visual
function within 90 days following the
cataract surgery via the administration
of pre-operative and post-operative
survey instruments (78 FR 75102). A
‘‘survey instrument’’ is an assessment
tool that has been appropriately
validated for the population for which
it being used.172 For purposes of this
proposed modification to the Cataracts
Visual Function measure, the survey
instruments we considered and propose
assess the visual function of a patient
pre- and post-operatively to determine
whether the patient’s visual function
changed within 90 days of cataract
surgery. Currently, examples of survey
instruments assessing visual function
include, but are not limited to, the
National Eye Institute Visual Function
Questionnaire (NEI–VFQ), the Visual
172 Centers for Medicare & Medicaid Services.
(2023). Hospital OQR Specification Manual Version
16.0. Available at: https://qualitynet.cms.gov/
outpatient/specifications-manuals#tab1.
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49777
Function (VF–14), the modified (VF–8),
the Activities of Daily Vision Scale
(ADVS), the Catquest, and the modified
Catquest–9. While the measure has been
available for voluntary reporting in the
Hospital OQR Program since the CY
2015 reporting period, a number of
facilities have reported data consistently
using the survey instrument-collection
method of their choice (87 FR 72098).
We refer readers to the Cataracts Visual
Function measure’s Measure
Information Form (MIF) and the
Hospital OQR Program Specifications
Manual for additional detail, which is
available at: https://qualitynet.cms.gov/
outpatient/specifications-manuals.
In the CY 2015 OPPS/ASC final rule
(79 FR 66947), we expressed concerns
that clinicians’ use of varying survey
instruments would lead to inconsistent
measure results. However, a comparison
study conducted of the 16 survey
instruments that are currently accepted
for use in collecting data for this
measure by HOPDs found them to be
scientifically valid, able to detect
clinically important changes, and
provide comparable results.173 While all
16 survey instruments demonstrate
usefulness for detecting clinically
important changes in cataract patients,
some survey instrument’s detection
sensitivity scored higher than others.174
Several commenters responding to the
CY 2022 OPPS/ASC proposed rule (86
FR 63846) requested additional
guidance from CMS regarding measure
specifications and survey instruments.
We agree that the use of survey
instruments for the assessment of visual
function pre- and post-cataract surgery
should be clarified. The use of survey
instruments should be standardized
across HOPDs to minimize collection
and reporting burden, as well as to
improve measure reliability. We
propose to clarify which specific survey
instruments may be used for the
assessment of visual function pre- and
post- cataract surgery for the Cataracts
Visual Function measure in both the
Hospital OQR Program and the ASCQR
Program, to ensure alignment of this
measure’s specifications across our
quality reporting programs. Thus, we
propose to limit the allowable survey
instruments that an HOPD may use to
assess changes in patient’s visual
function for the purposes of the
Cataracts Visual Function measure to
those listed below:
173 McAlinden C, Gothwal VK, Khadka J, et al.
(2011). A head-to-head comparison of 16 cataract
surgery outcome questionnaires. Ophthalmology,
118(12), 2374–81. https://doi.org/10.1016/
j.ophtha.2011.06.008.
174 Ibid.
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Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules
The National Eye Institute Visual
Function Questionnaire-25 (NEI VFQ–
25)
The Visual Functioning Patient
Questionnaire (VF–14)
The Visual Functioning Index Patient
Questionnaire (VF–8R)
ddrumheller on DSK120RN23PROD with PROPOSALS2
(2) Considerations for the
Standardization of Survey Instruments
Assessing Improvement in Patient’s
Visual Function Within 90 Days
Following Cataract Surgery
We took into consideration several
factors when identifying which specific
survey instruments would be acceptable
for HOPDs to use when collecting data
for the Cataracts Visual Function
measure, such as comprehensiveness,
validity, reliability, length, and burden.
We believe that these three proposed
survey instruments will allow HOPDs to
select the length of the survey to be
administered while ensuring adequate
validity and reliability.175 176 177 All
three of these proposed surveys are
based upon the 51-item National Eye
Institute Visual Function Questionnaire
(NEI VFQ–51) survey instrument, which
was the first survey instrument
originally developed for assessing a
patient’s visual function before and after
cataract surgery. Each of the three
proposed survey instruments have
progressively fewer numbers of
questions than the NEI VFQ–51: 25
questions for the NEI VFQ–25, 14
questions for the VF–14, and 8
questions for the VF–8R. Even with
fewer numbers of questions, all three of
the proposed survey instruments have
been validated as providing results
comparable to the NEI VFQ–51. In
addition, all three of the proposed
survey instruments are readily available
for hospitals to access and use.
We propose to allow HOPDs to use
the NEI VFQ–25 for administering and
calculating the Cataracts Visual
Function measure due to its
comprehensiveness, its adequate
validity and reliability, as well as its
potential to reduce language barriers for
patients. The NEI VFQ–25 is a shorter
175 Sivaprasad S., Tschosik E., Kapre A., et al.
(2018). Reliability and construct validity of the NEI
VFQ–25 in a subset of patients with geographic
atrophy from the Phase 2 mahalo study. American
Journal of Ophthalmology, 190, 1–8. https://doi.org/
10.1016/j.ajo.2018.03.006.
176 Hecht I., Kanclerz P., & Tuuminen R. (2022).
Secondary outcomes of Lens and cataract surgery:
More than just ‘‘best-corrected visual acuity’’.
Progress in Retinal and Eye Research, 101150.
https://doi.org/10.1016/j.preteyeres.2022.101150.
177 Orizonartstudios. (2023). 2023 MIPS measure
#303: Cataracts: Improvement in patient’s visual
function within 90 days following cataract surgery.
Mdinteractive. Available at: https://
mdinteractive.com/mips_quality_measure/2023mips-quality-measure-303.
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version of the NEI VFQ–51, being
comprised of 25 items across 12 visionspecific domains (general health,
general vision, ocular pain, near
activities, distance activities, social
functioning, mental health, role
difficulties, dependency, driving, color
vision, and peripheral vision).178
The NEI VFQ–25, similar to the VF–
14 and VF–8R, displays adequate
reliability and validity.179 The NEI
VFQ–25 composite, near activities, and
distance activities subscales
demonstrated good internal consistency
reliability, test-retest reliability,
convergent validity, and known-groups
validity.180 Furthermore, the NEI VFQ–
25’s high internal consistency, indicates
that items of the NEI VFQ–25 are highly
related to each other and to the scale as
a whole.181
In addition, the survey instrument is
publicly available on the RAND website
at no cost and has been translated to
many languages, which is a valuable
benefit for patients with limited English
proficiency. The NEI VFQ–25 was
chosen over other survey instruments to
reduce potential language barriers, as,
for example, the currently available
Activities of Daily Vision Scale (ADVS)
is dependent on English language
skills.182 More information on the NEI
VFQ–25 can be found at: https://
www.rand.org/health-care/surveys_
tools/vfq.html.
While the NEI VFQ–25 was shortened
significantly from the original NEI VFQ–
51, it has been criticized for its still
lengthy test-time. However, our
proposal to include this survey
instrument in this measure’s
specifications allows for a more detailed
assessment of cataract surgery
outcomes, as it was designed to include
questions which are most important for
persons who have chronic eye
diseases.183 Further, if a hospital finds
178 U.S. Department of Health and Human
Services. Visual function questionnaire 25. National
Eye Institute. Available at: https://www.nei.nih.gov/
learn-about-eye-health/outreach-campaigns-andresources/outreach-materials/visual-functionquestionnaire-25.
179 Sivaprasad S., Tschosik E., Kapre A., et al.
(2018). Reliability and construct validity of the NEI
VFQ–25 in a subset of patients with geographic
atrophy from the Phase 2 mahalo study. American
Journal of Ophthalmology, 190, 1–8. https://doi.org/
10.1016/j.ajo.2018.03.006.
180 Ibid.
181 Ibid.
182 Mangione C.M., Phillips R.S., Seddon J.M., et
al. (1992). Development of the ‘Activities of Daily
Vision Scale’. A measure of visual functional status.
Med Care, 30(12), 1111–1126. https://doi.org/
10.1097/00005650-199212000-00004.
183 Hecht I., Kanclerz P., & Tuuminen R. (2022).
Secondary outcomes of Lens and cataract surgery:
More than just ‘‘best-corrected visual acuity.’’
Progress in Retinal and Eye Research, 101150.
https://doi.org/10.1016/j.preteyeres.2022.101150.
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the NEI VFQ–25 particularly
burdensome to administer, the hospital
may choose from the other two survey
instruments we propose for inclusion in
this measure’s specifications, as both of
these have even fewer survey questions
to administer.
We also propose to allow HOPDs to
use the 14-item VF–14 and the 8-item
VF–8R for administering and calculating
the Cataracts Visual Function measure,
which each can be administered in a
shorter timeframe than the NEI VFQ–25
with high precision.184 185 Thus, the
succinct formats of the VF–14 and VF–
8R may ease HOPD’s burden in
administering the survey instruments
and potentially increase the rate of
patient responses for this measure, as
compared with other survey instrument
options we considered. Therefore, we
propose the VF–14 and VF–8R for this
measure’s data collection specifications
because we believe these survey
instruments achieve comparable results
with the longer NEI VFQ–25 and NEI
VFQ–51 survey instruments with
substantially fewer questions to
administer.
Furthermore, we propose inclusion of
the VF–14 because currently it is the
most commonly used survey instrument
and we believe it would be beneficial to
allow the majority of physicians who
have already been using VF–14 to
continue to have the option to do so.186
The VF–14 is comprised of 14 items
relating to daily living activities and
function, such as reading, writing,
seeing steps, stairs or curbs, and
operating a motor vehicle.187 Studies
using this survey instrument generally
report significant and clinically
important improvement following
cataract surgery.188 The VF–14
additionally has achieved adequate
reliability and validity, proving it to be
a dependable survey instrument for
cataract outcomes.189 190
184 Ibid.
185 Orizonartstudios. (2023). 2023 MIPS measure
#303: Cataracts: Improvement in patient’s visual
function within 90 days following cataract surgery.
MDinteractive. Available at: https://
mdinteractive.com/mips_quality_measure/2023mips-quality-measure-303.
186 Hecht, I., Kanclerz, P., &; Tuuminen, R. (2022).
Secondary outcomes of Lens and cataract surgery:
More than just ‘‘best-corrected visual acuity.’’
Progress in Retinal and Eye Research, 101150.
https://doi.org/10.1016/j.preteyeres.2022.101150.
187 Ibid.
188 Ibid.
189 Ibid.
190 Orizonartstudios. (2023). 2023 MIPS measure
#303: Cataracts: Improvement in patient’s visual
function within 90 days following cataract surgery.
MDinteractive. Retrieved March 13, 2023, from
https://mdinteractive.com/mips_quality_measure/
2023-mips-quality-measure-303.
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ddrumheller on DSK120RN23PROD with PROPOSALS2
We propose the VF–8R as it is the
most concise of the three survey
instruments, while still achieving
adequate validity and reliability.191 The
VF–8R consists of questions related to
reading, fine handwork, writing, playing
board games, and watching
television.192 Given its conciseness
compared to the majority of currently
available survey instruments and its
adequate psychometric properties, we
believe that the VF–8R would be
beneficial for measuring cataract surgery
outcomes without prompting further
patient survey fatigue.193
For these reasons, we believe that the
NEI VFQ–25, VF–14, and VF–8R are the
most appropriate survey instruments for
HOPDs to use to assess a patient’s visual
function pre- and post-cataract surgery
for purposes of calculating and
submitting data for the Cataracts Visual
Function measure in the Hospital OQR
Program.
In response to commenters’ concerns
as summarized in the CY 2023 OPPS/
ASC final rule (87 FR 72097 through
72099) regarding the lack of specificity
around survey instrument
administration for the Cataracts Visual
Function measure, we propose to limit
the survey instruments that can be used
to administer this measure, beginning
with the voluntary CY 2024 reporting
period, to these three survey
instruments: (1) NEI VFQ–25; (2) VF–14;
and (3) VF–8R. We believe the use of
these three survey instruments to report
data on the Cataracts Visual Function
measure would allow for a more
standardized approach to data
collection. Having a limited number of
allowable survey instruments would
also address commenters’ requests for
additional guidance on survey
instruments as well as improve measure
reliability.
(3) Considerations for Data Collection
Modes for the Cataracts: Improvement
in Patient’s Visual Function Within 90
Days Following Cataract Surgery
Measure Beginning With the Voluntary
CY 2024 Reporting Period
As summarized in the CY 2023 OPPS/
ASC final rule (87 FR 72104 through
72105), many commenters expressed
concern about the high administrative
burden of reporting the Cataracts Visual
Function measure, as the measure
uniquely requires coordination among
clinicians of different specialties (that
is, opticians and ophthalmologists). In
191 Ibid.
192 Pre-Cataract Surgery—Visual Functioning
Index (VF–8R) patient. (n.d.). https://
eyecaresite.com/wp-content/uploads/2020/02/
Visual-Functioning-Index-Pre-Cat-SX.pdf.
193 Ibid.
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an effort to decrease administrative
burden surrounding in-office time
constraints, we reiterate that, while we
recommend the patient’s physician or
optometrist administer, collect, and
report the survey instrument results to
the HOPD, the survey instruments
required for this measure can be
administered by the HOPD itself via
phone, by the patient via regular or
electronic mail, or during clinician
follow-up.
Scientific literature supports the
conclusion that self-administered
survey instruments produce statistically
reliable results.194 195 Furthermore,
scientific literature indicates that
regular mail and electronic mail surveys
respectively, are preferred by varying
subgroups of patients. The inclusion of
both options ensures that patients will
be able to respond to surveys in their
preferred format.196 197 These findings
support the inclusion of varying survey
instrument-collection methods for
patient and provider convenience.
We invite public comment on this
proposal.
c. Proposed Modification of the
Appropriate Follow-Up Interval for
Normal Colonoscopy in Average Risk
Patients Measure Denominator Change
To Align With Current Clinical
Guidelines Beginning With the CY 2024
Reporting Period/CY 2026 Payment
Determination
(1) Background
In 2019, colorectal cancer (CRC)
accounted for the 4th highest rate of
new cancer cases and the 4th highest
rate of cancer deaths in the United
States.198 The American Cancer Society
(ACS) estimates that in 2023, 153,020
individuals will be newly diagnosed
with CRC and 52,550 individuals will
194 Bhandari N.R., Kathe N., Hayes C., &
Payakachat N. (2018). Reliability and validity of
SF–12V2 among adults with self-reported cancer.
Research in Social and Administrative Pharmacy,
14(11), 1080–1084. https://doi.org/10.1016/
j.sapharm.2018.01.007.
195 Stolwijk C., van Tubergen A., Ramiro S., et al.
(2014). Aspects of validity of the self-administered
comorbidity questionnaire in patients with
ankylosing spondylitis. Rheumatology, 53(6), 1054–
1064. https://doi.org/10.1093/rheumatology/ket354.
196 Kelfve S., Kivi M., Johansson B., & Lindwall
M. (2020). Going web or staying paper? the use of
web-surveys among older people. BMC Medical
Research Methodology, 20(1), 252. https://doi.org/
10.1186/s12874-020-01138-0.
197 Meyer V.M., Benjamens S., Moumni M.E., et
al. (2020). Global overview of response rates in
patient and health care professional surveys in
surgery. Annals of Surgery, 275(1). https://doi.org/
10.1097/sla.0000000000004078.
198 Centers for Disease Control and Prevention.
(2022). Colorectal Cancer Statistics. Available at:
https://gis.cdc.gov/Cancer/USCS/#/AtAGlance/.
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die from CRC in the United States.199
The CDC advises, ‘‘[c]olorectal cancer
almost always develops from
precancerous polyps (abnormal
growths) in the colon or rectum.
Screening tests can find precancerous
polyps, so that they can be removed
before they turn into cancer. Screening
tests can also find colorectal cancer
early, when treatment works best.
Regular screening, beginning at age 45,
is the key to preventing colorectal
cancer and finding it early.’’ 200
In May 2021, the United States
Preventive Services Task Force
(USPSTF) issued a revised Final
Recommendation Statement on CRC
Screening.201 This replaced the prior
USPSTF 2016 Final Recommendation
Statement and included a number of
updated policy recommendations based
on new evidence and understandings of
CRC and CRC screening. The USPSTF
recommended that adults who do not
have signs or symptoms of CRC and
who are at average risk for CRC begin
screening at age 45 instead of the
previous recommendation of age 50.202
In addition, multiple professional
organizations, including the ACS,
American Society of Colon and Rectal
Surgeons, and the U.S. Multi-Society
Task Force on Colorectal Cancer (which
represents the American College of
Gastroenterology, the American
Gastroenterological Association, and the
American Society for Gastrointestinal
Endoscopy), recommend that people of
average risk of CRC start regular
screening at age 45.203 204 205 Based on
the recent changes in clinical guidelines
199 American Cancer Society. (2023). Cancer Facts
& Figures 2023. Available at: https://
www.cancer.org/research/cancer-facts-statistics/allcancer-facts-figures/2023-cancer-facts-figures.html.
200 Centers for Disease Control and Prevention.
(2022). What Should I Know About Screening?
Available at: https://www.cdc.gov/cancer/
colorectal/basic_info/screening/index.htm.
201 US Preventive Services Task Force. (2021).
Screening for Colorectal Cancer. JAMA, 325(19),
1965–1977. https://doi.org/10.1001/
jama.2021.6238.
202 Ibid.
203 Wolf A., Fontham E.T.H., Church T.R., et al.
(2018). Colorectal cancer screening for average-risk
adults: 2018 guideline update from the American
Cancer Society. CA. Cancer J. Clin., 2018(68), 250–
281. https://doi.org/10.3322/caac.21457.
204 American Society of Colon & Rectal Surgeons.
Colorectal Cancer Screening and Surveillance
Recommendations of U.S. Multisociety Task Force.
Available at: https://fascrs.org/healthcareproviders/education/clinical-practice-guidelines/
colorectal-cancer-screening-and-surveillancerecom.
205 Patel SG, May FP, Anderson JC, Burke CA, et
al. (2022). Updates on Age to Start and Stop
Colorectal Cancer Screening: Recommendations
From the U.S. Multi-Society Task Force on
Colorectal Cancer. The American Journal of
Gastroenterology, 117(1), 57–69. https://doi.org/
10.14309/ajg.0000000000001548.
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to begin CRC screening at age 45 instead
of age 50, we propose to modify the
Appropriate Follow-Up Interval for
Normal Colonoscopy in Average Risk
Patients (the Colonoscopy Follow-Up
Interval) measure to follow these
clinical guideline changes.
ddrumheller on DSK120RN23PROD with PROPOSALS2
(2) Overview of Measure
We refer readers to the CMS Measures
Inventory Tool and the Hospital OQR
Program specification manual for more
information on the Colonoscopy FollowUp Interval measure, including
background on the measure and a
complete summary of measure
specifications.206 207 Currently, the
Colonoscopy Follow-Up Interval
measure assesses the ‘‘percentage of
patients aged 50 years to 75 years
receiving a screening colonoscopy
without biopsy or polypectomy who
had a recommended follow-up interval
of at least 10 years for repeat
colonoscopy documented in their
colonoscopy report.’’ 208 We propose to
amend the measure’s denominator
language by replacing the phrase ‘‘aged
50 years’’ with the phrase ‘‘aged 45
years.’’ The measure denominator
would be modified to ‘‘all patients aged
45 years to 75 years receiving screening
colonoscopy without biopsy or
polypectomy’’ from ‘‘all patients aged
50 years to 75 years receiving screening
colonoscopy without biopsy or
polypectomy.’’ 209 We are not proposing
any changes to the measure numerator,
other measure specifications,
exclusions, or data collection for the
Colonoscopy Follow-Up Interval
measure.
In the CY 2023 Physician Fee
Schedule final rule (87 FR 69760
through 69767), we adopted the
modified Colonoscopy Follow-Up
Interval measure (which we propose
here for the Hospital OQR Program) for
the Merit-based Incentive Payment
System (MIPS). We have considered the
importance of aligning the minimum
age requirement for CRC screening
across quality reporting programs and
clinical guidelines. As a result, we
propose to modify the Colonoscopy
Follow-Up Interval measure
denominator to ‘‘all patients aged 45 to
206 Centers for Medicare & Medicaid Services.
(2023). Measures Inventory Tool. Available at:
https://cmit.cms.gov/cmit/#/
MeasureView?variantId=793§ionNumber=1.
207 Centers for Medicare & Medicaid Services.
Qualitynet Home. Available at: https://
qualitynet.cms.gov/outpatient/specificationsmanuals.
208 Centers for Medicare & Medicaid Services.
(2023). Measures Inventory Tool. Available at:
https://cmit.cms.gov/cmit/#/
MeasureView?variantId=793§ionNumber=1.
209 Ibid.
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75 years’’ for the Hospital OQR Program.
We propose the modification of the
Colonoscopy Follow-Up Interval
measure beginning with the CY 2024
reporting period/CY 2026 payment
determination.
We invite public comment on this
proposal.
3. Proposed Adoption of New Measures
for the Hospital OQR Program Measure
Set
Section 1833(t)(17)(C)(i) of the Act
requires the Secretary to develop
measures appropriate for the
measurement of the quality of care
(including medication errors) furnished
by hospitals in outpatient settings, that
these measures reflect consensus among
affected parties and, to the extent
feasible and practicable, that these
measures include measures set forth by
one or more national consensus-based
entities. We have noted in previous
rulemaking, the requirement that
measures reflect consensus among
affected parties can be achieved in other
ways aside from CBE endorsement,
including through the measure
development process, through broad
acceptance, use of the measure(s), and
through public comment (75 FR 72064).
Section 1890A of the Act requires that
we establish and follow a prerulemaking process for selecting quality
and efficiency measures for our
programs, including taking into
consideration input from multistakeholder groups. As part of this prerulemaking process, the CBE, with
which we contract under section 1890
of the Act, convened these groups under
the Measure Applications Partnership
(MAP). The MAP is a public-private
partnership created for the primary
purpose of providing input to HHS on
the selection of measures as required by
section 1890(b)(7)(B) of the Act. We
followed this pre-rulemaking process for
the measures we propose for adoption
for the Hospital OQR Program under
this section of the proposed rule, as
further detailed below.
In this proposed rule, we propose to:
(1) re-adopt the original Hospital
Outpatient Department Volume Data on
Selected Outpatient Surgical Procedures
with modification, beginning with the
voluntary CY 2025 reporting period
followed by mandatory reporting
beginning with the CY 2026 reporting
period/CY 2028 payment determination;
(2) adopt the Risk-Standardized PatientReported Outcome-Based Performance
Measure (PRO–PM) Following Elective
Primary Total Hip Arthroplasty (THA)
and/or Total Knee Arthroplasty (TKA)
in the HOPD Setting (THA/TKA PRO–
PM), beginning with the voluntary CYs
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Fmt 4701
Sfmt 4702
2025 and 2026 reporting periods
followed by mandatory reporting
beginning with the CY 2027 reporting
period/CY 2030 payment determination;
and (3) adopt the Excessive Radiation
Dose or Inadequate Image Quality for
Diagnostic Computed Tomography (CT)
in Adults measure, beginning with the
voluntary CY 2025 reporting period and
mandatory reporting beginning with the
CY 2026 reporting period/CY 2028
payment determination. In this section
of the proposed rule, we provide
additional information on these measure
adoption proposals.
a. Proposed Re-Adoption With
Modification of the Hospital Outpatient
Department Volume Data on Selected
Outpatient Surgical Procedures Measure
Beginning With the Voluntary CY 2025
Reporting Period Followed by
Mandatory Reporting Beginning With
the CY 2026 Reporting Period/CY 2028
Payment Determination
(1) Background
Hospital care has been gradually
shifting from inpatient to outpatient
settings.210 Research indicates that
volume of services performed in HOPDs
will continue to grow, with some
estimates projecting a 19 percent
increase in patients between 2019 and
2029.211 In light of this trend, it has
become even more important to track
volume within HOPDs. Larger facility
surgical procedure volume may be
associated with better outcomes due to
having characteristics that improve care,
such as efficient team work and
increased surgical experience, discussed
in more detail below.212 Given the
association between volume and
outcomes, this information could
provide valuable insight to patients
when choosing a HOPD.
Although measuring the volume of
procedures and other services has a long
history as a quality metric, quality
measurement efforts had moved away
from collecting and analyzing data on
volume because some considered
volume simply a proxy for quality
compared to directly measuring
210 Medicare Payment Advisory Commission.
March 2021 Report to the Congress: Medicare
Payment Policy. Chapter 3. Available at: https://
www.medpac.gov/wp-content/uploads/2021/10/
mar21_medpac_report_ch3_sec.pdf.
211 Sg2. (2021). Sg2 Impact of Change Forecast
Predicts Enormous Disruption in Health Care
Provider Landscape by 2029. Available at: https://
www.sg2.com/media-center/press-releases/sg2impact-forecast-predicts-disruption-health-careprovider-landscape-2029/.
212 Jha AK. (2015) Back to the Future: Volume as
a Quality Metric. JAMA Forum Archive. Published
online June 10, 2015. https://jamanetwork.com/
channels/health-forum/fullarticle/2760155.
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Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules
outcomes.213 However, experts on
quality and safety have recently
suggested that while volume alone may
not indicate or lead to better outcomes,
it is still an important component of
quality.214 215 216 Specifically, larger
facility surgical procedure volume may
be associated with better outcomes due
to having characteristics that improve
care.217 For example, high-volume
facilities may have teams that work
more effectively together, or have
superior systems or programs for
identifying and responding to
complications.218 This association
between volume and patient outcomes
may be attributable to greater experience
or surgical skill, greater comfort with
and, hence, likelihood of application of
standardized best practices, and
increased experience in monitoring and
management of surgical patients for the
particular procedure.
The Hospital OQR Program does not
currently include a quality measure for
facility-level volume data, including
surgical procedure volume data, but it
did so previously. We refer readers to
the CY 2012 OPPS/ASC final rule (76
FR 74466 through 74468) where we
adopted the Hospital Outpatient
Department Volume Data on Selected
Outpatient Surgical Procedures (HOPD
Procedure Volume) measure beginning
with the CY 2014 payment
determination. This structural measure
of facility capacity collected surgical
procedure volume data on nine
categories of procedures frequently
performed in the hospital outpatient
setting: Cardiovascular, Eye,
Gastrointestinal, Genitourinary,
Musculoskeletal, Nervous System,
Respiratory, Skin, and Other.219 We
213 Ibid.
ddrumheller on DSK120RN23PROD with PROPOSALS2
214 Ibid.
215 Shang M, Mori M, Gan G, et al. (2022).
Widening volume and persistent outcome disparity
in Valve Operations: New York Statewide Analysis,
2005–2016. The Journal of Thoracic and
Cardiovascular Surgery, 164(6). https://doi.org/
10.1016/j.jtcvs.2020.11.098.
216 Iwatsuki M, Yamamoto H, Miyata H, et al.
(2018). Effect of hospital and surgeon volume on
postoperative outcomes after distal gastrectomy for
gastric cancer based on data from 145,523 Japanese
patients collected from a nationwide web-based
data entry system. Gastric Cancer, 22(1), 190–201.
https://doi.org/10.1007/s10120-018-0883-1.
217 Jha AK. (2015) Back to the Future: Volume as
a Quality Metric. JAMA Forum Archive. Published
online June 10, 2015. https://jamanetwork.com/
channels/health-forum/fullarticle/2760155.
218 Ibid.
219 Centers for Medicare & Medicaid Services.
(2016). Hospital Outpatient Specifications Manuals
version 9.1. Available at: https://
qualitynet.cms.gov/outpatient/specificationsmanuals#tab9.
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adopted the HOPD Procedure Volume
measure based on evidence that the
volume of surgical procedures,
particularly of high-risk surgical
procedures, is related to better patient
outcomes, including decreased
mortality (76 FR 74466).220 221 We
further stated our belief that publicly
reporting volume data would provide
patients with beneficial information to
use when selecting a care provider (76
FR 74467).
In the CY 2018 OPPS/ASC final rule
with comment period (82 FR 59429
through 59430), we removed the HOPD
Procedure Volume measure, stating our
belief at that time that there is a lack of
evidence to support this specific
measure’s link to improved clinical
quality. Although there is currently
increased evidence of a link between
patient volume and better patient
outcomes, we previously stated that we
believed that there was a lack of
evidence that this link was reflected in
the HOPD Procedure Volume measure.
At the time, we stated that measuring
the number of surgical procedures does
not offer insight into the facilities’
overall performance or quality
improvement in regard to surgical
procedures (82 FR 59429). Thus, we
removed the HOPD Procedure Volume
measure beginning with the CY 2020
payment determination based on
measure removal factor 2 (that is,
performance or improvement on a
measure does not result in better patient
outcomes), as codified under
§ 419.46(i)(3)(i)(B).
In the CY 2023 OPPS/ASC proposed
rule (87 FR 44730 through 44732), we
stated that we have been considering readopting the HOPD Procedure Volume
measure with modification for two
reasons. First, since the removal of the
HOPD Procedure Volume measure,
scientific literature has concluded that
volume metrics serve as an indicator of
which facilities are experienced with
certain outpatient procedures and can
assist consumers in making informed
decisions about where they receive
care.222 Further supporting this position
Y, Tateishi K, Kanda M, et al. (2022).
Volume-outcome relationships for percutaneous
coronary intervention in acute myocardial
infarction. Journal of the American Heart
Association, 11(6). https://doi.org/10.1161/
jaha.121.023805.
221 Vemulapalli S, Carroll J, Mack, M, et al. (2019)
Procedural Volume and Outcomes for Transcatheter
Aortic-Valve Replacement. The New England
Journal of Medicine, 380(26), 2541–2550. https://
doi.org/10.1056/NEJMsa1901109.
222 Ogola GO, Crandall ML, Richter KM, & Shafi
S. (2018). High-volume hospitals are associated
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220 Saito
Frm 00231
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49781
that volume metrics are an indicator of
quality, one study found an inverse
volume–mortality relationship related to
transfemoral transcatheter aortic-valve
replacement (TAVR) procedures
performed from 2015 through 2017.223
Second, as discussed above, the recent
shift of more surgical procedures being
performed in outpatient settings has
placed greater importance on tracking
the volume of outpatient procedures in
different settings, including HOPDs.
Given these developments, we believe
that patients may benefit from the
public reporting of facility-level volume
measure data that reflect the procedures
performed across hospitals, provide the
ability to track volume changes by
facility and procedure category, and can
serve as an indicator for patients of
which facilities are experienced with
certain outpatient procedures.
In response to our request for
comment in the CY 2023 OPPS/ASC
proposed rule (87 FR 44730 through
44732), regarding the potential readoption of the Hospital Outpatient
Surgical measure, several commenters
expressed concern that the burden of
collecting and reporting data for the
measure outweighs its value (87 FR
72104 through 72105). Before its
removal from the Hospital OQR
Program, the HOPD Procedure Volume
measure was the only measure that
captured facility-level volume within
HOPDs and volume for Medicare and
non-Medicare patients. As a result, the
Hospital OQR Program currently does
not capture surgical procedure volume
in HOPDs. We recognize that we can
determine facility volumes for
procedures performed using Medicare
Fee-For-Service (FFS) claims. However,
the specifications for the HOPD
Procedure Volume measure also include
reporting data for non-Medicare
patients; thus, relying solely on the use
of Medicare FFS claims data to simplify
reporting would limit a future volume
measure to only the Medicare program
payer, leading to an incomplete
representation of procedural volume.224
with lower mortality among high-risk emergency
general surgery patients. Journal of Trauma and
Acute Care Surgery, 85(3), 560–565. https://doi.org/
10.1097/TA.0000000000001985.
223 Vemulapalli S, Carroll J, Mack M, et al. (2019).
Procedural Volume and Outcomes for Transcatheter
Aortic-Valve Replacement. The New England
Journal of Medicine, 380(26), 2541–2550. https://
doi.org/10.1056/NEJMsa1901109.
224 The specifications for the removed HOPD
Procedure Volume measure are available in the
Hospital Outpatient Specifications Manuals version
9.1 available at https://qualitynet.cms.gov/
outpatient/specifications-manuals#tab9.
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In addition, in response to our request
for comment in the CY 2023 OPPS/ASC
proposed rule (87 FR 44730 through
44732), some commenters expressed
their belief that volume is not a clear
indicator of care quality and therefore
procedure volume data would not be
useful to consumers (87 FR 72104
through 72105). However, many studies
in recent years have shown that volume
does serve as an indicator of quality of
care.225 226 For example, studies
published since the CY 2018 OPPS/ASC
final rule found that patients at high
volume hospitals for a specific
procedure had lower rates of surgical
site infections, complications, and
mortality compared to patients at lowvolume hospitals.227 228 We reiterate our
belief, grounded in this published
scientific literature, that volume metrics
serve as an indicator of which facilities
have experience with certain outpatient
procedures and assist consumers in
making informed decisions about where
they receive care, acknowledging that
many studies in recent years have
shown that volume does serve as an
indicator of quality of care.229 230
(2) Overview of Measure
ddrumheller on DSK120RN23PROD with PROPOSALS2
(a) Data Collection, Submission,
Reporting, and Measure Specifications
The proposed HOPD Procedure
Volume measure collects data regarding
the aggregate count of selected surgical
procedures. Most frequent outpatient
procedures fall into one of eight
categories: Cardiovascular, Eye,
Gastrointestinal, Genitourinary,
225 Ogola, GO, Crandall, ML, Richter, KM, &
Shafi, S. (2018). High-volume hospitals are
associated with lower mortality among high-risk
emergency general surgery patients. Journal of
Trauma and Acute Care Surgery, 85(3), 560–565.
https://doi.org/10.1097/TA.0000000000001985.
226 Vemulapalli S, Carroll J, Mack M, et al. (2019)
Procedural Volume and Outcomes for Transcatheter
Aortic-Valve Replacement. The New England
Journal of Medicine, 380(26), 2541–2550. https://
doi.org/10.1056/NEJMsa1901109.
227 Mufarrih SH, Ghani MOA, Martins RS, et al.
(2019) Effect of hospital volume on outcomes of
total hip arthroplasty: a systematic review and
metaanalysis. J Orthop Surg Res 14, 468. https://
doi.org/10.1186/s13018-019-1531-0.
228 Saito Y, Tateishi K, Kanda M, et al. (2022).
Volume-outcome relationships for percutaneous
coronary intervention in acute myocardial
infarction. Journal of the American Heart
Association, 11(6). https://doi.org/10.1161/
jaha.121.023805.
229 Ogola GO, Crandall ML, Richter KM, Shafi, S.
(2018). High-volume hospitals are associated with
lower mortality among high-risk emergency general
surgery patients. Journal of Trauma and Acute Care
Surgery, 85(3), 560–565. https://doi.org/10.1097/
TA.0000000000001985.
230 Vemulapalli S, Carroll J, Mack M, et al. (2019).
Procedural Volume and Outcomes for Transcatheter
Aortic-Valve Replacement. The New England
Journal of Medicine, 380(26), 2541–2550. https://
doi.org/10.1056/NEJMsa1901109.
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Musculoskeletal, Nervous System,
Respiratory, and Skin.231 For this
proposed measure, data surrounding the
top five most frequently performed
procedures among HOPDs in each
category would be collected and
publicly displayed. The top five
procedures in each category would be
assessed and updated annually as
needed to ensure data collection of most
accurate and frequently performed
procedures.232
We propose that hospitals would
submit aggregate-level data through the
CMS Web-based tool (currently, the
Hospital Quality Reporting (HQR)
system), consistent with what was
required during the measure’s initial
adoption (76 FR 74467). Data received
through the HQR system would then be
publicly displayed on Care Compare or
another CMS website. We refer readers
to the CY 2009, CY 2014, and CY 2017
OPPS/ASC final rules (73 FR 68777
through 68779, 78 FR 75092, and 81 FR
79791, respectively) for our previously
finalized policies regarding public
display of quality measures.
We propose to re-adopt the HOPD
Procedure Volume measure with
modification, with voluntary reporting
beginning with the CY 2025 reporting
period and mandatory reporting
beginning with the CY 2026 reporting
period/CY 2028 payment determination.
At the time of this measure’s initial
adoption in the CY 2012 OPPS/ASC
final rule, (76 FR 74468) we finalized
that HOPDs would report all-patient
volume data with respect to the eight
categories mentioned prior. In response
to commenter concerns regarding
potential difficulty detecting procedural
volume differentiation among these
broad based categories (76 FR 74467),
the sole modification to this measure is
that instead of collecting and publicly
displaying data surrounding these eight
broad categories, we would more
granularly collect and publicly display
data reported for the top five most
frequently performed procedures among
HOPDs within each category. We refer
readers to the Center for Medicare and
Medicaid Services Inventory Tool for
more information on this measure:
https://cmit.cms.gov/cmit/#/.
We also propose that HOPDs submit
these data to CMS during the time
period of January 1 through May 15 in
the year prior to the affected payment
231 Centers for Medicare & Medicaid Services.
(2016). Hospital Outpatient Specifications Manuals
version 9.1. Available at: https://
qualitynet.cms.gov/outpatient/specificationsmanuals#tab9.
232 Data source: Part A and B claims for
Outpatient Hospitals for services January 1, 2022–
December 31, 2022.
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Fmt 4701
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determination year. For example, for the
CY 2028 payment determination, the
data submission period would be
January 1, 2027 to May 15, 2027,
covering the performance period of
January 1, 2026 to December 31, 2026.
We refer readers to section XIV.E.5 of
this proposed rule for a more detailed
discussion of the requirements for data
submitted via a CMS Web-based tool.
We previously codified our existing
policies regarding data collection and
submission under the Hospital OQR
Program at § 419.46.
(b) Review by the Measure Applications
Partnership (MAP)
The MAP conditionally supported the
HOPD Procedure Volume measure for
rulemaking, pending testing indicating
that the measure is reliable and valid,
and endorsement by the CBE.233 The
MAP acknowledged that the measure
reports the volume of procedures
performed at HOPDs in select categories
reflecting typical high-volume
categories of procedures and stated that
the measure would capture the volume
for many procedures not currently
monitored by the Hospital OQR Program
measure set. Furthermore, the MAP
expressed its belief that measuring the
volume of procedures would relate to
the program’s goals of improving the
safety and quality of outpatient
procedures in HOPDs.234 The MAP
added that electronic reporting of
procedure volumes based on code lists
should not be overly burdensome to
hospitals, and the public reporting of
specific procedure volumes may be
useful to patients.235
The MAP described that there is a
well-established positive correlation
between the volume of procedures
performed at a facility and the clinical
outcomes resulting from that procedure.
One systematic review highlighted by
the MAP found a significant volumeoutcome relationship in the vast
majority (87 percent) of the 403
included studies.236 Furthermore, the
MAP included a similar review in their
analysis of the HOPD Procedure Volume
measure that also focused on outpatient
surgeries, which found a significant
233 Centers for Medicare & Medicaid Services.
Pre-Rulemaking MUC Lists and MAP Reports. The
Measures Management System. Available at:
https://mmshub.cms.gov/measure-lifecycle/
measure-implementation/pre-rulemaking/lists-andreports.
234 Ibid.
235 Ibid.
236 Levaillant M, Marcilly R, Levaillant L, et al.
(2021). Assessing the hospital volume-outcome
relationship in surgery: A scoping review. BMC
Medical Research Methodology, 21(1). https://
doi.org/10.1186/s12874-021-01396-6.
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ddrumheller on DSK120RN23PROD with PROPOSALS2
volume-outcome relationship across
eight studies.237
The MAP stated that this measure
addresses a national trend where even
complex surgeries are moving from
inpatient to outpatient settings, and that
public reporting of this measure could
help CMS and the public better
understand possible quality differences
between settings.238 The MAP reported
that the HOPD Procedure Volume
measure data from 2015 and 2016
demonstrates that the number of
procedures performed by facilities in
the 25th and 75th percentiles varied
across the condition categories.239 These
findings support our belief that volume
metrics serve as an indicator of which
facilities are experienced with certain
outpatient procedures and can assist
consumers in making informed
decisions about where they receive
care.240 241
In addition, the MAP noted the
concurrent submission of MUC 2022–
028: ASC Facility Volume Data on
Selected Surgical Procedures for
inclusion in the ASCQR Program. The
MAP highlighted that the specifications
of the volume measure proposal for the
ASCQR Program are aligned with the
volume measure we propose for the
Hospital OQR Program and, therefore
would facilitate comparisons of
equivalent procedure volumes across
ambulatory surgical centers (ASCs) and
HOPDs, one of the key goals of the
programs.242
237 Stanak M, & Strohmaier C. (2020). Minimum
volume standards in day surgery: A systematic
review. BMC Health Services Research, 20(1).
https://doi.org/10.1186/s12913-020-05724-2.
238 Medicare Payment Advisory Commission.
March 2021 Report to the Congress: Medicare
Payment Policy. Available at: https://
www.medpac.gov/document/march-2021-report-tothe-congress-medicare-payment-policy/.
239 Centers for Medicare & Medicaid Services.
Pre-Rulemaking MUC Lists and MAP Reports. The
Measures Management System. Available at:
https://mmshub.cms.gov/measure-lifecycle/
measure-implementation/pre-rulemaking/lists-andreports.
240 Ogola GO, Crandall ML, Richter KM, & Shafi
S. (2018). High-volume hospitals are associated
with lower mortality among high-risk emergency
general surgery patients. Journal of Trauma and
Acute Care Surgery, 85(3), 560–565. https://doi.org/
10.1097/TA.0000000000001985.
241 Saito Y, Tateishi K, Kanda M, et al. (2022).
Volume-outcome relationships for percutaneous
coronary intervention in acute myocardial
infarction. Journal of the American Heart
Association, 11(6). https://doi.org/10.1161/
jaha.121.023805.
242 Centers for Medicare & Medicaid Services.
Pre-Rulemaking MUC Lists and MAP Reports. The
Measures Management System. Available at:
https://mmshub.cms.gov/measure-lifecycle/
measure-implementation/pre-rulemaking/lists-andreports.
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(c) Measure Endorsement
As discussed in the previous
subsection of the proposed rule, the
MAP reviewed and conditionally
supported the HOPD Procedure Volume
measure pending testing indicating the
measure is reliable and valid, and
endorsement by a national consensusbased entity as the measure was not
submitted for endorsement. As we noted
in previous rulemaking (75 FR 72064),
the requirement that measures reflect
consensus among affected parties can be
achieved in ways other than from
endorsement by a national consensusbased entity, including the measure
development process, broad acceptance
of the measure(s), use of the measure(s),
and public comment.
We considered the MAPs
recommendation and propose to adopt
the measure because we did not find
any other measures of procedure
volume. Additionally, this measure was
previously in the program with
supporters of its use. Given the support
from the MAP and feedback from public
comment, as well as the increasing shift
from inpatient to outpatient surgical
procedures and evidence that volume
metrics can promote higher quality
healthcare for patients, we propose
adoption of this measure in the Hospital
OQR Program pending endorsement by
a national consensus-based entity.
We invite public comment on this
proposal.
b. Proposed Adoption of the RiskStandardized Patient-Reported
Outcome-Based Performance Measure
(PRO–PM) Following Elective Primary
Total Hip Arthroplasty (THA) and/or
Total Knee Arthroplasty (TKA) in the
HOPD Setting (THA/TKA PRO–PM)
Beginning With Voluntary CYs 2025
and 2026 Reporting Periods Followed
by Mandatory Reporting Beginning With
the CY 2027 Reporting Period/CY 2030
Payment Determination
(1) Background
In the FY 2023 IPPS/LTCH PPS final
rule (87 FR 49246 through 49257), we
adopted the THA/TKA PRO–PM in the
Hospital Inpatient Quality Reporting
(IQR) Program beginning with voluntary
FY 2025 and FY 2026 reporting periods,
followed by mandatory reporting for
eligible elective procedures occurring
July 1, 2024 through June 30, 2025 for
the FY 2028 payment determination. In
this proposed rule, we propose the
adoption of the THA/TKA PRO–PM into
the Hospital OQR Program using the
same specifications as finalized for the
hospital-level measure adopted into the
Hospital IQR Program (87 FR 49246
through 49257), with modifications to
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include procedures performed in the
HOPD setting.
Approximately six million adults
aged 65 or older suffer from
osteoarthritis in the United States.243 In
2013, there were approximately 568,000
hospitalizations billed to Medicare for
osteoarthritis.244 Hip and knee
osteoarthritis is one of the leading
causes of disability among noninstitutionalized adults,245 246 and
roughly 80 percent of patients with
osteoarthritis have some limitation in
mobility.247 248 Elective THA and TKA
are most commonly performed for
degenerative joint disease or
osteoarthritis, which affects more than
30 million Americans.249 THA and TKA
offer the potential for significant
improvement in quality of life by
decreasing pain and improving function
in a majority of patients, without
resulting in a high risk of complications
or death.250 251 252 However, not all
243 Arthritis Foundation. (2018). Arthritis By the
Numbers Book of Trusted Facts and Figures.
Accessed March 8, 2019. Available at: https://
www.arthritis.org/getmedia/e1256607-fa87-4593aa8a-8db4f291072a/2019-abtn-finalmarch2019.pdf.
244 Torio CM, & Moore BJ. (2016). National
inpatient hospital costs: the most expensive
conditions by payer, 2013. HCUP statistical brief
#204. Healthcare Cost and Utilization Project
(HCUP) Statistical Briefs. Rockville, MD, Agency for
Healthcare Research and Quality. Available at:
https://www.ncbi.nlm.nih.gov/books/NBK368492/.
245 Guccione AA, Felson DT, Anderson JJ, et al.
(1994). The effects of specific medical conditions on
the functional limitations of elders in the
Framingham Study. American journal of public
health, 84(3), 351–358. https://doi.org/10.2105/
AJPH.84.3.351.
246 Barbour KE, Helmick CG, Boring M, & Brady
TJ. (2017). Vital Signs: Prevalence of DoctorDiagnosed Arthritis and Arthritis-Attributable
Activity Limitation—United States, 2013–2015.
MMWR Morbidity and mortality weekly report,
66(9), 246–253. https://doi.org/10.15585/
mmwr.mm6609e1.
247 Michaud CM, McKenna MT, Begg S, et al.
(2006). The burden of disease and injury in the
United States 1996. Population health metrics, 4,
11. https://doi.org/10.1186/1478-7954-4-11.
248 Theis KA, Murphy LB, Baker NA, & Hootman
JM. (2019). When you can’t walk a mile: Walking
limitation prevalence and associations among
middle-aged and older US adults with Arthritis: A
cross-sectional, population-based study. ACR Open
Rheumatol, 1(6), 350–358. https://doi.org/10.1002/
acr2.11046.
249 Centers for Disease Control and Prevention
(CDC). Osteoarthritis (OA). Accessed March 8, 2019.
Available at: https://www.cdc.gov/arthritis/basics/
osteoarthritis.htm.
250 Rissanen P, Aro S, Slatis P, et al. (1995).
Health and quality of life before and after hip or
knee arthroplasty. The Journal of arthroplasty,
10(2), 169–175. https://doi.org/10.1016/s08835403(05)801238.
251 Ritter MA, Albohm MJ, Keating EM, et al.
(1995). Comparative outcomes of total joint
arthroplasty. The Journal of arthroplasty, 10(6),
737–741. https://doi.org/10.1016/s08835403(05)80068-3.
252 Sayah SM, Karunaratne S, Beckenkamp PR, et
al. (2021). Clinical Course of Pain and Function
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patients experience benefit from these
procedures.253 Many patients note that
their pre-operative expectations for
functional improvement have not been
met.254 255 256 257 In addition, clinical
practice variation has been well
documented in the United
States,258 259 260 261 262 readmission and
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Following Total Knee Arthroplasty: A Systematic
Review and Meta-Regression. J Arthroplasty, 36(12),
3993–4002.e37. https://doi.org/10.1016/
j.arth.2021.06.019.
253 National Joint Registry. National Joint Registry
for England and Wales 9th Annual Report 2012.
Available at: https://www.hqip.org.uk/resource/
national-joint-registry-9th-annual-report-2012/.
254 Suda AJ, Seeger JB, Bitsch RG, et al. (2010).
Are patients’ expectations of hip and knee
arthroplasty fulfilled? A prospective study of 130
patients. Orthopedics, 33(2), 76–80. https://doi.org/
10.3928/01477447-20100104-07.
255 Ghomrawi HM, Franco Ferrando N, Mandl LA,
et al. (2011). How Often are Patient and Surgeon
Recovery Expectations for Total Joint Arthroplasty
Aligned? Results of a Pilot Study. HSS journal: The
musculoskeletal journal of Hospital for Special
Surgery, 7(3), 229–234. https://doi.org/10.1007/
s11420-011-9203-6.
256 Harris IA, Harris AM, Naylor JM, et al. (2013).
Discordance between patient and surgeon
satisfaction after total joint arthroplasty. The
Journal of arthroplasty, 28(5), 722–727. https://
doi.org/10.1016/j.arth.2012.07.044.
257 Jourdan C, Poiraudeau S, Descamps S, et al.
(2012). Comparison of patient and surgeon
expectations of total hip arthroplasty. PloS one,
7(1), e30195. https://doi.org/10.1371/
journal.pone.0030195.
258 Roos EM. (2003). Effectiveness and practice
variation of rehabilitation after joint replacement.
Current opinion in rheumatology, 15(2), 160–162.
https://doi.org/10.1097/00002281-20030300000014.
259 Anderson FA, Huang W, Friedman RJ, et al.
(2012). Prevention of venous thromboembolism
after hip or knee arthroplasty: findings from a 2008
survey of US orthopedic surgeons. The Journal of
arthroplasty, 27(5), 659–666 e655. https://doi.org/
10.1016/j.arth.2011.09.001.
260 American Academy of Orthopaedic Surgeons.
(2011). Preventing Venous Thromboembolic Disease
in Patients Undergoing Elective Hip and Knee
Arthroplasty: Evidence-Based Guideline and
Evidence Report. https://www.aaos.org/
globalassets/quality-and-practice-resources/vte/vte_
full_guideline_10.31.16.pdf.
261 Pincus D, et al. (2020). Association Between
Surgical Approach and Major Surgical
Complications in Patients Undergoing Total Hip
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complication rates vary across
hospitals,263 and international
experience documents wide hospitallevel variation in patient-reported
outcome measure results following THA
and TKA.264
Due to the absence of recently
conducted large scale and uniformly
collected patient-reported outcome
(PRO) data available from patients
undergoing elective primary THA/TKA,
we established an incentivized,
voluntary PRO data collection
opportunity within the Comprehensive
Care for Joint Replacement (CJR) model
to support measure development.265
Elective THA/TKAs are important,
effective procedures performed on a
broad population, and the patient
outcomes for these procedures (such as
pain, mobility, and quality of life) can
be measured in a scientifically sound
way,266 267 are influenced by a range of
improvements in care,268 and
demonstrate hospital-level variation
even after patient case mix
adjustment. 269 270 Further, THA/TKA
procedures are specifically intended to
improve function and reduce pain,
making PROs a meaningful outcome
metric to assess.271
In the CY 2021 OPPS/ASC final rule
(85 FR 86146), we announced that THA
and TKA procedures were removed
from the Inpatient Only Procedures
(IPO) list and added to the ASC covered
procedures list (CPL).272 As a result, the
volume of THA and TKA procedures for
Medicare beneficiaries aged 65 years
and older have been increasing in
outpatient settings.
We analyzed Part B Medicare FFS
claims data for the number of HOPD
claims with THA/TKA procedures
during CY 2020, 2021, and 2022 (Table
65).
Arthroplasty. JAMA, 323(11), 1070–1076. https://
doi.org/10.1001/jama.2020.0785.
262 Siebens HC, Sharkey P, Aronow HU, et al.
(2016). Variation in Rehabilitation Treatment
Patterns for Hip Fracture Treated With
Arthroplasty. PM&R, 8(3), 191–207. https://doi.org/
10.1016/j.pmrj.2015.07.005.
263 Suter LG, Parzynski CS, Grady JN, et al. 2013
Measures Update and Specifications: Elective
Primary Total Hip Arthroplasty (THA) AND/OR
Total Knee Arthroplasty (TKA) Risk-Standardized
Complication Measure (Version 2.0). March 2013.
Available at: https://qualitynet.org/.
264 Rolfson O. (2010). Patient-reported Outcome
Measures and Health-economic Aspects of Total
Hip Arthroplasty: A study of the Swedish Hip
Arthroplasty Register. Accessed July 20, 2013.
Available at: https://gupea.ub.gu.se/bitstream/
handle/2077/23722/gupea_2077_23722_
1.pdf?sequence=1.
265 Centers for Medicare & Medicaid Services.
Comprehensive Care for Joint Replacement Model.
Available at: https://innovation.cms.gov/
innovation-models/cjr
266 Liebs TR, Herzberg W, Ruther W, et al. (2016).
Quality-adjusted life years gained by hip and knee
replacement surgery and its aftercare. Archives of
physical medicine and rehabilitation, 97(5), 691–
700. https://doi.org/10.1016/j.apmr.2015.12.021.
267 White D, & Master H. (2016). Patient Reported
Measures of Physical Function in Knee
Osteoarthritis. Rheum Dis Clin North Am, 42(2),
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239–252. Available at: https://
www.ncbi.nlm.nih.gov/pmc/articles/PMC4853650/.
268 Kim K, Anoushiravani A, Chen K, et al. (2019).
Perioperative Orthopedic Surgical Home:
Optimizing Total Joint Arthroplasty Candidates and
Preventing Readmission. Journal of Arthroplasty,
34(7), S91–S96. https://doi.org/10.1016/
j.arth.2019.01.020.
269 Bozic KJ, Grosso LM, Lin Z, et al. (2014).
Variation in hospital-level risk-standardized
complication rates following elective primary total
hip and knee arthroplasty. The Journal of Bone and
Joint Surgery, 96(8), 640–647. https://doi.org/
10.2106/JBJS.L.01639.
270 Makela KT, Peltola M, Sund R, et al. (2011).
Regional and hospital variance in performance of
total hip and knee replacements: A national
population-based study. Annals of medicine,
43(sup1), S31–S38. https://doi.org/10.3109/
07853890.2011.586362.
271 Liebs T, Herzberg W, Gluth J, et al. (2013).
Using the patient’s perspective to develop function
short forms specific to total hip and knee
replacement based on WOMAC function items. The
Bone & Joint Journal, 95(B), 239–243. https://
doi.org/10.1302/0301-620X.95B2.28383.
272 Centers for Medicare & Medicaid Services.
Ambulatory Surgical Center (ASC) Payment.
Available at: https://www.cms.gov/medicare/
medicare-fee-for-service-payment/ascpayment.
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In CY 2022 OPPS/ASC proposed rule
(86 FR 42251 through 42252), we
requested comment on the potential
future adoption of the THA/TKA PRO–
PM into the Hospital OQR Program. We
refer readers to the CY 2022 OPPS/ASC
final rule (86 FR 63896 through 63898)
for a complete summary of feedback
from interested parties.
Many commenters supported
inclusion of the THA/TKA PRO–PM to
the Hospital OQR Program as
procedures move from inpatient to
outpatient settings. Commenters noted it
was important to monitor quality
outcomes and publicly report results.
Additionally, commenters stated that
the measure is aligned with patient
values, being presented in a manner that
is easy to understand.
Other commenters did not support
expansion of the measure to the
Hospital OQR Program, and expressed
concern with data collection burden,
patient survey fatigue, and reporting
thresholds. While we recognize that
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PRO based performance measures
require providers to integrate data
collection into clinical workflows, this
integration provides opportunity for
PROs to inform clinical decision-making
and benefits patients by engaging them
in discussions about potential
outcomes. Furthermore, we do not
expect this measure to contribute to
survey fatigue as the PRO instruments
used to calculate pre- and post-operative
scores for this THA/TKA PRO–PM were
carefully selected, with extensive input
from interested parties, to be low
burden for patients. We refer readers to
the CY 2022 OPPS/ASC final rule (86
FR 63851 through 63854) for a complete
summary of feedback.
We propose to adopt the THA/TKA
PRO–PM into the Hospital OQR
Program beginning with two voluntary
reporting periods, followed by
mandatory reporting. The first voluntary
reporting period would begin with the
CY 2025 reporting period for eligible
elective outpatient procedures between
January 1, 2025 through December 31,
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2025, and the second would begin with
the CY 2026 reporting period for eligible
elective outpatient procedures between
January 1, 2026 through December 31,
2026. Mandatory reporting would begin
with the CY 2027 reporting period/CY
2030 payment determination for eligible
elective outpatient procedures occurring
January 1, 2027 through December 31,
2027, impacting the CY 2030 payment
determination and subsequent years.
Because this proposed measure requires
collection of data during the 3-month
pre-operative period and the greater
than 1-year post-operative period, there
is a delay between when the elective
THA/TKA procedures actually occur,
when the results would be reported
under the Hospital OQR Program, and
when payment determinations occur.
Therefore, we propose a 3-year gap
between the reporting period and the
payment determination year (for
example, CY 2027 reporting period for
the CY 2030 payment determination) for
the Hospital OQR Program. We refer
readers to section XIV.E.7.a of this
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proposed rule for more information on
the reporting requirements.
(2) Overview of Measure
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(a) Data Collection, Submission,
Reporting, and Measure Specifications
This measure reports the facility-level
risk-standardized improvement rate
(RSIR) in PROs following elective
primary THA/TKA for Medicare FFS
beneficiaries aged 65 years and older
who were enrolled in Medicare FFS Part
A and B for the 12 months prior to the
date of the procedure and in Medicare
Part A and B during the procedure. The
measure includes only elective primary
outpatient THA/TKA procedures
(patients with fractures and revisions
are not included) performed in HOPDs
and does not include any inpatient
procedures. The measure excludes
patients with staged procedures
(multiple elective primary THA or TKA
procedures performed on the same
patient during distinct encounter) that
occur during the measurement period
and excludes discontinued procedures
(that is, procedures that were started but
not completed).273
Substantial clinical improvement is
measured by achieving a pre-defined
improvement in score on one of the two
validated joint-specific PRO instruments
measuring hip or knee pain and
functioning: (1) The Hip Dysfunction
and Osteoarthritis Outcome Score for
Joint Replacement (HOOS, JR) for
completion by THA recipients; or (2) the
Knee Injury and Osteoarthritis Outcome
Score for Joint Replacement (KOOS, JR)
for completion by TKA recipients.
Improvement is measured from the preoperative assessment (data collected 90
to 0 days before surgery) to the postoperative assessment (data collected 300
to 425 days following surgery).
Improvement scores are risk-adjusted to
account for differences in patient casemix. The measure, as proposed,
accounts for potential non-response bias
through inverse probability weighting
based on likelihood of response.
We refer readers to the FY 2023 IPPS/
LTCH PPS final rule (FR 87 49246
through 49257), for more information on
the development of the hospital-level
THA/TKA PRO–PM, including
background on the measure and a
complete summary of measure
273 U.S. Department of Health and Human
Services. (2021). Hospital Outpatient Prospective
Payment System (OPPS): Use of Modifiers –52, –73,
and –74 for Reduced or Discontinued Services.
Available at: https://www.hhs.gov/guidance/
document/hospital-outpatient-prospectivepayment-system-opps-use-modifiers-52-73-and-74reduced-or.
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specifications, data sources, and
measure calculation.
For additional details regarding the
measure specifications, we also refer
readers to the Hip and Knee
Arthroplasty Patient-Reported
Outcomes file, available at https://
www.cms.gov/Medicare/QualityInitiatives-Patient-AssessmentInstruments/HospitalQualityInits/
Measure-Methodology.
(i) Data Sources
The THA/TKA PRO–PM uses four
sources of data for the calculation of the
measure: (1) PRO data; (2) claims data;
(3) Medicare enrollment and beneficiary
data; and (4) U.S. Census Bureau survey
data. As described in section
XIV.B.3.b(1) of this proposed rule, the
measure uses PRO data directly reported
by the patient regarding their health,
quality of life, or functional status
associated with health care or treatment.
These patient-reported data are
collected by facilities pre-operatively
and post-operatively, and limited
patient-level risk factor data are
collected with PRO data and identified
in claims as detailed in this section of
the proposed rule.274 The measure
includes PRO data collected with the
PRO instruments described in this
section of the proposed rule, among
them are two joint-specific PRO
instruments—the HOOS, JR for
completion by THA recipients and the
KOOS, JR for completion by TKA
recipients—from which scores are used
to assess substantial clinical
improvement. For risk-adjustment by
pre-operative mental health score,
HOPDs would submit one of two
additional PRO instruments, all of the
items in either the: (1) Patient-Reported
Outcomes Measurement Information
System (PROMIS)-Global Mental Health
subscale; or (2) Veterans RAND 12-Item
Health Survey (VR–12) Mental Health
subscale. The risk model also includes
a one-question patient-reported
assessment of health literacy—the
Single Item Literacy Screener
questionnaire.
Furthermore, the following data
would be collected for identification of
the measure cohort, for risk-adjustment
purposes, and for the statistical
approach to potential non-response bias.
Claims data billed under OPPS would
be used to identify eligible elective
primary outpatient THA/TKA
procedures for the measure cohort to
274 Higgins JP, Thomas J, Chandler J, et al. (2019).
Cochrane handbook for systematic reviews of
interventions. John Wiley & Sons. https://doi.org/
10.1002/9781119536604.
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which submitted PRO data can be
matched, and to identify additional
variables for risk-adjustment and in the
statistical approach to account for
response bias, including patient
demographics and clinical comorbidities up to 12 months prior to
surgery. The Medicare Enrollment
Database (EDB) identifies Medicare FFS
enrollment and patient-identified race,
and the Master Beneficiary Summary
File allows for determination of
Medicare and Medicaid dual eligibility
enrollment status. Demographic
information from the U.S. Census
Bureau’s American Community Survey
allows for derivation of the Agency for
Healthcare Research and Quality
(AHRQ) Socioeconomic Status (SES)
Index score. Race, dual eligibility, and
AHRQ SES Index score are used in the
statistical approach to account for
potential non-response bias in the
outcome calculation. We refer readers to
section XIV.B.3.b(2)(a)(iii) of this
proposed rule for further details
regarding the variables required for data
collection and submission.
(ii) Measure Calculation
The HOPD facility-level THA/TKA
PRO–PM result is calculated by
aggregating all patient-level results
across the facility. This measure would
be calculated and presented as a RSIR,
producing a performance measure per
facility which accounts for patient casemix, addresses potential non-response
bias, and represents a measure of quality
of care following elective primary
outpatient THA/TKA. Response rates for
PRO data would be calculated as the
percentage of elective primary THA or
TKA procedures performed at HOPDs
for which complete and matched preand post-operative PRO data have been
submitted, divided by the total number
of eligible THA or TKA procedures
performed at each facility.
(iii) Data Submission and Reporting
In response to feedback received from
interested parties in the requests for
comments (RFCs) on this measure in the
FY 2022 IPPS/LTCH PPS final rule (86
FR 45408 through 45414) and the CY
2022 OPPS/ASC proposed rule (FR 86
42251 through 42252) and the adoption
of the measure in the Hospital IQR
Program in the FY 2023 IPPS/LTCH PPS
final rule (87 FR 49246 through 49257),
we propose to adopt the THA/TKA
PRO–PM in the Hospital OQR Program
utilizing flexible data submission
approaches.
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HOPDs would submit the following
variables collected pre-operatively
between 90 and zero days prior to the
THA/TKA procedure for each patient:
Medicare provider number; Medicare
health insurance claim (HIC) number/
Medicare beneficiary identifier (MBI);
date of birth; date of procedure; date of
PRO data collection; procedure type;
mode of collection; person completing
the survey; facility admission date;
patient reported outcome measure
version; PROMIS Global (mental health
subscale items) or VR–12 (mental health
subscale items); HOOS, JR (for THA
patients) or KOOS, JR (for TKA
patients); Single-Item Health Literacy
Screening (SILS2) questionnaire; BMI or
weight (kg)/height (cm); chronic (≥90
day) narcotic use; total painful joint
count (patient reported in non-operative
lower extremity joint); and quantified
spinal pain (patient-reported back pain,
Oswestry index question 275 276).
HOPDs would submit the following
variables collected post-operatively
between 300 and 425 days following the
THA/TKA procedure for each patient:
Medicare provider number; Medicare
HIC number/MBI; date of birth;
procedure date, date of PRO data
collection; procedure type; mode of
collection; person completing the
survey; facility admission date; KOOS,
JR (TKA patients) or HOOS, JR (THA
patients). The data submission period
for the THA/TKA PRO–PM would also
serve as the review and correction
period. Data would not be able to be
corrected following the submission
deadline.
We propose a phased implementation
approach for adoption of this measure to
the Hospital OQR Program, with
voluntary reporting periods in CYs 2025
and 2026 followed by mandatory
reporting beginning with the CY 2027
reporting period/CY 2030 payment
determination.
Voluntary reporting prior to
mandatory reporting would allow time
for facilities to incorporate the THA/
TKA PRO–PM data collection into their
clinical workflows and is responsive to
comments from interested parties, as
summarized in the FY 2022 IPPS/LTCH
PPS final rule (86 FR 45408 through
45414) and FY 2023 IPPS/LTCH PPS
final rule (FR 87 49246 through 49257).
Following the two voluntary reporting
periods, we propose mandatory
reporting of the THA/TKA PRO–PM
beginning with the CY 2027 reporting
275 Fairbank JC, & Pynsent PB. (2000). The
Oswestry Disability Index. Spine. 25(22), 2940–52.
https://doi.org/10.1097/00007632-20001115000017.
276 The Oswestry Disability Index is in the public
domain and available for all hospitals to use.
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period/CY 2030 payment determination.
For each voluntary and subsequent
mandatory reporting period, we would
collect data on the THA/TKA PRO–PM
in accordance with the Health Insurance
Portability and Accountability Act of
1996 (HIPAA), Privacy and Security
Rules (45 CFR parts 160 and 164,
subparts A, C, and E), and other
applicable law.
(b) Review by Measure Applications
Partnership (MAP)
We included the THA/TKA PRO–PM
for the Hospital OQR in the publicly
available ‘‘2022 Measures Under
Consideration List’’ (MUC 2022–026).277
The MAP Coordinating Committee
supported the measure, as referenced in
the 2022–2023 Final Recommendations
report to HHS and CMS.278
The MAP members noted that a
similar version of this measure has been
adopted for use in the Hospital IQR
Program, however, there currently is no
measure that assesses PROs among
THA/TKA patients in HOPDs for the
Hospital OQR Program. The MAP
highlighted that the key strategy for the
Hospital OQR Program is to ensure that
procedures done in any type of facility,
including HOPDs, have equivalent
quality. As such, the MAP members
agreed that measures of quality of
procedures in hospital settings should
extend to HOPDs, to the extent feasible
and appropriate, so that consumers can
compare quality of a specific procedure
across different facility types.279
In addition, the MAP members stated
that the goal of the PRO–PM is to
capture the full spectrum of care to
incentivize collaboration and shared
responsibility for improving patient
health and reducing the burden of their
disease. They agreed that this measure
aligns with the goal of patient-centered
approaches to health care quality
improvement and addresses the high
priority areas of patient and family
engagement and communication/care
coordination for the Hospital OQR
program.280
(c) Measure Endorsement
The CBE endorsed the hospital-level
version of the THA/TKA PRO–PM (CBE
#3559) in November 2020.281 We note
277 Centers for Medicare & Medicaid Services.
2022 Measures Under Consideration List. Available
at: https://mmshub.cms.gov/sites/default/files/
2022-MUC-List.xlsx.
278 MAP MUC Preliminary Recommendations
2022–2023. Available at https://mmshub.cms.gov/
sites/default/files/2022-2023-MAP-FinalRecommendations-508.xlsx.
279 Ibid.
280 Ibid.
281 Centers for Medicaid & Medicare Services.
Hospital-Level, Risk-Standardized Improvement
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that the HOPD version of the THA/TKA
PRO–PM would use the same
specifications as the CBE-endorsed
hospital-level THA/TKA PRO–PM that
is currently implemented in the
Hospital IQR program with
modifications to capture procedures for
the HOPDs. We intend to seek CBE
endorsement for the HOPD version of
the THA/TKA PRO–PM in a future
endorsement cycle.
We have noted in previous
rulemaking (75 FR 72064) the
requirement that measures reflect
consensus among affected parties can be
achieved in other ways aside from CBE
endorsement, including through the
measure development process, through
broad acceptance, use of the measure(s),
and through public comment. We
propose this measure without CBE
endorsement based upon strong MAP
and public support combined with the
importance of the measure for Medicare
beneficiaries. In addition, there are two
existing, CBE-endorsed versions of this
measure, one at the clinician-group
level (CBE #3639) and one for the
hospital level (CBE #3559). We expect
that the measure will perform similarly
in the HOPD setting, and we intend on
submitting the measures for CBE
endorsement following data collection
during voluntary reporting.
We refer readers to section XIV.E.7.a
of this proposed rule for a discussion on
the proposed THA/TKA PRO–PM form,
manner, and timing submission
requirements.
We invite public comment on this
proposal.
c. Proposed Adoption of the Excessive
Radiation Dose or Inadequate Image
Quality for Diagnostic Computed
Tomography (CT) in Adults (Hospital
Level—Outpatient) Measure Beginning
With the Voluntary CY 2025 Reporting
Period Followed by Mandatory
Reporting Beginning With the CY 2026
Reporting Period/CY 2028 Payment
Determination
(1) Background
The use of computed tomography
(CT) scans has greatly improved the
diagnosis and treatment of many
conditions, and as such, over 80 million
CT scans are performed each year in the
US.282 Most CT scans are performed as
Rate in Patient-Reported Outcomes Following
Elective Primary Total Hip and/or Total Knee
Arthroplasty (THA/TKA). Available at: https://
cmit.cms.gov/cmit/#/FamilyView?familyId=1618.
282 Harvard Health Publishing. (2021). Radiation
Risk from Medical Imaging. Available at: https://
www.health.harvard.edu/cancer/radiation-riskfrom-medical-imaging.
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outpatient procedures.283 CT scans
expose patients to low-dose ionizing
radiation which is known to contribute
to the development of cancer.284 The
Biological Effects of Ionizing Radiation
(BEIR) VII report by the United States
National Academy of Sciences defined
low-dose radiation as doses up to 100
millisieverts (mSv).285 A low dose CT
scan of the chest delivers 1.5 mSv of
radiation, while a regular-dose CT chest
scan delivers 7 mSv of radiation.286 In
comparison, a conventional chest x-ray
delivers about 0.1 mSv of radiation.287
There is a large body of research that
suggests that exposure to ionizing
radiation within the same range that is
routinely delivered by CT scans
increases a person’s risk of developing
cancer.288 289 290 291 One study found that
patients who received CT scans,
particularly women and adults aged 45
years or younger, had an elevated risk
of developing thyroid cancer and
leukemia.292 Another study found that
patients who received CT scans had a
0.7 percent higher risk of developing
cancer in their lifetime compared to the
general United States population.293
Cancer risk increased for patients who
ddrumheller on DSK120RN23PROD with PROPOSALS2
283 Food
and Drug Administration. Computed
Tomography. Available at: https://www.fda.gov/
radiation-emitting-products/medical-x-ray-imaging/
computed-tomography-ct.
284 Harvard Health Publishing. (2021). Radiation
Risk from Medical Imaging. Available at: https://
www.health.harvard.edu/cancer/radiation-riskfrom-medical-imaging.
285 Siegel JA, Greenspan BS, Maurer AH, et al.
(2018). The BEIR VII Estimates of Low-Dose
Radiation Health Risks Are Based on Faulty
Assumptions and Data Analyses: A Call for
Reassessment. Journal of Nuclear Medicine, 59 (7)
1017–1019. https://doi.org/10.2967/
jnumed.117.206219.
286 Ibid.
287 Environmental Protection Agency. Radiation
Sources and Doses. Available at: https://
www.epa.gov/radiation/radiation-sources-anddoses.
288 Berrington de Gonzalez A, Daniels RD, Cardis
E, et al. (2020). Epidemiological Studies of LowDose Ionizing Radiation and Cancer: Rationale and
Framework for the Monograph and Overview of
Eligible Studies. J Natl Cancer Inst Monogr,
2020(56), 97–113. https://doi.org/10.1093/
jncimonographs/lgaa009.
289 Cao CF, Ma KL, Shan H, et al. (2022). CT
Scans and Cancer Risks: A Systematic Review and
Dose-response Meta-analysis. BMC Cancer, 22,
1238. https://doi.org/10.1186/s12885-022-10310-2.
290 Hauptmann M, Daniels R, Cardis E, et al.
(2020). Epidemiological Studies of Low-Dose
Ionizing Radiation and Cancer: Summary Bias
Assessment and Meta-Analysis. J Natl Cancer Inst
Monogr, 2020(56), 188–200. https://doi.org/
10.1093/jncimonographs/lgaa010.
291 Shao YH, Tsai K, Kim S, Wu YJ, Demissie K.
(2020). Exposure to Tomographic Scans and Cancer
Risks. JNCI Cancer Spectr, 4(1). https://doi.org/
10.1093/jncics/pkz072.
292 Ibid.
293 Harvard Health Publishing. (2021). Radiation
Risk from Medical Imaging. Available at: https://
www.health.harvard.edu/cancer/radiation-riskfrom-medical-imaging.
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underwent multiple CT scans, ranging
from 2.7 to 12 percent.294 While the
likelihood of developing cancer from a
CT scan is small on an individual level,
it has been estimated that the percentage
of cancers attributable to CT scans in the
United States may be as high as two
percent.295
CT image quality and radiation dose
are related; as radiation dose increases,
image quality increases until a
diagnostic threshold is reached, at
which point no further diagnostic
benefit from image quality occurs.296 297
Conversely, too little radiation dose can
produce inadequate image quality.
Research suggests that current radiation
doses utilized for CT scans may be
lowered between 50 percent and 90
percent without impacting image
diagnostic utility. 298 299 300 301 302 Based
on the evidence of harm from excessive
radiation and evidence that radiation
doses could be lowered in many
patients’ situation without deteriorating
image diagnostic utility to the point of
rendering exams unacceptable, we
believe it is important to promote
294 Ibid.
295 Berrington de Gonza
´ lez A, Mahesh M, Kim
KP, et al. (2009). Projected cancer risks from
computed tomographic scans performed in the
United States in 2007. Archives of internal
medicine, 169(22), 2071–2077. https://doi.org/
10.1001/archinternmed.2009.440.
296 Goldman LW. (2007). Principles of CT:
Radiation Dose and Image Quality. Journal of
Nuclear Medicine Technology, 35(4), 213–225.
https://doi.org/10.2967/jnmt.106.037846.
297 Smith-Bindman R, Chu P, Wang Y, Chung R,
et al. (2020). Comparison of the Effectiveness of
Single-Component and Multicomponent
Interventions for Reducing Radiation Doses in
Patients Undergoing Computed Tomography: A
Randomized Clinical Trial. JAMA Intern Med,
180(5), 666–675. https://doi.org/10.1001/
jamainternmed.2020.0064.
298 Greffier J, Hamard A, Pereira F, et al. (2020).
Image quality and dose reduction opportunity of
deep learning image reconstruction algorithm for
CT: a phantom study. Eur Radiol, 30(7), 3951–3959.
https://doi.org/10.1007/s00330-020-06724-w.
299 Gottumukkala RV, Kalra MK, Tabari A, Otrakji
A, Gee MS. (2019). Advanced CT Techniques for
Decreasing Radiation Dose, Reducing Sedation
Requirements, and Optimizing Image Quality in
Children. Radiographics, 39(3), 709–726. https://
doi.org/10.1148/rg.2019180082.
300 Den Harder AM, Willemink MJ, van Doormaal
PJ, et al. (2018). Radiation dose reduction for CT
assessment of urolithiasis using iterative
reconstruction: A prospective intra-individual
study. Eur Radiol, 28(1), 143–150. https://doi.org/
10.1007/s00330-017-4929-2.
301 Rob S, Bryant T, Wilson I, Somani BK. (2017).
Ultra-low-dose, low-dose, and standard-dose CT of
the kidney, ureters, and bladder: is there a
difference? Results from a systematic review of the
literature. Clin Radiol, 72(1), 11–15. https://doi.org/
10.1016/j.crad.2016.10.005.
302 Konda SR, Goch AM, Leucht P, et al. (2016).
The use of ultra-low-dose CT scans for the
evaluation of limb fractures: is the reduced effective
dose using CT in orthopaedic injury (REDUCTION)
protocol effective? Bone Joint J, 98–B(12), 1668–
1673. https://doi.org/10.1302/0301-620X.98B12.BJJ2016-0336.R1.
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patient safety by ensuring that patients
are exposed to the lowest possible level
of radiation while preserving image
quality.
(2) Overview of Measure
The Excessive Radiation Dose or
Inadequate Image Quality for Diagnostic
Computed Tomography (CT) in Adults
(Hospital Level—Outpatient) electronic
clinical quality measure (eCQM) (the
Excessive Radiation eCQM), which was
developed by the University of
California San Francisco and is
stewarded by Alara Imaging, Inc.,
provides a standardized method for
monitoring the performance of
diagnostic CT to discourage
unnecessarily high radiation doses
while preserving image quality. The
measure calculates the percentage of
eligible CT scans that are out-of-range
based on having either excessive
radiation dose or inadequate image
quality, relative to evidence-based
thresholds based on the clinical
indication for the exam.303 This
measure provides a metric toward
reducing unintentional harm to patients
from CT scans. Setting a standard for
diagnostic CT scans to prevent
unnecessarily high radiation doses
while preserving image quality would
provide hospitals with a reliable method
to assess harm reduction efforts and
modify their improvement efforts. This
measure also addresses high priority
areas as stated in our Meaningful
Measures Framework, including the
transition to digital quality measures
and the adoption of high-quality
measures that improve patient outcomes
and safety.304 Additionally, the
Excessive Radiation eCQM supports the
National Quality Strategy goal of
promoting safety because it works to
reduce preventable harm to patients.305
The measure was developed according
to evidence and consensus-based
clinical guidelines for optimizing CT
radiation doses, including guidelines
developed by the American College of
Radiology, American College of
Cardiology, Image Wisely 2020, and the
303 Centers for Medicare & Medicaid Services.
Pre-Rulemaking MUC Lists and MAP Reports. The
Measures Management System. Available at:
https://mmshub.cms.gov/measure-lifecycle/
measure-implementation/pre-rulemaking/lists-andreports.
304 Centers for Medicare & Medicaid Services.
Meaningful Measures Framework. Available at:
https://www.cms.gov/Medicare/Quality-InitiativesPatient-Assessment-Instruments/
QualityInitiativesGenInfo/CMS-Quality-Strategy.
305 Centers for Medicare & Medicaid Services.
CMS Quality Strategy. Available at: https://
www.cms.gov/Medicare/Quality-Initiatives-PatientAssessment-Instruments/Value-Based-Programs/
CMS-Quality-Strategy.
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American Association of Physicists in
Medicine. 306 307 308 309
Measure testing by the measure
developer across a total of 16 inpatient
and outpatient hospitals and a large
system of outpatient radiology practices
revealed that availability, accuracy,
validity, and reproducibility were high
for all of the measure’s required data
elements and the variables that were
calculated by the translation software.
The measure developer further assessed
the reporting burden by administering
surveys to each of the participating
hospitals and outpatient groups. The
measure developer found the burden to
be small to moderate, comparable to the
burden of measure reporting for other
measures. Additionally, the measure
developer noted that the burden of
reporting the Excessive Radiation eCQM
fell to information technology personnel
rather than physicians.
Measure testing found that assessing
radiation doses and providing audit
feedback to radiologists resulted in
significant reductions in dose levels.
The testing sites also noted that the
assessment of their doses as specified in
the measure was helpful for identifying
areas for quality improvement.
According to the measure developer,
over 40 letters were submitted in
support of the measure, including
several from radiologists and medical
physicists who serve as leaders of the
testing sites, that confirmed the measure
was feasible and that data assembly
would not pose a large burden.
The Excessive Radiation eCQM was
submitted to the CBE for endorsement
review in the Fall 2021 cycle (CBE
#3663e) and was endorsed on August 2,
2022. The measure was also included in
the 2022 MUC List.311 The MAP
Hospital Workgroup reviewed the MUC
List on December 13–14, 2022. The
306 American College of Radiology. (2015).
Development and Revision Handbook. Available at:
https://www.acr.org/-/media/ACR/Files/PracticeParameters/DevelopmentHandbook.pdf.
307 Hirshfeld JW, Ferrari VA, Bengel FM, et al.
(2018). 2018 ACC/HRS/NASCI/SCAI/SCCT Expert
Consensus Document on Optimal Use of Ionizing
Radiation in Cardiovascular Imaging: Best Practices
for Safety and Effectiveness. Catheter Cardiovasc
Interv, 2018(92), E35–E97. https://doi.org/10.1002/
ccd.27659.
308 Image Wisely 2020. Available at: https://
www.imagewisely.org/Imaging-Modalities/
Computed-Tomography/Diagnostic-ReferenceLevels.
309 American Association of Physicists in
Medicine. The Alliance For Quality Computed
Tomography. Available at: https://www.aapm.org/
pubs/CTProtocols/.
311 Centers for Medicare & Medicaid Services.
Pre-Rulemaking MUC Lists and MAP Reports. The
Measures Management System. Available at:
https://mmshub.cms.gov/measure-lifecycle/
measure-implementation/pre-rulemaking/lists-andreports.
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Workgroup noted that the Hospital OQR
Program currently does not have any
measures assessing the risk of radiation
exposure from CT scans. The
Workgroup also noted that the measure
addresses the ‘‘Safety’’ Meaningful
Measures 2.0 Healthcare Priority and
would encourage shared decisionmaking between providers and
patients.312 The MAP’s Final Report on
February 1, 2023 supported the
Excessive Radiation eCQM for
rulemaking in the Hospital OQR
Program.313
(3) Data Sources
The Excessive Radiation eCQM uses
hospitals’ electronic health record (EHR)
data and radiology electronic clinical
data systems, including the Radiology
Information System (RIS) and the
Picture Archiving and Communication
System (PACS). Medical imaging
information such as Radiation Dose
Structured Reports and image pixel data
are stored according to the universally
adopted Digital Imaging and
Communications in Medicine (DICOM)
standard. Currently, eCQMs cannot
access and process data elements in
their original DICOM formats.
Hospitals may choose to use any
available software that performs the
necessary functions to comply with
measure requirements. One such
example is the Alara Imaging
software,314 which fulfills these
requirements by linking primary data
elements, assessing CT scans for
eligibility for inclusion in the measure,
and generating three data elements
mapped to clinical terminology for EHR
consumption (CT Dose and Image
Quality Category, Calculated CT SizeAdjusted Dose, and Calculated CT
Global Noise) within the hospital’s
firewall.315 While the Alara Imaging
software and the necessary updates to
the software are proprietary, these
would be available to all reporting
entities free of charge and accessible by
creating a secure account through the
measure steward’s website. Alara
Imaging Inc. would also provide free of
charge necessary education materials
including step-by-step instructions on
creating an account and linking their
EHR and PACS data to the software.
Hospitals and their vendors would be
able to use the data elements created by
this software to calculate the eCQM and
to submit results to the Hospital OQR
312 Ibid.
313 Ibid.
314 Alara Imaging. Available at: https://
www.alaracare.com/.
315 Additional information on measure software
security and processes is available at https://
www.alaracare.com/our-solutions.
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Program via Quality Reporting
Document Architecture (QRDA)
Category I files as they do for all other
eCQMs.
(4) Measure Specifications
The measure numerator is diagnostic
CT scans that have a size-adjusted
radiation dose greater than the threshold
defined for the specific CT category. The
threshold is determined by the body
region being imaged and the reason for
the exam, which affects the radiation
dose and image quality required for that
exam. The numerator also includes CT
scans with a noise value greater than a
threshold specific to the CT category.316
The measure denominator is all
diagnostic CT scans performed on
patients ages 18 and older during the
one-year measurement period which
have an assigned CT category, a sizeadjusted radiation dose value, and a
global noise value.317
The measure excludes CT scans that
cannot be categorized by the area of the
body being imaged or reason for
imaging. These include scans that are
simultaneous exams of multiple body
regions outside of four commonly
performed multiple region exams
defined by the measure, or scans that
cannot be classified based on diagnosis
and procedure codes. Exams that cannot
be classified are specified as LOINC
code 96914–7, CT Dose and Image
Quality Category, Full Body. The
measure also has technical exclusions
for CT scans missing information on the
patient’s age, Calculated CT SizeAdjusted Dose, or Calculated CT Global
Noise. We refer readers to the eCQI
Resource Center (https://
ecqi.healthit.gov/ecqm/oqr/prerulemaking/2024/cms1206v1#quicktabs
-tab-tabs_pre_rule_measure-0) for more
details on the measure specifications.
(5) Data Submission and Reporting
We propose the adoption of the
Excessive Radiation eCQM as a
voluntary measure for the CY 2025
reporting period followed by mandatory
reporting beginning with the CY 2026
reporting period/CY 2028 payment
determination. We would utilize the
voluntary period to monitor the
implementation and operationalization
of the measure. We refer readers to
section XIV.E.6.b of this proposed rule
for a discussion of the Excessive
Radiation eCQM reporting and data
316 Centers for Medicare & Medicaid Services.
Pre-Rulemaking MUC Lists and MAP Reports. The
Measures Management System. Available at:
https://mmshub.cms.gov/measure-lifecycle/
measure-implementation/pre-rulemaking/lists-andreports.
317 Ibid.
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submission requirements. We also refer
readers to section XIV.E.6 of this
proposed rule for a discussion of our
previously finalized eCQM reporting
and submission policies.
We invite public comment on this
proposal.
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4. Previously Finalized and Proposed
Hospital OQR Program Measure Sets
a. Summary of Previously Finalized and
Newly Proposed Hospital OQR Program
Measure Set for the CY 2026 Payment
Determination
We refer readers to the CY 2023
OPPS/ASC final rule (87 FR 72100
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through 72102) for a summary of the
previously finalized Hospital OQR
Program measure set for the CY 2025
payment determination. Table 66
summarizes the previously finalized
and newly proposed Hospital OQR
Program measures for the CY 2026
payment determination:
BILLING CODE 4120–01–P
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b. Summary of Previously Finalized and
Newly Proposed Hospital OQR Program
Measure Set for the CY 2027 Payment
Determination and Subsequent Years
49791
OQR Program measures beginning with
the CY 2027 payment determination and
subsequent years:
BILLING CODE 4120–01–C
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Table 67 summarizes the previously
finalized and newly proposed Hospital
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5. Maintenance of Technical
Specifications for Quality Measures
We refer readers to the CY 2019
OPPS/ASC final rule (83 FR 59104 and
59105) and the CY 2022 OPPS/ASC
final rule (86 FR 63861) for our policies
regarding maintenance of technical
specifications for quality measures. We
maintain technical specification
manuals that can be found on the CMS
website at: https://qualitynet.cms.gov/
outpatient/specifications-manuals.
Technical specifications for eCQMs
used in the Hospital OQR Program are
contained in the CMS Annual Update
for the Hospital Quality Reporting
Programs (Annual Update), which are
available, along with implementation
guidance documents, on the eCQI
Resource Center website at: https://
ecqi.healthit.gov/.
We are not proposing any changes to
these policies in this proposed rule.
6. Public Display of Quality Measures
We refer readers to the CY 2009, CY
2014, CY 2017, and CY 2021 OPPS/ASC
final rules (73 FR 68777 through 68779,
78 FR 75092, 81 FR 79791, and 85 FR
86193 through 86236 respectively) for
our previously finalized policies
regarding public display of quality
measures.
We are not proposing any changes to
these policies in this proposed rule.
ddrumheller on DSK120RN23PROD with PROPOSALS2
a. Public Reporting Median Time for
Discharged ED Patients—Transfer
Patients and Median Time for
Discharged ED Patients—Overall Rate
The Median Time from Emergency
Department (ED) Arrival to ED
Departure for Discharged ED Patients
(Median Time for Discharged ED
Patients) measure was adopted for
reporting in the Hospital OQR Program
beginning with the CY 2013 payment
determination (75 FR 72086). The
Median Time for Discharged ED Patients
measure is a chart-abstracted measure
that evaluates the time between the
arrival to and departure from the ED,
also known as ED throughput time. The
Median Time for Discharged ED Patients
measure is calculated in stratified
subsections for certain types of patients:
Median Time for Discharged ED
Patients—Reported Measure, which
excludes psychiatric/mental health and
transferred patients; Median Time for
Discharged ED Patients-Psychiatric/
Mental Health Patients, which includes
information only for psychiatric/mental
health patients; and Median Time for
Discharged ED Patients—Transfer
Patients, which includes information
only for patients transferred from the
ED; along with the Median Time for
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Discharged ED Patients-Overall Rate.
The measure excludes patients who
expired in the ED, left against medical
advice, or whose discharge was not
documented or unable to be determined.
In the CY 2011 OPPS/ASC final rule
(75 FR 72086), we considered publicly
displaying all strata; however, due to
input from interested parties, we did not
finalize public display of Median Time
for Discharged ED Patients—Transfer
Patients and Median Time for
Discharged ED Patients—Overall Rate.
Currently, measure data for the Median
Time for Discharged ED Patients—
Transfer Patients and Median Time for
Discharged ED Patients—Overall Rate
are not reported publicly on the Care
Compare site. Measure data for the
Median Time for Discharged ED
Patients—Reported Measure is currently
publicly displayed on the Care Compare
site and in the corresponding
downloadable data file for the Hospital
OQR Program. We also collect and
report Median Time for Discharged ED
Patients—Psychiatric/Mental Health
Patients for public awareness of
behavioral health gaps in the transfer of
such patients, and per the CY 2018
OPPS/ASC final rule (82 FR 59437), we
adopted a policy to publicly report these
stratified behavioral health data
beginning in July 2018 using data from
patient encounters during the third
quarter of 2017. We now believe
displaying all strata will highlight and
prioritize various issues in the health
care system, specifically behavioral
health and continuum of care.
We propose publicly reporting
measure data for Median Time for
Discharged ED Patients—Transfer
Patients and Median Time for
Discharged ED Patients—Overall Rate.
Publicly reporting these measure
stratifications can elucidate ED
throughput performance gaps for
patients requiring higher levels of
specialized care above what a facility is
able to or provide. Data for these
measure stratifications are not currently
being reported publicly on the Care
Compare site.
Beginning with the CY 2024, we
propose to make data publicly available
on our Care Compare website and in
downloadable data files found at
data.cms.gov for the following chartabstracted measure strata: Median Time
for Discharged ED Patients—Transfer
Patients and the Median Time for
Discharged ED Patients—Overall Rate
which contains data for all patients.
We invite public comment on this
proposal.
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b. Overall Hospital Star Ratings
In the CY 2021 OPPS/ASC final rule
(85 FR 86193 through 86236), we
finalized a methodology to calculate the
Overall Hospital Quality Star Rating
(Overall Star Ratings). The Overall Star
Ratings utilizes data collected on
hospital inpatient and outpatient
measures that are publicly reported on
a CMS website. We refer readers to the
CY 2021 OPPS/ASC final rule (85 FR
86193 through 86236) for our previously
finalized policies regarding the Overall
Star Ratings.
We are not proposing any changes to
these policies in this proposed rule.
C. Hospital OQR Program Quality
Measure Topics for Potential Future
Consideration
1. Summary
We seek public comment on potential
measurement topic areas for the
Hospital OQR Program. This request for
comment (RFC) seeks input on
innovative measurement approaches
and data sources for use in quality
measurement to inform our work and,
more specifically, the focus of measure
development within the Hospital OQR
Program. We identified three potential
priority areas and we encourage the
public to review and provide comment.
2. Background
We are seeking public comment to
address: (1) quality measurement gaps
in the HOPD setting, including the ED;
(2) changes in outpatient care (such as
shifts in volume, technology use, and
case complexity); (3) growth of concerns
around workforce and patient safety; (4)
the transition to digital quality
measurement; and (5) interest in
patient-reported outcomes.
Specifically, we seek comment on
quality measurement topics for the
Hospital OQR Program that include:
• Promoting Safety (Patient and
Workforce);
• Behavioral Health; and
• Telehealth.
We seek input on the specific
questions posed in this RFC.
3. Solicitation of Comments on Patient
and Workforce Safety as a Measurement
Topic Area in the Hospital OQR
Program
Launched in April 2022, the CMS
National Quality Strategy outlines CMS’
aim to shape a resilient, high-value
healthcare system through quality
outcomes, safety, equity, and
accessibility for all.318 Improving safety
318 Schreiber M, Richards AC, Moody-Williams J,
et al. (2022). The CMS National Quality Strategy: A
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through levers such as quality
measurement is a critical objective of
the National Quality Strategy. We
acknowledge that promoting safety in
order to achieve zero preventable harm
requires developing measures that
assess and hold healthcare systems
accountable to keep individuals safe
through preventative and treatment
processes. Therefore, in this proposed
rule, we are seeking public comment on
patient and workforce safety measures.
We are particularly interested in sepsis
care for potential future inclusion in the
Hospital OQR Program as a patient
safety measure.
Sepsis is a life-threatening condition
which can arise from simple infections
(such as pneumonia or a urinary tract
infection) and requires prompt
recognition and early intervention,
which can often occur in an ED.319 320
Although sepsis can affect anyone at
any age, it is more common in infants,
older adults, and patients with chronic
health conditions such as diabetes and
immunosuppressive disorders.321 The
Centers for Disease Control and
Prevention (CDC) estimates annually
that there are approximately 1.7 million
adults diagnosed with sepsis with
270,000 resulting deaths.322 Therefore,
preventing, diagnosing, and treating
sepsis effectively has been a focus of
patient safety in recent years.323 324
HOPDs may play a critical role in the
initial assessment and evaluation of
suspected sepsis patients through lab
tests, diagnostic imaging, and collection
of sepsis biomarkers.325 Timely and
Person-Centered Approach to Improving Quality.
Available at: https://www.cms.gov/blog/cmsnational-quality-strategy-person-centeredapproach-improving-quality.
319 McVeigh SE. (2020). Sepsis Management in
the Emergency Department. The Nursing clinics of
North America, 55(1), 71–79. https://doi.org/
10.1016/j.cnur.2019.10.009.
320 Seymour CW, Gesten F, Prescott HC, et al.
(2017). Time to Treatment and Mortality during
Mandated Emergency Care for Sepsis. The New
England journal of medicine, 376(23), 2235–2244.
https://doi.org/10.1056/NEJMoa1703058.
321 National Institute of General Medical
Sciences. (2021). Sepsis. Available at: https://nigms.
nih.gov/education/fact-sheets/Pages/sepsis.aspx.
322 Centers for Disease Control and Prevention.
(2022). What is Sepsis? Available at: https://
www.cdc.gov/sepsis/what-is-sepsis.html.
323 Rhee C, Dantes RB, Epstein L, & Klompas M.
(2019). Using Objective Clinical Data to Track
Progress on Preventing and Treating Sepsis: CDC’s
New ‘Adult Sepsis Event’ Surveillance Strategy.
BMJ Qual Saf, 28(4), 305–309. https://doi.org/
10.1136/bmjqs-2018-008331.
324 Fay K, Sapiano MRP, Gokhale R, et al. (2020).
Assessment of Health Care Exposures and
Outcomes in Adult Patients with Sepsis and Septic
Shock. JAMA Netw Open, 3(7), e206004. https://
doi.org/10.1001/jamanetworkopen.2020.6004.
325 Gauer R, Forbes D, & Boyer N. (2020). Sepsis:
Diagnosis And Management. American Family
Physician, 101(7), 409–418. https://www.aafp.org/
pubs/afp/issues/2020/0401/p409.html.
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accurate sepsis diagnosis is essential to
effective care. Research shows that
performance of evidence-based timesensitive therapies in EDs can lower the
risk of organ dysfunction, reduce
mortality, and mitigate the need for
mechanical ventilation.326 327 328 In
addition, using an interdisciplinary
sepsis-response team to coordinate care
in the ED shows potential in improving
sepsis care management and enhancing
patient outcomes.329 These findings
highlight the role of HOPDs and EDs in
the timely diagnosis and treatment of
sepsis. Therefore, we believe the
Hospital OQR Program may benefit from
quality measures centered around sepsis
care.
We also believe quality measures
should align, to the extent possible,
across CMS programs to minimize
reporting burden. In the FY 2015 IPPS/
LTCH PPS final rule (79 FR 50236
through 50241), we adopted the Severe
Sepsis and Septic Shock: Management
Bundle measure (CBE #0500 330) (the
Sepsis measure) into the Hospital
Inpatient Quality Reporting (IQR)
Program beginning with the FY 2015
reporting period/FY 2017 payment
determination. In the FY 2024 IPPS/
LTCH PPS proposed rule (88 FR 27027
through 27030), we proposed to adopt
the Sepsis measure into the Hospital
Value-Based Purchasing (HVBP)
Program beginning with the FY 2026
program year. The Sepsis measure
supports the efficient, effective, and
timely delivery of high-quality sepsis
care by providing a standard operating
procedure for the early risk stratification
and management of a patient with
severe infection. When the care
interventions in the measure are
provided as a composite, health systems
observe significant reductions in
326 Arabi YM, Al-Dorzi HM, Alamry A, et al.
(2017). The Impact of a Multifaceted Intervention
Including Sepsis Electronic Alert System and
Sepsis Response Team on the Outcomes of Patients
with Sepsis and Septic Shock. Annals of intensive
care, 7(1), 57. https://doi.org/10.1186/s13613-0170280-7.
327 Whiles BB, Deis AS, & Simpson SQ. (2017).
Increased Time to Initial Antimicrobial
Administration is Associated With Progression to
Septic Shock in Severe Sepsis Patients. Critical care
medicine, 45(4), 623–629. https://doi.org/10.1097/
CCM.0000000000002262.
328 Gavelli F, Castello LM, & Avanzi GC. (2021).
Management of Sepsis and Septic Shock in the
Emergency Department. Internal and emergency
medicine. 16(6), 1649–1661. https://doi.org/
10.1007/s11739-021-02735-7.
329 Delawder JM, & Hulton L. (2020). An
Interdisciplinary Code Sepsis Team to Improve
Sepsis-Bundle Compliance: A Quality Improvement
Project. Journal of emergency nursing, 46(1), 91–98.
https://doi.org/10.1016/j.jen.2019.07.001.
330 In previous years, we referred to the
consensus-based entity by corporate name. We have
updated this language to refer to the consensusbased entity more generally.
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hospital length of stay, re-admission
rates, and mortality.331 332
We request comment on whether this
measure would be appropriate and
feasible for use in the Hospital OQR
Program, as well as whether CMS
should consider adopting an alternative
measure that assesses the quality of
sepsis care in the hospital outpatient
setting.333
Additional safety measures may be
needed to adequately monitor and
maintain safety in the Hospital OQR
Program, such as measurement of
system-wide all-cause harm, in addition
to the safety of observation care,
procedures and services, medication
errors, technology, and workforce.
Patient and workforce safety are
interconnected, as the safety of
healthcare workers is critical to
maintaining a safe and effective
healthcare environment.334
We are requesting input from
interested parties on the following
topics: (1) safety outcome priorities
specific to settings, services, transitions
and transfers, and access to care; (2)
general cross-outpatient setting
outcomes; (3) individual harms,
including methodological approaches to
patient identification and data
collection, technological-derived harm,
and use of electronic resources to
mitigate potential for harm; and (4)
workforce safety. Specifically, we are
requesting comment on the following
questions:
• What are interested parties’ highest
priority outcomes for ensuring safety in
the outpatient setting, not limited to the
following: overall priorities; priorities
for specific settings (for example, EDs,
HOPDs) and services (for example,
observation care, emergent and nonemergent surgeries, procedures, and
imaging); safety related to transitions
between care settings; and safety around
access to care (for example, a patient
who lacks access to life-saving
331 Levy MM, Gesten FC, Phillips GS, et al.
(2018). Mortality Changes Associated with
Mandated Public Reporting for Sepsis: The Results
of the New York State Initiative. Am J Respir Crit
Care Med, 198(11), 1406–1412. https://doi.org/
10.1164/rccm.201712-2545OC.
332 Bauer SR, Han X, Wang XF, et al. (2020).
Association Between Compliance with the Sepsis
Quality Measure (SEP–1) and Hospital
Readmission. Chest, 158(2), 608–611. https://
doi.org/10.1016/j.chest.2020.02.042.
333 Centers for Medicare & Medicaid Services.
(2023). Sepsis Bundle Project (SEP) National
Hospital Inpatient Quality Measures. Available at:
https://qualitynet.cms.gov/files/6391e95676962
e0016ad9199?filename=2a-b_SEP-List_v5.14.pdf.
334 McGaffigan P, Gerwig K, & Kingston MB.
(2020). Workforce Safety Key to Patient Safety.
Healthcare Executive. 35(6), 48–50. https://
www.ihi.org/resources/Pages/Publications/
workforce-safety-key-to-patient-safety.aspx.
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medications such as insulin,
epinephrine, albuterol)?
• What outcomes should be measured
across all settings within the Hospital
OQR Program?
• Individual harms (such as wrongsite surgery) occur at low frequencies,
presenting a challenge for the
development of risk-adjusted quality
measures that can be used to compare
facilities. Existing measures in the
Hospital OQR Program have used
approaches such as the capture of
utilization (for example, the Hospital
Visits After Hospital Outpatient Surgery
Measure (CBE #2687)) to indicate
potential harm and longer measurement
periods to improve measurement
reliability.
++ Are there other methodological
approaches or data that we could use to
identify harm to patients receiving care
in the outpatient setting?
++ What approaches could we use to
capture harms associated with
outpatient services (HOPD procedures,
ED visits, outpatient clinic visits,
outpatient imaging)?
++ How could electronic data sources
or monitoring systems be leveraged to
gather timely data on such errors?
• What aspects of workforce safety
are important for us to consider for the
Hospital OQR Program?
• As new technology becomes
available and is used more widely (such
as artificial intelligence (AI) for
diagnoses, robotic surgery, and
electronic health records (EHRs)), there
is a potential for these technologies or
their application to cause harm to
patients. For example, AI algorithms
trained on data that is under
representative of certain racial, ethnic,
or gender groups may misdiagnosis
these same populations.335 At the same
time, technology could also be leveraged
to mitigate AI risks, improve safety, or
facilitate quality measurement.
++ Which technologies are of the most
concern in terms of potential for harm?
++ What measurable safety-related
outcomes should CMS consider for the
Hospital OQR Program?
++ What technologies could be
leveraged to improve safety or facilitate
its measurement?
335 Thomas, LB, Mastorides, SM, Viswanadhan,
NA, et al. (2021). Artificial Intelligence: Review of
Current and Future Applications in Medicine.
Federal practitioner: for the health care
professionals of the VA, DoD, and PHS, 38(11),
527–538. https://doi.org/10.12788/fp.0174.
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4. Solicitation of Comments on
Behavioral Health and Suicide
Prevention in the Hospital OQR
Program
Behavioral healthcare in the
outpatient setting comprises a vast array
of services for patients with a wide
range of conditions. Behavioral health
services are delivered in multiple
settings by multiple types of providers,
including but not limited to HOPDs,
through partial observation, and in the
ED.
Quality gaps in the area of hospital
outpatient behavioral health include
care coordination across settings,
availability of services, and barriers to
accessing services. In this RFC, we are
seeking comment from interested parties
on behavioral health topics based in
part on work by the National Quality
Forum (NQF), The National Committee
for Quality Assurance (NCQA), and the
CMS Behavioral Health
Strategy.336 337 338 Behavioral health
topics under consideration for measure
development in the hospital outpatient
setting include: availability and access,
coordination of care, patient experience,
patient-centered clinical care,
prevention and treatment of chronic
conditions, prevention of iatrogenic
harm (that is, harm resulting from
medical care), equity across all domains,
and suicide prevention. We are
particularly interested in measuring
suicide screening in the hospital
outpatient setting to improve early risk
detection and facilitate appropriate
behavioral health treatment.
Suicide is a serious but preventable
public health threat and is one of the
leading causes of death in the United
States (US).339 In 2020, about 46,000
Americans died as a result of suicide
336 National Quality Forum. (2022). OpioidRelated Outcomes Among Individuals with Cooccurring Behavioral Health Conditions. Available
at: https://www.qualityforum.org/Projects/n-r/
Opioids_and_Behavioral_Health_Committee/2022_
Final_Report.aspx#onclick=%E2%80%9D_
gaq.push([%E2%80%98_trackEvent
%E2%80%99,%E2%80%99Download%
E2%80%99,%E2%80%99PDF%E2%80%99,this
.href]);%E2%80%9D Using Measurement to
Promote Joint Accountability and Whole-Person
Care.
337 The National Committee for Quality
Assurance. (2021). Behavioral Health Quality
Framework: A Roadmap for Using Measurement to
Promote Joint Accountability and Whole-Person
Care. Available at: https://www.ncqa.org/wpcontent/uploads/2021/07/20210701_Behavioral_
Health_Quality_Framework_NCQA_White_
Paper.pdf.
338 Centers for Medicare and Medicaid Services.
(2022). CMS Behavioral Health Strategy. Available
at: https://www.cms.gov/cms-behavioral-healthstrategy.
339 Centers for Disease Control and Prevention.
(2022). Facts About Suicide. Available at: https://
www.cdc.gov/suicide/facts/.
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and 12.2 million adults experienced
suicidal ideation.340 Individuals with a
recorded depressive disorder are about
five times more likely to die by suicide
after adjusting for sociodemographic
factors and other mental health
diagnoses than individuals without a
recorded mental health condition.341
Many factors contribute to suicide risk,
including Major Depressive Disorder
(MDD) diagnosis.342 343 MDD is a
significant risk factor for suicide,
indicating that patients with MDD are a
critical population for intervention
efforts.344
Research shows that in the weeks,
months, and year prior to suicide,
individuals significantly utilized
healthcare services, providing an
opportunity for assessment and
prevention in the clinical setting.345
Nineteen percent of individuals who
died by suicide with a recorded mental
health diagnosis visited the ED within
one year prior to their death while 7.5
percent visited the ED within one
month.346 HOPDs may be an opportune
setting for detecting suicide risk in
persons with mental health diagnoses,
such as MDD, and reducing the overall
suicide rate. ED-initiated suicide
prevention efforts can meaningfully
reduce suicide attempts in individuals
that are screened and receive evidencebased care.347
Under the Merit-based Incentive
Payment System (MIPS), we adopted the
Adult Major Depressive Disorder
(MDD): Suicide Risk Assessment
measure (CBE #0104). This measure
340 Centers for Disease Control and Prevention.
(2022). Suicide Prevention. Available at: https://
www.cdc.gov/suicide/.
341 Yeh HH, Westphal J, Hu Y, et al. (2019).
Diagnosed Mental Health Conditions and Risk of
Suicide Mortality. Psychiatric services (Washington,
DC), 70(9), 750–757. https://doi.org/10.1176/
appi.ps.201800346.
342 Ibid.
343 Cai H, Xie XM, Zhang Q, et al. (2021).
Prevalence of Suicidality in Major Depressive
Disorder: A Systematic Review and Meta-Analysis
of Comparative Studies. Frontiers in psychiatry, 12,
690130. https://doi.org/10.3389/fpsyt.2021.690130.
344 Moitra M, Santomauro D, Degenhardt L, et al.
(2021). Estimating the Risk of Suicide Associated
with Mental Disorders: A Systematic Review and
Meta-regression Analysis. Journal of psychiatric
research, 137, 242–249. https://doi.org/10.1016/
j.jpsychires.2021.02.053.
345 Miller IW, Camargo CA, Arias SA, et al.
(2017). Suicide Prevention in an Emergency
Department Population: The ED–SAFE Study.
JAMA psychiatry, 74(6), 563–570. https://doi.org/
10.1001/jamapsychiatry.2017.0678.
346 Ahmedani BK, Simon GE, Stewart C, et al.
(2014). Health Care Contacts in the Year Before
Suicide Death. J Gen Intern Med, 29, 870–877.
https://doi.org/10.1007/s11606-014-2767-3.
347 Miller IW, Camargo CA, Arias SA, et al.
(2017). Suicide Prevention in an Emergency
Department Population: The ED–SAFE Study.
JAMA psychiatry, 74(6), 563–570. https://doi.org/
10.1001/jamapsychiatry.2017.0678.
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ddrumheller on DSK120RN23PROD with PROPOSALS2
aims to improve clinical assessment of
suicide risk where a new or recurrent
episode of MDD is identified and may
be beneficial in the Hospital OQR
Program. We request comment on this
specific measure example, including
whether interested parties believe this
measure would be appropriate and
feasible for use in the Hospital OQR
Program, as well as other measures,
such as a universal screening measure.
More than half of those who die by
suicide do not have a recorded mental
health diagnosis.348 Universal suicide
screening may improve identification of
individuals who may not otherwise
have been identified as at risk.349
Additional measures may be needed
to adequately promote screening and
treatment of behavioral health disorders
in the outpatient setting. For example,
measures geared towards prevention
and treatment of substance use
disorders. In 2021, 17.3 percent of
adults over the age of 18 met the criteria
for substance use disorder for drugs or
alcohol.350 Outpatient screening of
substance use disorders through tools
such as SAMHSA’s Screening, Brief
Intervention, and Referral to Treatment
(SBIRT) may aid the early intervention
and treatment for persons with
substance use disorders and help
identify those at risk of developing such
disorders.351 352 We seek comment on
whether screening for substance use
disorders would be an appropriate
measure topic for the Hospital OQR
Program.
Furthermore, we seek broad input on
behavioral health as a measurement
topic area in the Hospital OQR Program
based on, but not limited to, the
348 Stone DM, Simon TR, Fowler KA, et al. (2018)
Vital Signs: Trends in State Suicide Rates—United
States, 1999–2016 and Circumstances Contributing
to Suicide—27 States, 2015. MMWR, 67, 617–624.
https://dx.doi.org/10.15585/mmwr.mm6722a1.
349 Boudreaux ED, Camargo CA, Arias SA, et al.
(2016). Improving Suicide Risk Screening and
Detection in the Emergency Department. American
Journal of Preventive Medicine, 50(4), 445–453.
https://doi.org/10.1016/j.amepre.2015.09.029.
350 Substance Abuse and Mental Health Services
Administration. (2021).
Table 5.1B—Substance Use Disorder for Specific
Substances in Past Year: Among People Aged 12 or
Older; by Age Group, Percentages, 2021. Available
at: https://www.samhsa.gov/data/sites/default/files/
reports/rpt39441/NSDUHDetailedTabs2021/
NSDUHDetailedTabs2021/NSDUHDetTabs
Sect5pe2021.htm.
351 Substance Abuse and Mental Health Services
Administration. (2022). Screening, Brief
Intervention, and Referral to Treatment (SBIRT).
Available at: https://www.samhsa.gov/sbirt.
352 O’Connor EA, Perdue LA, Senger, CA, et al.
(2018). Screening and Behavioral Counseling
Interventions to Reduce Unhealthy Alcohol Use in
Adolescents and Adults: Updated Evidence Report
and Systematic Review for the US Preventive
Services Task Force. JAMA, 320(18), 1910–1928.
https://doi.org/10.1001/jama.2018.12086.
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following matters: (1) priorities for
measuring outcomes of outpatient
behavioral health services, particularly
by setting within the HOPD; and (2)
quality measure approaches to improve
behavioral health access in outpatient
settings. Specifically, we are requesting
comment from interested parties on the
following questions:
• Are there additional behavioral
health topic areas that we should
prioritize? Of the topics outlined in this
RFC (availability and access,
coordination of care, patient experience,
patient-centered clinical care,
prevention and treatment of chronic
conditions, prevention of iatrogenic
harm, equity across all domains, and
suicide prevention), which are the
highest priority? What are the most
relevant quality gaps and outcomes
related to behavioral health for hospital
outpatient settings and services?
• Access is one of the biggest
challenges around improving behavioral
health outcomes. What measurement
approaches could be used to drive
improvements in access to services?
• Should CMS consider substance use
disorder-related screening and
counseling measures in regards to
behavioral health outcomes for the
outpatient setting, and, if so, what
specific quality measures should CMS
include?
• Should CMS consider a measure
related to universal suicide risk in the
ED? Are there other interventions or
measurement approaches targeted at
suicide prevention that CMS should
consider?
5. Solicitation of Comments on
Telehealth as a Measurement Topic
Area in the Hospital OQR Program
We define telehealth as the provision
of healthcare services through two-way,
real-time interactive
telecommunications technology
between patients and providers who are
located at a distant site.353 Telemedicine
has the potential to improve patient
experience, outcomes, and access to
healthcare.354 Telemedicine is also
associated with cost-savings for both
patients and healthcare systems.355 356
353 Telehealth Services, 42 CFR 410.78 Available
at: https://www.ecfr.gov/current/title-42/chapter-IV/
subchapter-B/part-410/subpart-B/section-410.78.
354 Corbett, JA, Opladen, JM, & Bisognano, JD.
(2020). Telemedicine can revolutionize the
treatment of chronic disease. International Journal
of Cardiology. Hypertension, 7, 100051. https://
doi.org/10.1016/j.ijchy.2020.100051.
355 American Health Association. (2016).
Telehealth: Helping Hospitals Deliver Cost-Effective
Care. Available at: https://www.aha.org/system/
files/content/16/16telehealthissuebrief.pdf.
356 Patel KB, Turner K, Alishahi TA, et al. (2023).
Estimated Indirect Cost Savings of Using Telehealth
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Telehealth utilization expanded greatly
in the outpatient setting during the early
months of the SARS–CoV–2
pandemic.357 The number of outpatient
visits conducted via telehealth has since
declined but remains higher than prepandemic levels.358
While telehealth provides a variety of
benefits to patients and health systems,
there is variability in telehealth’s
effectiveness across different outpatient
services as some conditions may
necessitate in-person physical
examination or diagnostic testing.359 360
There are also known disparities in the
effectiveness of telehealth and its
impact on outcomes as certain
populations lack access to internet and
digital devices, or lack familiarity with
technology.361 362
For the Hospital OQR Program, we are
considering a measure focused on
telehealth quality based on a framework
developed by the CBE.363 This
framework was chosen because it offers
a comprehensive guide for developing
telehealth measures under four
domains: access, effectiveness,
experience, and equity. We seek input
from interested parties on the following
topics: (1) inclusion and prioritization
of areas of telehealth-related care, and in
particular those priority topic areas
discussed above; (2) addressing quality
gaps in outpatient telehealth-related
care, including across HOPD settings
and services; (3) capturing utilization,
and disparities resulting from
Among Nonelderly Patients With Cancer. JAMA
network open, 6(1), e2250211. https://doi.org/
10.1001/jamanetworkopen.2022.50211.
357 Lo, J, Rae M, Amin, K, & Cox C. (2022).
Outpatient telehealth use soared early in the
COVID–19 pandemic but has since receded.
Peterson-KFF Health System Tracker. Available at:
https://www.healthsystemtracker.org/brief/
outpatient-telehealth-use-soared-early-in-the-covid19-pandemic-but-has-since-receded/.
358 Ibid.
359 Patel SY, Mehrotra A, Huskamp HA, et al.
(2021). Variation in Telemedicine Use and
Outpatient Care During The COVID–19 Pandemic in
the United States. Health affairs (Project Hope),
40(2), 349–358. https://doi.org/10.1377/hlthaff.
2020.01786.
360 Koonin LM, Hoots B, Tsang CA, et al. Trends
in the Use of Telehealth During the Emergence of
the COVID–19 Pandemic—United States, January–
March 2020. MMWR Morb Mortal Wkly Rep
2020;69:1595–1599. https://dx.doi.org/10.15585/
mmwr.mm6943a3.
361 Ibid.
362 Roberts ET, & Mehrotra A. (2020). Assessment
of Disparities in Digital Access Among Medicare
Beneficiaries and Implications for Telemedicine.
JAMA internal medicine, 180(10), 1386–1389.
https://doi.org/10.1001/jamainternmed.2020.2666.
363 National Quality Forum. (2021). Rural
Telehealth and Healthcare System Readiness
Measurement Framework—Final Report. Available
at: https://www.qualityforum.org/Publications/
2021/11/Rural_Telehealth_and_Healthcare_
System_Readiness_Measurement_Framework_-_
Final_Report.aspx.
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utilization, of telehealth-related care for
outpatient settings and services; and (4)
understanding patient experience with
outpatient telehealth services.
Specifically, we are requesting comment
from interested parties on the following
questions:
• In reference to the telehealth-related
topics outlined above, are there
additional matters that we should
prioritize for the Hospital OQR
Program? Which subjects are of the
highest priority?
• What do commenters believe are
the most relevant clinical issues
addressable through telehealth in
outpatient settings, and gaps in care that
telehealth can address?
• What are the highest priority
concerns regarding disparities in access,
use, or outcomes related to telehealth in
the outpatient setting? Are there any
settings or services that should be
prioritized?
• Which existing outpatient quality
measures should be stratified by
telehealth as the mode of delivery?
• What are the most relevant patientexperience-related telehealth outcomes
that should be measured?
D. Administrative Requirements
1. Proposal To Modify Requirements
Regarding Hospital OQR Program
Participation Status
ddrumheller on DSK120RN23PROD with PROPOSALS2
We refer readers to § 419.46(b) for our
current policies regarding participation
in the Hospital OQR Program, including
364 Office of Management and Budget. Office of
Information and Regulatory Affairs. Available at:
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security official and system registration
requirements. We propose to amend our
participation regulation codified at
§ 419.46(b)(1) and (2) to replace
references to ‘‘QualityNet’’ with ‘‘CMSdesignated information system’’ or
‘‘CMS website,’’ and to make other
conforming technical edits, to
accommodate recent and future systems
requirements and mitigate confusion for
program participants.
We invite public comment on this
proposal.
2. Proposal To Modify Requirements
Regarding Hospital OQR Program
Withdrawal
We refer readers to § 419.46(c) for our
policies regarding requirements for
withdrawal from the Hospital OQR
Program. We propose to amend our
withdrawal policy codified at
§ 419.46(c) to replace references to
‘‘QualityNet’’ with ‘‘CMS-designated
information system’’ or ‘‘CMS website,’’
and to make other conforming technical
edits, to accommodate recent and future
systems requirements and mitigate
confusion for program participants.
We invite public comment on this
proposal.
Other than the proposal to amend
§ 419.46(c), we are not proposing any
changes to these policies in this
proposed rule.
E. Form, Manner, and Timing of Data
Submitted for the Hospital OQR
Program
Previously finalized quality measures
and information collections discussed
in this section were approved by the
Office of Management and Budget
(OMB) under control number 0938–
1109 (expiration date February 28,
2025).364 An updated PRA package
reflecting the updated information
collection requirements related to the
proposals set forth in this section of the
proposed rule will be submitted for
approval under the same OMB control
number.
1. Hospital OQR Program Annual
Submission Deadlines
We refer readers to § 419.46(d) for our
policies regarding clinical data
submission deadlines. In the CY 2023
OPPS/ASC final rule (87 FR 72110
through 72112), we finalized alignment
of the patient encounter quarters for
chart-abstracted measures with the
calendar year beginning with the CY
2024 reporting period/CY 2026 payment
determination. To facilitate this process,
we finalized transitioning to the new
timeframe for the CY 2026 payment
determination and subsequent years and
use only three quarters of data for chartabstracted measures in determining the
CY 2025 payment determination as
illustrated in the Tables 68, 69, and 70
below (87 FR 44734).
BILLING CODE 4120–01–P
https://www.reginfo.gov/public/do/
PRAOMBHistory?ombControlNumber=0938-1109.
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2. Requirements for Chart-Abstracted
Measures Where Patient-Level Data Are
Submitted Directly to CMS
We refer readers to the CY 2013
OPPS/ASC final rule (77 FR 68481
through 68484) and the CMS website,
currently available at: https://qualitynet.
cms.gov, for a discussion of the
requirements for chart-abstracted
measure data submitted via the HQR
System (formerly referred to as the
QualityNet Secure Portal) for the CY
2014 payment determination and
subsequent years.
We are not proposing any changes to
these policies in this proposed rule.
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3. Claims-Based Measure Data
Requirements
We refer readers to the CY 2019
OPPS/ASC final rule (83 FR 59106
through 59107), where we established a
3-year reporting period for the Facility
7-Day Risk-Standardized Hospital Visit
Rate after Outpatient Colonoscopy
measure beginning with the CY 2020
payment determination. We refer
readers to the CY 2022 OPPS/ASC final
rule (86 FR 63863) where we finalized
a 3-year reporting period for the Breast
Cancer Screening Recall Rates measure.
We are not proposing any changes to
these policies in this proposed rule.
4. Data Submission Requirements for
the Outpatient and Ambulatory Surgery
Consumer Assessment of Healthcare
Providers and Systems (OAS CAHPS)
Survey-Based Measure
We refer readers to the CYs 2017,
2018, and 2022 OPPS/ASC final rules
(81 FR 79792 through 79794; 82 FR
59432 and 59433; and 86 FR 63863
through 63866, respectively) for a
discussion of the previously finalized
requirements related to survey
administration and vendors for the OAS
CAHPS Survey-based measure. For
more information about the modes of
administration, we refer readers to the
OAS CAHPS Survey website: https://
oascahps.org/.
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We are not proposing any changes to
these policies in this proposed rule.
5. Data Submission Requirements for
Measures Submitted via a Web-Based
Tool
a. Background
We refer readers to the CY 2014
OPPS/ASC final rule (78 FR 75112
through 75115), the CY 2016 OPPS/ASC
final rule (80 FR 70521), and the CMS
website, currently at available at https://
qualitynet.cms.gov, for a discussion of
the requirements for measure data
submitted via the HQR System (formerly
referred to as the QualityNet Secure
Portal) for the CY 2017 payment
determination and subsequent years.
The information collections finalized in
the aforementioned final rules were
approved under OMB control number
0938–1109 (expiration date February 28,
2025).365 The HQR System is
safeguarded in accordance with the
HIPAA Privacy and Security Rules to
protect submitted patient information.
See 45 CFR parts 160 and 164, subparts
A, C, and E, for more information.
We are not proposing any changes to
these policies in this proposed rule.
365 Ibid.
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We propose to amend our submission
deadline codified at § 419.46(d)(2) to
replace references to ‘‘QualityNet’’ with
‘‘CMS-designated information system’’
or ‘‘CMS website,’’ and to make other
conforming technical edits, to
accommodate recent and future systems
requirements and mitigate confusion for
program participants.
We invite public comment on this
proposal.
Other than the proposal to amend
§ 419.46(d)(2), we are not proposing any
changes to these policies in this
proposed rule.
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b. Proposed HOPD Procedure Volume
Measure Reporting and Data Submission
Requirements
We propose to re-adopt the HOPD
Procedure Volume measure with
modification, beginning with the
voluntary CY 2025 reporting period
followed by mandatory reporting
beginning with the CY 2026 reporting
period/CY 2028 payment determination.
We propose that hospitals submit these
data to CMS during the time period of
January 1 to May 15 in the year prior to
the affected payment determination
year. For example, for the CY 2025
reporting period, the submission period
to report the data to CMS through the
HQR System would be January 1, 2026
to May 15, 2026, covering the
performance period of January 1, 2025
to December 31, 2025. Following a 30day preview period, CMS would
publicly display data surrounding the
top five most frequently performed
procedures among HOPDs in each of the
following eight categories:
Cardiovascular, Eye, Gastrointestinal,
Genitourinary, Musculoskeletal,
Nervous System, Respiratory, and
Skin.366 This data would be publicly
displayed on the Care Compare website
or another CMS website. We would
assess and update the top five
procedures in each category annually, as
needed. We propose that hospitals
would submit aggregate-level data
through the CMS Web-based tool within
the HQR System. We refer readers to the
CY 2009, CY 2014, and CY 2017 OPPS/
ASC final rules (73 FR 68777 through
68779, 78 FR 75092, and 81 FR 79791,
respectively) for our previously
finalized policies regarding public
display of quality measures. We
previously codified our existing policies
regarding data collection and
submission under the Hospital OQR
Program at § 419.46.
We invite public comment on this
proposal.
ddrumheller on DSK120RN23PROD with PROPOSALS2
c. Proposed Modification of Survey
Instrument Use for the Cataracts Visual
Function Measure Reporting and Data
Submission Requirements
In section XIV.B.2.b of this proposed
rule, we propose to modify the Cataracts
Visual Function measure survey
instrument use, beginning with the
voluntary CY 2024 reporting period.
The proposed modified measure would
refine data collection by standardizing
survey instruments that HOPDs can use,
366 Centers for Medicare & Medicaid Services.
(2016). Hospital Outpatient Specifications Manuals
version 9.1. Available at: https://qualitynet.
cms.gov/outpatient/specifications-manuals#tab9.
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which would limit the allowable survey
instruments to those listed below:
The National Eye Institute Visual
Function Questionnaire–25 (NEI
VFQ–25)
The Visual Functioning Patient
Questionnaire (VF–14)
The Visual Functioning Index Patient
Questionnaire (VF–8R)
We also propose that hospitals submit
these data to CMS during the time
period of January 1 to May 15 in the
year prior to the affected payment
determination year. For example, for the
voluntary CY 2024 reporting period, the
data submission period would be
January 1, 2025 to May 15, 2025,
covering the performance period of
January 1, 2024 to December 31, 2024.
Specifically, for data collection, we
propose that hospitals submit aggregatelevel data through the CMS Web-based
tool within the HQR System. We
previously codified our existing policies
regarding data collection and
submission under the Hospital OQR
Program at § 419.46.
We invite public comment on this
proposal.
d. Data Submission Requirements for
Measures Submitted via the Centers for
Disease Control and Prevention (CDC)
National Healthcare Safety Network
(NHSN) Website
We refer readers to the CY 2014
OPPS/ASC final rule (78 FR 75097
through 75100) for a discussion of the
previously finalized requirements for
measure data submitted via the CDC
NHSN website. In addition, we refer
readers to the CY 2022 OPPS/ASC final
rule (86 FR 63866), where we finalized
the adoption of the COVID–19
Vaccination Coverage Among HCP
measure beginning with the CY 2022
reporting period/CY 2024 payment
determination. In section XIV.B.2.a of
this proposed rule, we discuss the
proposed modification of the COVID–19
Vaccination Coverage Among HCP
measure beginning with the CY 2024
reporting period/CY 2026 payment
determination. The requirements for
measure data submitted via the CDC
NHSN website would remain as
previously finalized.
We are not proposing any changes to
these policies in this proposed rule.
6. eCQM Reporting and Submission
Requirements
a. Background
We refer readers to the CY 2014
OPPS/ASC final rule (78 FR 75106 and
75107), the CY 2015 OPPS/ASC final
rule (79 FR 66956 through 66961), the
CY 2016 OPPS/ASC final rule (80 FR
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70516 through 70518), the CY 2017
OPPS/ASC final rule (81 FR 79785
through 79790), the CY 2018 OPPS/ASC
final rule (82 FR 59435 through 59438),
the CY 2022 OPPS/ASC final rule (86
FR 63867 through 63870), and the CY
2023 OPPS/ASC final rule (87 FR 72113
through 72114) for more details on
previous discussion regarding future
measure concepts related to eCQMs and
electronic reporting of data for the
Hospital OQR Program, including
support for the introduction of eCQMs
into the Program.
We refer readers to the CY 2022
OPPS/ASC final rule (86 FR 63867
through 63868), where we finalized the
adoption of the STEMI eCQM reporting
and data submission requirements. For
the CY 2024 reporting period/CY 2026
payment determination, hospitals must
submit one self-selected quarter of data.
We are not proposing any changes to
these policies in this proposed rule.
b. Proposed Excessive Radiation Dose
or Inadequate Image Quality for
Diagnostic Computed Tomography (CT)
in Adults eCQM Reporting and Data
Submission Requirements
In section XIV.B.3.c of this proposed
rule, we discuss the proposed adoption
of the Excessive Radiation eCQM
beginning with the voluntary CY 2025
reporting period followed by mandatory
reporting beginning with the CY 2026
reporting period/CY 2028 payment
determination. In this proposed rule, we
propose a progressive increase in the
number of quarters for which hospitals
report eCQM data. We propose that
hospitals that submit Excessive
Radiation eCQM data during the CY
2025 voluntary period may submit up to
all four quarter(s) of data.
Beginning with the CY 2026
mandatory reporting period/CY 2028
payment determination, we propose that
hospitals report two self-selected
calendar quarters of data for the
Excessive Radiation eCQM. Beginning
with the CY 2027 reporting period/CY
2029 payment determination, we
propose to require hospitals to report all
four calendar quarters (one calendar
year) of data for the Excessive Radiation
eCQM. We believe that a phased
implementation approach would allow
facilities the ability to make the
necessary adjustments for data
submission over time and would
produce more comprehensive and
reliable quality measure data for
patients and providers. Furthermore, we
believe that aligning the schedule with
the STEMI measure will allow for a
seamless transition from voluntary to
mandatory reporting of all calendar
quarters.
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beginning with the CY 2025 reporting
period.
We also propose to require Excessive
Radiation eCQM data submission by
May 15 in the year prior to the affected
payment determination year. All
deadlines occurring on a Saturday,
Sunday, or legal holiday, or on any
other day all or part of which is
declared to be a non-workday for federal
employees by statute or Executive Order
would be extended to the first day
thereafter. For example, for the CY 2026
reporting period/CY 2028 payment
determination, hospitals must report
two self-selected quarters of data and
would be required to submit eCQM data
by May 15, 2027. This data submission
deadline would follow our policies on
submission deadlines for eCQM data
defined in section XIV.E.6.e of this
proposed rule.
We invite public comment on our
proposals.
d. File Format for eCQM Data, Zero
Denominator Declarations, and Case
Threshold Exemptions
c. Electronic Clinical Quality Measure
Certification Requirements for eCQM
Reporting
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We refer reader to the CY 2022 OPPS/
ASC final rule (86 FR 42262) for our
policies regarding the file format for
eCQM data.
We are not proposing any changes to
these policies in this proposed rule.
(2) Zero Denominator Declarations
We refer readers to the CY 2022
OPPS/ASC final rule (86 FR 63869) for
our policies regarding zero denominator
declarations.
We are not proposing any changes to
these policies in this proposed rule.
(3) Case Threshold Exemptions
We refer readers to the CY 2022
OPPS/ASC final rule (86 FR 63869) for
our policies regarding case threshold
exemptions.
We are not proposing any changes to
these policies in this proposed rule.
e. Submission Deadlines for eCQM Data
We refer readers to the CY 2022
OPPS/ASC final rule (86 FR 63868 and
63869) for our policies regarding the
requirement that hospitals participating
in the Hospital OQR Program utilize
certified technology updated consistent
with the 2015 Edition Cures Update as
finalized in the Office of the National
Coordinator for Health Information
Technology (ONC) 21st Century Cures
Act final rule (85 FR 25642 through
25961) beginning with the CY 2023
reporting period/CY 2025 payment
determination.
We are not proposing any changes to
these policies in this proposed rule.
VerDate Sep<11>2014
(1) File Format for eCQM Data
We refer readers to the CY 2022
OPPS/ASC final rule (86 FR 63870) for
our policies regarding submission
deadlines for eCQM data.
We are not proposing any changes to
these policies in this proposed rule.
7. Proposed Data Submission and
Reporting Requirements for PatientReported Outcome-Based Performance
Measures (PRO–PMs)
In section XIV.B.3.b of this proposed
rule, we propose the adoption of the
hospital-level THA/TKA PRO–PM into
the Hospital OQR Program measure set.
In this section of the proposed rule, we
propose the reporting and submission
requirements for PRO–PM as a new type
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of measure to the Hospital OQR
Program.
a. Submission of PRO–PM Data
(1) Data Submission Generally
In section XIV.B.3.b of this proposed
rule, we propose adoption of the THA/
TKA PRO–PM in the Hospital OQR
Program beginning with voluntary CYs
2025 and 2026 reporting periods and
mandatory reporting period beginning
with the CY 2027/CY 2030 payment
determination. We propose that
hospitals and vendors use the HQR
System for data submission for the
THA/TKA PRO–PM, which would
enable us to incorporate this new
requirement into the infrastructure we
have developed and use to collect other
quality data. HOPDs may choose to: (1)
send their data to CMS directly; or (2)
utilize an external entity, such as
through a vendor or registry, to submit
data on behalf of the facility to CMS. We
would provide hospitals with additional
detailed information and instructions
for submitting data using the HQR
System through CMS’ existing websites,
through outreach, or both. Use of the
HQR system leverages existing CMS
infrastructure already utilized for other
quality measures. The HQR System
allows for data submission using
multiple file formats (such as CSV,
XML) and a manual data entry option,
allowing facilities and vendors
additional flexibility in data
submission.
(2) Data Submission Reporting
Requirements
(a) Voluntary Reporting Requirements
for the Proposed THA/TKA PRO–PM
For hospitals participating in
voluntary reporting for the THA/TKA
PRO–PM as discussed in section
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We also refer readers to Table 71 for
a summary of the proposed quarterly
data increase in eCQM reporting
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XIV.B.3.b of this proposed rule, we
propose that hospitals submit preoperative PRO data, as well as matching
post-operative PRO data, for at least 50
percent of their eligible elective primary
THA/TKA procedures.
For the THA/TKA PRO–PM, we
propose that the first voluntary
reporting period for CY 2025 would
include pre-operative PRO data
collection from 90 to 0 days before the
procedure (for eligible elective THA/
TKA procedures performed from
January 1, 2025, through December 31,
2025) and post-operative PRO data
collection from 300 to 425 days after the
procedure. Therefore, during the first
voluntary reporting period for CY 2025,
hospitals would submit pre-operative
data by May 15, 2026 and post-operative
data by May 15, 2027, and we intend to
provide hospitals with their results in
confidential feedback reports in CY
2028. All deadlines occurring on a
Saturday, Sunday, or legal holiday, or
on any other day all or part of which is
declared to be a non-workday for federal
employees by statute or Executive order
would be extended to the first day
thereafter. After the initial submission
of pre-operative data for the first
voluntary period, hospitals would
submit both pre-operative data for the
second voluntary period and postoperative data for the first voluntary
period by the same data submission
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deadline, but for the different voluntary
reporting periods. For example,
hospitals would need to submit: (1)
post-operative data for the first
voluntary reporting (for procedures
performed between January 1, 2025, and
December 31, 2025); and (2) preoperative data for the second voluntary
reporting (for procedures performed
between January 1, 2026, and December
31, 2026) of the THA/TKA PRO–PM by
May 15, 2027.
For the THA/TKA PRO–PM, we
propose that the second voluntary
reporting period for the CY 2026
reporting period would include preoperative PRO data collection from 90 to
0 days before the procedure (for eligible
elective THA/TKA procedures
performed from January 1, 2026 through
December 31, 2026) and post-operative
PRO data collection from 300 to 425
days after the procedure. Hospitals
would submit pre-operative data for the
second voluntary reporting period by
May 15, 2027 and post-operative data
for the second voluntary reporting
period by May 15, 2028.we intend to
provide hospitals with their results in
confidential feedback reports in CY
2029. HOPDs that voluntarily submit
data for this measure would receive
confidential feedback reports that detail
submission results from the reporting
period. Results of voluntary reporting
would not be made publicly available.
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If feasible, we would calculate and
provide each participating facility with
their RSIR as part of the confidential
feedback reports. This would provide
each facility with an indication of their
performance relative to the other
facilities that participate in the
voluntary reporting period.
While we do not propose to publicly
report the data we receive during the
voluntary reporting periods for the
THA/TKA PRO–PM facility-level RSIR,
we propose to publicly report which
facilities choose to participate in
voluntary reporting and/or the percent
of pre-operative data submitted by
participating facilities for the first
voluntary reporting period, and their
percent of pre-operative and postoperative matched PRO data submitted
for subsequent voluntary reporting
periods. For example, if out of 100
eligible procedures a facility submits 45
pre-operative cases that match to postoperative cases, then we would report
that the facility submitted 45 percent of
matched pre-operative and postoperative PRO surveys during voluntary
reporting.
We refer readers to Table 72 for an
overview of the proposed performance
period, pre- and post-operative data
collection timeframes, and data
submission deadlines during the
voluntary reporting periods for THA/
TKA PRO–PM.
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(b) Mandatory Reporting
Following the voluntary reporting
periods, we propose that mandatory
reporting of the THA/TKA PRO–PM
would begin with reporting PRO data
for eligible elective THA/TKA
procedures from January 1, 2027
through December 31, 2027 (the CY
2027 performance period), impacting
the CY 2030 payment determination.
This initial mandatory reporting would
include pre-operative PRO data
collection from 90 days preceding the
applicable performance period and from
300 to 425 days after the performance
period. For example, pre-operative data
from October 3, 2026 through December
31, 2027 (for eligible elective primary
THA/TKA procedures from January 1,
2027 through December 31, 2027) and
post-operative PRO data collection from
October 28, 2027 to February 28, 2029.
Pre-operative data submission would
occur by May 15, 2028 and postoperative data submission would occur
by May 15, 2029.
We intend to provide hospitals with
their results in CY 2030 before publicly
reporting results on the Compare tool
hosted by HHS, currently available at
https://www.medicare.gov/carecompare, or its successor website. We
would provide confidential feedback
reports during the voluntary period
which would include the riskstandardized improvement rate (RSIR);
as well as other results that support
understanding of their performance
prior to public reporting. For this first
mandatory reporting period, hospitals
that fail to meet the reporting
requirements would receive a reduction
of their Annual Payment Update (APU)
in the CY 2030 payment determination.
We propose that hospitals would be
required to submit 50 percent of
eligible, complete pre-operative data
with matching eligible, complete postoperative data as a minimum amount of
data for mandatory reporting in the
Hospital OQR Program.
We refer readers to Table 73 below.
for an overview of the proposed
performance period, pre- and postoperative data collection timeframes,
and data submission deadlines during
the first year of mandatory reporting.
We invite comment on these
proposals.
review and corrections period for chartabstracted measures in the Hospital
OQR Program.
We are not proposing any changes to
these policies in this proposed rule.
at: https://qualitynet.cms.gov/
outpatient/measures/eCQM) and the
eCQI Resource Center (available at:
https://ecqi.healthit.gov/) for more
resources on eCQM reporting.
We are not proposing any changes to
these policies in this proposed rule.
8. Population and Sampling Data
Requirements for the CY 2023 Payment
Determination and Subsequent Years
We refer readers to the CY 2011
OPPS/ASC final rule (75 FR 72100
through 72103) and the CY 2012 OPPS/
ASC final rule (76 FR 74482 through
74483) for our policies regarding
population and sampling data
requirements.
We are not proposing any changes to
these policies in this proposed rule.
9. Review and Corrections Period for
Measure Data Submitted to the Hospital
OQR Program
a. Chart-Abstracted Measures
We refer readers to the CY 2015
OPPS/ASC final rule (79 FR 66964 and
67014) for our policies regarding a
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b. Web-Based Measures
We refer readers to the CY 2021
OPPS/ASC final rule (85 FR 86184) for
our policies regarding a review and
corrections period for web-based
measures in the Hospital OQR Program.
We are not proposing any changes to
these policies in this proposed rule.
c. Electronic Clinical Quality Measures
(eCQMs)
We refer readers to the CY 2022
OPPS/ASC final rule (86 FR 63870) for
our policies regarding a review and
corrections period for eCQMs in the
Hospital OQR Program. We refer readers
to the CMS website (currently available
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d. OAS CAHPS Measures
We refer readers to the CY 2022
OPPS/ASC final rule (86 FR 63870) and
the CY 2017 OPPS/ASC final rule (81
FR 79793) for our policies regarding a
review and corrections period for OAS
CAHPS measures in the Hospital OQR
Program.
We are not proposing any changes to
these policies in this proposed rule.
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10. Hospital OQR Program Validation
Requirements
a. Background
We refer readers to the CY 2011
OPPS/ASC final rule (75 FR 72105
through 72106), the CY 2013 OPPS/ASC
final rule (77 FR 68484 through 68487),
the CY 2015 OPPS/ASC final rule (79
FR 66964 through 66965), the CY 2016
OPPS/ASC final rule (80 FR 70524), the
CY 2018 OPPS/ASC final rule (82 FR
59441 through 59443), the CY 2022
OPPS/ASC final rule (86 FR 63870
through 63873), the CY 2023 OPPS/ASC
final rule (87 FR 72115 through 72116),
and § 419.46(f) for our policies regarding
validation.
We are not proposing any changes to
these policies in this proposed rule.
b. Use of Electronic File Submissions for
Chart-Abstracted Measure Medical
Records Requests
We refer readers to the CY 2022
OPPS/ASC final rule (86 FR 63870) for
additional information on the use of
electronic file submissions for chartabstracted measure medical records
requests.
We are not proposing any changes to
these policies in this proposed rule.
c. Time Period for Chart-Abstracted
Measure Data Validation
We refer readers to the chartabstracted validation requirements and
methods we adopted in the CY 2014
OPPS/ASC final rule (78 FR 75117
through 75118) and codified at
§ 419.46(f)(1) for the CY 2025 payment
determination and subsequent years. We
refer readers to § 419.46(f)(1) for our
policies regarding the time period for
chart-abstracted measure data
validation.
We are not proposing any changes to
these policies in this proposed rule.
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d. Targeting Criteria
We refer readers to the CY 2012
OPPS/ASC final rule (76 FR 74485),
where we finalized a validation
selection process in which we select a
random sample of 450 hospitals for
validation purposes and select an
additional 50 hospitals based on
specific criteria; the CY 2013 OPPS/ASC
final rule (77 FR 68485 and 68486),
where we finalized that a hospital will
be preliminarily selected for validation
based on targeting criteria if it fails the
validation requirement that applies to
the previous year’s payment
determination, and for a discussion of
finalized policies regarding our medical
record validation procedure
requirements; the CY 2018 OPPS/ASC
final rule (82 FR 59441), where we
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clarified that an ‘‘outlier value’’ for
purposes of the targeting criterion; the
CY 2022 OPPS/ASC final rule (86 FR
63872), where we finalized the addition
of two targeting criteria: (1) any hospital
that has not been randomly selected for
validation in any of the previous three
years; or (2) any hospital that passed
validation in the previous year and had
a two-tailed confidence interval that
included 75 percent; and the CY 2023
OPPS/ASC final rule (87 FR 72115
through 72116), where we finalized an
additional targeting criteria: any
hospital with a two-tailed confidence
interval that is less than 75 percent, and
that had less than four quarters of data
due to receiving an ECE for one or more
quarters. We refer readers to
§ 419.46(f)(3) for our policies regarding
the validation selection process and
targeting criteria.
We are not proposing any changes to
these policies in this proposed rule.
e. Educational Review Process and
Score Review and Correction Period for
Chart-Abstracted Measures
We refer readers to § 419.46(f)(4) for
our policies regarding the educational
review process, including validation
score review and correction, for chartabstracted measures.
We are not proposing any changes to
these policies in this proposed rule.
11. Extraordinary Circumstances
Exception (ECE) Process
We refer readers to § 419.46(e) for our
policies regarding the extraordinary
circumstances exception (ECE) process
under the Hospital OQR Program. We
propose to amend our exception policy
codified at § 419.46(e)(1) to replace
references to ‘‘QualityNet’’ with ‘‘CMSdesignated information system’’ or
‘‘CMS website.’’ and to make other
conforming technical edits, to
accommodate recent and future systems
requirements and mitigate confusion for
program participants.
We invite public comment on this
proposal.
Other than the proposal to amend
§ 419.46(e)(1), we are not proposing any
changes to these policies in this
proposed rule.
12. Hospital OQR Program
Reconsideration and Appeals
Procedures
We refer readers to § 419.46(g) for our
policies regarding reconsideration and
appeals procedures. We propose to
amend our submission deadline
codified at § 419.46(g)(1) to replace
references to ‘‘QualityNet’’ with ‘‘CMSdesignated information system’’ or
‘‘CMS website,’’ and to make other
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conforming technical edits, to
accommodate recent and future systems
requirements and mitigate confusion for
program participants.
We invite public comment on this
proposal.
Other than the proposal to amend
§ 419.46(g)(1), we are not proposing any
changes to these policies in this
proposed rule.
F. Payment Reduction for Hospitals
That Fail To Meet the Hospital OQR
Program Requirements for the CY 2024
Payment Determination
1. Background
Section 1833(t)(17) of the Act, which
applies to subsection (d) hospitals (as
defined under section 1886(d)(1)(B) of
the Act), states that hospitals that fail to
report data required to be submitted on
measures selected by the Secretary, in
the form and manner, and at a time,
specified by the Secretary will incur a
2.0 percentage point reduction to their
Outpatient Department (OPD) fee
schedule increase factor; that is, the
annual payment update factor. Section
1833(t)(17)(A)(ii) of the Act specifies
that any reduction applies only to the
payment year involved and will not be
taken into account in computing the
applicable OPD fee schedule increase
factor for a subsequent year.
The application of a reduced OPD fee
schedule increase factor results in
reduced national unadjusted payment
rates that apply to certain outpatient
items and services provided by
hospitals that are required to report
outpatient quality data in order to
receive the full payment update factor
and that fail to meet the Hospital OQR
Program requirements. Hospitals that
meet the reporting requirements receive
the full OPPS payment update without
the reduction. For a more detailed
discussion of how this payment
reduction was initially implemented,
we refer readers to the CY 2009 OPPS/
ASC final rule with comment period (73
FR 68769 through 68772).
The national unadjusted payment
rates for many services paid under the
OPPS equal the product of the OPPS
conversion factor and the scaled relative
payment weight for the APC to which
the service is assigned. The OPPS
conversion factor, which is updated
annually by the OPD fee schedule
increase factor, is used to calculate the
OPPS payment rate for services with the
following status indicators (listed in
Addendum B to the proposed rule,
which is available via the internet on
the CMS website): ‘‘J1’’, ‘‘J2’’, ‘‘P’’,
‘‘Q1’’, ‘‘Q2’’, ‘‘Q3’’, ‘‘R’’, ‘‘S’’, ‘‘T’’, ‘‘V’’,
or ‘‘U’’. In the CY 2017 OPPS/ASC final
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rule with comment period (81 FR
79796), we clarified that the reporting
ratio does not apply to codes with status
indicator ‘‘Q4’’ because services and
procedures coded with status indicator
‘‘Q4’’ are either packaged or paid
through the Clinical Laboratory Fee
Schedule and are never paid separately
through the OPPS. Payment for all
services assigned to these status
indicators will be subject to the
reduction of the national unadjusted
payment rates for hospitals that fail to
meet Hospital OQR Program
requirements, with the exception of
services assigned to New Technology
APCs with assigned status indicator ‘‘S’’
or ‘‘T’’. We refer readers to the CY 2009
OPPS/ASC final rule with comment
period (73 FR 68770 through 68771) for
a discussion of this policy.
The OPD fee schedule increase factor
is an input into the OPPS conversion
factor, which is used to calculate OPPS
payment rates. To reduce the OPD fee
schedule increase factor for hospitals
that fail to meet reporting requirements,
we calculate two conversion factors—a
full market basket conversion factor
(that is, the full conversion factor), and
a reduced market basket conversion
factor (that is, the reduced conversion
factor). We then calculate a reduction
ratio by dividing the reduced
conversion factor by the full conversion
factor. We refer to this reduction ratio as
the ‘‘reporting ratio’’ to indicate that it
applies to payment for hospitals that fail
to meet their reporting requirements.
Applying this reporting ratio to the
OPPS payment amounts results in
reduced national unadjusted payment
rates that are mathematically equivalent
to the reduced national unadjusted
payment rates that would result if we
multiplied the scaled OPPS relative
payment weights by the reduced
conversion factor. For example, to
determine the reduced national
unadjusted payment rates that applied
to hospitals that failed to meet their
quality reporting requirements for the
CY 2010 OPPS, we multiplied the final
full national unadjusted payment rate
found in Addendum B of the CY 2010
OPPS/ASC final rule with comment
period by the CY 2010 OPPS final rule
with comment period reporting ratio of
0.980 (74 FR 60642).
We note that the only difference in
the calculation for the full conversion
factor and the calculation for the
reduced conversion factor is that the full
conversion factor uses the full OPD
update and the reduced conversion
factor uses the reduced OPD update.
The baseline OPPS conversion factor
calculation is the same since all other
adjustments would be applied to both
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conversion factor calculations.
Therefore, our standard approach of
calculating the reporting ratio as
described earlier in this section is
equivalent to dividing the reduced OPD
update factor by that of the full OPD
update factor. In other words:
Full Conversion Factor = Baseline OPPS
conversion factor * (1 + OPD update
factor)
Reduced Conversion Factor = Baseline
OPPS conversion factor * (1 + OPD
update factor¥0.02)
Reporting Ratio = Reduced Conversion
Factor/Full Conversion Factor
Which is equivalent to:
Reporting Ratio = (1 + OPD Update
factor¥0.02)/(1 + OPD update
factor)
In the CY 2009 OPPS/ASC final rule
with comment period (73 FR 68771
through 68772), we established a policy
that the Medicare beneficiary’s
minimum unadjusted copayment and
national unadjusted copayment for a
service to which a reduced national
unadjusted payment rate applies would
each equal the product of the reporting
ratio and the national unadjusted
copayment or the minimum unadjusted
copayment, as applicable, for the
service. Under this policy, we apply the
reporting ratio to both the minimum
unadjusted copayment and national
unadjusted copayment for services
provided by hospitals that receive the
payment reduction for failure to meet
the Hospital OQR Program reporting
requirements. This application of the
reporting ratio to the national
unadjusted and minimum unadjusted
copayments is calculated according to
§ 419.41 of our regulations, prior to any
adjustment for a hospital’s failure to
meet the quality reporting standards
according to § 419.43(h). Beneficiaries
and secondary payers thereby share in
the reduction of payments to these
hospitals.
In the CY 2009 OPPS/ASC final rule
with comment period (73 FR 68772), we
established the policy that all other
applicable adjustments to the OPPS
national unadjusted payment rates
apply when the OPD fee schedule
increase factor is reduced for hospitals
that fail to meet the requirements of the
Hospital OQR Program. For example,
the following standard adjustments
apply to the reduced national
unadjusted payment rates: the wage
index adjustment, the multiple
procedure adjustment, the interrupted
procedure adjustment, the rural sole
community hospital adjustment, and the
adjustment for devices furnished with
full or partial credit or without cost.
Similarly, OPPS outlier payments made
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for high cost and complex procedures
will continue to be made when outlier
criteria are met. For hospitals that fail to
meet the quality data reporting
requirements, the hospitals’ costs are
compared to the reduced payments for
purposes of outlier eligibility and
payment calculation. We established
this policy in the OPPS beginning in the
CY 2010 OPPS/ASC final rule with
comment period (74 FR 60642). For a
complete discussion of the OPPS outlier
calculation and eligibility criteria, we
refer readers to section II.G of the CY
2023 OPPS/ASC proposed rule (87 FR
44533 through 44534).
2. Reporting Ratio Application and
Associated Adjustment Policy for CY
2024
We proposed to continue our
established policy of applying the
reduction of the OPD fee schedule
increase factor through the use of a
reporting ratio for those hospitals that
fail to meet the Hospital OQR Program
requirements for the full CY 2024
annual payment update factor. For this
CY 2024 OPPS/ASC proposed rule, the
proposed reporting ratio is 0.9805,
which, when multiplied by the
proposed full conversion factor of
$87.488, equals a proposed conversion
factor for hospitals that fail to meet the
requirements of the Hospital OQR
Program (that is, the reduced conversion
factor) of $85.782. We propose to
continue to apply the reporting ratio to
all services calculated using the OPPS
conversion factor. We propose to
continue to apply the reporting ratio,
when applicable, to all HCPCS codes to
which we have proposed status
indicator assignments of ‘‘J1’’, ‘‘J2’’, ‘‘P’’,
‘‘Q1’’, ‘‘Q2’’, ‘‘Q3’’, ‘‘R’’, ‘‘S’’, ‘‘T’’, ‘‘V’’,
and ‘‘U’’ (other than New Technology
APCs to which we have proposed status
indicator assignments of ‘‘S’’ and ‘‘T’’).
We proposed to continue to exclude
services paid under New Technology
APCs. We propose to continue to apply
the reporting ratio to the national
unadjusted payment rates and the
minimum unadjusted and national
unadjusted copayment rates of all
applicable services for those hospitals
that fail to meet the Hospital OQR
Program reporting requirements. We
also propose to continue to apply all
other applicable standard adjustments
to the OPPS national unadjusted
payment rates for hospitals that fail to
meet the requirements of the Hospital
OQR Program. Similarly, we propose to
continue to calculate OPPS outlier
eligibility and outlier payment based on
the reduced payment rates for those
hospitals that fail to meet the reporting
requirements. In addition to our
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proposal to implement the policy
through the use of a reporting ratio, we
also propose to calculate the reporting
ratio to four decimals (rather than the
previously used three decimals) to more
precisely calculate the reduced adjusted
payment and copayment rates.
For CY 2024, the proposed reporting
ratio is 0.9805, which, when multiplied
by the proposed full conversion factor of
$87.488, equaled a proposed conversion
factor for hospitals that fail to meet the
requirements of the Hospital OQR
Program (that is, the reduced conversion
factor) of $85.782.
XV. Ambulatory Surgical Center
Quality Reporting (ASCQR) Program
Requirements, Proposals, and Requests
for Comment
A. Background
ddrumheller on DSK120RN23PROD with PROPOSALS2
1. Overview
We seek to promote higher quality,
more efficient, and equitable healthcare
for Medicare beneficiaries. Consistent
with these goals, we have implemented
quality reporting programs for multiple
care settings, including the Ambulatory
Surgical Center Quality Reporting
(ASCQR) Program for ambulatory
surgical center care.
2. Statutory Authority for the ASCQR
Program
Section 1833(i)(7)(A) authorizes the
Secretary to reduce any annual increase
under the revised ambulatory surgical
center (ASC) payment system by 2.0
percentage points for such year that an
ASC that fails to submit required data
on quality measures specified by the
Secretary in accordance with section
1833(i)(7)(B) of the Act. Section
1833(i)(7)(B) of the Act states that,
except as the Secretary may otherwise
provide, several of the statutory
provisions governing the Hospital
Outpatient Quality Reporting (OQR)
Program, specifically section
1833(t)(17)(B) through (E) of the Act,
also apply to the services of ASCs under
the ASCQR Program in a similar manner
to the manner in which they apply to
the services of hospital outpatient
departments under the Hospital OQR
Program. Sections 1833(t)(17)(B)
through (E) of the Act generally govern
the development and replacement of
quality measures, the form and manner
of submission of data to CMS, and
procedures for making the data
submitted to CMS available to the
public.
We refer readers to the CY 2012
OPPS/ASC final rule (76 FR 74492
through 74494) for a detailed discussion
of the statutory authority of the ASCQR
Program.
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3. Regulatory History of the ASCQR
Program
We refer readers to the following final
rules for detailed discussions of the
regulatory history of the ASCQR
Program:
• CY 2012 OPPS/ASC final rule (76
FR 74492 through 74517);
• FY 2013 IPPS/LTCH PPS final rule
(77 FR 53637 through 53644);
• CY 2013 OPPS/ASC final rule (77
FR 68492 through 68500);
• CY 2014 OPPS/ASC final rule (78
FR 75122 through 75141);
• CY 2015 OPPS/ASC final rule (79
FR 66966 through 66987);
• CY 2016 OPPS/ASC final rule (80
FR 70526 through 70538);
• CY 2017 OPPS/ASC final rule (81
FR 79797 through 79826);
• CY 2018 OPPS/ASC final rule (82
FR 59445 through 59476);
• CY 2019 OPPS/ASC final rule (83
FR 59110 through 59139);
• CY 2020 OPPS/ASC final rule (84
FR 61420 through 61434);
• CY 2021 OPPS/ASC final rule (85
FR 86187 through 86193);
• CY 2022 OPPS/ASC final rule (86
FR 63875 through 63911); and
• CY 2023 OPPS/ASC final rule (87
FR 72117 through 72136)
We have codified certain
requirements under the ASCQR Program
at 42 CFR part 416, subpart H (§ 416.300
through § 416.330). We refer readers to
section XV.E of this proposed rule for a
detailed discussion of the payment
reduction for ASCs that fail to meet
program requirements.
B. ASCQR Program Quality Measures
1. Considerations in the Selection of
ASCQR Program Quality Measures
We refer readers to the CY 2013
OPPS/ASC final rule (77 FR 68493 and
68494) for a detailed discussion of the
priorities we consider for quality
measure selection for the ASCQR
Program.
We are not proposing any changes to
these policies in this proposed rule.
2. Retention of Previously Adopted
ASCQR Program Measures
We previously finalized and codified
at § 416.320(a) our policy regarding
retention of quality measures adopted
for the ASCQR Program. Specifically,
our regulation at § 416.320(a) provides
that we will retain quality measures
previously adopted for the ASCQR
Program as part of its measure set unless
we remove, suspend, or replace the
measure.
We are not proposing any changes to
this policy in this proposed rule.
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3. Removal, Replacement, or
Suspension of Quality Measures From
the ASCQR Program Measure Set
a. Immediate Removal of Program
Measures
We refer readers to § 416.320(b) for
our policies regarding immediate
removal of a measure for the ASCQR
Program based on evidence that the
continued use of the measure as
specified raises patient safety concerns.
We propose to amend our measure
removal policy codified at § 416.320(b)
to replace references to ‘‘QualityNet’’
with ‘‘CMS-designated information
system’’ or ‘‘CMS website,’’ and to make
other conforming technical edits, to
accommodate recent and future systems
requirements and mitigate confusion for
program participants.
We invite public comment on this
proposal.
b. Removal, Replacement, or
Suspension of Program Measures
We previously finalized and codified
at § 416.320(c) our policies regarding
removal of quality measures adopted for
the ASCQR Program. Specifically, our
regulation at § 416.320(c) provides that,
unless a measure raises specific safety
concerns, we will use the regular
rulemaking process, allowing public
comment, to remove, suspend, or
replace quality measures in the ASCQR
Program. Our regulation at
§ 416.320(c)(2) further provides that we
will weigh whether to remove measures
based on eight factors, including
whether a measure is ‘‘topped-out’’
(§ 416.320(c)(2)(i)), based on criteria set
forth in our regulation at § 416.320(c)(3).
However, as provided in our regulation
at § 416.320(c)(4), we will assess the
benefits of removing a measure on a
case-by-case basis and will not remove
a measure solely on the basis of it
meeting any of specific factor or
criterion.
We are not proposing any changes to
these policies in this proposed rule.
4. Modifications to Previously Adopted
Measures
In this proposed rule, we propose to
modify three previously adopted
measures beginning with the CY 2024
reporting period/CY 2026 payment
determination: (1) COVID–19
Vaccination Coverage Among
Healthcare Personnel (HCP) measure; (2)
Cataracts: Improvement in Patient’s
Visual Function Within 90 Days
Following Cataract Surgery measure
survey instrument use; and (3)
Endoscopy/Polyp Surveillance:
Appropriate Follow-Up Interval for
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Normal Colonoscopy in Average Risk
Patients measure.
a. Proposed Modification of the COVID–
19 Vaccination Coverage Among
HealthCare Personnel (HCP) Measure
Beginning With the CY 2024 Reporting
Period/CY 2026 Payment Determination
ddrumheller on DSK120RN23PROD with PROPOSALS2
(1) Background
On January 31, 2020, the Secretary of
the Department of Health and Human
Services (HHS) declared a public health
emergency (PHE) for the United States
in response to the global outbreak of
SARS–COV–2, a then novel coronavirus
that causes a disease named
‘‘coronavirus disease 2019’’ (COVID–
19).367 Subsequently, the COVID–19
Vaccination Coverage Among Health
Care Personnel (HCP) measure was
adopted across multiple quality
reporting programs, including the
ASCQR Program (86 FR 63875 through
63833).368 COVID–19 has continued to
spread domestically and around the
world with more than 102.7 million
cases and 1.1 million deaths in the
United States alone as of February 13,
2023.369 The Secretary renewed the PHE
on April 21, 2020 and then every three
months thereafter, with the final
renewal on February 9, 2023.370 The
PHE ended on May 11, 2023; however,
the public health response to COVID–19
remains a public health priority
including vaccination efforts.371
As stated in the CY 2022 OPPS/ASC
final rule (86 FR 63876) and in our
367 U.S. Dept of Health and Human Services,
Office of the Assistant Secretary for Preparedness
and Response. (2020). Determination that a Public
Health Emergency Exists. Available at: https://
www.phe.gov/emergency/news/healthactions/phe/
Pages/2019-nCoV.aspx.
368 The Hospital Inpatient Quality Reporting
Program (86 FR 45374 through 45382), the Hospital
OQR Program (86 FR 63824 through 63833), the
Inpatient Psychiatric Facility Quality Reporting
Program (86 FR 42633 through 42640), the PPSExempt Cancer Hospital Quality Reporting Program
(86 FR 45428 through 45434), the Long-Term Care
Hospital Quality Reporting Program (86 FR 45438
through 45446), the Skilled Nursing Facility Quality
Reporting Program (86 FR 42480 through 42489),
the End-Stage Renal Disease Quality Incentive
Program (87 FR 67244 through 67248), and the
Inpatient Rehabilitation Facility Quality Reporting
Program (86 FR 42385 through 42396).
369 Centers for Disease Control and Prevention.
COVID Data Tracker. Accessed February 13, 2023.
Available at: https://covid.cdc.gov/covid-datatracker/#datatracker-home.
370 U.S. Dept. of Health and Human Services.
Office of the Assistant Secretary for Preparedness
and Response. (2023). Renewal of Determination
that a Public Health Emergency Exists. Available at:
https://aspr.hhs.gov/legal/PHE/Pages/COVID199Feb2023.aspx.
371 U.S. Dept. of Health and Human Services. Fact
Sheet: COVID–19 Public Health Emergency
Transition Roadmap. February 9, 2023. Available at:
https://www.hhs.gov/about/news/2023/02/09/factsheet-covid-19-public-health-emergency-transitionroadmap.html.
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‘‘Revised Guidance for Staff Vaccination
Requirements,’’ vaccination is a critical
part of the nation’s strategy to
effectively counter the spread of
COVID–19.372 373 374 We continue to
believe it is important to incentivize and
track HCP vaccination through quality
measurement across care settings,
including the ASC setting, to protect
health care workers, patients, and
caregivers, and to help sustain the
ability of HCP in each of these care
settings to continue serving their
communities. Studies indicate higher
levels of population-level vaccine
effectiveness in preventing COVID–19
infection among HCP and other
frontline workers in multiple industries,
with vaccines having a 90 percent
effectiveness in preventing symptomatic
and asymptomatic infection from
December 2020 through August 2021.375
Since the Food and Drug
Administration (FDA) issued emergency
use authorizations (EUAs) for selected
initial and primary vaccines for adults,
vaccines have been highly effective in
real-world conditions at preventing
COVID–19 in HCP with up to 96 percent
efficacy for fully vaccinated HCP,
including those at risk for severe
infection and those in racial and ethnic
groups disproportionately affected by
COVID–19.376 377 378 379 Overall, data
372 Centers for Medicare & Medicaid Services.
(October 26, 2022). Revised Guidance for Staff
Vaccination Requirements. Available at: https://
www.cms.gov/medicareprovider-enrollment-andcertificationsurveycertificationgeninfopolicy-andmemos-states-and/revised-guidance-staffvaccination-requirements.
373 Centers for Disease Control and Prevention.
(September 24, 2021). Morbidity and Mortality
Weekly Report (MMWR). Comparative Effectiveness
of Moderna, Pfizer-BioNTech, and Janssen (Johnson
& Johnson) Vaccines in Preventing COVID–19
Hospitalizations Among Adults Without
Immunocompromising Conditions—United States,
March–August 2021. Available at: https://cdc.gov/
mmwr/volumes/70/wr/mm7038e1.htm?s_
cid=mm7038e1_w.
374 Centers for Medicare & Medicaid Services.
(2022). Revised Guidance for Staff Vaccination
Requirements. Available at: https://www.cms.gov/
files/document/qs0-23-02-all.pdf.
375 Centers for Disease Control and Prevention.
(August 27, 2021). Morbidity and Mortality Weekly
Report (MMWR). Effectiveness of COVID–19
Vaccines in Preventing SARS–COV–2 Infection
Among Frontline Workers Before and During
B.1.617.2 (Delta) Variant Predominance—Eight U.S.
Locations, December 2020–August 2021. Available
at: https://www.cdc.gov/mmwr/volumes/70/wr/
mm7034e4.htm.
376 Pilishivi T, Gierke R, Fleming-Dutra KE, et al.
(2022). Effectiveness of mRNA Covid–19 Vaccine
among U.S. Health Care Personnel. New England
Journal of Medicine, 385(25), e90. https://doi.org/
10.1056/NEJMoa2106599.
377 Centers for Disease Control and Prevention.
(2021). Morbidity and Mortality Weekly Report
(MMWR). Monitoring Incidence of COVID–19
Cases, Hospitalizations, and Deaths, by Vaccination
Status—13 U.S. Jurisdictions, April 4–July 17, 2021.
Available at: https://www.cdc.gov/mmwr/volumes/
70/wr/mm7037e1.htm.
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demonstrate that COVID–19 vaccines
are effective and prevent severe disease,
hospitalization, and death from the
COVID–19 infection.380
When we adopted the COVID–19
Vaccination Coverage Among HCP
measure in the CY 2022 OPPS/ASC final
rule (86 FR 63875 through 63883), we
acknowledged that the measure did not
address booster shots for COVID–19
vaccination (86 FR 63881), although the
FDA authorized, and the Centers for
Disease Control and Prevention (CDC)
recommended, additional doses and
booster doses of the COVID–19 vaccine
for certain individuals, particularly
those who are immunocompromised
due to age or condition or who are
living or working in high-risk settings,
such as HCP (86 FR 63881). However,
we also stated that we believed the
numerator of the measure was
sufficiently broad to include potential
future boosters as part of a ‘‘complete
vaccination course’’ (86 FR 63881).
Since then, new variants of SARS–
COV–2 have emerged around the world
and within the United States.
Specifically, the Omicron variant (and
its related subvariants) is listed as a
variant of concern by the CDC because
it spreads more easily than earlier
variants.381 Vaccine manufacturers have
responded to the Omicron variant by
developing bivalent COVID–19
vaccines, which include a component of
the original virus strain to provide broad
protection against COVID–19 and a
component of the Omicron variant to
provide better protection against
COVID–19 caused by the Omicron
variant.382 Booster doses of the bivalent
COVID–19 vaccine have proven
effective at increasing immune response
to SARS–COV–2 variants, including
Omicron, particularly in individuals
378 Centers for Medicare & Medicaid Services.
(2022). Revised Guidance for Staff Vaccination
Requirements QSO–23–02–ALL. Available at:
https://www.cms.gov/files/document/qs0-23-02all.pdf.
379 Food and Drug Administration. (2020). FDA
Takes Key Action in Fight Against COVID–19 By
Issuing Emergency Use Authorization for First
COVID–19 Vaccine. Available at: https://
www.fda.gov/news-events/press-announcements/
fda-takes-key-action-fight-against-covid-19-issuingemergency-use-authorization-first-covid-19.
380 McGarry BE et al. (January 2022). Nursing
Home Staff Vaccination and Covid–19 Outcomes.
New England Journal of Medicine. 2022 Jan
27;386(4):397–398. Available online at: https://
pubmed.ncbi.nlm.nih.gov/34879189/.
381 Centers for Disease Control and Prevention.
(August 2021). Variants of the Virus. Available at:
https://www.cdc.gov/coronavirus/2019-ncov/
variants/.
382 Food and Drug Administration. (November
2022). COVID–19 Bivalent Vaccine Boosters.
Available at: https://www.fda.gov/emergencypreparedness-and-response/coronavirus-disease2019-covid-19/covid-19-bivalent-vaccines.
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ddrumheller on DSK120RN23PROD with PROPOSALS2
who are more than six months removed
from receipt of their primary series.383
These booster doses are associated with
a greater reduction in infections among
HCP and their patients relative to those
who only received primary series
vaccination, with a rate of breakthrough
infections among HCP who received
only the two-dose regimen of 21.4
percent compared to a rate of 0.7
percent among boosted HCP.384 385 Data
from the existing COVID–19
Vaccination Coverage Among HCP
measure demonstrate clinically
significant variation in booster dose
vaccination rates across ASCs.
We believe that vaccination remains
the most effective means to prevent the
worst consequences of COVID–19,
including severe illness, hospitalization,
and death. Given the availability of
vaccine efficacy data, EUAs issued by
the FDA for bivalent boosters, the
continued presence of SARS–COV–2 in
the United States, and variance among
rates of booster dose vaccination, we
believe it is important to modify the
COVID–19 Vaccination Coverage
Among HCP measure for HCP to receive
primary series and booster vaccine
doses in a timely manner per the CDC’s
recommendation that bivalent COVID–
19 vaccine booster doses might improve
protection against SARS–CoV–2
Omicron sublineages.386
We propose to modify the COVID–19
Vaccination Coverage Among HCP
measure to utilize the term ‘‘up to date’’
in the HCP vaccination definition. We
also propose to update the numerator to
specify the timeframes within which an
HCP is considered up to date with CDC
recommended COVID–19 vaccines,
including booster doses, beginning with
the CY 2024 reporting period/CY 2026
payment determination for the ASCQR
Program.
383 Chalkias, S et al. (October 2022). A Bivalent
Omicron-Containing Booster Vaccine against
Covid–19. N Engl J Med 2022; 387:1279–1291.
Available online at: https://www.nejm.org/doi/full/
10.1056/NEJMoa2208343.
384 Prasad N et al. (May 2022). Effectiveness of a
COVID–19 Additional Primary or Booster Vaccine
Dose in Preventing SARS–CoV–2 Infection Among
Nursing Home Residents During Widespread
Circulation of the Omicron Variant—United States,
February 14–March 27, 2022. Morbidity and
Mortality Weekly Report (MMWR). 2022 May
6;71(18):633–637. Available online at: https://
pubmed.ncbi.nlm.nih.gov/35511708/.
385 Oster Y et al. (May 2022). The effect of a third
BNT162b2 vaccine on breakthrough infections in
health care workers: a cohort analysis. Clin
Microbiol Infect. 2022 May;28(5):735.e1–735.e3.
Available online at: https://pubmed.
ncbi.nlm.nih.gov/35143997/.
386 Centers for Medicare and Medicaid Services.
(October 26, 2022). Revised Guidance for Staff
Vaccination Requirements. Center for Clinical
Standards and Quality/Quality, Safety & Oversight
Group. Available at: https://www.cms.gov/files/
document/qs0-23-02-all.pdf.
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We note that as we stated in the CY
2022 OPPS/ASC final rule (86 FR
63877), the COVID–19 Vaccination
Coverage Among HCP measure is a
process measure that assesses HCP
vaccination coverage rates and not an
outcome measure for which ASCs are
held responsible for a particular
outcome. We propose to adopt the same
modification to versions of the measure
that we have adopted for other quality
reporting programs.387
(2) Overview of Measure
The COVID–19 Vaccination Coverage
Among HCP measure is a process
measure developed by the CDC to track
COVID–19 vaccination coverage among
HCP in various settings. ASCs report the
required data for this measure via the
CDC’s National Healthcare Safety
Network (NHSN). We refer readers to
the CY 2022 OPPS/ASC final rule (86
FR 63877 through 63878) for more
information on the initial review of the
measure by the Measure Applications
Partnership (MAP).388
We included an updated version of
the measure on the Measures Under
Consideration (MUC) list for the 2022–
2023 pre-rulemaking cycle for
consideration by the MAP. In December
2022, during the MAP’s Hospital
Workgroup discussion, the workgroup
stated that the revision of the current
measure captures up to date vaccination
information in accordance with the
CDC’s updated recommendations for
additional and booster doses since the
measure’s initial development.
Additionally, the Hospital Workgroup
appreciated that the revised measure’s
target population is broader and
simplified from seven categories of HCP
to four.389 During the MAP’s Health
Equity Advisory Group review, the
group highlighted the importance of
COVID–19 vaccination measures and
questioned whether the proposed
387 The Hospital Inpatient Quality Reporting
Program, the Long-Term Care Hospital Quality
Reporting Program and the PPS-Exempt Cancer
Hospital Quality Reporting Program (88 FR 27074)
as well as the Inpatient Psychiatric Facility Quality
Reporting Program (88 FR 21290), the Skilled
Nursing Facility Quality Reporting Program (88 FR
21332), the End-Stage Renal Disease Quality
Incentive Program (87 FR 67244),), and the
Inpatient Rehabilitation Facility Quality Reporting
Program (88 FR 20985).
388 Interested parties convened by the consensusbased entity will provide input and
recommendations on the Measures under
Consideration (MUC) list as part of the prerulemaking process required by section 1890A of
the Act. We refer readers to https://p4qm.org/
PRMR-MSR for more information.
389 Pre-rulemaking MUC lists and map reports.
The Measures Management System. (n.d.).
Available at: https://mmshub.cms.gov/measurelifecycle/measure-implementation/pre-rulemaking/
lists-and-reports.
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revised version of the measure excludes
individuals with contraindications to
FDA authorized or approved COVID–19
vaccines, and if the measure would be
stratified by demographic factors. The
measure developer confirmed that HCP
with contraindications to the vaccines
are excluded from the measure
denominator, but stated that the
measure would not be stratified since
the data are submitted at an aggregate
rather than an individual level. The
MAP Rural Health Advisory Group
expressed concerns about data
collection burden, citing that collection
is performed manually.390 We note that
when reviewed by the MAP, reporting
for contract personnel providing care or
services not specifically included in the
measure denominator was fully
optional, whereas this reporting is now
required to complete NHSN data entry,
but is not included in the measure
calculation. The developer also noted
that the model used for this measure is
based on the Influenza Vaccination
Coverage Among HCP measure (CBE
#0431).391 We refer readers to sections
XXIV.B and XXVI (Collection of
Information) of this proposed rule for
additional detail on the burden and
impact of this proposal.
The proposed revised measure
received conditional support for
rulemaking from the MAP pending (1)
testing indicating the measure is reliable
and valid, and (2) endorsement by the
consensus-based entity (CBE). The MAP
noted that the previous version of the
measure received endorsement from the
CBE (CBE #3636) 392 and that the
measure steward (CDC) intends to
submit the updated measure for
endorsement.393
(a) Measure Specifications
This measure is calculated quarterly
by averaging the ASC’s most recently
submitted and self-selected one week of
data. The measure includes at least 1
week of data collection a month for each
of the three months in a quarter. The
390 Ibid.
391 In previous years, we referred to the
consensus-based entity (CBE) by corporate name.
We have updated this language to refer to the CBE
more generally.
392 Centers for Medicare and Medicaid Services
Measures Inventory Tool. (n.d.). Available at:
https://cmit.cms.gov/cmit/#/MeasureView?
variantId=11670§ionNumber=1.
393 The measure steward owns and maintains a
measure while a measure developer develops,
implements, and maintains a measure. In this case,
the CDC serves as both the measure steward and
measure developer. For more information on
measure development, we refer readers to: Centers
for Medicare and Medicaid Services (2023). Roles
in Measure Development. Available at: https://
mmshub.cms.gov/about-quality/new-to-measures/
roles.
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denominator is calculated as the
aggregated number of HCP eligible to
work in the ASC for at least one day
during the week of data collection,
excluding denominator-eligible
individuals with contraindications as
defined by the CDC for all 3 months in
a quarter.394 Facilities report
vaccination information for the
following four, separate categories of
HCP to NHSN:
• Employees: This includes all
persons who receive a direct paycheck
from the reporting facility (i.e., on the
facility’s payroll), regardless of clinical
responsibility or patient contact.
• Licensed independent practitioners
(LIPs): This includes only physicians
(MD, DO), advanced practice nurses,
and physician assistants who are
affiliated with the reporting facility, but
are not directly employed by it (i.e., they
do not receive a paycheck from the
reporting facility), regardless of clinical
responsibility or patient contact. Postresidency fellows are also included in
this category if they are not on the
facility’s payroll.
• Adult students/trainees and
volunteers: This includes medical,
nursing, or other health professional
students, interns, medical residents, or
volunteers aged 18 or older who are
affiliated with the facility but are not
directly employed by it (i.e., they do not
receive a paycheck from the facility),
regardless of clinical responsibility or
patient contact.
• Other contract personnel: Contract
personnel are defined as persons
providing care, treatment, or services at
the facility through a contract who do
not fall into any of the previously
discussed denominator categories.395
This also includes vendors providing
care, treatment, or services at the facility
who may or may not be paid through a
contract. We note that the other contract
personnel category is required for data
submission to NHSN, but is not
included as part of the proposed
COVID–19 Vaccination Coverage
Among HCP measure.396
We are not proposing to modify the
denominator exclusions. The numerator
is calculated as the cumulative number
of HCP in the denominator population
who are considered up to date with CDC
394 Centers for Disease Control and Prevention.
(2022). Contraindications and precautions.
Available at: https://www.cdc.gov/vaccines/covid19/clinical-considerations/interim-considerationsus.html#contraindications.
395 For more details on the reporting of other
contract personnel, we refer readers to the NHSN
COVID–19 Vaccination Protocol, Weekly COVID–19
Vaccination Module for Healthcare Personnel
available at: https://www.cdc.gov/nhsn/pdfs/hps/
covidvax/protocol-hcp-508.pdf.
396 Ibid.
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recommended COVID–19 vaccines. The
term ‘‘up to date’’ is defined as meeting
the CDC’s set of criteria on the first day
of the applicable reporting quarter. The
current definition of ‘‘up to date’’ for
COVID–19 vaccination can be found at:
https://www.cdc.gov/nhsn/pdfs/hps/
covidvax/UpToDateGuidance-508.pdf.
We refer readers to XV.D.1.c.(2) of this
proposed rule for more details on the
proposed modifications to this
measure’s specifications.
We propose that public reporting of
the modified version of the COVID–19
Vaccination Coverage Among HCP for
the ASCQR Program would begin with
the Fall 2024 Care Compare refresh, or
as soon as technically feasible.
(b) CBE Endorsement
The current version of the measure in
ASCQR received CBE endorsement (CBE
#3636) on July 26, 2022.397 The measure
steward (CDC) intends to pursue CBE
endorsement for the modified version of
this measure.
(3) Data Submission and Reporting
We refer readers to the CY 2022
OPPS/ASC final rule (86 FR 63879
through 63883) for information on data
submission and reporting of this
measure. While we are not proposing
any changes to the data submission or
reporting process, we propose that
reporting of the updated, modified
version of this measure would begin
with the CY 2024 reporting period for
the ASCQR Program. Under the data
submission and reporting process, ASCs
would collect the numerator and
denominator for the COVID–19
Vaccination Coverage Among HCP
measure for at least one self-selected
week during each month of the
reporting quarter and submit the data to
the NHSN Healthcare Personnel Safety
(HPS) Component before the quarterly
deadline to meet ASCQR Program
requirements. If an ASC submits more
than one week of data in a month, the
most recent week’s data would be used
to calculate the measure. For example,
if first and third week data are
submitted, the third week data would be
used. Each quarter, the CDC would
calculate a single quarterly COVID–19
HCP vaccination coverage rate for each
ASC, which would be calculated by
taking the average of the data from the
three weekly rates submitted by the ASC
for that quarter. CMS would publicly
report each quarterly COVID–19 HCP
397 Centers for Medicare & Medicaid Services.
Measure Specifications for Hospital Workgroup for
the 2022 MUC List. Available at: https://
mmshub.cms.gov/sites/default/files/map-hospitalmeasure-specifications-manual-2022.pdf.
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vaccination coverage rate as calculated
by the CDC (86 FR 63878).
We refer readers to section XIV.B.2.a
of this proposed rule for the same
proposal for the Hospital OQR Program.
We invite public comment on this
proposal.
b. Proposed Modification of the Survey
Instrument Used for the Cataracts:
Improvement in Patient’s Visual
Function Within 90 Days Following
Cataract Surgery Measure Beginning
With the Voluntary CY 2024 Reporting
Period
(1) Background
In the CY 2014 OPPS/ASC final rule
(78 FR 75129), we finalized the
adoption of the Cataracts: Improvement
in Patient’s Visual Function Within 90
Days Following Cataract Surgery
(Cataracts Visual Function) measure
beginning with the CY 2014 reporting
period/CY 2016 payment determination.
This measure assesses the percentage of
patients aged 18 years and older who
had cataract surgery and had
improvement in visual function within
90 days following the cataract surgery
via the administration of pre-operative
and post-operative survey instruments
(78 FR 75129). A ‘‘survey instrument’’ is
an assessment tool that has been
appropriately validated for the
population for which it being used.398
For purposes of this proposed
modification to the Cataracts Visual
Function measure, the survey
instruments we considered and are
proposing to assess the visual function
of a patient pre- and post-operatively to
determine whether the patient’s visual
function changed within 90 days of
cataract surgery. Currently, examples of
survey instruments assessing visual
function include, but are not limited to,
the National Eye Institute Visual
Function Questionnaire (NEI–VFQ), the
Visual Function (VF–14), the modified
(VF–8R), the Activities of Daily Vision
Scale (ADVS), the Catquest, and the
modified Catquest-9. While the measure
has been available for voluntary
reporting in the ASCQR Program since
the CY 2015 reporting period, a number
of ASCs have reported data consistently
using the survey instrument of their
choice (87 FR 72119). We refer readers
to the Cataracts Visual Function
measure’s Measure Information Form
(MIF) and the ASCQR Program
Specifications Manual for additional
detail, which is available at: https://
398 Ambulatory Surgical Center Specification
Manual. (n.d.). Qualitynet. Retrieved March 21,
2023, from https://qualitynet.cms.gov/asc/
specifications-manuals.
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qualitynet.cms.gov/asc/specificationsmanuals.
In the CY 2015 OPPS/ASC final rule
(79 FR 66984), we expressed concerns
that clinicians’ use of varying survey
instruments would lead to inconsistent
measure results. However, a study
conducted a comparison among the 16
survey instruments currently accepted
for use by ASCs in collecting data for
this measure and found them to be
scientifically validated, detected
clinically important changes, and
provided comparable results.399 While
all 16 survey instruments in this study
demonstrate usefulness for detecting
clinically important change in cataract
patients, some survey instrument’s
detection sensitivity scores higher than
others.400
Several commenters responding to the
CY 2022 OPPS/ASC proposed rule (86
FR 63846) requested additional
guidance from CMS regarding measure
specifications and survey instruments
for this Cataracts Visual Function
measure in the Hospital OQR Program.
We have considered this comment on
this measure, and we agree that survey
instruments for the assessment of visual
function pre- and post-cataract surgery
should be clarified in order to
standardize acceptable survey
instruments while minimizing
collecting and reporting burden and to
improve measure reliability. We
propose to clarify which specific survey
instruments may be used for the
assessment of visual function pre- and
post-cataract surgery for the Cataracts
Visual Function measure in both the
Hospital OQR Program and the ASCQR
Program, to ensure alignment of this
measure’s specifications across our
quality reporting programs. Thus, for
the ASCQR Program, we propose to
limit the survey instruments that an
ASC may use to assess changes in a
patient’s visual function for purposes of
the Cataracts Visual Function measure
to those listed below:
• The National Eye Institute Visual
Function Questionnaire–25 (NEI VFQ–
25)
• The Visual Functioning Patient
Questionnaire (VF–14)
• The Visual Functioning Index
Patient Questionnaire (VF–8R)
399 McAlinden C, Gothwal VK, Khadka J, et al.
(2011). A head-to-head comparison of 16 cataract
surgery outcome questionnaires. Ophthalmology.
118(12):2374–81. https://doi.org/10.1016/
j.ophtha.2011.06.008.
400 Ibid.
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(2) Considerations for the
Standardization of Survey Instruments
Assessing Improvement in Patient’s
Visual Function Within 90 Days
Following Cataract Surgery
We took into consideration several
factors when identifying which specific
survey instruments would be acceptable
for ASCs to use when collecting data for
the Cataracts Visual Function measure,
such as comprehensiveness, validity,
reliability, length, and burden. We
believe that these three proposed survey
instruments will allow ASCs to select
the length of the survey instrument to be
administered while ensuring adequate
validity and reliability.401 402 403 All
three of these proposed survey
instruments are based upon the 51-item
National Eye Institute Visual Function
Questionnaire (NEI VFQ–51) survey
instrument, which was the first survey
instrument originally developed for
assessing a patient’s visual function
before and after cataract surgery. Each of
the three proposed survey instruments
have progressively fewer numbers of
questions than the NEI VFQ–51: 25
questions for the NEI VFQ–25, 14
questions for the VF–14, and 8
questions for the VF–8R. Even with
fewer questions, all three of the
proposed survey instruments have been
validated as providing results
comparable to the NEI VFQ–51. In
addition, all three of the proposed
survey instruments are readily available
for ASCs to access and use.
We propose to allow ASCs to use the
NEI VFQ–25 for administering and
calculating this Cataracts Visual
Function measure due to its
comprehensiveness, its adequate
validity and reliability, as well as its
potential to reduce language barriers for
patients. The NEI VFQ–25 is a shorter
version of the NEI VFQ–51, being
comprised of 25 items across 12 visionspecific domains (general health,
general vision, ocular pain, near
activities, distance activities, social
functioning, mental health, role
401 Sivaprasad, S., Tschosik, E., Kapre, A., Varma,
R., Bressler, N.M., Kimel, M., Dolan, C., &
Silverman, D. (2018). Reliability and construct
validity of the NEI VFQ–25 in a subset of patients
with geographic atrophy from the Phase 2 mahalo
study. American Journal of Ophthalmology, 190, 1–
8. https://doi.org/10.1016/j.ajo.2018.03.006.
402 Hecht, I., Kanclerz, P., & Tuuminen, R. (2022).
Secondary outcomes of Lens and cataract surgery:
More than just ‘‘best-corrected visual acuity.’’
Progress in Retinal and Eye Research, 101150.
https://doi.org/10.1016/j.preteyeres.2022.101150.
403 Orizonartstudios. (2023). 2023 MIPS measure
#303: Cataracts: Improvement in patient’s visual
function within 90 days following cataract surgery.
MDinteractive. Retrieved March 13, 2023, from
https://mdinteractive.com/mips_quality_measure/
2023-mips-quality-measure-303.
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difficulties, dependency, driving, color
vision, and peripheral vision).404
The NEI VFQ–25, similar to the VF–
14 and VF–8R, has adequate reliability
and validity.405 The NEI VFQ–25
composite, near activities, and distance
activities subscales demonstrated good
internal consistency reliability, testretest reliability, convergent validity,
and known-groups validity.406
Furthermore, the NEI VFQ–25’s high
internal consistency, indicates that
items of the NEI VFQ–25 are highly
related to each other and to the scale as
a whole.407
In addition, the survey instrument is
publicly available on the RAND website
at no cost and has been translated to
many languages, which is a valuable
benefit for patients with limited English
proficiency. The NEI VFQ–25 was
chosen over other survey instruments to
reduce potential language barriers, as,
for example, the currently available
Activities of Daily Vision Scale (ADVS)
is dependent on English language
skills.408 More information on the NEI
VFQ–25 can be found at: https://
www.rand.org/health-care/surveys_
tools/vfq.html.
While the NEI VFQ–25 was shortened
significantly from the original NEI VFQ–
51, it has been criticized for its still
lengthy test-time. However, our
proposal to include this survey
instrument in this measure’s
specifications allows for a more detailed
assessment of cataract surgery outcomes
as it was designed to include questions
which are most important for persons
who have chronic eye diseases.409
Further, if an ASC finds the NEI VFQ–
25 particularly burdensome to
administer, the ASC may choose from
the other two survey instruments we
propose for inclusion in this measure’s
404 U.S. Department of Health and Human
Services. (n.d.). Visual function questionnaire 25.
National Eye Institute. Retrieved March 13, 2023,
from https://www.nei.nih.gov/learn-about-eyehealth/outreach-campaigns-and-resources/
outreach-materials/visual-function-questionnaire25.
405 Sivaprasad, S., Tschosik, E., Kapre, A., Varma,
R., Bressler, N.M., Kimel, M., Dolan, C., &
Silverman, D. (2018). Reliability and construct
validity of the NEI VFQ–25 in a subset of patients
with geographic atrophy from the Phase 2 mahalo
study. American Journal of Ophthalmology, 190, 1–
8. https://doi.org/10.1016/j.ajo.2018.03.006.
406 Ibid.
407 Ibid.
408 Mangione CM, Phillips RS, Seddon JM, et al.
Development of the ‘Activities of Daily Vision
Scale’. A measure of visual functional status. Med
Care. 1992;30(12):1111–1126. https://doi.org/
10.1097/00005650-199212000-00004.
409 Hecht, I., Kanclerz, P., &; Tuuminen, R. (2022).
Secondary outcomes of Lens and cataract surgery:
More than just ‘‘best-corrected visual acuity.’’
Progress in Retinal and Eye Research, 101150.
https://doi.org/10.1016/j.preteyeres.2022.101150.
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specifications for ASCs to use for this
measure, as both of these have even
fewer survey questions to administer.
We also propose to allow ASCs to use
the 14-item VF–14 and the 8-item VF–
8R for administering and calculating
this Cataracts Visual Function measure.
Each can be administered in a shorter
timeframe than the NEI VFQ–25 with
high precision.410 411 Thus, the succinct
formats of the VF–14 and VF–8R may
ease ASCs’ burden in administering the
survey instruments, and potentially
increase the rate of patient responses for
this measure, as compared with other
survey instrument options we
considered. Therefore, we propose
including the VF–14 and VF–8R for this
measure’s data collection specifications
because we believe these survey
instruments achieve results comparable
with the longer NEI VFQ–25 and NEI
VFQ–51 survey instruments with
substantially fewer questions to
administer.
Furthermore, we propose inclusion of
the VF–14 because currently it is the
most commonly used survey instrument
and we believe it would be beneficial to
allow the majority of physicians who
have already been using the VF–14 to
continue to have the option to do so.412
The VF–14 is comprised of 14 items
relating to daily living activities and
function, such as reading, writing,
seeing steps, stairs or curbs, and
operating a motor vehicle.413 Studies
using this survey instrument generally
report significant and clinically
important improvement following
cataract surgery.414 The VF–14
additionally has achieved adequate
reliability and validity, proving it to be
a dependable survey instrument for
cataract outcomes.415 416
We propose the VF–8R, as it is the
most concise of the three survey
instruments, while still achieving
adequate validity and reliability.417 The
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410 Ibid.
411 Orizonartstudios. (2023). 2023 MIPS measure
#303: Cataracts: Improvement in patient’s visual
function within 90 days following cataract surgery.
MDinteractive. Retrieved March 13, 2023, from
https://mdinteractive.com/mips_quality_measure/
2023-mips-quality-measure-303.
412 Hecht, I., Kanclerz, P., &; Tuuminen, R. (2022).
Secondary outcomes of Lens and cataract surgery:
More than just ‘‘best-corrected visual acuity.’’
Progress in Retinal and Eye Research, 101150.
https://doi.org/10.1016/j.preteyeres.2022.101150.
413 Ibid.
414 Ibid.
415 Ibid.
416 Orizonartstudios. (2023). 2023 MIPS measure
#303: Cataracts: Improvement in patient’s visual
function within 90 days following cataract surgery.
MDinteractive. Retrieved March 13, 2023, from
https://mdinteractive.com/mips_quality_measure/
2023-mips-quality-measure-303.
417 Ibid.
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VF–8R consists of questions related to
reading, fine handwork, writing, playing
board games, and watching
television.418 Given its conciseness
compared to the majority of currently
available survey instruments and its
adequate psychometric properties, we
believe that the VF–8R would be
beneficial for measuring cataract surgery
outcomes without prompting further
patient survey fatigue.419
For these reasons, we believe that the
NEI VFQ–25, VF–14, and VF–8R are the
most appropriate survey instruments for
ASCs to use to assess a patient’s visual
function pre- and post-cataract surgery
for purposes of calculating and
submitting data for the Cataracts Visual
Function measure in the ASCQR
Program.
To standardize survey instrument
administration for the Cataracts Visual
Function measure, we propose to limit
the survey instruments that can be used
to administer this measure, beginning
with the voluntary CY 2024 reporting
period, to these three survey
instruments: (1) NEI VFQ–25; (2) VF–14;
and (3) VF–8R. We believe the use of
these three survey instruments to report
data on the Cataracts Visual Function
measure would allow for a more
standardized approach to data
collection. Having a limited number of
allowable survey instruments would
also address several commenters’
request for additional guidance on
survey instruments as well as improve
measure reliability.
(3) Considerations for Data Collection
Modes for the Cataracts: Improvement
in Patient’s Visual Function Within 90
Days Following Cataract Surgery
Measure Beginning With the Voluntary
CY 2024 Reporting Period
As summarized in the CY 2023 OPPS/
ASC final rule (87 FR 72118 through
72120), many commenters expressed
concern about the high administrative
burden of reporting the Cataracts Visual
Function measure, as the measure
uniquely requires coordination among
clinicians of different specialties (that
is, opticians and ophthalmologists). In
an effort to decrease administrative
burden surrounding in-office time
constraints, we reiterate that, while we
recommend the patient’s physician or
optometrist administer, collect, and
report the survey results to the ASC, the
survey instruments required for this
measure can be administered by the
ASC itself via phone, by the patient via
418 Pre-Cataract Surgery—Visual Functioning
Index (VF-8R) patient. (n.d.). https://
eyecaresite.com/wp-content/uploads/2020/02/
Visual-Functioning-Index-Pre-Cat-SX.pdf.
419 Ibid.
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regular or electronic mail, or during
clinician follow-up.
Scientific literature supports the
conclusion that self-administered
survey instruments produce statistically
reliable results.420 421 Furthermore,
scientific literature indicates that
regular mail and electronic mail surveys
respectively, are preferred by varying
subgroups of patients. The inclusion of
both options ensures that patients will
be able to respond to survey instruments
in their preferred format.422 423 These
findings support the inclusion of
varying survey instrument-collection
methods for patient and provider
convenience.
We invite public comment on this
proposal.
c. Proposed Modification of Endoscopy/
Polyp Surveillance: Appropriate
Follow-Up Interval for Normal
Colonoscopy in Average Risk Patients
Measure Denominator Change To Align
With Current Clinical Guidelines
Beginning With the CY 2024 Reporting
Period/CY 2026 Payment Determination
(1) Background
In 2019, colorectal cancer (CRC)
accounted for the 4th highest rate of
new cancer cases and 4th highest rate of
cancer deaths in the United States.424
The American Cancer Society (ACS)
estimates that in 2023, 153,020
individuals will be newly diagnosed
with CRC and 52,550 individuals will
die from CRC in the United States.425
The CDC advises, ‘‘[c]olorectal cancer
almost always develops from
precancerous polyps (abnormal
growths) in the colon or rectum.
Screening tests can find precancerous
420 Bhandari, N. R., Kathe, N., Hayes, C., &
Payakachat, N. (2018). Reliability and validity of
SF–12V2 among adults with self-reported cancer.
Research in Social and Administrative Pharmacy,
14(11), 1080–1084. https://doi.org/10.1016/
j.sapharm.2018.01.007.
421 Stolwijk, C., van Tubergen, A., Ramiro, S.,
Essers, I., Blaauw, M., van der Heijde, D., Landewe,
R., van den Bosch, F., Dougados, M., & Boonen, A.
(2014). Aspects of validity of the self-administered
comorbidity questionnaire in patients with
ankylosing spondylitis. Rheumatology, 53(6), 1054–
1064. https://doi.org/10.1093/rheumatology/ket354.
422 Kelfve, S., Kivi, M., Johansson, B., & Lindwall,
M. (2020). Going web or staying paper? the use of
web-surveys among older people. https://doi.org/
10.21203/rs.3.rs-21136/v4.
423 Meyer, V.M., Benjamens, S., Moumni, M.E.,
Lange, J.F., & Pol, R.A. (2020). Global overview of
response rates in patient and health care
professional surveys in surgery. Annals of Surgery,
275(1). https://doi.org/10.1097/
sla.0000000000004078.
424 Centers for Disease Control. (2022). Colorectal
Cancer Statistics. Available at: https://gis.cdc.gov/
Cancer/USCS/#/AtAGlance/.
425 American Cancer Society. (2023). Cancer Facts
& Figures 2023. Available at: https://
www.cancer.org/research/cancer-facts-statistics/allcancer-facts-figures/2023-cancer-facts-figures.html.
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polyps, so that they can be removed
before they turn into cancer. Screening
tests can also find colorectal cancer
early, when treatment works best.
Regular screening, beginning at age 45,
is the key to preventing colorectal
cancer and finding it early.’’ 426
In May 2021, the United States
Preventive Services Task Force
(USPSTF) issued a revised Final
Recommendation Statement on CRC
Screening.427 This replaced the prior
USPSTF 2016 Final Recommendation
Statement and included a number of
updated policy recommendations based
on new evidence and understandings of
CRC and CRC screening. The USPSTF
recommended that adults who do not
have signs or symptoms of CRC and
who are at average risk for CRC begin
screening at age 45 instead of the
previous recommendation of age 50.428
In addition, multiple professional
organizations, including the ACS,
American Society of Colon and Rectal
Surgeons, and the U.S. Multi-Society
Task Force on Colorectal Cancer (which
represents the American College of
Gastroenterology, the American
Gastroenterological Association, and the
American Society for Gastrointestinal
Endoscopy), recommend that people of
average risk of CRC start regular
screening at age 45.429 430 431 Based on
the recent changes in clinical guidelines
to begin CRC screening at age 45 instead
of age 50, we propose to modify the
Endoscopy/Polyp Surveillance:
Appropriate Follow-Up Interval for
Normal Colonoscopy in Average Risk
Patients (the ‘‘Colonoscopy Follow-Up
Interval’’) measure to follow these
clinical guideline changes.
426 Centers for Disease Control. (2022). What
Should I Know About Screening?. Available at:
https://www.cdc.gov/cancer/colorectal/basic_info/
screening/index.htm.
427 US Preventive Services Task Force. (2021).
Screening for Colorectal Cancer. JAMA, 325(19),
1965–1977. https://doi.org/10.1001/
jama.2021.6238.
428 Ibid.
429 Wolf A, Fontham ETH, Church TR, et al.
(2018). Colorectal cancer screening for average-risk
adults: 2018 guideline update from the American
Cancer Society. CA. Cancer J. Clin., 2018(68), 250–
281. https://doi.org/10.3322/caac.21457.
430 American Society of Colon & Rectal Surgeons.
Colorectal Cancer Screening and Surveillance
Recommendations of U.S. Multisociety Task Force.
Available at: https://fascrs.org/healthcareproviders/education/clinical-practice-guidelines/
colorectal-cancer-screening-and-surveillancerecom.
431 Patel SG, May FP, Anderson JC, Burke CA, et
al. (2022). Updates on Age to Start and Stop
Colorectal Cancer Screening: Recommendations
From the U.S. Multi-Society Task Force on
Colorectal Cancer. The American Journal of
Gastroenterology, 117(1), 57–69. https://doi.org/
10.14309/ajg.0000000000001548.
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(2) Overview of Measure
We refer readers to the CMS Measures
Inventory Tool and the ASCQR
Specification Manual for more
information on the Colonoscopy FollowUp Interval measure, including
background on the measure and a
complete summary of measure
specifications.432 433 Currently, the
Colonoscopy Follow-Up Interval
measure assesses the ‘‘percentage of
patients aged 50 years to 75 years
receiving a screening colonoscopy
without biopsy or polypectomy who
had a recommended follow-up interval
of at least 10 years for repeat
colonoscopy documented in their
colonoscopy report.’’ 434 We propose to
amend the measure’s denominator
language by replacing the phrase ‘‘aged
50 years’’ with the phrase ‘‘aged 45
years.’’ The measure denominator
would be modified to ‘‘all patients aged
45 years to 75 years receiving screening
colonoscopy without biopsy or
polypectomy’’ from ‘‘all patients aged
50 years to 75 years receiving screening
colonoscopy without biopsy or
polypectomy.’’ 435 We are not proposing
any changes to the measure numerator,
other measure specifications,
exclusions, or data collection for the
Colonoscopy Follow-Up Interval
measure.
In the CY 2023 Physician Fee
Schedule final rule (87 FR 69760
through 69767), we adopted the
modified Colonoscopy Follow-Up
Interval measure, which we propose
here for the ASCQR Program, for the
Merit-based Incentive Payment System
(MIPS). We have considered the
importance of aligning the minimum
age requirement for CRC screening
across quality reporting programs and
clinical guidelines, and as a result, we
propose to modify the Colonoscopy
Follow-Up Interval measure
denominator to ‘‘all patients aged 45 to
75 years’’ for the ASCQR Program. We
propose the modification of the
Colonoscopy Follow-Up Interval
measure beginning with the CY 2024
reporting period/CY 2026 payment
determination.
We invite public comment on this
proposal.
432 Centers for Medicare & Medicaid Services.
(2023). Measures Inventory Tool. Available at:
https://cmit.cms.gov/cmit/#/MeasureView?
variantId=793§ionNumber=1.
433 Qualitynet Home. (n.d.). Retrieved March 21,
2023, from https://qualitynet.cms.gov/asc/
specifications-manuals#tab6.
434 Centers for Medicare & Medicaid Services.
(2023). Measures Inventory Tool. Available at:
https://cmit.cms.gov/cmit/#/MeasureView?
variantId=793§ionNumber=1.
435 Ibid.
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5. Proposed Adoption of New Measures
for the ASCQR Program Measure Set
Section 1833(i)(7)(B) of the Act states
that, except as the Secretary may
otherwise provide, the provisions of
section 1833(t)(17)(B) through (E) of the
Act apply with respect to ASC services
in a similar manner to the manner in
which they apply to hospitals for the
Hospital OQR Program. Section
1833(t)(17)(C)(i) of the Act requires the
Secretary to develop measures
appropriate for the measurement of the
quality of care (including medication
errors) furnished by hospitals in
outpatient settings, that these measures
reflect consensus among affected parties
and, to the extent feasible and
practicable, that these measures include
measures set forth by one or more
national consensus-based entities. We
have noted in previous rulemaking (76
FR 74494) the requirement that
measures reflect consensus among
affected parties can be achieved in other
ways aside from CBE endorsement,
including through the measure
development process, through broad
acceptance, use of the measure(s), and
through public comment.
Section 1890A of the Act requires that
we establish and follow a prerulemaking process for selecting quality
and efficiency measures for our
programs, including taking into
consideration input from multistakeholder groups. As part of this prerulemaking process, the CBE, with
which we contract under section 1890
of the Act, convened these groups under
the Measure Applications Partnership
(MAP). The MAP is a public-private
partnership created for the primary
purpose of providing input to HHS on
the selection of measures as required by
section 1890(b)(7)(B) of the Act,
including measures for the ASCQR
Program. We followed this prerulemaking process for both of the
measures we propose for adoption for
the ASCQR Program under this section
of the proposed rule, as further detailed
below.
In this proposed rule, we propose to:
(1) re-adopt with modification the ASC
Facility Volume Data on Selected ASC
Surgica Procedures measure, with
voluntary reporting in the CY 2025
reporting period followed by mandatory
reporting beginning with the CY 2026
reporting period/CY 2028 payment
determination; and (2) adopt the RiskStandardized Patient-Reported
Outcome-Based Performance Measure
(PRO-PM) Following Elective Primary
Total Hip Arthroplasty (THA) and/or
Total Knee Arthroplasty (TKA) in the
ASC Setting (THA/TKA PRO-PM), with
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voluntary reporting beginning with the
CYs 2025 and 2026 reporting periods
followed by mandatory reporting
beginning with the CY 2027 reporting
period/CY 2030 payment determination.
In this section of the proposed rule, we
provide additional information on these
measure adoption proposals for the
ASCQR Program.
a. Proposed Re-Adoption With
Modification of the ASC Facility
Volume Data on Selected ASC Surgical
Procedures Measure Beginning With the
Voluntary CY 2025 Reporting Period
Followed by Mandatory Reporting
Beginning With the CY 2026 Reporting
Period/CY 2028 Payment Determination
(1) Background
ddrumheller on DSK120RN23PROD with PROPOSALS2
Hospital care has been gradually
shifting from inpatient to outpatient
settings.436 Further, research indicates
that volume of services performed in
ASCs will continue to grow, with some
estimates projecting a 25 percent
increase in patients between 2019 and
2029.437 In addition, as further
discussed herein, larger facility surgical
procedure volume may be associated
with better outcomes due to having
characteristics that improve care, such
as efficient team work and increased
surgical experience.438 In light of these
trends in facility volume and more
recent studies finding that volume is an
indicator of quality, it is now especially
important to track volume within ASCs,
as it could provide valuable insight into
the quality of ASCs’ services for CMS
and patients.
Although measuring the volume of
procedures and other services has a long
history as a quality metric, quality
measurement efforts had moved away
from collecting and analyzing data on
volume because some considered
volume simply a proxy for quality
compared to directly measuring
outcomes.439 However, experts on
quality and safety have recently
suggested that, while volume may not
alone indicate better outcomes, it is still
an important component of
436 Medicare Payment Advisory Commission.
March 2021 Report to the Congress: Medicare
Payment Policy. Chapter 3. Available at: https://
www.medpac.gov/wp-content/uploads/2021/10/
mar21_medpac_report_ch3_sec.pdf.
437 SG2 impact of Change Forecast predicts
enormous disruption in health care provider
landscape by 2029. Sg2. (2021). Retrieved March 28,
2023, from https://www.sg2.com/media-center/
press-releases/sg2-impact-forecast-predictsdisruption-health-care-provider-landscape-2029/.
438 Jha AK. (2015) Back to the Future: Volume as
a Quality Metric. JAMA Forum Archive. Published
online June 10, 2015. https://jamanetwork.com/
channels/health-forum/fullarticle/2760155.
439 Ibid.
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quality.440 441 442 Specifically, larger
facility surgical procedure volume may
be associated with better outcomes due
to having characteristics that improve
care.443 For example, high-volume
facilities may have teams that work
more effectively together, or have
superior systems or programs for
identifying and responding to
complications.444 This association
between volume and patient outcomes
may be attributable to greater experience
or surgical skill, greater comfort with
and, hence, likelihood of application of
standardized best practices, and
increased experience in monitoring and
management of surgical patients for the
particular procedure.
The ASCQR Program does not
currently include a quality measure for
facility-level volume data, including
surgical procedure volume data, but it
did so previously. We refer readers to
the CY 2012 OPPS/ASC final rule (76
FR 74507 through 74509) where we
adopted the ASC Facility Volume Data
on Selected ASC Surgical Procedures
(ASC Procedure Volume) measure
beginning with the CY 2015 payment
determination. This structural measure
of facility capacity collected surgical
procedure volume data on seven
categories of procedures frequently
performed in the ASC setting:
Gastrointestinal, Eye, Nervous System,
Musculoskeletal, Skin, Respiratory, and
Genitourinary.445 We adopted the ASC
Procedure Volume measure based on
evidence that the volume of surgical
procedures, particularly of high-risk
surgical procedures, is related to better
patient outcomes, including decreased
mortality (76 FR 74507).446 447 We
440 Ibid.
441 Shang, M., Mori, M., Gan, G., Deng, Y., Brooks,
C., Weininger, G., Sallam, A., Vallabhajosyula, P.,
& Geirsson, A. (2022). Widening volume and
persistent outcome disparity in Valve Operations:
New York Statewide Analysis, 2005–2016. The
Journal of Thoracic and Cardiovascular Surgery,
164(6). https://doi.org/10.1016/j.jtcvs.2020.11.098.
442 Iwatsuki, M., Yamamoto, H., Miyata, H.,
Kakeji, Y., Yoshida, K., Konno, H., Seto, Y., & Baba,
H. (2018). Effect of hospital and surgeon volume on
postoperative outcomes after distal gastrectomy for
gastric cancer based on data from 145,523 Japanese
patients collected from a nationwide web-based
data entry system. Gastric Cancer, 22(1), 190–201.
https://doi.org/10.1007/s10120-018-0883-1.
443 Jha AK. (2015) Back to the Future: Volume as
a Quality Metric. JAMA Forum Archive. Published
online June 10, 2015. https://jamanetwork.com/
channels/health-forum/fullarticle/2760155.
444 Ibid.
445 ASC Specifications Manual version 5.1.
Available at: https://qualitynet.cms.gov/asc/
specifications-manuals#tab6.
446 Saito, Y., Tateishi, K., Kanda, M., Shiko, Y.,
Kawasaki, Y., Kobayashi, Y., & Inoue, T. (2022).
Volume-outcome relationships for percutaneous
coronary intervention in acute myocardial
infarction. Journal of the American Heart
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further stated our belief that publicly
reporting volume data would provide
patients with beneficial information to
use when selecting a care provider (76
FR 74507).
In the CY 2018 OPPS/ASC final rule
(82 FR 59449 through 59450), we stated
our belief at that time that other
measures in the ASCQR Program on
specific procedure types, such as the
Unplanned Anterior Vitrectomy
measure, could provide patients with
more valuable ASC quality of care
information than the ASC Procedure
Volume measure. Thus, we removed the
ASC Procedure Volume measure
beginning with the CY 2019 payment
determination based on the availability
of other measures that are ‘‘more
strongly associated with desired patient
outcomes for the particular topic’’
(currently Factor 6 in our regulation at
§ 416.320(c)(vi)) (82 FR 59449).
However, a commenter who opposed
the removal of the ASC Procedure
Volume measure at the time emphasized
the measure data’s usefulness for
comparative research, outcomes
research, immediate consumer value,
and strategic planning (82 FR 59449).
One commenter also expressed concern
that non-availability of these data would
interfere with the acceptance of ASCbased procedures, asserting that this
measure helps to demonstrate the value
of ASC-based procedures (82 FR 59449).
These commenters further noted that
the measure was not overly burdensome
and, therefore, should not be removed
(82 FR 59449). At the time, while we
recognized the value of the measure and
these concerns, we believed, overall,
that the administrative burden and
maintenance costs associated with this
measure outweighed the benefits of
keeping the measure in the ASCQR
Program (82 FR 59449 through 59450).
In the CY 2023 OPPS/ASC final rule
(87 FR 72127 through 72130), we stated
that we have been considering readopting the ASC Procedure Volume
measure for two reasons. First, since the
removal of the ASC Procedure Volume
measure, scientific literature has
concluded that volume metrics serve as
an indicator of which facilities are
experienced with certain outpatient
procedures and can assist consumers in
making informed decisions about where
Association, 11(6). https://doi.org/10.1161/
jaha.121.023805.
447 Vemulapalli, S., Carroll, J., & Mack, M. et al.
(2019) Procedural Volume and Outcomes for
Transcatheter Aortic-Valve Replacement. The New
England Journal of Medicine, 380(26), 2541–2550.
https://doi.org/10.1056/NEJMsa1901109.
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they receive care.448 Further supporting
this position that volume metrics are an
indicator of quality, one study found an
inverse volume-mortality relationship
related to transfemoral transcatheter
aortic-valve replacement (TAVR)
procedures performed from 2015
through 2017.449 Second, as discussed
above, the recent shift of more surgical
procedures being performed in
outpatient settings has placed greater
importance on tracking the volume of
outpatient procedures in different
settings, including ASCs. We believe
that patients and their caregivers may
benefit from the public reporting of
facility-level volume measure data
because the volume data illuminate
which procedures are performed across
ASCs, provide the ability to track
volume changes by facility and
procedure category, and can serve as an
indicator for patients of which facilities
are experienced with certain outpatient
procedures. The ASC Procedure Volume
measure was the only measure in the
ASCQR Program measure set that
captured facility-level volume within
ASCs for both Medicare beneficiaries
and non-Medicare patients. As a result
of this measure’s removal in the CY
2018 OPPS/ASC final rule, the ASCQR
Program currently does not capture
outpatient surgical procedure volume in
ASCs.
In response to our request for
comment in the CY 2023 OPPS/ASC
proposed rule (87 FR 44748 through
44750) regarding the potential inclusion
of a volume measure in the ASCQR
Program, a few commenters suggested
that we can determine facility volumes
for procedures performed using
Medicare Fee-For-Service (FFS) claims
(87 72129 through 72130). However, we
note that the ASC Procedure Volume
measure included the submission of
both Medicare and non-Medicare
volume data; thus, relying solely on the
use of Medicare FFS claims data to
simplify reporting would limit a future
volume measure to only the Medicare
program payer, leading to an incomplete
representation of ASCs’ procedural
volume.450
448 Ogola GO, Crandall ML, Richter KM, & Shafi
S. (2018). High-volume hospitals are associated
with lower mortality among high-risk emergency
general surgery patients. Journal of Trauma and
Acute Care Surgery, 85(3), 560–565. https://doi.org/
10.1097/TA.0000000000001985.
449 Vemulapalli S, Carroll J, Mack M, et al. (2019).
Procedural Volume and Outcomes for Transcatheter
Aortic-Valve Replacement. The New England
Journal of Medicine, 380(26), 2541–2550. https://
doi.org/10.1056/NEJMsa1901109.
450 The specifications for the removed ASC
Procedure Volume measure are available in the ASC
Specifications Manual version 5.1 available at
https://qualitynet.cms.gov/asc/specificationsmanuals#tab6.
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Additionally, in response to our
request for comment in the CY 2023
OPPS/ASC proposed rule (87 FR 44748
through 44750), a few commenters
stated that they believe there is a lack
of evidence proving the correlation
between volume and quality (87 FR
72129 through 72130). However, many
studies in recent years have shown that
volume does serve as an indicator of
quality of care.451 452 For example,
studies published since the CY 2018
OPPS/ASC final rule found that patients
at high volume hospitals for a specific
procedure had lower rates of surgical
site infections, complications, and
mortality compared to patients at lowvolume hospitals.453 454 We reiterate our
belief, grounded in this published
scientific literature, that volume metrics
serve as an indicator of which facilities
are experienced with certain outpatient
procedures and assist consumers in
making informed decisions about where
they receive care.455 456
(2) Overview of Measure
(a) Data Collection, Submission,
Reporting, and Measure Specifications
The proposed ASC Procedure Volume
measure collects data regarding the
aggregate count of selected surgical
procedures. Most ASC procedures fall
into one of eight categories:
Cardiovascular, Eye, Gastrointestinal,
Genitourinary, Musculoskeletal,
Nervous System, Respiratory, and
451 Ogola, Gerald O. Ph.D., MPH; Crandall, Marie
L. MD, MPH; Richter, Kathleen M. MS, MBA, MFA;
& Shafi, Shahid MD, MPH. (2018) High-volume
hospitals are associated with lower mortality among
high-risk emergency general surgery patients.
Journal of Trauma and Acute Care Surgery:
September 2018—Volume 85—Issue 3—p 560–565
https://doi.org/10.1097/TA.0000000000001985.
452 Vemulapalli, S., Carroll, J., & Mack, M. et al.
(2019) Procedural Volume and Outcomes for
Transcatheter Aortic-Valve Replacement. The New
England Journal of Medicine, 380(26), 2541–2550.
https://doi.org/10.1056/NEJMsa1901109.
453 Mufarrih, S.H., Ghani, M.O.A., Martins, R.S. et
al. (2019) Effect of hospital volume on outcomes of
total hip arthroplasty: a systematic review and
metaanalysis. J Orthop Surg Res 14, 468. https://
doi.org/10.1186/s13018-019-1531-0.
454 Saito, Y., Tateishi, K., Kanda, M., Shiko, Y.,
Kawasaki, Y., Kobayashi, Y., & Inoue, T. (2022).
Volume-outcome relationships for percutaneous
coronary intervention in acute myocardial
infarction. Journal of the American Heart
Association, 11(6). https://doi.org/10.1161/
jaha.121.023805.
455 Ogola GO, Crandall ML, Richter KM, Shafi, S.
(2018). High-volume hospitals are associated with
lower mortality among high-risk emergency general
surgery patients. Journal of Trauma and Acute Care
Surgery, 85(3), 560–565. https://doi.org/10.1097/
TA.0000000000001985.
456 Vemulapalli S, Carroll J, Mack M, et al. (2019).
Procedural Volume and Outcomes for Transcatheter
Aortic-Valve Replacement. The New England
Journal of Medicine, 380(26), 2541–2550. https://
doi.org/10.1056/NEJMsa1901109.
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Sfmt 4702
Skin.457 For this proposed measure, data
surrounding the top five most frequently
performed procedures among ASCs in
each category will be collected and
publicly displayed. The top five
procedures in each category would be
assessed and updated annually as
needed to ensure data collection of most
accurate and frequently performed
procedures.458
We propose that ASCs would submit
aggregate-level data through the CMS
web-based tool (currently the Hospital
Quality Reporting (HQR) system),
consistent with what was required
during the measure’s initial adoption
(76 FR 74508). Data received through
the HQR system would then be publicly
displayed on the data.cms.gov website
or another CMS website. We refer
readers to § 416.315 for our codified
policies regarding public reporting of
data under the ASCQR Program.
We propose to re-adopt the ASC
Procedure Volume measure with
modification, with voluntary reporting
beginning with the CY 2025 reporting
period followed by mandatory reporting
beginning with CY 2026 reporting
period/CY 2028 payment determination.
At the time of this measure’s initial
adoption in the CY 2012 OPPS/ASC
final rule (76 FR 74509), we finalized
that ASCs would report all-patient
volume data with respect to six
categories: Gastrointestinal, Eye,
Nervous System, Musculoskeletal, Skin,
and Genitourinary. The first
modification of this previously adopted
measure that we propose is that the ASC
Procedure Volume measure data
collection will cover eight categories:
Cardiovascular, Eye, Gastrointestinal,
Genitourinary, Musculoskeletal,
Nervous System, Respiratory, and Skin.
Furthermore, in response to commenter
concerns regarding potential difficulty
detecting procedural volume
differention among these broad based
categories (76 FR 74508), the second
modification to this measure that we
propose is that instead of collecting and
publicly displaying data surrounding
these eight broad categories, we would
more granularly collect and publicly
display data reported for the top five
most frequently performed procedures
among ASCs within each category will
be collected. We refer readers to the
Center for Medicare and Medicaid
Services Inventory Tool for more
information on this measure: https://
cmit.cms.gov/cmit/#/.
457 ASC Specifications Manual version 1.0b.
Available at: https://qualitynet.cms.gov/asc/
specifications-manuals#tab6.
458 Data source: Clinical Data Warehouse; CMS
ASC Part B claims for encounters January 1, 2022–
December 31, 2022.
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We also propose that ASCs submit
these data to CMS during the time
period of January 1 through May 15 in
the year prior to the affected payment
determination year. For example, for the
CY 2028 payment determination, the
data submission period would be
January 1, 2027 to May 15, 2027,
covering the performance period of
January 1, 2026 to December 31, 2026.
We refer readers to section XV.D.1.c of
this proposed rule for a more detailed
discussion of the requirements for data
submitted via a CMS online web-based
tool. We previously codified our
existing policies regarding data
collection and submission under the
ASCQR Program at § 416.310.
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(b) Review by the Measure Applications
Partnership (MAP)
The MAP conditionally supported the
ASC Procedure Volume measure for
rulemaking, pending testing indicating
that the measure is reliable and valid,
and endorsement by a CBE.459
Additionally, the MAP noted that
electronic reporting of procedure
volumes based on code lists should not
be overly burdensome to ASCs, and the
public reporting of specific procedure
volumes may be useful to patients.
The MAP members expressed
differing views on the value of volume
data to patients. Specifically, the MAP
members representing patients stated
the measure would be useful to patients
as they decide where to seek care, as
one data point along with others (for
example, advice from providers).
However, other MAP members
expressed concern about the value of
volume data for informing patient
decisions without other context and
encouraged the use of outcome
measures instead.460
As discussed above, we reiterate that
various studies have found that there is
a well-established positive correlation
between the volume of procedures
performed at a facility and the clinical
outcomes resulting from that procedure.
For instance, a recent systematic review
highlighted by the MAP found a
significant volume-outcome relationship
in the vast majority (87 percent) of the
403 studies analyzed.461 The MAP
459 Pre-rulemaking MUC lists and map reports.
Pre-Rulemaking MUC Lists and MAP Reports | The
Measures Management System. (n.d.). Retrieved
March 13, 2023, from https://mmshub.cms.gov/
measure-lifecycle/measure-implementation/prerulemaking/lists-and-reports.
460 Ibid.
461 Levaillant, M., Marcilly, R., Levaillant, L.,
Michel, P., Hamel-Broza, J.F., Vallet, B., & Lamer,
A. (2021). Assessing the hospital volume-outcome
relationship in surgery: A scoping review. BMC
Medical Research Methodology, 21(1). https://
doi.org/10.1186/s12874-021-01396-6.
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noted a similar review focused on
outpatient surgeries that similarly found
a significant volume-outcome
relationship across eight studies.462
The MAP stated that this measure
addresses a national trend in which
surgeries are moving from hospital
inpatient settings to ASCs, and that
public reporting of this measure could
help CMS and the public better
understand differences in the quality of
care provided at facilities.463 The MAP
reported that ASC Procedure Volume
measure data from 2015 and 2016
demonstrates variation in performance
in the number of procedures performed
by facilities in the 25th and 75th
percentiles across the condition
categories.464 These findings support
our belief, grounded in additional
published scientific literature, that
volume metrics serve as an indicator of
which facilities are experienced with
certain outpatient procedures and can
assist consumers in making informed
decisions about where they receive
care.465 466
In addition, the MAP noted the
concurrent submission of MUC
(Measures Under Consideration) 2022–
030: Hospital Outpatient Department
Volume Data on Selected Outpatient
Surgical Procedures for inclusion in the
Hospital Outpatient Quality Reporting
(OQR) Program.467 The MAP
highlighted that the specifications of the
volume measure proposed for the
Hospital OQR Program are aligned with
the volume measure we propose for the
ASCQR Program and, therefore, would
462 Stanak, M., & Strohmaier, C. (2020). Minimum
volume standards in day surgery: A systematic
review. BMC Health Services Research, 20(1).
https://doi.org/10.1186/s12913-020-05724-2.
463 Medicare Payment Advisory Commission.
March 2021 Report to the Congress: Medicare
Payment Policy. Available at: https://
www.medpac.gov/document/march-2021-report-tothe-congress-medicare-payment-policy/.
464 Pre-rulemaking MUC lists and map reports.
The Measures Management System. (n.d.).
Retrieved March 13, 2023, from https://
mmshub.cms.gov/measure-lifecycle/measureimplementation/pre-rulemaking/lists-and-reports.
465 Ogola, Gerald O. Ph.D., MPH; Crandall, Marie
L. MD, MPH; Richter, Kathleen M. MS, MBA, MFA;
Shafi, & Shahid MD, MPH. (2018) High-volume
hospitals are associated with lower mortality among
high-risk emergency general surgery patients.
Journal of Trauma and Acute Care Surgery:
September 2018—Volume 85—Issue 3—p 560–565.
https://doi.org/10.1097/TA.0000000000001985.
466 Saito, Y., Tateishi, K., Kanda, M., Shiko, Y.,
Kawasaki, Y., Kobayashi, Y., & Inoue, T. (2022).
Volume-outcome relationships for percutaneous
coronary intervention in acute myocardial
infarction. Journal of the American Heart
Association, 11(6). https://doi.org/10.1161/
jaha.121.023805.
467 Pre-rulemaking MUC lists and map reports.
The Measures Management System. (n.d.).
Retrieved March 13, 2023, from https://
mmshub.cms.gov/measure-lifecycle/measureimplementation/pre-rulemaking/lists-and-reports.
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facilitate comparisons of equivalent
procedure volumes across ASCs and
hospital outpatient departments
(HOPDs), one of the key goals of the
Hospital OQR and ASCQR Programs.
(c) Measure Endorsement
As discussed in the previous
subsection of the proposed rule, the
MAP reviewed and conditionally
supported the ASC Procedure Volume
measure pending testing indicating the
measure is reliable and valid, and
endorsement by a national consensusbased entity as the measure was not
submitted for endorsement. We have
noted in previous rulemaking (76 FR
74494) the requirement that measures
reflect consensus among affected parties
can be achieved in other ways aside
from endorsement by a national
consensus-based entity, including
through the measure development
process, through broad acceptance, use
of the measure(s), and through public
comment.
We considered the MAP’s
recommendation and propose to adopt
the measure because we did not find
any other measures of procedure
volume and this measure was
previously used in the ASCQR Program,
with supporters of its use. Given the
support from the MAP and feedback
from public comment, as well as the
increasing shift from inpatient to
outpatient surgical procedures and
evidence that volume metrics can
promote higher quality healthcare for
patients, we propose the readoption of
this measure, with two modifications, in
the ASCQR Program pending
endorsement from a national consensusbased entity.
We invite public comment on this
proposal.
b. Proposed Adoption of the Risk
Standardized Patient-Reported
Outcome-Based Performance Measure
(PRO–PM) Following Elective Primary
Total Hip Arthroplasty (THA) and/or
Total Knee Arthroplasty (TKA) in the
ASC Setting (THA/TKA PRO–PM)
Beginning With Voluntary CYs 2025
and 2026 Reporting Periods Followed
by Mandatory Reporting Beginning With
the CY 2027 Reporting Period/CY 2030
Payment Determination
(1) Background
In the FY 2023 IPPS/LTCH PPS final
rule (87 FR 49246 through 49257), we
adopted the THA/TKA PRO–PM in the
Hospital Inpatient Quality Reporting
(IQR) Program beginning with voluntary
reporting periods in FY 2025 and FY
2026, followed by mandatory reporting
for eligible elective procedures
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occurring July 1, 2024 through June 30,
2025 for the FY 2028 payment
determination. In this proposed rule, we
propose the adoption of the THA/TKA
PRO–PM into the ASCQR Program using
the same specifications as finalized for
the hospital-level measure adopted into
the Hospital IQR Program (87 FR 49246
through 49257) with modifications to
include procedures performed in the
ASC setting.
Approximately six million adults
aged 65 or older suffer from
osteoarthritis in the United States.468 In
2013, there were approximately 568,000
hospitalizations billed to Medicare for
osteoarthritis.469 Hip and knee
osteoarthritis is one of the leading
causes of disability among noninstitutionalized adults,470 471 and
roughly 80 percent of patients with
osteoarthritis have some limitation in
mobility.472 473 Elective THA and TKA
are most commonly performed for
degenerative joint disease or
osteoarthritis, which affects more than
30 million Americans.474 THA and TKA
offer the potential for significant
improvement in quality of life by
decreasing pain and improving function
in a majority of patients, without
resulting in a high risk of complications
or death.475 476 477 However, not all
468 Arthritis Foundation. (2018). Arthritis By the
Numbers Book of Trusted Facts and Figures.
Accessed March 8, 2019. Available at: https://
www.arthritis.org/getmedia/e1256607-fa87-4593aa8a-8db4f291072a/2019-abtn-final-march2019.pdf.
469 Torio CM, & Moore BJ. (2016). National
inpatient hospital costs: the most expensive
conditions by payer, 2013. HCUP statistical brief
#204. Healthcare Cost and Utilization Project
(HCUP) Statistical Briefs. Rockville, MD, Agency for
Healthcare Research and Quality. Available at:
https://www.ncbi.nlm.nih.gov/books/NBK368492/.
470 Guccione AA, Felson DT, Anderson JJ, et al.
(1994). The effects of specific medical conditions on
the functional limitations of elders in the
Framingham Study. American journal of public
health, 84(3), 351–358. https://www.doi.org/
10.2105/AJPH.84.3.351.
471 Barbour KE, Helmick CG, Boring M, & Brady
TJ. (2017). Vital Signs: Prevalence of DoctorDiagnosed Arthritis and Arthritis-Attributable
Activity Limitation—United States, 2013–2015.
MMWR Morbidity and mortality weekly report,
66(9), 246–253. https://www.doi.org/10.15585/
mmwr.mm6609e1.
472 Michaud CM, McKenna MT, Begg S, et al.
(2006). The burden of disease and injury in the
United States 1996. Population health metrics, 4,
11. https://doi.org/10.1186/1478-7954-4-11.
473 Theis KA, Murphy LB, Baker NA, & Hootman
JM. (2019). When you can’t walk a mile: Walking
limitation prevalence and associations among
middle-aged and older US adults with Arthritis: A
cross-sectional, population-based study. ACR Open
Rheumatol, 1(6), 350–358. https://www.doi.org/
10.1002/acr2.11046.
474 Centers for Disease Control and Prevention.
Osteoarthritis (OA). Accessed March 8, 2019.
Available at: https://www.cdc.gov/arthritis/basics/
osteoarthritis.htm.
475 Rissanen P, Aro S, Slatis P, et al. (1995).
Health and quality of life before and after hip or
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patients experience benefit from these
procedures.478 Many patients note that
their pre-operative expectations for
functional improvement have not been
met.479 480 481 482 In addition, clinical
practice variation has been well
documented in the United
States,483 484 485 486 487 readmission and
complication rates vary across
hospitals,488 489 and international
knee arthroplasty. The Journal of arthroplasty,
10(2), 169–175. https://www.doi.org/10.1016/s08835403(05)80123-8.
476 Ritter MA, Albohm MJ, Keating EM, et al.
(1995). Comparative outcomes of total joint
arthroplasty. The Journal of arthroplasty, 10(6),
737–741. https://doi.org/10.1016/s08835403(05)80068-3.
477 Sayah SM, Karunaratne S, Beckenkamp PR, et
al. (2021). Clinical Course of Pain and Function
Following Total Knee Arthroplasty: A Systematic
Review and Meta-Regression. J Arthroplasty, 36(12),
3993–4002.e37. https://www.doi.org/10.1016/
j.arth.2021.06.019.
478 National Joint Registry. National Joint Registry
for England and Wales 9th Annual Report 2012.
Available at: https://www.hqip.org.uk/wp-content/
uploads/2018/02/national-joint-registry-9th-annualreport-2012.pdf.
479 Suda AJ, Seeger JB, Bitsch RG, et al. (2010).
Are patients’ expectations of hip and knee
arthroplasty fulfilled? A prospective study of 130
patients. Orthopedics, 33(2), 76–80. https://
www.doi.org/10.3928/01477447-20100104-07.
480 Ghomrawi HM, Franco Ferrando N, Mandl LA,
et al. (2011). How Often are Patient and Surgeon
Recovery Expectations for Total Joint Arthroplasty
Aligned? Results of a Pilot Study. HSS journal: The
musculoskeletal journal of Hospital for Special
Surgery, 7(3), 229–234. https://www.doi.org/
10.1007/s11420-011-9203-6.
481 Harris IA, Harris AM, Naylor JM, et al. (2013).
Discordance between patient and surgeon
satisfaction after total joint arthroplasty. The
Journal of arthroplasty, 28(5), 722–727. https://
www.doi.org/10.1016/j.arth.2012.07.044.
482 Jourdan C, Poiraudeau S, Descamps S, et al.
(2012). Comparison of patient and surgeon
expectations of total hip arthroplasty. PloS one,
7(1), e30195. https://www.doi.org/10.1371/
journal.pone.0030195.
483 Roos EM. (2003). Effectiveness and practice
variation of rehabilitation after joint replacement.
Current opinion in rheumatology, 15(2),160–162.
https://doi.org/10.1097/00002281-20030300000014.
484 Anderson FA, Huang W, Friedman RJ, et al.
(2012). Prevention of venous thromboembolism
after hip or knee arthroplasty: findings from a 2008
survey of US orthopedic surgeons. The Journal of
arthroplasty, 27(5), 659–666 e655. https://doi.org/
10.1016/j.arth.2011.09.001.
485 American Academy of Orthopaedic Surgeons.
(2011). Preventing Venous Thromboembolic Disease
in Patients Undergoing Elective Hip and Knee
Arthroplasty: Evidence-Based Guideline and
Evidence Report. https://www.aaos.org/
globalassets/quality-and-practice-resources/vte/vte_
full_guideline_10.31.16.pdf.
486 Pincus D, et al. (2020). Association Between
Surgical Approach and Major Surgical
Complications in Patients Undergoing Total Hip
Arthroplasty. JAMA, 323(11), 1070–1076. https://
doi.org/10.1001/jama.2020.0785.
487 Siebens HC, Sharkey P, Aronow HU, et al.
(2016). Variation in Rehabilitation Treatment
Patterns for Hip Fracture Treated With
Arthroplasty. PM&R, 8(3), 191–207. https://doi.org/
10.1016/j.pmrj.2015.07.005.
488 Suter LG, Grady JN, Lin Z, et al. 2013 Measure
Updates and Specifications: Elective Primary Total
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experience documents wide hospitallevel variation in patient-reported
outcome measure results following THA
and TKA.490
Due to the absence of recently
conducted, large scale and uniformly
collected patient-reported outcome
(PRO) data available from patients
undergoing elective primary THA/TKA,
we established an incentivized,
voluntary PRO data collection
opportunity within the Comprehensive
Care for Joint Replacement (CJR) model
to support measure development.491
Elective THA/TKAs are important,
effective procedures performed on a
broad population, and the patient
outcomes for these procedures (such as
pain, mobility, and quality of life) can
be measured in a scientifically sound
way,492 493 are influenced by a range of
improvements in care,494 and
demonstrate hospital-level variation
even after patient case mix
adjustment.495 496 Further, THA/TKA
procedures are specifically intended to
improve function and reduce pain,
Hip Arthroplasty (THA) And/OR Total Knee
Arthroplasty (TKA) All-Cause Unplanned 30-Day
Risk-Standardized Readmission Measure (Version
2.0). March 2013. Available at: https://
qualitynet.org/.
489 Suter LG, Parzynski CS, Grady JN, et al. 2013
Measures Update and Specifications: Elective
Primary Total Hip Arthroplasty (THA) AND/OR
Total Knee Arthroplasty (TKA) Risk-Standardized
Complication Measure (Version 2.0). March 2013.
Available at: https://qualitynet.org/.
490 Rolfson O. (2010). Patient-reported Outcome
Measures and Health-economic Aspects of Total
Hip Arthroplasty: A study of the Swedish Hip
Arthroplasty Register. Accessed July 20, 2013.
Available at: https://gupea.ub.gu.se/bitstream/
handle/2077/23722/gupea_2077_23722_
1.pdf?sequence=1.
491 Centers for Medicare & Medicaid Services.
Comprehensive Care for Joint Replacement Model.
Available at: https://innovation.cms.gov/
innovation-models/cjr.
492 Liebs TR, Herzberg W, Ruther W, et al. (2016).
Quality-adjusted life years gained by hip and knee
replacement surgery and its aftercare. Archives of
physical medicine and rehabilitation, 97(5), 691–
700. https://doi.org/10.1016/j.apmr.2015.12.021.
493 White D, & Master H. (2016). Patient Reported
Measures of Physical Function in Knee
Osteoarthritis. Rheum Dis Clin North Am, 42(2),
239–252. https://www.ncbi.nlm.nih.gov/pmc/
articles/PMC4853650/.
494 Kim K, Anoushiravani A, Chen K, et al. (2019).
Perioperative Orthopedic Surgical Home:
Optimizing Total Joint Arthroplasty Candidates and
Preventing Readmission. Journal of Arthroplasty,
34(7), S91–S96. https://doi.org/10.1016/j.arth.
2019.01.020.
495 Bozic KJ, Grosso LM, Lin Z, et al. (2014).
Variation in hospital-level risk-standardized
complication rates following elective primary total
hip and knee arthroplasty. The Journal of Bone and
Joint Surgery, 96(8), 640–647. https://www.doi.org/
10.2106/JBJS.L.01639.
496 Makela KT, Peltola M, Sund R, et al. (2011).
Regional and hospital variance in performance of
total hip and knee replacements: A national
population-based study. Annals of medicine,
43(sup1), S31–S38. https://doi.org/10.3109/
07853890.2011.586362.
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number of ASCs performing these
procedures, and the number of
procedures being performed in ASCs, is
relatively low and there is wide
variation in number of procedures
performed in those ASCs, the number of
procedures performed in the ASC
setting has steadily grown.
making PROs a meaningful outcome
metric to assess.497
In the CY 2021 OPPS/ASC final rule
(85 FR 86146), we announced that THA
and TKA procedures were removed
from the Inpatient Only Procedures
(IPO) list and added to the ASC covered
procedures list (CPL). As a result, the
volume of THA and TKA procedures for
Medicare beneficiaries aged 65 years
and older have been increasing in
outpatient settings, including ASCs.
We analyzed Part B Medicare FFS
claims data for the number of ASC
facility claims with THA/TKA
procedures during CYs 2020, 2021, and
2022 (Table 74 below). Though we
acknowledge that currently the total
BILLING CODE 4120–01–P
BILLING CODE 4120–01–C
requested comment on the potential
future adoption of the THA/TKA PRO–
PM into the ASCQR Program. We refer
readers to the CY 2022 OPPS/ASC final
short forms specific to total hip and knee
replacement based on WOMAC function items. The
Bone & Joint Journal, 95(B), 239–243. https://
www.doi.org/10.1302/0301-620X.95B2.28383.
In the CY 2022 OPPS/ASC proposed
rule (86 FR 42251 through 42252), we
497 Liebs T, Herzberg W, Gluth J, et al. (2013).
Using the patient’s perspective to develop function
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rule (86 FR 63896 through 63898) for a
complete summary of feedback from
interested parties.
Many commenters supported
inclusion of the THA/TKA PRO–PM to
the ASCQR Program as procedures
move from inpatient to outpatient
settings. Commenters noted it was
important to monitor quality outcomes
and publicly report results.
Additionally, commenters stated that
the measure is aligned with patient
values, being presented in a manner that
is easy to understand.
Other commenters did not support
expansion of the measure to the ASCQR
Program, and expressed concern with
data collection burden, patient survey
fatigue, and reporting thresholds. While
we recognize that patient-reported
outcome (PRO) based performance
measures require providers to integrate
data collection into clinical workflows,
this integration provides opportunity for
PROs to inform clinical decision making
and benefits patients by engaging them
in discussions about potential
outcomes. Furthermore, we do not
expect this measure to contribute to
survey fatigue as the PRO instruments
used to calculate pre- and post-operative
scores for this THA/TKA PRO–PM were
carefully selected, with extensive
interested party input, to be low burden
for patients.498 499
We propose to adopt the THA/TKA
PRO–PM into the ASCQR Program
beginning with two voluntary reporting
periods, followed by mandatory
reporting. The first voluntary reporting
period would begin with the CY 2025
reporting period for eligible elective
outpatient procedures between January
1, 2025 through December 31, 2025, and
the second voluntary reporting period
would begin with the CY 2026 reporting
period for eligible outpatient procedures
between January 1, 2026 through
December 31, 2026. Mandatory
reporting would begin with the CY 2027
reporting period/CY 2030 payment
determination for eligible elective
outpatient procedures occurring January
1, 2027 through December 31, 2027,
impacting the CY 2030 payment
determination and subsequent years.
Because this proposed measure requires
collection of data during the 3-month
pre-operative period and the greater
than 1-year post-operative period, there
498 Pre-rulemaking MUC lists and map reports.
The Measures Management System. (n.d.).
Retrieved March 13, 2023, from https://
mmshub.cms.gov/measure-lifecycle/measureimplementation/pre-rulemaking/lists-and-reports.
499 Centers for Medicare and Medicaid Services
Measures Inventory Tool. (n.d.). Retrieved March
28, 2023, from https://cmit.cms.gov/cmit/#/
MeasureView?variantId=11547§ionNumber=1.
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is a delay between when the elective
THA/TKA procedures actually occur,
when the results would be reported
under the ASCQR Program, and when
payment determinations occur.
Therefore, we propose a 3-year gap
between the reporting period and the
payment determination year (for
example, CY 2027 reporting period for
the CY 2030 payment determination) for
the ASCQR Program. We refer readers to
section XV.B.5.b.(2)(a) of this proposed
rule for more information on the
reporting requirements.
(2) Overview of Measure
(a) Data Collection, Submission,
Reporting and Measure Specifications
This measure reports the facility-level
risk-standardized improvement rate
(RSIR) in PROs following elective
primary THA/TKA for Medicare FFS
beneficiaries aged 65 years and older
who were enrolled in Medicare FFS Part
A and B for the 12 months prior to the
date of the procedure and in Medicare
FFS Part A and B during the procedure.
The measure includes only elective
primary outpatient THA/TKA
procedures (patients with fractures and
revisions are not included) performed at
ASCs and does not include any
inpatient procedures. The measure
excludes patients with staged
procedures (multiple elective primary
THA or TKA procedures performed on
the same patient during distinct
encounters) that occur during the
measurement period and excludes
discontinued procedures (that is,
procedures that were started but not
completed).500
Substantial clinical improvement is
measured by achieving a pre-defined
improvement in score on one of the two
validated joint-specific PRO instruments
measuring hip or knee pain and
functioning: (1) The Hip Dysfunction
and Osteoarthritis Outcome Score for
Joint Replacement (HOOS, JR) for
completion by THA recipients; or (2) the
Knee injury and Osteoarthritis Outcome
Score for Joint Replacement (KOOS, JR)
for completion by TKA recipients.
Improvement is measured from the preoperative assessment (data collected 90
to 0 days before surgery) to the postoperative assessment (data collected 300
to 425 days following surgery).
Improvement scores are risk-adjusted to
account for differences in patient case500 U.S. Department of Health and Human
Services. (2021). Hospital Outpatient Prospective
Payment System (OPPS): Use of Modifiers –52, –73,
and –74 for Reduced or Discontinued Services.
Available at: https://www.hhs.gov/guidance/
document/hospital-outpatient-prospectivepayment-system-opps-use-modifiers-52-73-and-74reduced-or.
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mix. The measure, as proposed,
accounts for potential non-response bias
in measure scores through inverse
probability weighting based on
likelihood of response.
We refer readers to the FY 2023 IPPS/
LTCH PPS final rule (87 FR 49246
through 49257) for more information on
the development of the hospital-level
THA/TKA PRO–PM, including
background on the measure and a
complete summary of measure
specifications, data sources, and
measure calculation.
For additional details regarding the
measure specifications, we also refer
readers to the Hip and Knee
Arthroplasty Patient-Reported
Outcomes file, available at https://
www.cms.gov/Medicare/QualityInitiatives-Patient-AssessmentInstruments/HospitalQualityInits/
Measure-Methodology.
(i) Data Sources
The THA/TKA PRO–PM uses four
sources of data for the calculation of the
measure: (1) PRO data; (2) claims data;
(3) Medicare enrollment and beneficiary
data; and (4) U.S. Census Bureau survey
data. As described in section
XV.B.5.b.(1) of this proposed rule, the
measure uses PRO data directly reported
by the patient regarding their health,
quality of life, or functional status
associated with their health care or
treatment. This patient reported-data are
collected by facilities pre-operatively
and post-operatively, and limited
patient-level risk factor data are
collected with PRO data and identified
in claims as detailed in this section of
the proposed rule.501 The measure
includes PRO data collected with the
two joint-specific PRO instruments
described in this section of the proposed
rule—the HOOS, JR for completion by
THA recipients and the KOOS, JR for
completion by TKA recipients—from
which scores are used to assess
substantial clinical improvement. For
risk-adjustment by pre-operative mental
health score, ASCs would submit one of
two additional PRO instruments, all the
items in either the: (1) the PatientReported Outcomes Measurement
Information System (PROMIS)-Global
Mental Health subscale; or (2) the
Veterans RAND 12-Item Health Survey
(VR–12) Mental Health subscale. The
risk model also includes a one-question
patient-reported assessment of health
literacy—the Single Item Literacy
Screener questionnaire.
501 Higgins JP, Thomas J, Chandler J, et al. (2019).
Cochrane handbook for systematic reviews of
interventions. John Wiley & Sons. https://doi.org/
10.1002/9781119536604.
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Furthermore, the following data
would be collected for identification of
the measure cohort, for risk-adjustment
purposes, and for the statistical
approach to potential non-response bias.
ASC facility claims data would be used
to identify eligible elective primary
outpatient THA/TKA procedures for the
measure cohort to which submitted PRO
data can be matched, and to identify
additional variables for risk-adjustment
and in the statistical approach to
account for response bias, including
patient demographics and clinical
comorbidities up to 12 months prior to
surgery. The Medicare Enrollment
Database (EDB) identifies Medicare FFS
enrollment and patient-identified race,
and the Master Beneficiary Summary
File allows for determination of
Medicare and Medicaid dual eligibility
enrollment status. Demographic
information from the U.S. Census
Bureau’s American Community Survey
allows for derivation of the Agency for
Healthcare Research and Quality
(AHRQ) Socioeconomic Status (SES)
Index score. Race, dual eligibility, and
AHRQ SES Index score are used in the
statistical approach to account for
potential non-response bias in the
outcome calculation. We refer readers to
section XV.B.5.b.(2)(iii) of this proposed
rule for further details regarding the
variables required for data collection
and submission.
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(ii) Measure Calculation
The ASC facility-level THA/TKA
PRO–PM result is calculated by
aggregating all patient-level results
across the facility. This measure would
be calculated and presented as a RSIR,
producing a performance measure per
facility which accounts for patient casemix, addresses potential non-response
bias, and represents a measure of quality
of care following elective primary
outpatient THA/TKA. Response rates for
PRO data would be calculated as the
percentage of elective primary ASC
THA or TKA procedures for which
complete and matched pre-operative
and post-operative PRO data have been
submitted divided by the total number
of eligible THA or TKA procedures
performed at each facility.
(iii) Data Submission and Reporting
In response to feedback received from
interested parties in the request for
comments (RFCs) on this measure in the
FY 2022 IPPS/LTCH PPS final rule (86
FR 45408 through 45414) and the CY
2022 OPPS/ASC proposed rule (86 FR
42251 through 42252) and adoption of
the measure in the Hospital IQR
Program in the FY 2023 IPPS/LTCH PPS
final rule (87 FR 49246 through 49257),
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we propose to adopt the THA/TKA
PRO–PM in the ASCQR Program
utilizing flexible data submission
approaches.
ASCs would submit the following
variables collected pre-operatively
between 90 and zero days prior to the
THA/TKA procedure for each patient:
Medicare provider number; Medicare
health insurance claim (HIC) number/
Medicare beneficiary identifier (MBI);
date of birth; date of procedure; date of
PRO data collection; procedure type;
mode of collection; person completing
the survey; facility admission date;
patient-reported outcome measure
version; PROMIS Global (mental health
subscale items) or VR–12 (mental health
subscale items); HOOS, JR (for THA
patients); KOOS, JR (for TKA patients);
Single-Item Health Literacy Screening
(SILS2) questionnaire; BMI or weight
(kg)/height (cm); chronic (≥90 day)
narcotic use; total painful joint count
(patient reported in non-operative lower
extremity joint); and quantified spinal
pain (patient-reported back pain,
Oswestry index question502 503).
ASCs would submit the following
variables collected post-operatively
between 300 and 425 days following the
THA/TKA procedure for each patient:
Medicare provider number; Medicare
HIC number/MBI; date of birth;
procedure date; date of PRO data
collection; procedure type; mode of
collection; person completing the
survey; facility admission date; KOOS,
JR (TKA patients); and HOOS, JR (THA
patients). The data submission period
for the THA/TKA PRO–PM would also
serve as the review and correction
period. Data would not be able to be
corrected following the submission
deadline.
We propose a phased implementation
approach for adoption of this measure to
the ASCQR Program, with voluntary
reporting periods in CYs 2025 and CY
2026 followed by mandatory reporting
beginning with the CY 2027 reporting
period/CY 2030 payment determination
in the ASCQR Program. Voluntary
reporting prior to mandatory reporting
would allow time for facilities to
incorporate the THA/TKA PRO–PM
data collection into their clinical
workflows and is responsive to
interested parties’ comments as
summarized in the FY 2022 IPPS/LTCH
PPS final rule (86 FR 45408 through
45414) and FY 2023 IPPS/LTCH PPS
JC, & Pynsent PB. (2000). The
Oswestry Disability Index. Spine. 25(22), 2940–52
https://journals.lww.com/spinejournal/Abstract/
2000/11150/The_Oswestry_Disability_
Index.17.aspx.
503 The Oswestry Disability Index is in the public
domain and available for all hospitals to use.
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final rule (87 FR 49246 through 49257).
Given the numbers of ASCs, varied
number of procedures being performed,
and the extended follow-up periods, we
considered extending the length of
voluntary reporting.
Following the two voluntary reporting
periods, we propose that mandatory
reporting of the THA/TKA PRO–PM
would begin with the CY 2027 reporting
period/CY 2030 payment determination.
For each voluntary and subsequent
mandatory reporting period, we would
collect data on the THA/TKA PRO–PM
in accordance with Health Insurance
Portability and Accountability Act of
1996 (HIPAA), Privacy and Security
Rules (45 CFR parts 160 and 164,
subparts A, C, and E), and other
applicable law.
(b) Review by Measure Applications
Partnership (MAP)
We included the THA/TKA PRO–PM
measure for the ASCQR Program in the
publicly available ‘‘2022 Measures
Under Consideration List.’’ (MUC2022–
026).504 The MAP Coordinating
Committee supported the measure, as
referenced in the MAP’s 2022–2023
Final Recommendations report to HHS
and CMS.505
The MAP members noted that, while
a similar version of this measure has
been adopted for use in the Hospital
IQR program, a measure that assesses
PROs among THA/TKA patients in
ASCs for the ASCQR Program does not
currently exist. The MAP highlighted
the key strategy for the ASCQR Program
is to ensure that procedures done in any
type of facility have equivalent quality.
As such, the MAP members agree that
quality measures regarding procedures
in hospital settings should be
incorporated into the ASCQR Program,
to the extent feasible and appropriate, so
that consumers can compare quality of
a specific procedure across different
facility types, including ASCs.506
In addition, the MAP members stated
that the goal of the THA/TKA PRO–PM
is to capture the full spectrum of care to
incentivize collaboration and shared
responsibility for improving patient
health and reducing the burden of their
disease. They agreed that this measure
aligns with the goal of patient-centered
approaches to health care quality
improvement and addresses the high
priority areas of patient and family
504 2022 Measures Under Consideration List.
Available at https://mmshub.cms.gov/sites/default/
files/2022-MUC-List.xlsx.
505 MAP MUC Preliminary Recommendations
2022–2023. Available at https://mmshub.cms.gov/
sites/default/files/2022-2023-MAP-FinalRecommendations-508.xlsx.
506 Ibid.
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engagement, communication, and care
coordination for the ASCQR Program.507
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(c) Measure Endorsement
The CBE endorsed the hospital-level
version of the THA/TKA PRO–PM (CBE
#3559) in November 2020.508 We note
that the ASCQR Program version of the
THA/TKA PRO–PM currently uses the
same specifications as the CBE endorsed
hospital-level THA/TKA PRO–PM with
modifications that allow for the capture
of procedures performed in for the ASC
setting. We intend to seek CBE
endorsement for the ASCQR Program’s
version of the THA/TKA PRO–PM in a
future endorsement cycle.
We have noted in previous
rulemaking (76 FR 74494) the
requirement that measures reflect
consensus among affected parties can be
achieved in other ways aside from CBE
b. Summary of Previously Finalized and
Newly Proposed ASCQR Program
Quality Measure Set for the CY 2025
507 Ibid.
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endorsement, including through the
measure development process, through
broad acceptance, use of the measure(s),
and through public comment. We
propose this measure without CBEendorsement based upon strong MAP
and public support combined with the
importance of the measure for Medicare
beneficiaries. In addition, there are two
existing, CBE-endorsed versions of this
measure, one at the clinician-group
level (CBE #3639) and one for the
hospital level (CBE #3559). We expect
that the measure will perform similarly
in the ASC setting, and we intend on
submitting the measure for CBE
endorsement following data collection
during voluntary reporting.
We refer readers to section XV.D.1.d
of this proposed rule for a discussion on
the THA/TKA PRO–PM form, manner,
and timing submission requirements.
We invite public comment on this
proposal.
6. ASCQR Program Quality Measure Set
a. Summary of Previously Finalized and
Newly Proposed ASCQR Program
Quality Measure Set for the CY 2024
Reporting Period/CY 2026 Payment
Determination
We refer readers to the CY 2023
OPPS/ASC final rule (87 FR 72120
through 72121) for the previously
finalized ASCQR Program measure set
for the CY 2024 reporting period/CY
2026 payment determination.
Table 75 below summarizes the
previously finalized and newly
proposed ASCQR Program measures for
the CY 2024 reporting period/CY 2026
payment determination.
BILLING CODE 4120–01–P
Reporting Period/CY 2027 Payment
Determination and Subsequent Years
Table 76 summarizes the previously
finalized and newly proposed ASCQR
Program measures for the CY 2025
508 Centers for Medicaid & Medicare Services.
Hospital-Level, Risk-Standardized Improvement
Rate in Patient-Reported Outcomes Following
Elective Primary Total Hip and/or Total Knee
Arthroplasty (THA/TKA). Available at: https://
cmit.cms.gov/cmit/#/FamilyView?familyId=1618.
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BILLING CODE 4120–01–C
7. Maintenance of Technical
Specifications for Quality Measures
We maintain technical specifications
for previously adopted ASCQR Program
measures. These specifications are
updated as we modify the ASCQR
Program measure set. The manuals that
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contain specifications for the previously
adopted measures can be found on the
CMS website (currently at: https://
qualitynet.cms.gov/asc/specificationsmanuals).509 Our policy on
509 Qualitynet Home. (n.d.). Retrieved March 21,
2023, from https://qualitynet.cms.gov/asc/
specifications-manuals.
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maintenance of technical specifications
for the ASCQR Program are codified in
our regulations at § 416.325. We propose
to amend our measure maintenance
regulation at § 416.325(c) to replace
references to ‘‘QualityNet’’ with ‘‘CMSdesignated information system’’ or
‘‘CMS website,’’ and to make other
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reporting period/CY 2027 payment
determination.
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conforming technical edits, to
accommodate recent and future systems
requirements and mitigate confusion for
program participants.
We invite public comment on this
proposal.
8. Public Reporting of ASCQR Program
Data
We refer readers to the CYs 2012,
2016, 2017, and 2018 OPPS/ASC final
rules (76 FR 74514 through 74515; 80
FR 70531 through 70533; 81 FR 79819
through 79820; and 82 FR 59455
through 59470, respectively) for detailed
discussion of our policies regarding the
public reporting of ASCQR Program
data, which are codified in our
regulations at § 416.315 (80 FR 70533).
We are not proposing any changes to
these policies in this proposed rule.
1. Requirements Regarding Data
Submission
We refer readers to § 416.310(c)(1)(i)
for our current policies regarding
submission of data via our online data
submission tool, including security
official and system registration
requirements. We propose to amend our
collection and submission regulation at
§ 416.310(c)(1)(i) to replace references to
‘‘QualityNet’’ with ‘‘CMS-designated
information system’’ or ‘‘CMS website,’’
and to make other conforming technical
edits, to accommodate recent and future
systems requirements and mitigate
confusion for program participants.
We invite public comment on this
proposal.
ddrumheller on DSK120RN23PROD with PROPOSALS2
2. Requirements Regarding Program
Participation
We refer readers to the CY 2014
OPPS/ASC final rule (78 FR 75133
through 75135) for a complete
discussion of the participation status
requirements beginning with the CY
2014 payment determination. In the CY
2016 OPPS/ASC final rule (80 FR 70533
through 70534), we codified these
requirements regarding participation
status for the ASCQR Program in our
regulations at § 416.305. We propose to
amend our withdrawal regulation at
§ 416.305(b)(1) to replace references to
‘‘QualityNet’’ with ‘‘CMS-designated
information system’’ or ‘‘CMS website,’’
and to make other conforming technical
edits, to accommodate recent and future
systems requirements and mitigate
confusion for program participants.
We invite public comment on this
proposal.
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Previously finalized quality measures
and information collections discussed
in this section were approved by the
Office of Management and Budget
(OMB) under control number 0938–
1270 (expiration date August 31, 2025).
An updated PRA package reflecting the
updated information collection
requirements related to the proposals set
forth in this section of the proposed rule
will be submitted for approval under the
same OMB control number.
1. Data Collection and Submission
a. Background
We previously codified our existing
policies regarding data collection and
submission under the ASCQR Program
in our regulations at § 416.310.
b. Requirements for Claims-Based
Measures
C. Administrative Requirements
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D. Form, Manner, and Timing of Data
Submitted for the ASCQR Program
(1) Requirements Regarding Data
Processing and Collection Periods for
Claims-Based Measures Using Quality
Data Codes (QDCs)
We refer readers to the CY 2014
OPPS/ASC final rule (78 FR 75135) for
a complete summary of the data
processing and collection periods for
the claims-based measures using QDCs
beginning with the CY 2012 reporting
period/CY 2014 payment determination.
In the CY 2016 OPPS/ASC final rule (80
FR 70534), we codified the requirements
regarding data processing and collection
periods for claims-based measures using
QDCs for the ASCQR Program in our
regulations at § 416.310(a)(1) and (2).
We note that the previously finalized
data processing and collection period
requirements will apply to any future
claims-based measures using QDCs
adopted in the ASCQR Program.
We are not proposing any changes to
these policies in this proposed rule.
(2) Minimum Threshold, Minimum Case
Volume, and Data Completeness for
Claims-Based Measures Using QDCs
We refer readers to the CY 2018
OPPS/ASC final rule (82 FR 59472) (and
the previous rulemakings cited therein),
as well as our regulations at
§§ 416.310(a)(3) and 416.305(c) for our
policies about minimum threshold,
minimum case volume, and data
completeness for claims-based measures
using QDCs. We also refer readers to
section XVI.D.1.b of the CY 2022 OPPS/
ASC final rule (86 FR 63904 through
63905), where we finalized that our
policies for minimum threshold,
minimum case volume, and data
completeness requirements apply to any
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future claims-based-measures using
QDCs adopted in the ASCQR Program.
We are not proposing any changes to
these policies in this proposed rule.
(3) Requirements Regarding Data
Processing and Collection Periods for
Non-QDC Based, Claims-Based Measure
Data
We refer readers to the CY 2019
OPPS/ASC final rule (83 FR 59136
through 59138) for a complete summary
of the data processing and collection
requirements for the non-QDC based,
claims-based measures. We codified the
requirements regarding data processing
and collection periods for non-QDC,
claims-based measures for the ASCQR
Program in our regulations at
§ 416.310(b). We note that these
requirements for non-QDC based,
claims-based measures apply to the
following previously adopted measures:
• Facility 7-Day Risk-Standardized
Hospital Visit Rate after Outpatient
Colonoscopy; and
• Facility-Level 7-Day Hospital Visits
after General Surgery Procedures
Performed at Ambulatory Surgical
Centers (CBE #3357).
We are not proposing any changes to
these policies in this proposed rule.
c. Requirements for Data Submitted Via
an Online Data Submission Tool
(1) Requirements for Data Submitted Via
a CMS Online Data Submission Tool
We refer readers to the CY 2018
OPPS/ASC final rule (82 FR 59473) (and
the previous rulemakings cited therein)
and our regulations at § 416.310(c)(1) for
our requirements regarding data
submitted via a CMS online data
submission tool. We are currently using
the HQR System (formerly referred to as
the QualityNet Secure Portal) 510 to host
our CMS online data submission tool,
available by securely logging in at:
https://hqr.cms.gov/hqrng/login. We
note that, in the CY 2018 OPPS/ASC
final rule (82 FR 59473), we finalized
expanded submission via the CMS
online tool to also allow for batch data
submission and made corresponding
changes at § 416.310(c)(1)(i).
• The following previously finalized
measures require data to be submitted
via a CMS online data submission tool
beginning with the CY 2019 reporting
period/CY 2021 payment determination:
Endoscopy/Polyp Surveillance:
Appropriate Follow-Up Interval for
Normal Colonoscopy in Average Risk
Patients;
• Cataracts Visual Function measure
(Previously referred to as Cataracts:
510 The HQR System was previously referred to as
the QualityNet Secure Portal.
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Improvement in Patients’ Visual
Function within 90 Days Following
Cataract Surgery);
• Normothermia Outcome; and
• Unplanned Anterior Vitrectomy.
In the CY 2022 OPPS/ASC final rule
(86 FR 63883 through 63885), we
finalized our proposal to require and
resume data collection beginning with
the CY 2023 reporting period/CY 2025
payment determination for the
following four measures:
• Patient Burn;
• Patient Fall;
• Wrong Site, Wrong Side, Wrong
Patient, Wrong Procedure, Wrong
Implant; and
• All-Cause Hospital Transfer/
Admission.
Measure data for these measures must
be submitted via the HQR System.
Other than the proposal to amend
§ 416.310(c)(1)(i) and (d)(1) discussed in
section XV.C.1 of this proposed rule, we
are not proposing any changes to these
policies in this proposed rule.
ddrumheller on DSK120RN23PROD with PROPOSALS2
(a) Proposed Data Submission and
Reporting Requirements for the ASC
Procedure Volume Measure
In section XV.B.5.a of this proposed
rule, we propose to re-adopt the ASC
Procedure Volume measure (with
modification), with voluntary reporting
beginning with the CY 2025 reporting
period followed by mandatory reporting
beginning with CY 2026 reporting
period/CY 2028 payment determination.
We also propose that ASCs submit these
data to CMS through the HQR System
during the time period of January 1 to
May 15 in the year prior to the affected
payment determination year. For
example, for the CY 2025 reporting
period, the data submission period
would be January 1, 2026 to May 15,
2026, covering the performance period
of January 1, 2025 to December 31,
2025.
Under this proposed measure, we will
collect and publicly display data
surrounding the top five most frequently
performed procedures among ASCs in
each of the following eight categories:
Cardiovascular, Eye, Gastrointestinal,
Genitourinary, Musculoskeletal,
Nervous System, Respiratory, and
Skin.511 We will assess and update the
top five procedures in each category
annually as needed. We propose that
ASCs would submit aggregate-level data
through the CMS web-based tool
(currently the HQR system). Data
received through the HQR system
website will then be publicly displayed
511 Ambulatory Surgical Center Specifications
Manuals. Available at https://qualitynet.cms.gov/
asc/specifications-manuals#tab6.
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on the data.cms.gov website, or other
CMS website, following our 30-day
preview period of submitted data.
We refer readers to our regulation at
§ 416.315 for our codified policies
regarding public reporting of data under
the ASCQR Program, as well as our
existing policies regarding data
collection and submission under the
ASCQR Program in our regulations at
§ 416.310.
We invite public comment on this
proposal.
(b) Proposed Data Submission and
Reporting Requirements for the
Cataracts Visual Function Measure
In section XV.B.4.b of this proposed
rule, we propose to modify the Cataracts
Visual Function measure by
standardizing acceptable survey
instruments, beginning with the CY
2024 reporting period, which would
limit the allowable survey instruments
to those listed below:
• The National Eye Institute Visual
Function Questionnaire-25 (NEI VFQ–
25)
• The Visual Functioning Patient
Questionnaire (VF–14)
• The Visual Functioning Index Patient
Questionnaire (VF–8R)
We also propose that ASCs submit
these data to CMS during the time
period of January 1 to May 15 in the
year prior to the affected payment
determination year. For example, for the
CY 2024 reporting period, the data
submission period would be January 1,
2025 to May 15, 2025, covering the
performance period of January 1, 2024
to December 31, 2024. Specifically, for
data collection, we propose that ASCs
submit aggregate-level data through the
HQR System. We previously codified
our existing policies regarding data
collection and submission under the
ASCQR Program in our regulations at
§ 416.310.
We invite public comment on this
proposal.
(2) Requirements for Data Submitted Via
a Non-CMS Online Data Submission
Tool
We refer readers to the CY 2014
OPPS/ASC final rule (78 FR 75139
through 75140) and the CY 2015 OPPS/
ASC final rule (79 FR 66985 through
66986) for our requirements regarding
data submitted via a non-CMS online
data submission tool (specifically, the
CDC’s National Health Safety Network
[NHSN]). We codified our existing
policies regarding the data collection
periods for measures involving online
data submission and the deadline for
data submission via a non-CMS online
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49821
data submission tool in our regulations
at § 416.310(c)(2). While we did not
finalize any changes to those policies in
the CY 2022 OPPS/ASC final rule (86
FR 63875 through 63883), we did
finalize policies specific to the COVID–
19 Vaccination Coverage Among HCP
measure, for which data will be
submitted via the CDC NHSN. In section
XV.B.4.a of this proposed rule, we
discuss the proposed modification of
the COVID–19 Vaccination Coverage
Among HCP measure beginning with
the CY 2024 reporting period/CY 2026
payment determination. The
requirements for measure data
submitted via the CDC NHSN website
would remain as previously finalized.
We are not proposing any changes to
these policies in this proposed rule.
d. Proposed Data Submission and
Reporting Requirements for PatientReported Outcome-Based Performance
Measures (PRO–PMs)
In section XV.B.5.b of this proposed
rule, we propose to adopt the THA/TKA
PRO–PM into the ASCQR Program
measure set. We also propose the
reporting and submission requirements
for PRO–PM measures as a new type of
measure to the ASCQR Program.
(1) Submission of PRO–PM Data
(a) Data Submission Generally
We believe that ASCs should have the
choice of selecting from multiple
submission approaches, in line with
input received by the measure
developer during measure development
and comments as summarized in the FY
2022 IPPS/LTCH PPS final rule (86 FR
45411 through 45414), which
recommended that we provide multiple
options for data submission
mechanisms to ensure flexibility.
In section XV.B.5.b of this proposed
rule, we propose that both ASCs and
vendors use the HQR System for data
submission for the THA/TKA PRO–PM,
which would enable us to incorporate
this new requirement into the
infrastructure we have developed and
use to collect other quality data. We
would provide ASCs with additional
detailed information and instructions
for submitting data using the HQR
System through CMS’ existing websites,
and through outreach, or both.
We invite public comment on these
proposals.
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(2) Data Submission Reporting
Requirements
(a) Data Submission Requirements for
Measures Submitted via a Web-Based
Tool
We refer readers to the QualityNet
website available at: https://
qualitynet.cms.gov for a discussion of
the requirements for measure data
submitted via the HQR System (formerly
referred to as the QualityNet Secure
Portal) for the CY 2017 payment
determination and subsequent years.
The HQR System is safeguarded in
accordance with the HIPAA Privacy and
Security Rules to protect submitted
patient information. See 45 CFR parts
160 and 164, subparts A, C, and E, for
more information regarding the HIPAA
Privacy and Security Rules.
(b) Voluntary Reporting Requirements
for the Proposed THA/TKA PRO–PM
ddrumheller on DSK120RN23PROD with PROPOSALS2
For ASCs participating in voluntary
reporting for the THA/TKA PRO–PM as
discussed in section XV.B.5.b of this
proposed rule, we propose that ASCs
submit pre-operative PRO data, as well
as matching post-operative PRO data,
for at least 45 percent of their eligible
elective primary THA/TKA procedures.
For the THA/TKA PRO–PM, we
propose that the first voluntary
reporting period for the CY 2025
reporting period would include preoperative PRO data collection from 90 to
0 days before the procedure (for eligible
elective THA/TKA procedures
performed from January 1, 2025 through
December 31, 2025) and post-operative
PRO data collection from 300 to 425
days after the procedure. Therefore,
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during this first voluntary reporting
period for CY 2025, ASCs would submit
pre-operative data by May 15, 2026 and
post-operative data by May 15, 2027,
and we intend to provide ASCs with
their results in confidential feedback
reports in CY 2028. All deadlines
occurring on a Saturday, Sunday, or
legal holiday, or on any other day all or
part of which is declared to be a nonworkday for federal employees by
statute or Executive order would be
extended to the first day thereafter.
After the initial submission of preoperative data for the first voluntary
period, ASCs would submit both preoperative and post-operative data by the
same day, but for different time periods.
For example, ASCs would need to
submit: (1) post-operative data for the
first voluntary reporting period (for
procedures performed between January
1, 2025 and December 31, 2025); and (2)
pre-operative data for the second
voluntary reporting (for procedures
performed between January 1, 2026 and
December 31, 2026) of the THA/TKA
PRO–PM by May 15, 2027.
For the THA/TKA PRO–PM, we
propose that the second voluntary
reporting period for the CY 2026
reporting period would include preoperative PRO data collection from 90 to
0 days before the procedure (for eligible
elective THA/TKA procedures
performed from January 1, 2026,
through December 31, 2026) and postoperative PRO data collection from 300
to 425 days after the procedure. ASCs
would submit pre-operative data by May
15, 2027 and post-operative data by May
15, 2028, and we intend to provide
ASCs with their results in confidential
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feedback reports in CY 2029. ASCs that
voluntarily submit data for this measure
would receive confidential feedback
reports that detail submission results
from the reporting period. Results of
voluntary reporting would not be made
publicly available. If feasible, we would
calculate and provide each participating
ASC with their RSIR as part of the
confidential feedback reports. This
would provide each ASC with an
indication of their performance relative
to the other facilities that participate in
the voluntary reporting period.
While we do not propose to publicly
report the data we receive during the
voluntary reporting periods for the
THA/TKA PRO–PM facility-level RSIR,
we propose to publicly report which
ASCs choose to participate in voluntary
reporting and/or the percent of preoperative data submitted by
participating ASCs for the first
voluntary reporting period, and their
percent of pre-operative and postoperative matched PRO data submitted
for subsequent voluntary reporting
periods. For example, if out of 100
eligible procedures a facility submits 45
pre-operative cases that match to postoperative cases, then we would report
that facilities submitted 45 percent of
matched pre-operative and postoperative PRO surveys during voluntary
reporting.
We refer readers to Table 77 for an
overview of the proposed performance
period, pre- and post-operative data
collection timeframes, and data
submission deadlines during the
voluntary reporting periods for THA/
TKA PRO–PM.
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Following the two voluntary reporting
periods, we propose that mandatory
reporting of the THA/TKA PRO–PM
would begin with reporting PRO data
for eligible elective THA/TKA
procedures from January 1, 2027
through December 31, 2027 (the CY
2027 performance period), impacting
the CY 2030 payment determination.
This initial mandatory reporting would
include pre-operative PRO data
collection from 90 days preceding the
applicable performance period and from
300 to 425 days after the performance
period. For example, pre-operative data
from October 3, 2026 through December
31, 2027 (for eligible elective primary
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THA/TKA procedures from January 1,
2027 through December 31, 2027) and
post-operative PRO data collection from
October 28, 2027 to February 28, 2029.
Pre-operative data submission would
occur by May 15, 2028 and postoperative data submission in May 15,
2029.
We intend to provide ASCs with their
results in CY 2030 before publicly
reporting results on the Compare tool
hosted by HHS, currently available at
https://www.medicare.gov/carecompare, or its successor website. We
would provide confidential feedback
reports during the voluntary period
which would include the RSIR as well
as other results that support
understanding of their performance
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prior to public reporting. For this first
mandatory reporting period, facilities
that fail to meet the reporting
requirements would receive a reduction
of their Annual Payment Update (APU)
in the CY 2030 payment determination.
We propose that ASCs would be
required to submit 45 percent of
eligible, complete pre-operative data
with matching eligible, complete postoperative data as a minimum amount of
data for mandatory reporting in the
ASCQR Program.
We refer readers to Table 78 for an
overview of the proposed performance
period, pre- and post-operative data
collection timeframes, and data
submission deadlines during the first
mandatory reporting period.
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We invite comment on these
proposals.
e. ASCQR Program Data Submission
Deadlines
We refer readers to the CY 2021
OPPS/ASC final rule (85 FR 86191) for
a detailed discussion of our data
submission deadlines policy, which we
codified in our regulations at
§ 416.310(f).
We are not proposing any changes to
this policy in this proposed rule.
f. Review and Corrections Period for
Measure Data Submitted to the ASCQR
Program Review and Corrections Period
for Data Submitted via a CMS Online
Data Submission Tool
We refer readers to the CY 2021
OPPS/ASC final rule (85 FR 86191
through 86192) for a detailed discussion
of our review and corrections period
policy, which we codified in our
regulations at § 416.310(c)(1)(iii).
We are not proposing any changes to
this policy in this proposed rule.
g. ASCQR Program Reconsideration
Procedures
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We refer readers to the CY 2016
OPPS/ASC final rule (82 FR 59475) (and
the previous rulemakings cited therein)
and § 416.330 for the ASCQR Program’s
reconsideration policy.
We are not proposing any changes to
this policy in this proposed rule.
h. Extraordinary Circumstances
Exception (ECE) Process
We refer readers to the CY 2018
OPPS/ASC final rule (82 FR 59474
through 59475) (and the previous
rulemakings cited therein) and
§ 416.310(d) for the ASCQR Program’s
extraordinary circumstance exceptions
(ECE) request policy. We propose to
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amend our exception policy codified at
§ 416.310(d)(1) to replace references to
‘‘QualityNet’’ with ‘‘CMS-designated
information system’’ or ‘‘CMS website’’,
and to make other conforming technical
edits, to accommodate recent and future
systems requirements and mitigate
confusion for program participants.
We invite public comment on this
proposal.
E. Payment Reduction for ASCs That
Fail To Meet the ASCQR Program
Requirements
1. Statutory Background
We refer readers to the CY 2012
OPPS/ASC final rule with comment
period (76 FR 74492 through 74493) for
a detailed discussion of the statutory
background regarding payment
reductions for ASCs that fail to meet the
ASCQR Program requirements.
2. Policy Regarding Reduction to the
ASC Payment Rates for ASCs That Fail
To Meet the ASCQR Program
Requirements for a Payment
Determination Year
The national unadjusted payment
rates for many services paid under the
ASC payment system are equal to the
product of the ASC conversion factor
and the scaled relative payment weight
for the APC to which the service is
assigned. For CY 2022, the ASC
conversion factor is equal to the
conversion factor calculated for the
previous year updated by the
productivity-adjusted hospital market
basket update factor. The productivity
adjustment is set forth in section
1833(i)(2)(D)(v) of the Act. The
productivity-adjusted hospital market
basket update is the annual update for
the ASC payment system for a 5-year
period (CY 2019 through CY 2023).
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Under the ASCQR Program, in
accordance with section 1833(i)(7)(A) of
the Act and as discussed in the CY 2013
OPPS/ASC final rule with comment
period (77 FR 68499), any annual
increase in certain payment rates under
the ASC payment system shall be
reduced by 2.0 percentage points for
ASCs that fail to meet the reporting
requirements of the ASCQR Program.
This reduction applied beginning with
the CY 2014 payment rates (77 FR
68500). For a complete discussion of the
calculation of the ASC conversion factor
and our finalized proposal to update the
ASC payment rates using the inpatient
hospital market basket update for CYs
2019 through 2023, we refer readers to
the CY 2019 OPPS/ASC final rule with
comment period (83 FR 59073 through
59080).
In the CY 2013 OPPS/ASC final rule
with comment period (77 FR 68499
through 68500), in order to implement
the requirement to reduce the annual
update for ASCs that fail to meet the
ASCQR Program requirements, we
finalized the following policies: (1) to
calculate a full update conversion factor
and an ASCQR Program reduced update
conversion factor; (2) to calculate
reduced national unadjusted payment
rates using the ASCQR Program reduced
update conversion factor that would
apply to ASCs that fail to meet their
quality reporting requirements for that
calendar year payment determination;
and (3) that application of the 2.0
percentage point reduction to the
annual update may result in the update
to the ASC payment system being less
than zero prior to the application of the
productivity adjustment. The ASC
conversion factor is used to calculate
the ASC payment rate for services with
the following payment indicators (listed
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in Addenda AA and BB to the proposed
rule, which are available via the internet
on the CMS website): ‘‘A2’’, ‘‘G2’’, ‘‘P2’’,
‘‘R2’’ and ‘‘Z2’’, as well as the service
portion of device-intensive procedures
identified by ‘‘J8’’ (77 FR 68500). We
finalized our proposal that payment for
all services assigned the payment
indicators listed above would be subject
to the reduction of the national
unadjusted payment rates for applicable
ASCs using the ASCQR Program
reduced update conversion factor (77 FR
68500).
The conversion factor is not used to
calculate the ASC payment rates for
separately payable services that are
assigned status indicators other than
payment indicators ‘‘A2’’, ‘‘G2’’, ‘‘J8’’,
‘‘P2’’, ‘‘R2’’ and ‘‘Z2.’’ These services
include separately payable drugs and
biologicals, pass-through devices that
are contractor-priced, brachytherapy
sources that are paid based on the OPPS
payment rates, and certain office-based
procedures, radiology services and
diagnostic tests where payment is based
on the PFS nonfacility PE RVU-based
amount, and a few other specific
services that receive cost-based payment
(77 FR 68500). As a result, we also
finalized our proposal that the ASC
payment rates for these services would
not be reduced for failure to meet the
ASCQR Program requirements because
the payment rates for these services are
not calculated using the ASC conversion
factor and, therefore, are not affected by
reductions to the annual update (77 FR
68500).
Office-based surgical procedures
(generally those performed more than 50
percent of the time in physicians’
offices) and separately paid radiology
services (excluding covered ancillary
radiology services involving certain
nuclear medicine procedures or
involving the use of contrast agents) are
paid at the lesser of the PFS nonfacility
PE RVU-based amounts or the amount
calculated under the standard ASC
ratesetting methodology. Similarly, in
the CY 2015 OPPS/ASC final rule with
comment period (79 FR 66933 through
66934), we finalized our proposal that
payment for certain diagnostic test
codes within the medical range of CPT
codes for which separate payment is
allowed under the OPPS will be at the
lower of the PFS nonfacility PE RVUbased (or technical component) amount
or the rate calculated according to the
standard ASC ratesetting methodology
when provided integral to covered ASC
surgical procedures. In the CY 2013
OPPS/ASC final rule with comment
period (77 FR 68500), we finalized our
proposal that the standard ASC
ratesetting methodology for this type of
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comparison would use the ASC
conversion factor that has been
calculated using the full ASC update
adjusted for productivity. This is
necessary so that the resulting ASC
payment indicator, based on the
comparison, assigned to these
procedures or services is consistent for
each HCPCS code, regardless of whether
payment is based on the full update
conversion factor or the reduced update
conversion factor.
For ASCs that receive the reduced
ASC payment for failure to meet the
ASCQR Program requirements, we have
noted our belief that it is both equitable
and appropriate that a reduction in the
payment for a service should result in
proportionately reduced coinsurance
liability for beneficiaries (77 FR 68500).
Therefore, in the CY 2013 OPPS/ASC
final rule with comment period (77 FR
68500), we finalized our proposal that
the Medicare beneficiary’s national
unadjusted coinsurance for a service to
which a reduced national unadjusted
payment rate applies will be based on
the reduced national unadjusted
payment rate.
In the CY 2013 OPPS/ASC final rule
with comment period, we finalized our
proposal that all other applicable
adjustments to the ASC national
unadjusted payment rates would apply
in those cases when the annual update
is reduced for ASCs that fail to meet the
requirements of the ASCQR Program (77
FR 68500). For example, the following
standard adjustments would apply to
the reduced national unadjusted
payment rates: the wage index
adjustment; the multiple procedure
adjustment; the interrupted procedure
adjustment; and the adjustment for
devices furnished with full or partial
credit or without cost (77 FR 68500). We
believe that these adjustments continue
to be equally applicable to payment for
ASCs that do not meet the ASCQR
Program requirements (77 FR 68500).
In the CY 2015 through CY 2023
OPPS/ASC final rules with comment
period we did not make any other
changes to these policies. We propose
the continuation of these policies for the
CY 2024 reporting period/CY 2026
payment determination.
XVI. Proposed Requirements for the
Rural Emergency Hospital Quality
Reporting (REHQR) Program
A. Background
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transparency, ensure accountability, and
safeguard the accessibility of facilities in
rural settings. We refer readers to
section XVI of the CY 2023 Hospital
Outpatient Prospective Payment System
(OPPS)/Medicare Ambulatory Surgical
Center Payment System (ASC) final rule
(87 FR 72136 through 72150) for an
overview of the REHQR Program.
2. Statutory and Regulatory History of
Quality Reporting for REHs
Congress established Rural Emergency
Hospitals (REHs) as a new Medicare
provider type in the Consolidated
Appropriations Act (CAA), 2021.
Section 125 of Division CC of the CAA
added section 1861(kkk) to the Social
Security Act (the Act). This section
defines an REH as a facility that, in
relevant part, was, as of December 27,
2020 (1) a critical access hospital (CAH);
or (2)(i) a subsection (d) hospital with
not more than 50 beds located in a
county (or equivalent unit of local
government) in a rural area,512 or (ii) a
subsection (d) hospital with not more
than 50 beds that was treated as being
in a rural area.513 514 Among other
requirements, an REH must apply for
enrollment in the Medicare program,
provide emergency department (ED)
services and observation care, and not
provide any acute care inpatient
services (other than post-hospital
extended care services furnished in a
distinct part unit licensed as a skilled
nursing facility).515 516 At the election of
the REH, it can also provide certain
services furnished on an outpatient
basis.517
3. Proposal To Codify the Statutory
Authority of the REHQR Program
We propose to codify the statutory
authority for the REHQR Program at 42
CFR 419.95 by adding paragraph (a)
‘‘Statutory Authority.’’ Section
1861(kkk)(7)(A) of the Act authorizes
the Secretary to implement a quality
reporting program requiring REHs to
submit data on measures in accordance
with the Secretary’s requirements in
section 1861(kkk)(7). Section
1861(kkk)(7)(B)(ii) requires REHs to
submit quality measure data to the
Secretary ‘‘in a form and manner, and at
a time, specified by the Secretary.’’ The
Act does not require the Secretary to
provide incentives for submitting this
512 As
1. Overview
The Rural Emergency Hospital
Quality Reporting (REHQR) Program’s
overarching goals are to improve the
quality of care provided to Medicare
beneficiaries, facilitate public
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defined in section 1886(d)(2)(D) of the Act.
to section 1886(d)(8)(E) of the Act.
514 As set out under section 1861(kkk)(3) of the
Act.
515 42 CFR part 485 subpart E (§§ 485.500 through
485.546).
516 Qualification Requirements for REHs are set
out under section 1861(kkk)(2) of the Act.
517 See section 1861(kkk)(1)(A)(ii) of the Act.
513 Pursuant
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data under the REHQR Program, nor
does it require the Secretary to impose
penalties for failing to comply with this
requirement under the REHQR Program.
We invite public comment on this
proposal.
B. REHQR Program Quality Measures
1. Considerations in the Selection of
REHQR Program Quality Measures
As we stated in the CY 2023 OPPS/
ASC final rule, we seek to adopt a
concise set of important, impactful,
reliable, accurate, and clinically
relevant measures for REHs that would
inform consumer decision-making
regarding care and drive further quality
improvement efforts in the REH setting
(87 FR 72137). As we considered
potential measures for the REHQR
Program, we prioritized measures that
had undergone previous consensusbased entity (CBE) 518 review for the
hospital outpatient department setting
that reflect important areas of service for
REHs while adhering to the CMS
National Quality Strategy goals,519
Strategic Plan,520 Meaningful Measures
2.0 initiatives,521 and the Department of
Health and Human Services’ (HHS)
Strategic Plan.522 When identifying
potential measures for the REHQR
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518 In previous years, we referred to the
consensus-based entity by corporate name. We have
updated this language to refer to the consensusbased entity more generally.
519 CMS (2023). What is the CMS National
Quality Strategy? Available at https://www.cms.gov/
Medicare/Quality-Initiatives-Patient-AssessmentInstruments/Value-Based-Programs/CMS-QualityStrategy. Last accessed April 13, 2023.
520 CMS (2023). CMS Strategic Plan. Available at:
https://www.cms.gov/cms-strategic-plan. Last
accessed March 10, 2023.
521 CMS (2022), Meaningful Measures 2.0: Moving
from Measures Reduction to Modernization.
Available at https://www.cms.gov/medicare/
meaningful-measures-framework/meaningfulmeasures-20-moving-measure-reductionmodernization. Last accessed April 13, 2023.
522 HHS (2022). Strategic Plan FY 2022–2026.
Available at https://www.hhs.gov/about/strategicplan/2022-2026/. Last accessed March
10, 2023.
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Program, we focused on the
considerations of service and patient
volume, care accountability and quality,
rurality and setting relevance, and
health equity.
We note that under section
1861(kkk)(7)(C)(i) of the Act, unless the
exception of subclause (ii) applies, a
measure selected for the REHQR
Program must have been endorsed by
the entity with a contract under section
1890(a) of the Act, also known as the
CBE. The CBE is a voluntary, consensusbased, standard-setting organization
with a diverse representation of
consumer, purchaser, provider,
academic, clinical, and other health care
stakeholder organizations. The CBE was
established to standardize healthcare
quality measurement and reporting
through its consensus development
processes. We have generally adopted
CBE-endorsed measures in our reporting
programs. However, section
1861(kkk)(7)(C)(ii) provides an
exception to CBE-endorsement, which is
that, in the case of a specified area or
medical topic determined appropriate
by the Secretary for which a measure
has not been endorsed by the entity
with a contract under section 1890(a) of
the Act, the Secretary may specify a
measure that is not endorsed as long as
due consideration is given to measures
that have been endorsed or adopted by
a consensus organization identified by
the Secretary. In general, we prefer to
adopt measures that have been endorsed
by the CBE identified by the Secretary;
however, due to lack of an endorsed
measure for a given setting, procedure,
or other aspect of care, the requirement
that measures reflect consensus among
affected parties can be achieved in other
ways, including input from the measure
development process, through broad
acceptance, use of the measure(s) in
other programs, and through public
comment.
We propose to adopt four measures in
this proposed rule: (1) Abdomen
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Computed Tomography (CT)—Use of
Contrast Material; (2) Median Time from
Emergency Department (ED) Arrival to
ED Departure for Discharged ED
Patients; (3) Facility 7-Day RiskStandardized Hospital Visit Rate After
Outpatient Colonoscopy; and (4) RiskStandardized Hospital Visits Within 7
Days After Hospital Outpatient
Surgery—for the REHQR Program
measure set. The proposed measures are
currently adopted measures in the
Hospital Outpatient Quality Reporting
(OQR) Program. We recognize REHs will
be smaller hospitals that will likely have
limited resources compared with larger
hospitals in metropolitan areas.523 For
the REHQR Program, we intend to seek
balance between the costs associated
with reporting data and the benefits of
ensuring safety and quality of care
through measurement and public
reporting. Because REHs will consist of
hospitals formerly operating as either
CAHs or subsection (d) hospitals, we
assessed whether these facilities have
successfully reported the proposed
measures within the context of the
Hospital OQR Program with sufficient
volume to meet CMS case number
thresholds for data to be publicly
reported. We note that CAHs report data
voluntarily under the Hospital OQR
Program. We considered reporting rates
and measure performance for subsection
(d) hospitals that are eligible to convert
to REHs and also analyzed data for other
subsection (d) hospitals that are not
eligible for conversion to permit
comparisons of these providers’ ability
to report these data in sufficient
numbers to permit public reporting and
to view comparative performance. Table
79 includes the results of this analysis.
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523 American Hospital Association, Rural Report.
(February, 2019), 2019 Challenges Facing Rural
Communities and the Roadmap to Ensure Local
Access to High-quality, Affordable Care 3. Available
at https://www.aha.org/system/files/2019-02/ruralreport-2019.pdf. Last accessed February 28, 2023.
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Based on our analysis of these data,
current to the January 2023 refresh of
Care Compare, we note that a relatively
high percentage of the hospitals eligible
to convert to REH status have reported
aggregated measure data in sufficient
number for disclosure per CMS privacy
policy 524 for the measures we propose
for the initial REHQR Program measure
set. For example, in comparing solely
the averages for the Abdomen
Computed Tomography (CT)—Use of
Contrast Material measure, a significant
majority of CAHs (77.9 percent) and
rural subsection (d) hospitals with 50 or
fewer beds (75.5 percent) have data
publicly reported. In addition, for the
Facility 7-Day Risk-Standardized
Hospital Visit Rate After Outpatient
524 CMS Policy for Privacy Act Implementation &
Breach Notification, July 23, 2007, Document
Number: CMS–CIO–POL–PRIV01–01, p 4.
Statistical, aggregate or summarized information
created as a result of analysis conducted using
identifiable CMS data obtained under CMSapproved projects/studies may only be disclosed if
the data are not individual-specific and the data are
aggregated to a level where no data cells contain 10
or fewer individuals.
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Colonoscopy measure, rural subsection
(d) hospitals with 50 or fewer beds were
more often able to have data publicly
reported than urban subsection (d)
hospitals with 50 or fewer beds (65.5
percent versus 43.7 percent), which
indicates that this measure could be
useful for small rural hospitals that
convert. For this latter measure, while
the mean values are similar across
categories of hospitals, the results show
that there are outlier hospitals with
higher levels of hospital events
following outpatient surgery than
expected, which provides potentially
valuable information when discerning
individual hospital performance.
While it is not possible to identify the
exact group of hospitals that will choose
to convert to REH status, our analysis
indicates that the services targeted by
the proposed measures are relevant for
hospitals that may participate in the
REHQR Program as these hospitals are
currently providing the services
assessed by the selected measures with
case volumes sufficient to meet
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thresholds to allow public reporting of
the collected data.525
2. Retention of Measures Previously
Adopted Into the REHQR Program
a. Background
For purposes of our quality reporting
programs, we retain measures from
previously adopted measure sets for
subsequent years unless otherwise
specified; for example, see the Hospital
OQR (42 CFR 419.46(i)(1)) and
Ambulatory Surgical Center Quality
Reporting (ASCQR) Programs
(§ 416.320(a)). As this approach
establishes regularity and predictability
for participating providers and
suppliers, we seek to align the REHQR
Program with this policy.
525 CMS does not report measures publicly unless
measures are the result of an analysis of more than
10 cases. See CMS Policy for Privacy Act
Implementation & Breach Notification, July 23,
2007, Document Number: CMS–CIO–POL–PRIV01–
01, p 4.
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b. Proposal To Adopt and Codify a
Measure Removal Factors Policy
b. Proposal To Adopt and Codify a
Measure Retention Policy for the
REHQR Program
We propose that once adopted into
the REHQR Program measure set, such
measures are retained for use until we
propose removal, suspension, or
replacement. We also propose to codify
this policy at § 419.95 by adding
paragraph (e) ‘‘Retention and Removal
of Quality Measures Under the REHQR
Program.’’ In proposed paragraph (e)(1),
we propose that quality measures would
be adopted into the REHQR Program
measure set until such time that such
measures are proposed for removal,
suspension, or replacement, as set forth
at proposed paragraphs (e)(2) and (e)(3)
of the section.
We invite public comment on these
proposals.
3. Removal of Quality Measures From
the REHQR Program Measure Set
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a. Proposal To Adopt and Codify an
Immediate Removal Policy for Adopted
REHQR Program Measures
When there is reason to believe that
the continued collection of a measure as
currently specified raises potential
patient safety concerns, we believe it
would be appropriate for us to take
immediate action to remove the measure
from the REHQR Program outside of
rulemaking. Therefore, we propose to
adopt an immediate measure removal
policy that would allow us to promptly
remove such a measure and notify REHs
and the public of the decision to remove
the measure through standard hospital
communication channels, including, but
not limited to, REHQR Program-specific
listservs and REHQR Program guidance
currently housed on the QualityNet
website. We also propose to confirm the
removal of the measure in the next
appropriate rulemaking, typically an
OPPS rulemaking cycle. We note that
the Hospital OQR Program previously
finalized a similar policy (74 FR 60634
through 60635).
We propose to codify this policy at
§ 419.95 by adding paragraph (e)(2)
‘‘Immediate Measure Removal.’’ In
proposed paragraph (e)(2), we propose
that in cases where CMS believes that
the continued use of a quality measure
as specified raises patient safety
concerns, CMS would immediately
remove the measure from the REHQR
Program, promptly notify REHs and the
public of the removal of the measure
and the reasons for its removal, and
confirm the removal of the measure in
the next appropriate rulemaking.
We invite public comment on these
proposals.
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The Hospital OQR and ASCQR
Programs use similar sets of factors for
determining whether to remove
measures. For more detail on the
measure removal factors in those
programs, we refer readers to
§§ 419.46(i)(3)(i) and 416.320(c)(2),
respectively. Generally, we prefer to use
similar removal factors across the
quality reporting programs for
consistency and alignment. Therefore,
to enhance alignment with those
programs, we propose to adopt a similar
set of removal factors for the REHQR
Program.
Specifically, we propose to adopt the
following eight factors to determine
conditions for measure removal from
the REHQR Program:
• Factor 1. Measure performance
among REHs is so high and unvarying
that meaningful distinctions and
improvements in performance can no
longer be made (‘‘topped-out’’
measures).
• Factor 2. Performance or
improvement on a measure does not
result in better patient outcomes.
• Factor 3. A measure does not align
with current clinical guidelines or
practice.
• Factor 4. The availability of a more
broadly applicable (across settings,
populations, or conditions) measure for
the topic.
• Factor 5. The availability of a
measure that is more proximal in time
to desired patient outcomes for the
particular topic.
• Factor 6. The availability of a
measure that is more strongly associated
with desired patient outcomes for the
particular topic.
• Factor 7. Collection or public
reporting of a measure leads to negative
unintended consequences other than
patient harm.
• Factor 8. The costs associated with
a measure outweigh the benefit of its
continued use in the program.
In addition, for the proposed Measure
Removal Factor 1, we propose that a
measure for the REHQR Program would
be deemed topped-out by determining:
(1) when the difference between the
75th and 90th percentiles for an REH’s
measure is within two times the
standard error of all measure data
reported for all REHs, and (2) when the
measure’s truncated coefficient of
variation (TCOV) is less than or equal to
0.1.
We propose to codify these policies at
§ 419.95 by adding paragraph (e)(3),
‘‘Measure Removal, Suspension, or
Replacement Through the Rulemaking
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49831
Process.’’ In proposed paragraph (e)(3),
we propose that unless a measure raises
specific safety concerns as set forth in
proposed paragraph (e)(2) of the section,
we would use rulemaking to remove,
suspend, or replace quality measures in
the REHQR Program. We also propose to
adopt the eight removal factors
discussed above by codifying them at
proposed paragraph (e)(3)(i), in
alignment with other quality reporting
programs (74 FR 60634 through 60635,
77 FR 68472, and 83 FR 59082).
Additionally, we propose to adopt the
criteria to determine topped-out
measures discussed above at proposed
paragraph (e)(3)(ii). Similar to the
Hospital OQR Program (79 FR 66941
through 66942), we propose to assess
the benefits of removing a measure from
the REHQR Program on a case-by-case
basis at proposed paragraph (e)(3)(iii).
An REHQR Program measure would not
be removed solely based on meeting any
specific factor.
We invite public comment on these
proposals.
4. Modifications to Previously Adopted
Measures
a. Background
It is important for measures adopted
for the REHQR Program to remain upto-date. We believe the way to achieve
this is to have in place a sub-regulatory
process to incorporate non-substantive
updates to measure specifications to
facilitate the incorporation of scientific
advances and updates to measure
specifications in a as timely manner as
possible.
b. Proposal To Adopt and Codify a SubRegulatory Measure Modification Policy
We propose a policy under which we
would use a sub-regulatory process to
make non-substantive updates to
measures adopted for the REHQR
Program. Examples of non-substantive
changes to measures might include
updated diagnoses or procedure codes.
With respect to what constitutes
substantive versus non-substantive
changes, we expect to make this
determination on a case-by-case basis.
We propose that when there is an
update to an REHQR Program measure
that we believe does not substantially
change the nature of the measure, we
would use a sub-regulatory process to
incorporate those updates to the
measure specifications that we apply to
the program. Specifically, we will
develop a specifications manual that
will provide the complete and current
technical specifications and abstraction
information for quality measures used
in the REHQR Program. We would
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revise the specifications manual to
clearly identify any updates, and would
provide sufficient lead time for REHs to
implement the revisions where changes
to the data collection systems would be
necessary. We would also provide
notification of the measure specification
updates on a designated website,
currently the QualityNet website,
https://qualitynet.cms.gov/. We note
that this proposed policy for the REHQR
Program aligns with the policies under
the Hospital OQR Program (73 FR 68766
through 68767) and ASCQR Program
(§ 416.325) that allow measures to be
refined through a sub-regulatory
process.
We propose to codify this policy at
§ 419.95(d) ‘‘Technical Specifications
and Measure Maintenance Under the
REHQR Program.’’ In proposed
paragraph (d)(2), we propose that
REHQR Program specifications would
be updated based on whether the
change is considered substantive or
non-substantive, as determined by CMS.
In proposed paragraph (d)(2)(ii), we
propose that if CMS determines that a
change to a measure previously adopted
in the REHQR Program is nonsubstantive, CMS would use a subregulatory process to revise the
specifications manual as discussed
above.
Changes that we determine to be
substantive would be those in which the
changes are so significant that the
measure is no longer the same measure.
In proposed paragraph (d)(2)(i), we
propose that we would utilize
rulemaking to adopt substantive updates
to measures previously adopted under
the REHQR Program. We believe that
this proposal adequately balances the
need to incorporate updates to the
REHQR Program measures in the most
expeditious manner possible to
maintain relevancy, reliability, and
accuracy of data collection while also
preserving the public’s ability to
comment on updates that significantly
change a measure.
We invite public comment on these
proposals.
c. Proposal To Develop and Maintain
Technical Specifications for Quality
Measures
We intend to maintain technical
specifications for adopted REHQR
Program measures. We note that many
of the measures considered for the
REHQR Program have been previously
adopted by the Hospital OQR Program.
To simplify and streamline participation
in the REHQR Program, we propose to
adopt a policy for maintaining the
measure specifications of REHQR
Program measures that aligns with the
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Hospital OQR Program’s policy (83 FR
59104 through 59105).
In this proposed rule, we propose
that, whenever we modify the REHQR
Program measures and measure sets, we
would also update the specifications
manual for the REHQR Program. The
manuals containing specifications for
previously adopted measures can be
found on the QualityNet website at:
https://qualitynet.cms.gov/outpatient/
specifications-manuals. At proposed
paragraph (d)(1) of § 419.95, ‘‘Technical
Specifications and Measure
Maintenance Under the REHQR
Program,’’ we propose to update the
specifications manual for REHQR
Program measures at least every 12
months beginning with CY 2024.
We invite public comment on this
proposal.
5. Proposed New Measures for the
REHQR Program Measure Set
In this proposed rule, we propose to
adopt four measures into the REHQR
Program measure set beginning CY
2024: (1) Abdomen Computed
Tomography (CT)—Use of Contrast
Material measure; (2) Median Time from
ED Arrival to ED Departure for
Discharged ED Patients measure; (3)
Facility 7-Day Risk-Standardized
Hospital Visit Rate After Outpatient
Colonoscopy measure; and (4) RiskStandardized Hospital Visits Within 7
Days After Hospital Outpatient Surgery
measure. Three of these measures would
be calculated from Medicare Fee-ForService (FFS) claims and enrollment
information. The fourth is a chartabstracted measure. Many hospitals that
are eligible to convert to REH status
would already have established
resources and experience with
submitting these four measures as part
of the Hospital OQR Program as
previously discussed.
a. Proposal To Adopt the Abdomen
Computed Tomography (CT)—Use of
Contrast Material Measure
(1) Background
A CT study performed with and
without contrast increases the radiation
dose to patients,526 exposing them to the
potential harmful side effects of the
contrast material itself 527 and it is often
526 Sahbaee, P, et. al (2017). The Effect of Contrast
Material on Radiation Dose at CT: Part II. A
Systematic Evaluation across 58 Patient Models.
Radiology, 283(3), 749–757. https://doi.org/
10.1148/radiol.2017152852.
527 An, J, et. al. (2019). Differences in Adverse
Reactions Among Iodinated Contrast Media:
Analysis of the KAERS Database. The Journal of
Allergy and Clinical Immunology: In Practice, 7(7),
2205–2211. https://www.sciencedirect.com/science/
article/abs/pii/S2213219819302570.
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unnecessary.528 In the past, reports
showed deviations from clinically
appropriate American College of
Radiology contrast practices for
abdominal/pelvic CTs nationally.529 A
2020 study using CMS Care Compare
data determined that hospitals are now
conducting fewer duplicate abdomen
CTs (that is, less often performing CTs
twice, once with and once without
contrast). These improvements are more
pronounced among hospitals that
formerly conducted the most duplicate
abdomen CTs. The reduction in
duplicate abdomen CTs observed in the
2020 study may indicate that the
Abdomen Computed Tomography
(CT)—Use of Contrast Material measure
(the Abdomen CT) measure has been
effective in identifying performance
gaps among some hospitals. Thus,
collecting data on this measure may
have been effective in reducing
duplicate abdomen CTs and lowering
related patient risks.530 However, the
same 2020 study found that duplicate
abdomen CTs continue to occur.
We believe that the Abdomen CT
measure is relevant for REH quality
reporting. Although analysis of Care
Compare data indicate the practice of
duplicate scans continues with some
hospitals large and small in both rural
and urban settings, rural hospitals
during the study period accounted for
nearly half of those cases.531 We note
that this measure is also part of the
Hospital OQR Program’s measure set
(adopted in the CY 2009 OPPS/ASC
final rule (73 FR 68766)).
(2) Measure Overview
This measure provides the percentage
of CT abdomen and abdominopelvic
studies performed with and without
contrast out of all CT abdomen studies
performed (those without contrast, those
with contrast, and those with both).
528 Hwang, IK, Lee, YS, Kim, J, Lee, YJ, Park, JH,
Hwang. (2015). Do we really need additional
contrast-enhanced abdominal computed
tomography for differential diagnosis in triage of
middle-aged subjects with suspected biliary pain.
Medicine, 94(7):e546. doi: 10.1097/MD.
0000000000000546.
529 Broder JS, Hamedani AG, Liu SW, Emerman
CL. (2013). Emergency department contrast
practices for abdominal/pelvic computed
tomography—a national survey and comparison
with the American College of Radiology
Appropriateness Criteria(®). J Emerg Med, 44(2):
423–433. Available at: https://doi.org/10.1016/
j.jemermed.2012.08.027. Last accessed February 28,
2023.
530 Davis, M, McKiernan, C, Lama, S, Parzynski,
C, Bruetman, C, & Venkatesh, A., (July, 2020).
Trends in publicly reported quality measures of
hospital imaging efficiency, 2011–2018. American
Journal of Roentology 215: 153–158. Available at
https://www.ajronline.org/doi/pdf/10.2214/AJR.19.
21993. Last accessed April 3, 2023.
531 Ibid.
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Section 1890A(a)(2) of the Act
outlines the pre-rulemaking process
established under section 1890A of the
Act, which requires the Secretary to
make available to the public by
December 1 of each year a list of quality
and efficiency measures under
consideration. The Abdomen CT
measure was on the 2022 Measures
Under Consideration (MUC) list,532 and
the Measure Applications Partnership
(MAP) Hospital Workgroup provided
conditional support for this measure to
be included in rulemaking for the
REHQR Program. The MAP provides an
annual review of the MUC list, and
presents CMS with its recommendations
in its Final Recommendations.533 In its
February 1, 2023 Final
Recommendations, the MAP noted that
the measure addresses a critical priority
of patient safety in rural hospitals for
the REHQR Program.534 In the Final
Recommendations, the MAP noted that
the Health Equity Advisory Group
expressed the importance of the
measure and its potential to advance
health equity, and the Rural Health
Advisory Group discussed the measure
in detail and cited no concerns with
regard to rural health. The MAP
conditionally supported the measure for
rulemaking, pending testing indicating
the measure is reliable and valid, and
having CBE endorsement.535
Although section 1861(kkk)(7)(C)(i) of
the Act requires that measures specified
by the Secretary for use in the REHQR
Program be endorsed by the entity with
a contract under section 1890(a) of the
Act, section 1861(kkk)(7)(C)(ii) of the
Act states that in the case of a specified
area or medical topic determined
appropriate by the Secretary for which
a feasible and practical measure has not
been endorsed by the entity with a
contract under section 1890(a) of the
Act, the Secretary may specify a
measure that is not so endorsed as long
as due consideration is given to
measures that have been endorsed or
adopted by a consensus organization
532 Centers for Medicare & Medicaid Services
(CMS). 2022 Measures Under Consideration
Spreadsheet. Available at: https://mmshub.cms.gov/
measure-lifecycle/measure-implementation/prerulemaking/lists-and-reports. Last accessed March
13, 2023.
533 Interested parties convened by the consensusbased entity will provide input and
recommendations on the Measures under
Consideration (MUC) list as part of the prerulemaking process required by section 1890A of
the Act. We refer readers to https://p4qm.org/
PRMR-MSR for more information.
534 Centers for Medicare & Medicaid Services
(CMS). 2022–2023 MAP Final Recommendations.
Available at: https://mmshub.cms.gov/measurelifecycle/measure-implementation/pre-rulemaking/
lists-and-reports. Last accessed April 13, 2023.
535 Ibid.
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identified by the Secretary. The
Abdomen CT measure is not CBE
endorsed and we were unable to
identify any other CBE-endorsed
measures on this topic; therefore, we
believe the exception in section
1861(kkk)(7)(C)(ii) of the Act applies for
this measure. Also, we believe the
measure has received sufficient support
from consensus organizations, given the
conditional support for the measure by
the MAP Hospital Workgroup,536
favorable comments received by the
Health Equity Advisory Group,537 and
lack of objection by the Rural Health
Advisory Group.538
We propose to adopt the Abdomen CT
measure into the REHQR Program
measure set beginning with the CY 2024
reporting period. By addressing the
critical priority area of patient safety in
rural hospitals, collecting data on this
measure seeks to ensure that CT
abdomen imaging in rural communities
adheres to evidence-based clinical
guidelines. Inclusion of this measure
aligns with the CMS National Quality
Strategy goals of embedding quality into
the care journey, as well as the goal of
promoting safety,539 and is aligned with
the priorities we identified for our
Meaningful Measures 2.0 initiative,
including using only high-value quality
measures that impact key quality
domains and aligning measures across
our programs.540
(3) Data Sources
This measure addresses excessive
radiation exposure from improper
outpatient imaging procedures in
Medicare beneficiaries. It would be
calculated using Medicare FFS final
action claims and enrollment data for
hospital services paid through the OPPS
for abdomen CT studies performed in
the REH setting. Data from the hospital
outpatient file is used to determine
beneficiary inclusion (for example, a CT
abdomen study performed at an REH)
and exclusion (that is, diagnoses of
adrenal mass, hematuria, infections of
the kidney, jaundice, liver lesion (mass
or neoplasm), malignant neoplasm of
536 CMS, 2022 Measures Under Consideration
Spreadsheet.
537 CMS, 2022–2023 MAP Final
Recommendations.
538 Ibid.
539 CMS (2023). What is the CMS National
Quality Strategy? Available at https://www.cms.gov/
Medicare/Quality-Initiatives-Patient-AssessmentInstruments/Value-Based-Programs/CMS-QualityStrategy. Last accessed April 13, 2023.
540 CMS (2022), Meaningful Measures 2.0: Moving
from Measures Reduction to Modernization.
Available at https://www.cms.gov/medicare/
meaningful-measures-framework/meaningfulmeasures-20-moving-measure-reductionmodernization. Last accessed April 13, 2023.
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bladder, malignant neoplasm of
pancreas, diseases of urinary system,
pancreatic disorders, non-traumatic
aortic disease, and unspecified disorder
of kidney or ureter).541
(4) Measure Calculation
This measure calculates the
percentage of CT abdomen and
abdominopelvic studies that are
performed with and without contrast
out of all CT abdomen studies
performed (those with contrast, those
without contrast, and those with both).
The measure would be calculated based
on a 12-month window of claims data.
From this patient cohort, the numerator
contains patients who had a combined
CT abdomen study (that is, a CT
abdomen study without contrast
followed by a CT abdomen study with
contrast, documented using the CT
Abdomen With and Without Contrast
CPT code). For this measure, lower
scores indicate less usage of CT
scanning as scans with and without
contrast are typically not medically
necessary, which means a highperforming facility reports a value
nearer to zero, whereas facilities that
may be performing too many combined
CT abdomen studies score closer to 100
percent.542
(5) Cohort
This measure would apply to
Medicare beneficiaries enrolled in
original, Medicare FFS who underwent
an abdomen or abdominopelvic CT
study with or without contrast
performed at an REH. This measure
does not include Medicare managed
care beneficiaries, non-Medicare
patients, or beneficiaries who were
admitted to the hospital as inpatients. A
beneficiary can be included in the
measure’s initial patient population
multiple times because each abdomen
or abdominopelvic CT (without
contrast, with contrast, or both with and
without contrast) performed at an REH
during the data collection period is
counted once in the measure’s
denominator.
This claims-based imaging measure is
not risk-adjusted; instead, Medicare FFS
beneficiaries who have a clinical
diagnosis of one or more conditions for
which imaging with and without
contrast is considered appropriate are
541 YNHHSC/CORE and The Lewin Group, 2021.
Abdomen Computed Tomography (CT)—Use of
Contrast Material (OP–10): 2021 Annual
Reevaluation Report. Available at: https://
qualitynet.cms.gov/files/607ee75eaba
8620022335d7e?filename=OP=10_2021_
ReevalReport.pdf. Last accessed March 13, 2023.
542 Ibid.
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excluded from the measure.543 Thus,
this measure does not include
beneficiaries with the following
conditions: adrenal mass, hematuria,
infections of kidney, jaundice, liver
lesion (mass or neoplasm), malignant
neoplasm of bladder, malignant
neoplasm of pancreas, diseases of
urinary system, pancreatic disorders,
non-traumatic aortic disease, and
unspecified disorder of kidney or
ureter.544
We invite public comment on this
proposal.
b. Proposal To Adopt the Median Time
From Emergency Department (ED)
Arrival to ED Departure for Discharged
ED Patients Measure
(1) Background
Care provided in the ED will likely be
a focus of REH services and we seek
measures that assess the quality of care
in this setting. Improving ED throughput
times is important for alleviating
overcrowding and reducing wait
times.545 Crowding has led to a number
of potentially avoidable problems in
EDs, including ambulance diversion,
prolonged patient waiting times, and
potentially poor patient outcomes due
to delays, such as in the administration
of medication.546
The Median Time from Emergency
Department (ED) Arrival to ED
Departure for Discharged ED Patients
(the Median Time for Discharged ED
Patients measure was adopted for
reporting in the Hospital OQR Program
beginning with the CY 2013 payment
determination (75 FR 72086).
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(2) Measure Overview
The Median Time for Discharged ED
Patients measure is a chart-abstracted
measure that evaluates the time between
the arrival to and departure from the ED,
also known as ED throughput time.
As described in the measure
specifications and Measure Information
543 American College of Radiology. ACR
Appropriateness Criteria. Available at: https://
www.acr.org/Clinical-Resources/ACRAppropriateness-Criteria. Last accessed April 4,
2023.
544 Centers for Medicare & Medicaid Services
Measures Inventory Tool (CMIT). Abdomen
Computed Tomography (CT)—Use of Contrast
Material. Available at https://cmit.cms.gov/cmit/#/
MeasureView?variantId=1842§ionNumber=1.
Last accessed April 3, 2023.
545 Smalley, CM, Simon, EL, Meldon, SW, et al.
(2020). The impact of hospital boarding on the
emergency department waiting room. JACEP Open,
1(5):1052–1059. doi: 10.1002/emp2.12100.
546 Kelen GD, Wolfe R, D-Onofrio G, Mills AM,
Diercks D, Stern SA, Wadman MC, Sokolove PE.
Emergency Department Crowding: The Canary in
the Health Care System. NEJM Catalyst. 2021; 5(2).
https://catalyst.nejm.org/doi/full/10.1056/
CAT.21.0217. Last accessed February 28, 2023.
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Form (MIF),547 548 measure data are
stratified for four separate calculations:
(1) the Overall Rate is calculated as the
overall rate; (2) the Reported Measure
calculates data for all patients excluding
psychiatric/mental health patients and
transfer patients; (3) Psychiatric/Mental
Health calculates data for psychiatric/
mental health patients; and (4) Transfers
calculates data for transfer patients.
Although section 1861(kkk)(7)(c)(i) of
the Act requires that measures specified
by the Secretary for use in CMS hospital
quality programs be endorsed by the
entity with a contract under section
1890(a) of the Act, section
1861(kkk)(7)(C)(ii) of the Act states that
in the case of a specified area or medical
topic determined appropriate by the
Secretary for which a feasible and
practical measure has not been endorsed
by the entity with a contract under
section 1890(a) of the Act, the Secretary
may specify a measure that is not so
endorsed as long as due consideration is
given to measures that have been
endorsed or adopted by a consensus
organization identified by the Secretary.
This measure is not CBE-endorsed. We
reviewed CBE-endorsed measures and
were unable to identify any other CBEendorsed measures on this topic;
therefore, we believe the exception in
section 1861(kkk)(7)(C)(ii) of the Act
applies for this measure.
The Median Time for Discharged ED
Patients measure was included in the
2022 MUC list.549 In its February 1,
2023 Final Recommendations, the MAP
stated their belief that changes in wait
times may not directly influence
mortality or patient outcomes and had
concerns that transfer times may be
delayed due to weather and transport
safety issues that are out of a facility’s
control. The Rural Health Advisory
Group expressed similar concerns
regarding the impact on transport times
of issues beyond a facility’s control,
such as weather, local facility transport
modalities, and distance; but also noted
that transfer time for trauma patients is
especially important. The Health Equity
Advisory Group, however, emphasized
the importance of the measure and its
547 A Measure Information Form provides detail
on the rationale for a measure as well as the
relevant numerator statements, denominator
statements and measure calculations.
548 Hospital OQR Program ED Throughput
Measures Information Form. Available at: https://
qualitynet.cms.gov/files/638e75e376962
e0016ad907d?filename=1d_ED_Throughput_set_
v16.0a.pdf (p. 1–26). Last accessed February 28,
2023.
549 Centers for Medicare & Medicaid Services.
2022 Measures Under Consideration Spreadsheet.
Available at: https://mmshub.cms.gov/measurelifecycle/measure-implementation/pre-rulemaking/
lists-and-reports. Last accessed March 13, 2023.
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potential to advance health equity.
Ultimately, the MAP did not provide
support for this measure for the REHQR
Program.550
We recognize the concerns expressed
in the MAP Final Recommendation.
However, we believe that ED wait times
have significant impact on patients.
Prolonged waiting times are associated
with worse patient experience in
patients discharged from the emergency
department.551 Studies demonstrate that
higher patient satisfaction is associated
with patient outcomes, including
decreased mortality 552 and lower
readmission rates.553
We acknowledge that transfer times
may be delayed due to weather and
transport safety issues that are out of a
facility’s control. However, we believe
that some factors such as building
transfer relationships and process
improvements can be addressed by
hospitals to improve ED wait times.
Further, this information could be
useful to Medicare beneficiaries and
other interested parties toward assessing
care provided and the care environment
of a hospital. By implementing this
measure, we are supporting CMS
National Quality Strategy goals,
including embedding quality into the
care journey (for example, by addressing
quality throughout the patient
experience); promoting safety (for
example, by minimizing associated
negative patient outcomes, such as
delayed administration of medications);
and increasing alignment (given that
this measure is used in other quality
programs).554 Alignment of measures
across CMS federal programs is also an
550 Centers for Medicare & Medicaid Services.
2022–2023 MAP Final Recommendations. Available
at: https://mmshub.cms.gov/measure-lifecycle/
measure-implementation/pre-rulemaking/lists-andreports. Last accessed March 13, 2023.
551 Nyce, A, Gandhi, S, Freeze, B, Bosire, J, Ricca,
T, Kupersmith, E, Mazzarelli, A, Rachoin, J–S.
Association of Emergency Department Waiting
Times With Patient Experience in Admitted and
Discharged Patients. 2021. J Pat Exp 8:1–7. https://
doi.org/10.1177/23743735211011404.
552 Glickman SW, Boulding W, Manary M, Staelin
R, Roe MT, Wolosin RJ. et al. Patient satisfaction
and its relationship with clinical quality and
inpatient mortality in acute myocardial infarction.
Circ Cardiovasc Qual Outcomes. 2010; 3:188–95.
Available at https://www.ahajournals.org/doi/
10.1161/CIRCOUTCOMES.109.900597?url_
ver=Z39.88-2003&rfr_id=ori:rid:crossref.org&rfr_
dat=cr_pub%20%200pubmed.
553 Boulding W, Glickman SW, Manary MP,
Schulman KA, Staelin R. Relationship between
patient satisfaction with inpatient care and hospital
readmission within 30 days. Am J Manag Care.
2011;17:41–8. Available at https://www.ajmc.com/
view/ajmc_11jan_boulding_41to48.
554 CMS (2023). What is the CMS National
Quality Strategy? Available at https://
www.cms.gov/Medicare/Quality-Initiatives-PatientAssessment-Instruments/Value-Based-Programs/
CMS-Quality-Strategy. Last accessed April 13, 2023.
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objective of the Meaningful Measures
2.0 initiative.555 This measure also
promotes the Meaningful Measures goal
of driving outcome improvement
through public reporting, given that
CMS predicts that data for this measure
will be reported in sufficient numbers to
permit public reporting (see Table 79 in
section XVI.B.1 of this proposed rule).
Care Compare data current to January
2023 show that CAHs and subsection (d)
hospitals with fewer than 50 beds
reported sufficient data for this measure
under the Hospital OQR Program to be
publicly reported for all of these strata,
indicating that hospitals eligible to
convert to REH status would be able to
report data for this measure to a level
sufficient for public reporting. Our
proposal to publicly report these data is
further described in section XVI.B.8.c of
this proposed rule. Thus, we propose to
adopt this measure in the REHQR
Program beginning with the CY 2024
reporting period.
(3) Data Sources
The measure would be calculated
using chart-abstracted data on a rolling
quarterly basis, and would be publicly
reported in aggregate for one calendar
year. Sources of the relevant data may
include claims forms, electronic health
care data, electronic health records
(EHRs), or paper records. Data elements
necessary for the calculation of the
measure include arrival time, discharge
code, Evaluation and Management (E/
M) code, ED departure date, ED
departure time, ICD–10–CM principal
diagnosis code, and outpatient
encounter date.
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(4) Measure Calculation
The measure calculates the median
time (in minutes) from ED arrival to
time of departure from the ED for
patients discharged from the ED.
Reducing the time patients remain in
the ED can improve access to treatment
and increase quality of care.556 557
Improvement is noted as a decrease in
the median value. The included
population is any ED patient who
completes an ED discharge process. This
555 CMS (2022), Meaningful Measures 2.0: Moving
from Measures Reduction to Modernization.
Available at https://www.cms.gov/medicare/
meaningful-measures-framework/meaningfulmeasures-20-moving-measure-reductionmodernization. Last accessed April 13, 2023.
556 Smalley, CM, Simon, EL, Meldon, SW, et al.
(2020). The impact of hospital boarding on the
emergency department waiting room. JACEP Open,
1(5):1052–1059. doi: 10.1002/emp2.12100.
557 Kelen GD, Wolfe R, D-Onofrio G, Mills AM,
Diercks D, Stern SA, Wadman MC, Sokolove PE.
Emergency Department Crowding: The Canary in
the Health Care System. NEJM Catalyst. 2021; 5(2).
https://catalyst.nejm.org/doi/full/10.1056/
CAT.21.0217.
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process measure is not risk-adjusted or
risk-stratified.558 However, the measure
is stratified by certain subgroups of
patients, as described in the next
section.
(5) Cohort
The Median Time for Discharged ED
Patients measure is calculated in
stratified subsections for certain types of
patients: (1) Median Time from ED
Arrival to ED Departure for Discharged
ED Patients—Reported Measure, which
excludes psychiatric/mental health and
transferred patients; (2) Median Time
from ED Arrival to ED Departure for
Discharged ED Patients—Psychiatric/
Mental Health Patients, which includes
information only for psychiatric/mental
health patients; (3) Median Time from
ED Arrival to ED Departure for
Discharged ED Patients—Transfer
Patients, which includes information
only for patients transferred from the
ED; and (4) Median Time from ED
Arrival to ED Departure for Discharged
ED Patients—Overall Rate. The measure
excludes patients who expired in the
ED, left against medical advice, or
whose discharge was not documented or
unable to be determined.559
We invite public comment on this
proposal.
c. Proposal To Adopt the Facility 7-Day
Risk-Standardized Hospital Visit Rate
After Outpatient Colonoscopy Measure
(1) Background
Colonoscopies are one of the most
frequently performed procedures in the
outpatient setting in the United
States,560 with more than 16 million
procedures performed each year.561
Colonoscopies are associated with a
range of well-described and potentially
preventable adverse events that can lead
to hospital visits, repeat procedures, or
surgical intervention for treatment,
including colonic perforation,
558 CMIT. Median time from ED Arrival to ED
Departure for Discharged ED patients. Available at
https://cmit.cms.gov/cmit/#/MeasureView?
variantId=695§ionNumber=1. Last accessed
April 4, 2023.
559 QualityNet. Hospital Outpatient Specifications
Manuals. Available at: https://qualitynet.cms.gov/
outpatient/specifications-manuals. Last accessed
April 5, 2023.
560 Definitive Healthcare. Top 10 Outpatient
Procedures at Surgery Centers and Hospitals.
Available at: https://www.definitivehc.com/blog/
top-10-outpatient-procedures-at-ascs-andhospitals#:∼:text=Definitive%20Healthcare%20
data%20shows%20that,procedures%20at%20ASCs
%20by%20volume. Last accessed March 12, 2023.
561 I Data Research. An Astounding 16.6 Million
Colonoscopies are Performed Annually in The
United States. (https://idataresearch.com/anastounding-19-million-colonoscopies-areperformed-annually-in-the-united-states/[sic]).
Accessed February 28, 2023.
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gastrointestinal (GI) bleeding, and
abdominal pain.562 While hospital visits
are generally unexpected after an
outpatient colonoscopy, the literature
indicates that the majority of such visits
occurring later than seven days postprocedure are more likely to be
unrelated to the procedure.563 Such
hospital visits occurring later than seven
days post-procedure may be
complicated by patient comorbidities
and high risk factors.564
As noted in Table 79 with Hospital
OQR Program data current to 2023, the
average rate of reported unplanned
hospital visits per 1,000 colonoscopies
at CAHs and rural subsection (d)
hospitals eligible for REH conversion
are 14.3 (1.43 percent) and 14.4 (1.44
percent), respectively. These average
rates are in line with those of small,
urban subsection (d) hospitals, and
larger, rural hospitals subsection (d)
with 50 or more beds (that is, with
categories of subsection (d) hospitals
that are not eligible for REH
conversion). Hospitals in these
categories that are in the top 10th
percentile in terms of numbers of cases
(that is, unplanned hospital visits
within 7 days of an outpatient
colonoscopy) reported, however, do
appear to perform differently. In this
percentile, hospitals eligible for REH
conversion do not perform as well as
those that are not eligible for REH
conversion. REH-eligible hospitals with
these larger caseloads have a higher rate
of unplanned hospital visits per 1,000
colonoscopies than non-REH eligible
hospitals.
The Facility 7-Day Risk-Standardized
Hospital Visit Rate After Outpatient
Colonoscopy (the 7-Day Hospital Visit
Rate After Outpatient Colonoscopy)
measure was adopted for reporting in
the Hospital OQR Program in 2015, first
with a dry run (that is, confidential
reports containing measure results were
made available for hospitals to review,
provide feedback, and become familiar
with the measure methodology in
advance of public reporting and impact
on payment determinations), and then
fully implemented beginning with the
562 I. Ranasinghe, C.S. Parzynski, R. Searfoss, et
al. Differences in colonoscopy quality among
facilities: development of a post-colonoscopy riskstandardized rate of unplanned hospital visits.
Gastroenterology, 150 (2016), pp. 103–113
Available at: https://www.gastrojournal.org/action/
showPdf?pii=S0016-5085%2815%2901353-0. Last
accessed March 12, 2023.
563 L.B. Grossberg, A. Vodonos, K. Papamichael,
et al. Predictors of post-colonoscopy emergency
department use. Gastrointest Endosc, 87 (2018), pp.
517–525. Available at: https://
www.sciencedirect.com/science/article/pii/
S0016510717322010?viewFullText=true#sec4. Last
accessed March 12, 2023.
564 Ibid.
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CY 2018 payment determination (79 FR
66948 through 66955).
(2) Measure Overview
ddrumheller on DSK120RN23PROD with PROPOSALS2
The 7-Day Hospital Visit Rate After
Outpatient Colonoscopy measure was
on the 2022 MUC list.565 In its February
1, 2023 Final Recommendations, the
MAP considered and supported it for
rulemaking for the REHQR Program
given that a previous version of this
measure specified for colonoscopies
performed in ambulatory surgical
centers (ASCs) and hospital outpatient
departments (HOPDs) received
endorsement from the CBE (CBE #2539)
in 2014 and 2020, and that this measure
is currently in use in the ASCQR and
Hospital OQR Programs.566
As evidenced in Table 79, CAHs and
small, rural subsection (d) hospitals—
hospitals which are eligible to convert
to REH status—performed a sufficient
number of colonoscopies and had
sufficient measure data for this measure
to be publicly reported on the Care
Compare site. Using data current to
January 2023 for the Hospital OQR
Program, out of those eligible to report
data, 65.5 percent (131) of small, rural
subsection (d) hospitals and 44.7
percent (609) of CAHs eligible to
convert to REHs reported for this
measure.
We believe this could be an important
measure for those REHs that elect to
provide outpatient services and for
patients seeking information regarding
complications following this procedure.
Inclusion of this measure in the REHQR
Program will also promote goals of the
CMS National Quality Strategy,
including embedding quality into the
care journey; advancing health equity
within and across settings; and
increasing alignment of performance
metrics, programs, policy, and payment
across CMS.567 Inclusion will also
advance goals of the Meaningful
Measures 2.0 initiative, including by
empowering consumers to make good
health care choices by providing public
transparency; and by leveraging quality
measures to promote health equity and
565 Centers for Medicare & Medicaid Services.
2022 Measures Under Consideration Spreadsheet.
Available at: https://mmshub.cms.gov/measurelifecycle/measure-implementation/pre-rulemaking/
lists-and-reports. Last accessed March 13, 2023.
566 Centers for Medicare & Medicaid Services.
2022–2023 MAP Final Recommendations. Available
at: https://mmshub.cms.gov/measure-lifecycle/
measure-implementation/pre-rulemaking/lists-andreports. Last accessed March 13, 2023.
567 CMS (2023). What is the CMS National
Quality Strategy? Available at https://www.cms.gov/
Medicare/Quality-Initiatives-Patient-AssessmentInstruments/Value-Based-Programs/CMS-QualityStrategy. Last accessed April 13, 2023.
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close gaps in care.568 Therefore, we
propose to include the 7-Day Hospital
Visit Rate After Outpatient Colonoscopy
measure in the REHQR Program
beginning with the CY 2024 reporting
period.
(3) Data Sources
This outcome measure is calculated
using Medicare FFS claims and
enrollment data, estimating a facilitylevel rate of risk-standardized, all-cause,
unplanned hospital visits within 7 days
of an outpatient colonoscopy among
Medicare FFS patients aged 65 years
and older.569 In alignment with the
reporting period for this measure as
used in the Hospital OQR Program, the
initial reporting period is a three-year
period beginning with patient
encounters from January 1, 2024
through December 31, 2026 with annual
updates on a rolling basis.570
(4) Measure Calculation
The measure defines the outcome as
any (one or more) unplanned hospital
visits within 7 days of an outpatient
colonoscopy procedure.571 For this
measure, a hospital visit includes any
ED visit, observation stay, or unplanned
inpatient admission to any short-term,
acute care facility.572 573 The measure
score is the ratio of predicted hospital
visits (numerator) over the expected
hospital visits (denominator) multiplied
by the national observed rate. The
numerator is the number of predicted
(meaning adjusted actual) hospital
visits, which is the number of
unplanned hospital visits the facility is
predicted to have within 7 days of
colonoscopy, and it accounts for the
observed unplanned hospital visit rate,
the number of colonoscopies performed
568 CMS (2022), Meaningful Measures 2.0: Moving
from Measures Reduction to Modernization.
Available at https://www.cms.gov/medicare/
meaningful-measures-framework/meaningfulmeasures-20-moving-measure-reductionmodernization. Last accessed April 13, 2023.
569 CMIT. Facility 7-Day Risk-Standardized
Hospital Visit Rate after Outpatient Colonoscopy.
Available at https://cmit.cms.gov/cmit/#/
MeasureView?variantId=1354§ionNumber=1.
Last accessed February 28, 2023.
570 CMS, Hospital Outpatient Specifications
Manuals—Measure Information Form, 1.6 Outcome
Measures, OP–32: Facility 7-Day Risk-Standardized
Hospital Visit Rate after Outpatient Colonoscopy.
Available at https://qualitynet.cms.gov/files/
638e788ffb845c00175c7aaf?filename=1u_
OP32MIF_v16.0a.pdf. Last accessed February 28,
2023.
571 2022 Measure Updates and Specifications
Report: Hospital Outpatient Quality Reporting
Program. available at: https://qualitynet.cms.gov/
outpatient/measures/surgery/methodology. Last
accessed May 2, 2023.
572 Ibid.
573 CMS, Frequently Asked Questions. Available
at: https://qualitynet.cms.gov/outpatient/measures/
colonoscopy/resources. Last accessed May 2, 2023.
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at the facility, and the facility’s case
mix. The denominator is the number of
expected hospital visits, which is the
number of unplanned hospital visits the
facility is expected to have based on the
facility’s case mix. It is the sum of all
patients’ expected probabilities of a
hospital visit, given their risk factors
and the risk of readmission at an
average facility. The national observed
rate is the national unadjusted number
of patients who had a hospital visit
post-colonoscopy among all patients
who had a colonoscopy.574 Additional
methodology details and information
obtained from public comments for
measure development are available at:
https://www.cms.gov/Medicare/QualityInitiatives-Patient-AssessmentInstruments/HospitalQualityInits/
Measure-Methodology.html under
‘‘Hospital Outpatient Colonoscopy.’’
We note that the measure calculation
is comparable to the Hospital OQR
Program version of the measure, as set
out in the CY 2015 OPPS/ASC final rule
(79 FR 66948 through 66955).
(5) Cohort
The measure denominator includes
Medicare patients with paid, final
action claims for typical colonoscopies.
The denominator excludes patients
undergoing concomitant high-risk upper
GI endoscopy because this is a more
extensive procedure that places these
patients at a higher risk for hospital
visits than patients undergoing a typical
colonoscopy, as well as patients with a
history of inflammatory bowel disease
(IBD) or diverticulitis in the year
preceding the colonoscopy because we
likely could not fully characterize and
adjust for their pre-procedure risk of
needing a post-procedure hospital visit
or identify whether these admissions are
planned or unplanned. The measure
also excludes procedures for patients
who lack continuous enrollment in
Medicare FFS Parts A and B in the
month after the procedure to ensure all
patients have complete data available
for outcome assessment. For further
discussion of the cohort for the 7-Day
Hospital Visit Rate After Outpatient
Colonoscopy measure, please see ‘‘2022
Measure Updates and Specifications
574 ‘‘Included colonoscopies’’ are outpatient
colonoscopy procedures using Healthcare Common
Procedure Coding System (HCPCS) codes G0121
and G0105, and Common Procedural Terminology
(CPT) codes 45378, 45380, 45385, 45384, 45383,
and 45381. This measure also uses a number of
exclusion criteria. Additional methodology details
and information obtained from public comments for
measure development are available at: https://
www.cms.gov/Medicare/Quality-Initiatives-PatientAssessment-Instruments/HospitalQualityInits/
Measure-Methodology.html under ‘‘Hospital
Outpatient Colonoscopy.’’
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Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules
Report: Hospital Outpatient Quality
Reporting Program,’’ available at:
https://qualitynet.cms.gov/outpatient/
measures/surgery/methodology.
(6) Risk Adjustment
The statistical risk-adjustment model
includes 15 clinically relevant riskadjustment variables that are strongly
associated with risk of hospital visits
within seven days following
colonoscopy. Additional methodology
details and information for measure
development are available at: https://
qualitynet.cms.gov/outpatient/
measures/surgery/methodology.
We invite public comment on this
proposal.
d. Proposal To Adopt the RiskStandardized Hospital Visits Within 7
Days After Hospital Outpatient Surgery
Measure
ddrumheller on DSK120RN23PROD with PROPOSALS2
(1) Background
Most surgical procedures in the
United States are performed in
outpatient settings; there are
approximately 23 million such
procedures performed annually.575
Same-day surgery offers significant
patient benefits as compared with
inpatient surgery, including shorter
waiting times, avoidance of
hospitalizations, and rapid return
home.576 Furthermore, as same-day
surgery costs are significantly less than
an equivalent inpatient surgery, there is
a significant cost saving opportunity to
the health system.577 With the ongoing
shift towards outpatient surgery,
assessing the quality of surgical care
provided by hospitals has become
increasingly important. Patients
undergoing same-day surgery may
require subsequent unplanned hospital
visits for a broad range of reasons. While
most outpatient surgery is safe, there are
well-described and potentially
preventable adverse events that occur
after outpatient surgery, such as
uncontrolled pain, urinary retention,
infection, bleeding, and venous
thromboembolism, which can result in
unplanned hospital visits.578 Similarly,
575 Munnich, EL, & Richards, MR. (February,
2022). Long-run growth of ambulatory surgery
centers 1990–2015 and Medicare payment policy.
Health Services Research, 57(1), 66–71. https://
doi.org/10.1111/1475-6773.13707.
576 Banner Health. Outpatient Experience &
Benefits. Available at: https://
www.bannerhealth.com/services/outpatientsurgery/experience-benefits. Last accessed April 4,
2023.
577 Munnich, EL, & Parente, ST. (January, 2018).
Returns to specialization: Evidence from the
outpatient surgery market. Journal of health
economics, 57, 147–167. https://doi.org/10.1016/
j.jhealeco.2017.11.004.
578 Bongiovanni, T, Parzynski, C, Ranasinghe, I,
Steinman, MA, & Ross, JS. (July 2021). Unplanned
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direct admissions after surgery that are
primarily caused by nonclinical patient
considerations (for example, lack of
transport home upon discharge) or
facility logistical issues (for example
delayed start of surgery) are common
causes of unplanned yet preventable
hospital admissions following same-day
surgery.579 Hospital utilization
following same-day surgery is an
important and accepted patient-centered
outcome reported in the literature. As
evidenced by one study, ‘‘national
estimates of hospital visit rates
following surgery vary from 0.5 to 9.0
percent based on the type of surgery,
outcome measured (admissions alone or
admissions and ED visits), and
timeframe for measurement after
surgery,’’ 580 suggesting variation in
surgical and discharge care quality.
However, providers (hospitals and
surgeons) are often unaware of their
patients’ hospital visits after surgery
because patients often present to the ED
or to different hospitals.581 This riskstandardized measure provides the
opportunity for providers to improve
the quality of care and to lower the rate
of preventable adverse events that occur
after outpatient surgery.
The Risk-Standardized Hospitalized
Visits Within 7 Days After Hospital
Outpatient Surgery (the 7-Day Hospital
Visit Rate After Outpatient Surgery)
measure was adopted for reporting in
the Hospital OQR Program beginning
with the CY 2020 payment
determination (81 FR 79771).
(2) Measure Overview
The 7-Day Hospital Visit Rate After
Outpatient Surgery measure would
make unplanned patient hospital visits
(ED visits, observation stays, or
unplanned inpatient admissions) after
surgery more visible to providers and
patients through publicly reporting
scores. It could also encourage providers
to engage in quality improvement
activities to reduce these visits by
providing feedback to facilities and
physicians. This measure meets the
National Quality Strategy goals of
embedding quality into the care journey
hospital visits after ambulatory surgical care. PloS
one, 16(7), e0254039. https://doi.org/10.1371/
journal.pone.0254039.
579 Ibid.
580 Ibid.
581 Williams, BR, Smith, LC, Only, AJ., Parikh,
HR, Swiontkowski, MF, & Cunningham, BP.
(September, 2021). Unplanned Emergency and
Urgent Care Visits After Outpatient Orthopaedic
Surgery. Journal of the American Academy of
Orthopaedic Surgeons. Global research & reviews,
5(9), e21.00209. https://doi.org/10.5435/
JAAOSGlobal-D-21-00209.
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49837
and promoting safety.582 We expect that
the measure would promote
improvement in patient care over time.
The 7-Day Hospital Visit Rate After
Outpatient Surgery measure was on the
2022 MUC list.583 The Rural Health
Advisory Group members did not have
any rural health concerns about the
measure. We believe that this proposed
measure reflects consensus among the
affected parties as public comment
received during the MAP and measure
development processes was in
agreement with the MAP’s conclusions
on the measure. The CBE recommended
the measure for rulemaking (CBE
#2687).584
We believe it is important to reduce
adverse patient outcomes associated
with preparation for surgery, the
procedure itself, and follow-up care.
Therefore, we propose to include the 7Day Hospital Visit Rate After Outpatient
Surgery measure in the REHQR Program
beginning with the CY 2024 reporting
period.
(3) Data Sources
The proposed 7-Day Hospital Visit
Rate After Outpatient Surgery measure
would be calculated from Part A and
Part B Medicare administrative claims
data for Medicare FFS beneficiaries with
an outpatient same-day surgical
procedure excluding eye surgeries and
colonoscopies (except colonoscopy with
biopsy). Colonoscopies are excluded
from this measure as these procedures
are examined separately on their own.
The exclusion of eye procedures is
discussed below. The performance
period for the measure is one year (that
is, the measure calculation includes
eligible outpatient same-day surgeries
occurring within a 1-year timeframe),585
and would begin with the CY 2024
reporting period. We also considered
increasing the data collection time
period, to account for low volume, to 2
or 3 years.
582 CMS, What is the CMS National Quality
Strategy? Available at: https://www.cms.gov/
Medicare/Quality-Initiatives-Patient-AssessmentInstruments/Value-Based-Programs/CMS-QualityStrategy.
583 Centers for Medicare & Medicaid Services.
2022 Measures Under Consideration Spreadsheet.
Available at: https://mmshub.cms.gov/measurelifecycle/measure-implementation/pre-rulemaking/
lists-and-reports. Last accessed March 13, 2023.
584 Centers for Medicare & Medicaid Services.
MAP 2016 Considerations for Implementing
Measures in Federal Programs—Hospitals.
Available at: https://www.qualityforum.org/
Publications/2016/02/MAP_2016_Considerations_
for_Implementing_Measures_in_Federal_Programs_
-_Hospitals.aspx. Last accessed March 13, 2023.
585 QualityNet. 2022 Measure Updates and
Specifications Report (2022), available at https://
qualitynet.cms.gov/outpatient/measures/surgery/
methodology. Last accessed February 28, 2023.
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ddrumheller on DSK120RN23PROD with PROPOSALS2
(4) Measure Calculation
The measure outcome includes
unplanned hospital visits within seven
days after a surgery performed at an
REH that are: (1) an inpatient admission
at a separate hospital that can admit
patients; or (2) an ED visit or
observation stay at the REH or other
hospital occurring after discharge. If
more than one unplanned hospital visit
occurs, only the first hospital visit
within the outcome timeframe is
counted in the outcome.
The facility-level measure score is a
ratio of the predicted to expected
number of post-surgical hospital visits
among the hospital’s patients. The
numerator of the ratio is the number of
hospital visits predicted for the
hospital’s patients accounting for its
observed rate, the number of surgeries
performed at the hospital, the case-mix,
and the surgical procedure mix. The
denominator of the ratio is the expected
number of hospital visits given the
hospital’s case-mix and surgical
procedure mix. A ratio of less than one
indicates the hospital’s patients have
fewer post-surgical visits than expected
compared to hospitals with similar
surgical procedures and patients; and a
ratio of greater than one indicates the
hospital’s patients were estimated as
having more visits than expected.
To ensure the accuracy of the
algorithm for attributing claims data and
the comprehensive capture of hospital
surgeries potentially affected by the
CMS 3-day payment window policy,586
we identify physician claims for sameday surgeries in hospital settings from
the Medicare Part B Standard Analytical
Files (SAF) with inpatient admissions
that occur within 3 days after these
surgeries that lack a corresponding
hospital facility claim. Under the 3-day
payment window policy, all outpatient
diagnostic services furnished to a
Medicare beneficiary by a hospital (or
an entity wholly owned or operated by
the hospital), on the date of a
beneficiary’s admission or during the 3
days immediately preceding the date of
a beneficiary’s inpatient hospital
admission, must be included on the Part
A bill for the beneficiary’s inpatient stay
at the hospital. Hospitals must include
the following information on the claim
for a beneficiary’s inpatient stay: (1) the
diagnoses; (2) procedures; and (3)
charges for all outpatient diagnostic
services and admission-related
outpatient nondiagnostic services that
are furnished to the beneficiary during
586 https://www.cms.gov/Medicare/Medicare-Feefor-Service-Payment/AcuteInpatientPPS/Three_
Day_Payment_Window. Accessed May 4, 2023.
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the 3-day payment window.587 A
surgery identified as affected by this
policy would be attributed to the
appropriate hospital facility using the
facility provider identification from the
inpatient claim.588
(5) Cohort
The measure includes Medicare FFS
patients aged 65 years and older
undergoing same-day, outpatient
surgery in REHs, excluding eye
surgeries and colonoscopies, but
including colonoscopy with biopsy.
‘‘Same-day surgeries’’ are substantive
surgeries and procedures listed on
Medicare’s list of covered ASC
procedures excluding eye surgeries and
colonoscopies (except colonoscopy with
biopsy).589 This list was developed for
Medicare to identify surgeries that can
be safely performed as same-day
surgeries and do not typically require an
overnight stay. Surgeries on the ASC list
of covered procedures do not involve or
require major or prolonged invasion of
body cavities, extensive blood loss,
major blood vessels, or care that is
either emergent or life-threatening.
Although Medicare developed this list
of surgeries for ASCs, we use it more
broadly for this measure for two
reasons. First, it aligns with our target
cohort of surgeries that have low to
moderate risk profile and are safe to be
performed as same-day surgeries. By
only including surgeries on this list in
the measure, we effectively do not
include surgeries performed at hospitals
that typically require an overnight stay
which are more complex, higher risk
surgeries. Second, we use this list of
surgeries because it is annually
reviewed and updated by Medicare, and
includes a transparent public comment
submission and review process for
addition or removal of procedures
codes. To view the ASC covered
procedures list for 2023, we refer
587 Three Day Payment Window Implementation
of New Statutory Provision Pertaining to Medicare
3-Day (1-Day) Payment Window Policy—Outpatient
Services Treated As Inpatient. Centers for Medicare
and Medicaid Services (CMS). Available at: https://
www.cms.gov/Medicare/Medicare-Fee-for-ServicePayment/AcuteInpatientPPS/Three_Day_Payment_
Window. Last accessed on March 28, 2023.
588 For additional methodology details, we refer
readers to the documents posted at: https://
www.cms.gov/Medicare/Quality-Initiatives-PatientAssessment-Instruments/HospitalQualityInits/
Measure-Methodology, including ‘‘2016 Measure
Updates and Specifications Report: Hospital Visits
after Hospital Outpatient Surgery Measure (PDF)’’.
Last accessed March 21, 2023.
589 YNHHSC/CORE (2016). 2016 Measure
Updates and Specifications Report Hospital
Outpatient Quality Reporting Program 2022.
Available at https://www.cms.gov/Medicare/QualityInitiatives-Patient-Assessment-Instruments/
HospitalQualityInits/Measure-Methodology. Last
accessed March 21, 2023.
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readers to the CMS website at: https://
www.cms.gov/Medicare/Medicare-Feefor-Service-Payment/ASCPayment/ASCRegulations-and-Notices. On that page,
readers may select ‘‘CMS–1772–FC’’
from the list of regulations. The ASC
Addenda are contained in a zipped
folder entitled ‘‘Addendum AA, BB,
DD1, DD2, and EE.’’ Addendum AA
includes the relevant list of covered
surgeries.
For further discussion of the cohort
for this measure, please see ‘‘2022
Measure Updates and Specifications
Report: Hospital Outpatient Quality
Reporting Program,’’ available at https://
qualitynet.cms.gov/outpatient/
measures/surgery/methodology.
The cohort for this measure excludes
eye surgeries. Eye surgery is performed
in high volume and is generally
perceived as being ‘‘low risk.’’ However,
studies have indicated non-insignificant
levels of hospital visits following
cataract surgery. One study reported 0.3
percent of patients as having an
inpatient admission within 7 days
following cataract surgery590 and
another study showing a 1.77 percent of
patients with ED visits within 30 days
following cataract surgery.591 The
measure cohort also excludes
procedures for patients who lack
continuous enrollment in Medicare FFS
Parts A and B in the seven days after the
procedure to ensure all patients have
complete data available for outcome
assessment.
(6) Risk Adjustment
The statistical risk-adjustment model
includes 25 clinically relevant riskadjustment variables that are strongly
associated with risk of hospital visits
within 7 days following outpatient
surgery.592 The measure risk-adjusts for
surgical procedure complexity using
two variables. First, it adjusts for
surgical procedure complexity using the
590 Wang, SY, Blachley, TS, Andrews, CA,
Avanian, JZ, Lee, PP, & Stein, JD. Feb 22, 2016).
Hospitalization after Cataract Surgery in a
Nationwide Managed-Care Population. PLOS ONE
(11:2). https://doi.org/10.1371/
journal.pone.0149819.
591 Sahil Aggarwal, Andrew Gross, Alex Snyder,
Jay Rathinavelu, Terry Kim, Leon Herndon.
Younger Age and Longer Case Times Associated
With Emergency Department Visits After Cataract
Surgery Published: August 23, 2022DOI: https://
doi.org/10.1016/j.ajo.2022.08.017.
592 Information about the risk-adjustment model
and measure methodology are located in the
Measure Updates and Specifications Report
available on QualityNet at: https://qualitynet.
cms.gov/outpatient/measures/surgery/methodology.
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Work Relative Value Units (RVUs).593
Work RVUs are assigned to each CPT
procedure code and approximate
procedure complexity by incorporating
elements of physician time and effort.
Second, it classifies each surgery into an
anatomical body system group using the
Agency for Healthcare Research and
Quality (AHRQ) Clinical Classification
System (CCS),594 to account for organspecific differences in risk and
complications, which are not adequately
captured by the Work RVU alone.
We invite public comment on this
proposal.
6. Summary of Proposed REHQR
Program Measure Set Beginning With
the CY 2024 Reporting Period
593 Coberly, S. (January 12, 2015). The Basics;
Relative Value Units (RVUs). National Health Policy
Forum. Available at: https://hsrc.himmelfarb.
gwu.edu/cgi/
viewcontent.cgi?article=1275&context=sphhs_
centers_nhpf. Last accessed February 28, 2023.
594 HCUP Clinical Classifications Software for
Services and Procedures. Healthcare Cost and
Utilization Project (HCUP). 2008. Agency for
Healthcare Research and Quality. Available at:
https://www.hcup-us.ahrq.gov/toolssoftware/ccs_
svcsproc/ccssvcproc.jsp. Last accessed February 28,
2023.
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Table 80 summarizes the proposed
REHQR Program measure set beginning
with the CY 2024 reporting period:
EP31JY23.122
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We believe that certain eCQMs, if
adopted into the REHQR Program, could
provide insightful quality measure data
for monitoring REHs and potentially
lower provider burden. For example, the
Excessive Radiation Dose or Inadequate
Image Quality for Diagnostic Computed
Tomography in Adults eCQM (the
Excessive Radiation eCQM) could be
adopted into the REHQR Program to
improve patient outcomes and patient
safety. This eCQM provides a
standardized method for monitoring the
performance of diagnostic CT to
discourage unnecessarily high radiation
doses while preserving image quality.
The measure is expressed as a
percentage of eligible CT scans that are
out-of-range based on having either
excessive radiation dose or inadequate
595 CMS. Meaningful Measures Initiative. https://
www.cms.gov/Medicare/Quality-Initiatives-Patient-
Assessment-Instruments/QualityInitiativesGenInfo/
CMS-Quality-Strategy. Last accessed April 3, 2023.
eCQMs are measures specified in a
standard electronic format that use data
electronically extracted from EHRs and/
or health information technology
systems to measure the quality of health
care provided. Through electronic
reporting, hospitals have leveraged
EHRs to capture, calculate, and
electronically submit quality data
instead of manually chart-abstracting
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BILLING CODE 4120–01–P
a. Request for Comment: Electronic
Clinical Quality Measures (eCQMs) for
Reporting Quality Data Under the
REHQR Program
ddrumheller on DSK120RN23PROD with PROPOSALS2
organized as CAHs or subsection (d)
hospitals, we acknowledge that
challenges will remain. We see evidence
of these challenges when analyzing
eCQM reporting under the Medicare PI
Program for eligible hospitals and
CAHs. Tables 81 and 82 compare urban
and rural hospital eCQM reporting, as
defined by census area, with respect to
the Medicare PI Program for CY 2021.
Most hospitals of all bed sizes
successfully reported eCQMs, but eCQM
submission compliance percentages for
smaller hospitals and rural hospitals
were slightly lower than for larger or
urban hospitals.
and submitting to CMS. Adoption of
certain eCQMs into the REHQR Program
could address high priority areas as
stated in our Meaningful Measures
Framework, including the transition to
digital quality measures and the
adoption of high-quality measures that
improve patient outcomes and safety.595
We acknowledge that technological,
monetary, and staffing barriers may
present challenges to eCQM adoption
and use at some REHs. Although some
REH staff may have had experience
reporting eCQMs in the Hospital IQR,
Hospital OQR, or Medicare Promoting
Interoperability (PI) Programs during the
time period when their REHs were
7. REHQR Program Measures and
Topics for Future Consideration
Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Proposed Rules
ddrumheller on DSK120RN23PROD with PROPOSALS2
image quality, relative to evidencebased thresholds based on the clinical
indication for the exam.596 This
measure is not risk-adjusted. The
purpose of this measure is to reduce
unintentional harm to patients and
provide REHs with a reliable method to
assess harm reduction efforts and
modify their improvement efforts. We
propose adoption of the Excessive
Radiation eCQM for the Hospital OQR
Program. We refer readers to section
XIV.B.3.c of this proposed rule for a
discussion of the Hospital OQR Program
proposal.
We also refer readers to section XIV
of the CY 2022 OPPS/ASC proposed
rule (86 FR 42232 through 42237) where
we requested information on potential
actions and priority areas that would
enable the continued transformation of
our quality measurement enterprise
toward greater digital capture of data
and use of the Fast Healthcare
Interoperability Resources (FHIR)
standard. This will be taken into
consideration in future years when
deciding how and when to introduce
eCQMs to the REHQR Program.
We invite public comment on the use
of eCQMs in the REHQR Program, any
specific eCQM measures that we should
consider for inclusion in the REHQR
Program measure set, including the
Excessive Radiation eCQM, and any
considerations or criteria we should use
in identifying eCQM measures to
propose for future inclusion.
b. Request for Comment: Care
Coordination Measures
As part of future rulemaking, we may
consider adding measures to the REHQR
Program measure set that are relevant to
the coordination of care between REHs
and other kinds of healthcare providers.
REHs encounter challenges in
coordinating care that are specific to
rural settings. Geographically isolated
areas typically have fewer healthcare
settings and providers, and experience
difficulties related to workforce
shortages, transportation issues, and
lack of information technology
capabilities, such as the availability of
broadband networks.597 Other
challenges relate to shifting workforce
availability (for example, issues related
to the availability of traveling nurses or
independent healthcare providers) and
596 Centers for Medicare & Medicaid Services.
Pre-Rulemaking MUC Lists and MAP Reports. The
Measures Management System. Available at:
https://mmshub.cms.gov/measure-lifecycle/
measure-implementation/pre-rulemaking/lists-andreports.
597 Healthcare Access in Rural Communities.
Rural Health Information Hub. Available at: https://
www.ruralhealthinfo.org/topics/healthcare-access.
Last accessed March 13, 2023.
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limited access to specialists, diagnostic
equipment, and other resources.598 In
particular, REHs are required to have in
effect a transfer agreement with a level
I or level II trauma center,599 such that
patients that present at an REH with
needs for longer-term inpatient care may
receive that care. REHs must, therefore,
address issues related to the
coordination of care for transferred
patients.
We have sought to identify measures
relevant to care coordination in rural
settings that are also important,
impactful, reliable, accurate, and
clinically relevant. In the CY 2023
OPPS/ASC final rule, we provided
responses to the comments received on
our request for information on
additional topics for quality measures
appropriate for the REH setting (87 FR
72146 through 72149). Many of these
comments addressed the provision of
telehealth, an issue that impacts care
coordination (87 FR 72146 through
72147). The CBE provided additional
information on this topic in 2021, when
they identified a list of 324 measures
relevant to the provision of
telehealth.600 We believe that a number
of these measures are directly related to
the coordination of care, such as
measures CBE #0006 Care Coordination,
CBE #0097 Medication Reconciliation
Post-Discharge, and CBE #0326 Advance
Care Plan.601 The current Medicare
Beneficiary Quality Improvement
Project (MBQIP) measures also include
several ‘‘care transitions’’ measures that
may be relevant to the coordination of
care for REHs. Relevant MBQIP
measures include Emergency
Department Transfer Communication
(on which we invited public comment
in the CY 2022 OPPS/ASC proposed
rule, at 86 FR 42285 through 42289),
Discharge Planning, and Medication
Reconciliation.602
We invite public comment on the use
of care coordination measures including
telehealth measures in the REHQR
Program, any specific measures that we
should consider for inclusion in the
REHQR Program measure set regarding
598 Ibid.
1861(kkk)(2)(C) of the Act.
Telehealth and Healthcare System
Readiness Measurement Framework Final Report
(2021). Accessed March 28, 2023. Available at:
https://www.qualityforum.org/Publications/2021/
11/Rural_Telehealth_and_Healthcare_System_
Readiness_Measurement_Framework__Final_
Report.aspx.
601 Ibid.
602 Federal Office of Rural Health Policy
(FORHP). MBQIP Measures (January 2023)—
Current Medicare Beneficiary Quality Improvement
Project (MBQIP) Measures. Available at: https://
www.ruralcenter.org/sites/default/files/2023-02/
MBQIP-Measures.pdf.
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care coordination, and any
considerations or criteria we should use
in determining which if any
coordination of care measures to
propose for future inclusion.
c. Request for Comment: Tiered
Approach Framework
We refer readers to section XVII of the
CY 2022 OPPS/ASC proposed rule,
where we included a request for
information (RFI) on REHs (86 FR 42285
through 42289). We received more than
50 comments in response to the RFI,
including one suggestion to implement
a multi-tiered approach for quality
measures and reporting requirements to
incentivize REH reporting.
Within such a tiered framework, Tier
1 could encompass a set of measures
that would be required for all REHs and
would focus on measures applicable for
the required ED and observation
services at REHs. Tier 2 could apply
only to REHs that choose to provide
additional outpatient services; the
measures in that set would be related to
the optional services provided.
Measures being proposed in this
proposed rule for adoption into the
REHQR Program measure set are the: (1)
Abdomen CT measure, (2) Median Time
for Discharged ED Patients measure, (3)
7-Day Hospital Visit Rate After
Outpatient Colonoscopy measure, and
(4) 7-Day Hospital Visit Rate After
Outpatient Surgery measure. Two of
these proposed measures are related to
services that REHs must provide to
participate in the Medicare program.
The other two proposed measures are
related to services that could be
furnished on an outpatient basis at the
election of the REH.603 To fit into an
example scenario of a tiered approach,
Tier 1 could include the measures
related to required services, which are
the diagnostic, claims-based Abdomen
CT measure, and the chart-abstracted
Median Time for Discharged ED Patients
measure. Tier 2 could consist of the
measures related to services the REH
may elect to provide, which are the
claims-based 7-Day Hospital Visit Rate
After Outpatient Colonoscopy and 7Day Hospital Visit Rate After Outpatient
Surgery measures.
The aforementioned tiered measures
are only examples for the purposes of
this request for comment to further
discussion of this concept for the
REHQR Program.
Such reporting could be phased-in;
for example, as suggested by the
commenter, all REHs could report the
Tier 1 quality measures beginning at a
designated time after their REH status
began, and all REHs providing
603 See
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additional services would begin to
submit Tier 2 data at a designated time
after such services begin under the new
REH status.
We invite public comment on the
implementation of a tiered quality
measure approach in the REHQR
Program, considerations in designing
the structure of a tiered framework, the
number of measures in each tier, and
considerations for designating measures
for tiers of such a framework.
ddrumheller on DSK120RN23PROD with PROPOSALS2
8. Proposal To Display Quality Measure
Data Publicly
a. Public Reporting of Quality Data
Generally
Pursuant to the CAA, the Secretary
shall establish procedures to make
quality measure data submitted by REHs
available to the public on a CMS
website.604 Such procedures shall
ensure that the REH has the opportunity
to review, and submit corrections for,
the data that is to be made public with
respect to the REH prior to such data
being made public.605 In this proposed
rule, we propose to align our approach
to the public display of measures with
that of the Hospital OQR and ASCQR
Programs. For detail on the public
display of measures in the Hospital
OQR and ASCQR Programs, we refer
readers OPPS/ASC final rules of CY
2009 (73 FR 68777 through 67779), CY
2014 (78 FR 75092), and CY 2017 (81 FR
79791). We propose to make publicly
reported data under the REHQR
Program available to the public both on
our Care Compare website and in
downloadable data files located in the
Provider Data Catalog (PDC), found at
https://data.cms.gov. We intend to
display these data publicly for any
consumer or other member of the public
beginning with measure data submitted
relevant to services provided in CY
2024. To the extent possible, in order to
publicly display these data, we will use
the same information systems, business
processes, and other infrastructure that
we use to display data for the Hospital
OQR and Hospital Inpatient Quality
Reporting (IQR) Programs. This
alignment of processes and policies will
enhance alignment with other quality
reporting programs and ease of
understanding for REHs.
We also propose that participating
REHs would be granted the opportunity
to review their data before the
information is published during a 30day review and corrections period (the
preview process). Similarly, to the
604 CAA, 2021, at section 125(a)(1)(B) of Division
CC, adding section 1861(kkk)(7)(D) of the Act.
605 CAA, 2021, at section 125(a)(1)(B) of Division
CC, adding section 1861(kkk)(7)(D) of the Act.
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Hospital OQR and Hospital IQR
Programs, we would announce the
timeframes for the preview period
starting with the measure data
submitted relevant to services provided
in CY 2024 on a CMS website, such as
QualityNet, or on applicable listservs.
We generally strive to display hospital
quality measures data on the designated
website as soon as possible after
measure data have been submitted to
CMS. However, if there are unresolved
display issues or pending design
considerations, we may make the data
available on other, non-interactive, CMS
websites. This preview process aligns
with that of the Hospital OQR Program
(81 FR 79791).
We propose to codify this policy at
§ 419.95 by adding paragraph (f) ‘‘Public
Reporting of Data Under the REHQR
Program.’’ In proposed paragraph (f), we
propose that data that an REH submits
for the REHQR Program would be made
publicly available by a CMS
Certification Number (CCN) on a CMS
website in an easily understandable
format after providing the REH an
opportunity to review the data to be
made public.
We invite public comment on this
proposal.
b. Public Reporting of Proposed REHQR
Program Claims-Based Measures
We propose to make measure scores
for claims-based measures proposed for
the REHQR Program measure set
publicly available beginning with
measure data submitted relevant to
services provided in CY 2024. As
discussed above in section XVI.B.5 of
this proposed rule, we propose to adopt
the following three claims-based
measures into the REHQR Program
measure set: (1) Abdomen CT measure,
(2) 7-Day Hospital Visit Rate After
Outpatient Colonoscopy measure, and
(3) 7-Day Hospital Visit Rate After
Outpatient Surgery measure.
Public reporting measure data for a
claims-based measure would not begin
until completion of a data collection
period specific to that claims-based
measure, provided sufficient case
volumes are achieved.606 607 For
example, for the 7-Day Hospital Visit
606 CMS does not report measures publicly unless
measures are the result of an analysis of more than
10 cases.
607 CMS Policy for Privacy Act Implementation &
Breach Notification, July 23, 2007, Document
Number: CMS–CIO–POL–PRIV01–01, p 4.
Statistical, aggregate or summarized information
created as a result of analysis conducted using
identifiable CMS data obtained under CMSapproved projects/studies may only be disclosed if
the data are not individual-specific and the data are
aggregated to a level where no data cells contain 10
or fewer individuals.
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Rate After Outpatient Colonoscopy
measure, the data collection period is
three years; public reporting would
begin after completion of an initial
three-year data collection period, or CY
2027, provided the hospital had
sufficient case volumes. We plan to
provide additional detail on the
timeline of publicly reporting this data
in future rulemaking.
The display of these data would rely
on the same business processes and
resources that are currently in use for
the Hospital OQR and Hospital IQR
Programs. The data would be available
to the public both on our Care Compare
website and in downloadable data files
located in the Provider Data Catalog
(PDC), found at https://data.cms.gov.
Data associated with these three claimsbased measures would be updated
annually.
We invite public comment on this
proposal.
c. Public Reporting of the Proposed
Median Time from ED Arrival to ED
Departure for Discharged ED Patients
Measure
In the Hospital OQR Program, only
data for two out of the four strata of the
Median Time for Discharged ED Patients
measure are reported publicly. Measure
data for the Median Time for Discharged
ED Patients—Reported Rate is currently
publicly displayed on the Care Compare
site and in the downloadable data files
located in the PDC, found at https://
data.cms.gov, for the Hospital OQR
Program. Additionally, measure data for
the Median Time for Discharged ED
Patients—Psychiatric/Mental Health
Patients is publicly displayed in
downloadable data files located in the
PDC, in order to address a behavioral
health gap in the publicly reported
Hospital OQR Program measure set.608
While data for the Median Time for
Discharged ED Patients—Transfer
Patients measure stratification is not
currently reported publicly for hospitals
participating in the Hospital OQR
Program, we believe publicly reporting
measure data for this stratum for REHs
is imperative to allow for the
identification of REH ED throughput
performance gaps for patients requiring
higher levels of specialized care above
what an REH is able to provide.
Likewise, data for the Median Time for
Discharged Patients—Overall Rate
measure stratification are not currently
reported publicly for hospitals
participating in the Hospital OQR
608 CMS adopted a policy to publicly report
measure data for the Median Time for Discharged
ED Patients—Psychiatric/Mental Health Patients in
the CY 2018 OPPS/ASC final rule (82 FR 59437).
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Program. However, we believe publicly
reporting measure data for this stratum
for REHs participating in the REHQR
Program is important to provide an
account of all patients seen in the REH’s
ED, beyond identifying specific
performance in certain patient
populations as reflected by the other
strata calculated for this measure. We
note that the Median Time for
Discharged ED Patients measure is of
particular importance for the REHQR
Program because care provided in EDs
will likely be a focus of REH services;
as such, we seek to provide
transparency in publicly reporting of all
the strata calculated for this measure.
For a more detailed discussion of our
proposal to adopt the Median Time for
Discharged ED Patients measure in the
REHQR Program, please refer to section
XVI.B.5.b of this proposed rule.
We propose to make publicly
available data received from REHs to
calculate the following measure strata
for the Median Time for Discharged ED
Patients measure: (1) Median Time for
Discharged ED Patients—Overall Rate;
(2) Median Time for Discharged ED
Patients—Reported Measure; (3) Median
Time for Discharged ED Patients—
Psychiatric/Mental Health Patients; and
(4) Median Time for Discharged ED
Patients—Transfer Patients. We intend
to display these data publicly beginning
with the first quarter of measure data
submitted relevant to services provided
in CY 2024 in which case thresholds are
met. We plan to provide additional
detail on the timeline of publicly
reporting this data in future rulemaking.
As discussed above, display of these
data would rely on the same business
processes and resources that are
currently in use for the Hospital OQR
and Hospital IQR Programs.
We invite public comment on these
proposals.
ddrumheller on DSK120RN23PROD with PROPOSALS2
C. Administrative Requirements
1. Proposal To Codify Administrative
Requirements
Section 1861(kkk)(7)(B)(i) of the Act
provides that, with respect to each year
beginning with 2023, or each year
beginning on or after the date that is one
year after one or more measures are first
specified under section 1861(kkk)(7)(C)
of the Act, an REH shall submit data to
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the Secretary in accordance with section
1861(kkk)(7)(B)(ii). Clause (ii) states
that, with respect to each such year, an
REH shall submit to the Secretary data
on quality measures in a form and
manner, and at a time, specified by the
Secretary for purposes of section
1861(kkk)(7)(B) of the Act.
We finalized foundational
administrative requirements for REHs
participating in the REHQR Program in
the CY 2023 OPPS/ASC final rule (87
FR 71752, and 72149 through 72150). In
that rule, we require REHs must (1)
register on a CMS website before
beginning to report data; and (2) identify
and register a security official as part of
that registration process. We also
require REHs to submit data on all
quality measures to CMS. We propose to
codify the participation requirements in
the REHQR Program at § 419.95(b)
‘‘Participation in the REHQR Program.’’
We note that we intend to propose
additional administrative requirements
as appropriate for the REHQR Program
in subsequent rulemaking.
We invite public comment on these
proposals.
D. Form, Manner, and Timing of Data
Submitted for the REHQR Program
1. Proposal To Align and Codify
Submission of REHQR Program Data
We refer readers to the CYs 2014,
2016, and 2018 OPPS/ASC final rules
(78 FR 75110 through 75111; 80 FR
70519 through 70520; and 82 FR 59439,
respectively) where we finalized our
policies for clinical data submission for
the Hospital OQR Program. We codified
these submission requirements at
§ 419.46(d). We propose to align the
policies regarding submission of
program data for the REHQR Program
with those from the Hospital OQR
Program.
We also propose to codify this policy
at § 419.95 by adding paragraph (c)
‘‘Submission of REHQR Program Data.’’
In proposed paragraph (c)(1), we would
require that REHs that participate in the
REHQR Program must submit to CMS
data on measures selected under section
1861(kkk)(7)(C) of the Act in a form and
manner, and at a time specified by CMS.
REHs sharing the same CMS
Certification Number (CCN) must
combine data collection and submission
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across their multiple campuses for all
clinical measures for public reporting
purposes. In proposed paragraph (c)(2),
we propose that submission deadlines
by measure and by data type be posted
on a CMS website. All deadlines
occurring on a Saturday, Sunday, or
legal holiday, or on any other day all or
part of which is declared to be a nonwork day for Federal employees by
statute or executive order would be
extended to the first day thereafter
which is not a Saturday, Sunday, or
legal holiday or any other day all or part
of which is declared to be a nonwork
day for Federal employees by statute or
executive order.
We invite public comments on these
proposals.
2. Proposed Requirements for ChartAbstracted Measures Where PatientLevel Data Are Submitted Directly to
CMS Beginning With the CY 2024
Reporting Period
We propose to adopt one initial chartabstracted measure for the CY 2024
reporting period and for subsequent
years: Median Time for Discharged ED
Patients. Measure data for this measure
would be submitted via the HQR System
(formerly referred to as the QualityNet
Secure Portal). In developing this
proposal, we also considered proposing
that REHs submit data for this measure
on an annual rather than quarterly basis
to help reduce burden for REHs
participating in the REHQR Program.
However, we note that REHs would
have been reporting this measure on a
quarterly basis under the Hospital OQR
Program and would thus be acclimated
to this reporting frequency. Therefore, to
enhance alignment with this program,
we propose a similar data submission
frequency on a quarterly basis. We refer
readers to the CY 2015 OPPS/ASC and
CY 2023 OPPS/ASC final rules for a
discussion of our previously finalized
policies regarding submissions
deadlines for chart-abstracted measures
for the Hospital OQR Program (79 FR
66964; 87 FR 72110 to 72112).
Beginning with the CY 2024 reporting
period, the applicable patient encounter
quarters for chart-abstracted data and
their corresponding data submission
deadlines are as follows in Table 83.
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We propose to adopt these dates as
deadlines for submitting chartabstracted measure data for the REHQR
Program.
We invite public comment on this
proposal.
ddrumheller on DSK120RN23PROD with PROPOSALS2
3. Proposed Claims-Based Measure Data
Requirements Beginning With the CY
2024 Reporting Period
We propose to adopt three initial
claims-based measures for the CY 2024
reporting period and for subsequent
years: Abdomen CT; 7-Day Hospital
Visit Rate After Outpatient Colonoscopy
(CBE #2539); and 7-Day Hospital Visit
Rate After Outpatient Surgery (CBE
#2687). In calculating these and future
claims-based measures, we propose to
use Medicare claims data for services
with encounter dates on or after January
1, 2024.
We invite public comment on this
proposal.
4. Proposal To Adopt and Codify a
Review and Corrections Period for
Measure Data Submitted to the REHQR
Program
In the event that an REH submits data
for a measure, such as the chartabstracted Median Time for Discharged
ED Patients measure proposed for
adoption in section XVI.B.5.b of this
proposed rule, and later discovers or
suspects the data provided were not
accurate, it may need to submit
corrected data. To address this need, we
propose to adopt the same policies
currently in place for the Hospital OQR
Program. Under the Hospital OQR
Program, hospitals submit chartabstracted data to CMS on a quarterly
basis. These data are typically due
approximately four months after the
quarter has ended. We refer readers to
the CY 2015 OPPS/ASC final rule for a
discussion of our previously finalized
policies regarding submissions
deadlines for chart-abstracted measures
for the Hospital OQR Program (79 FR
66964).
Hospitals are encouraged to submit
data early in the submission schedule so
that they can identify errors and
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resubmit data before submission
deadlines. Hospitals can continue to
review, correct, and change these data
up until the close of each submission
deadline. For example, under the
Hospital OQR Program, we finalized a 4month period as the review and
corrections period for chart-abstracted
data (79 FR 66964). During this review
and corrections period, hospitals can
enter, review, and correct data
submitted directly to CMS. However,
after the submission deadline, hospitals
would not be allowed to change these
data. Under the Hospital OQR Program,
we generally provide rates to hospitals
for the measures that have been
submitted for chart-abstracted, patientlevel data 24 to 48 hours following
submission deadline.
We propose to adopt this same policy
under which an REH may review and
submit corrections to measure data, and
that for chart-abstracted measure data,
an REH may review and submit
corrections to measure data submitted
for a period of four months after the
reporting quarter has ended. We also
propose to codify this policy at § 419.95
by adding paragraph (c)(3) ‘‘Review and
Corrections Period.’’ In proposed
paragraph (c)(3), we propose that REHs
would have a review and corrections
period for all quality data submitted,
which runs concurrently with the data
submission period, when they would be
able to enter, review, and correct data
submitted prior to the submission
deadline. In addition, we propose that
after the submission deadline, these
data cannot be changed.
We invite public comment on this
proposal.
5. Extraordinary Circumstances
Exceptions (ECE) Process
a. Proposal To Adopt an ECE Process for
the REHQR Program
In our experience, there have been
times when facilities have been unable
to submit information to meet program
requirements due to extraordinary
circumstances that are not within their
control. It is our goal not to penalize
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such entities for such circumstances and
we do not want to unduly increase their
burden during these times. We propose
an Extraordinary Circumstances
Exceptions (ECE) process for REHs to
request and for CMS to grant extensions
or waivers with respect to the reporting
of required quality data when there are
extraordinary circumstances beyond the
control of the REH. Under this proposed
process, CMS may grant an exception to
one or more data submission deadlines
and requirements in the event of
extraordinary circumstances beyond the
control of the REH, such as when an act
of nature affects an entire region or
locale or a systemic problem with one
of CMS’ data collection systems directly
or indirectly affects data submission.
Because we do not anticipate that such
systemic errors will happen often, we
do not anticipate granting exceptions on
this basis frequently.
We propose that CMS may grant an
exception to one or more data
submission deadlines and requirements
upon request by an REH, pursuant to
specific requirements for submission of
such a request described below. In
addition, we propose that CMS may
grant exceptions at its own discretion,
without an accompanying request from
an affected REH, when CMS determines
that an extraordinary circumstance has
occurred.
For an REH to request consideration
of an exception to the requirement to
submit quality data or medical record
documentation for one or more quarters,
the REH would follow specific
requirements for submission of an ECE
request form available on a CMS
website. We note that the following
information must appear on the request
form: the REH’s CCN; the REH’s name;
the REH’s CEO or other REH-designated
personnel contact information,
including name, email address,
telephone number, and mailing address
(must include a physical address, a post
office box address is not acceptable);
REH’s reason for requesting an
exception; evidence of the impact of the
extraordinary circumstances, including
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but not limited to photographs,
newspaper and other media articles; and
a date when the REH believes it would
again be able to submit REHQR Program
data and/or medical record
documentation, and a justification for
the proposed date.
The request form must be signed by
the REH’s designated contact, whether
or not that individual is the CEO. A
request form is required to be submitted
within 90 days of the date that the
extraordinary circumstance occurred.
Following receipt of such a request,
CMS would provide an email
acknowledgement using the contact
information provided in the request
notifying the designated contact that the
REH’s request has been received and
following CMS’ decision, CMS would
notify the REH using the same contact
information. In the case where CMS
grants exceptions to REHs that have not
requested them because we determine
that an extraordinary circumstance has
occurred in a region or locale, we would
communicate this decision to REHs and
vendors through routine communication
channels, including but not limited to
emails and notices on a CMS website.
We also propose to codify these
policies at § 419.95 by adding paragraph
(g), ‘‘Exception.’’ In proposed
paragraphs (g)(1) and (g)(2), we propose
that we may grant, upon the request of
the REH or at our discretion, an
exception to one or more data
submission deadlines and requirements
in the event of extraordinary
circumstances beyond the control of the
REH.
We invite public comment on this
proposal.
XVII. Changes to Community Mental
Health Center (CMHC) Conditions of
Participation (CoPs)
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A. Background and Statutory Authority
The Consolidated Appropriations Act
(CAA) of 2023 (Pub. L. 117–328) was
signed into law on December 29, 2022.
Section 4124 of division FF of this
legislation established coverage of
intensive outpatient services (IOP) in
community mental health centers
(CMHC). Section 4124 of the CAA, 2023
extends Medicare coverage and payment
of IOP services furnished by a CMHC
beginning January 1, 2024, allowing
coverage of both partial hospitalization
services (PHP) and IOP services to be
furnished by CMHCs at section
1832(a)(2)(J) of the Act. Additionally,
the CAA, 2023 revised section 1861(ff)
of the Act to define IOP services while
also amending the definition of PHP
services. The statutory definitions
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provide distinctions between the two
programs for Medicare purposes.
Section 1861 (ff)(3)(B)(iv) of the Act
authorizes the Secretary to establish the
requirements that a CMHC must meet to
participate in the Medicare Program,
and these CoPs are set forth in
regulations at 42 CFR part 485, subpart
J (42 CFR 485.900). On October 29,
2013, we published a final rule in the
Federal Register titled ‘‘Medicare
Program: Conditions of Participation
(CoP) for Community Mental Health
Centers’’ (78 FR 64604), hereinafter
referred to as ‘‘2013 CoP CMHC final
rule’’, which established CoPs for
CMHCs.
In order to implement division FF,
section 4124 of the CAA, 2023, we
propose to modify the requirements for
the CMHC to include IOP services
throughout the CoPs.
Under section 1861(ff)(3)(B)(iii) of the
Act, a CMHC must provide at least 40
percent of its services to individuals
who are not eligible for Medicare Part B.
This requirement is reflected in the
CoPs at § 485.918(b)(1)(v).609 Under this
requirement, CMHCs must submit a selfattestation certification statement upon
initial application to enroll in Medicare,
and as a part of revalidation, including
any off-cycle revalidation. Medicare
enrollment will be denied or revoked in
instances where the CMHC fails to
provide the certification statement as
required. In addition, Medicare
enrollment will also be denied or
revoked if the 40 percent requirement,
as specified in section 1861(ff)(3)(B)(iii)
of the Act and § 485.918(b)(1)(v), is not
met. We solicit public comment on how
the provision of IOP services may
impact the populations CMHCs serve as
well as the potential impact on meeting
the 40 percent requirement.
We also propose to revise the
personnel qualifications of Mental
Health Counselors (MHCs) and add
personnel qualifications of Marriage and
Family Therapists (MFTs) to the CMHC
CoPs. Division FF, section 4121 of the
CAA, 2023, establishes a new Medicare
benefit category for MHC services and
MFT services furnished by and directly
billed by MHCs and MFTs, respectively.
At the time of publication of the 2013
CoP CMHC final rule (78 FR 64604),
there were no specific personnel
requirements (for purposes of the
Medicare program) for Mental Health
Counselors (MHCs). We believe it was
necessary to recognize and outline
specific personnel requirements for
MHCs due to their integral role in
609 https://www.reginfo.gov/public/do/
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providing mental health services to
CMHC clients. We believe that MFTs are
also essential mental health
professionals who may furnish services
in a CMHC, and propose adding MFTs
to § 485.904 Condition of participation:
Personnel qualifications. According to
the American Association for Marriage
and Family Therapy, a professional
association for the MFT field, one of the
settings an MFT may practice is in a
CMHC.610 The CAA 2023 does not
require CMHCs to employ MFTs or
MHCs; however, we believe the services
provided by both MHCs and MFTs are
integral to ensuring the health and
safety of CMHC clients. We seek
comment on the revised personnel
qualifications for MHCs.
B. Provisions of the Proposed Rule
Section 4124 of the CAA, 2023
provides intensive outpatient services to
be included as services provided by
CMHCs under the Medicare Program.
We propose the following revisions to
the CMHC CoPs.
1. § 485.900 Basis and Scope
Currently, a CMHC may receive
Medicare payment for partial
hospitalization services if it meets the
CMHC CoPs. Our regulations are
intended to protect the health and safety
of CMHC clients and support quality
care. We propose to update the CoPs for
CMHCs to reflect the statutory addition
of IOP services provided by CMHCs to
protect the health and safety of clients.
Both PHP and IOP services are
outpatient mental health services for
adults and children who have an acute
mental illness, including, but not
limited to, conditions such as
depression, schizophrenia, and
substance use disorders. The Medicare
Statute authorizes the PHP program for
clients that need a higher level and
intensity of care, a minimum of 20
hours per week (section 1861(ff)(1) of
the Act). A Medicare beneficiary
qualifies if they otherwise require
inpatient psychiatric care in the absence
of such services (section 1835(a)(2)(F) of
the Act). The PHP program may assist
in transitioning from these institutional
settings to community-based services.
PHP and the addition of IOP services are
important components in the
continuum of mental health care and
services. Both PHP and IOP are more
intensive than office-based counseling
but less intense than inpatient
psychiatric care. Both PHP and IOP
programs can serve beneficiaries as a
step-up in care if additional support is
610 https://www.aamft.org/Consumer_Updates/
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needed or a step down in managing
symptoms. The addition of IOP services
in a CMHC would assist in ensuring the
continuum of coverage of outpatient
mental health services under the
Medicare program. Medicare coverage of
IOP services may help address barriers
to access to mental health care, which
may also address inequities in mental
health care and services. In order to
implement division FF, section 4124 of
the CAA, 2023, we propose to modify
the CMHC CoP at § 485.900(a)(1)
through (a)(3). These modifications
would allow CMHCs to receive
payments for IOP services under
Medicare Part B, establish requirements
for the provision of IOP services in
CMHCs, provide IOP services to clients,
and include IOP services in the
Medicare provider agreement.
2. § 485.904 Personnel Qualifications
Section § 485.904 of the CMHC CoP
establishes staff qualifications, and
paragraph (a) requires all professionals
who furnish services directly, under an
individual contract, or under
arrangements with a CMHC to be legally
authorized (licensed, certified, or
registered) in accordance with
applicable Federal, State and local laws,
and be required to act only within the
scope of their State licenses,
certifications, or registrations. The staff
qualifications set out at § 485.904(b),
Standard: Personnel qualifications for
certain disciplines, are consistent with,
or similar to, those set forth in CoPs for
other provider types in the Medicare
regulations. As part of the 2013 CMHC
CoP final rule, we established personnel
qualifications for MHCs at
§ 485.904(b)(5). Division FF, section
4124 of the CAA, 2023, established a
new Medicare benefit category for MFTs
and MHC services in section 1861(lll) of
the Act, including a definition for MFTs
in section 1861(lll)(2) of the Act and
MHCs in section 1861(lll)(4) of the Act.
Section 1861(lll)(4) of the CAA 2023
defines the term ‘mental health
counselor’ to mean an individual who:
(1) possesses a master’s or doctor’s
degree which qualifies for licensure or
certification as a mental health
counselor, clinical professional
counselor, or professional counselor
under the State law of the State in
which such individual furnishes the
services described in paragraph (3); (2)
is licensed or certified as a mental
health counselor, clinical professional
counselor, or professional counselor by
the State in which the services are
furnished; (3) after obtaining such a
degree has performed at least 2 years of
clinical supervised experience in mental
health counseling; and (4) meets such
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other requirements as specified by the
Secretary. Section 1861(lll)(2) of the Act
defines the term ‘marriage and family
therapist’ to mean (1) possesses a
master’s or doctor’s degree which
qualifies for licensure or certification as
a marriage and family therapist
pursuant to State law of the State in
which such individual furnishes the
services described in paragraph (1); (2)
is licensed or certified as a marriage and
family therapist by the State in which
such individual furnishes such services;
(3) after obtaining such degree has
performed at least 2 years of clinical
supervised experience in marriage and
family therapy; and (4) meets such other
requirements as specified by the
Secretary.
To support the health and safety of
CMHC clients and to promote
consistency and clarity of CMHC
personnel qualifications, we believe it is
best to align the personnel qualifications
for MFTs and MHCs with the
requirements set out in the CAA, 2023.
The statutory requirements for MHCs
and MFTs are being codified in the CY
2024 Physician Fee Schedule proposed
payment rule that is published
elsewhere in the Federal Register. We
propose to modify the MHC personnel
requirement at § 485.904(b)(5) by crossreferencing the definition of an MHC at
§ 410.54 and adding a new requirement
at § 485.904(b)(12), cross-referencing the
definition of an MFT at § 410.53.
3. § 485.914 Admission, Initial
Evaluation, Comprehensive Assessment,
and Discharge or Transfer of the Client
The requirements at § 485.914
establish requirements for admission,
initial evaluation, comprehensive
assessment, and discharge or transfer of
the client in accordance with sections
1835(a)(2)(F) and 1861(ff) of the Act.
These CoPs identify general areas that
would be included in a client
assessment and the timeframes for
completing the assessments to help the
CMHC ensure it is identifying the needs
in all areas in a timely fashion. At
§ 485.914(a)(1), we require that clients
are assessed and admitted to receive
partial hospitalization (PHP) services,
and (2) the CMHC must also meet
separate requirements as specified in
§ 485.918(f). The requirements at
§ 485.918(f) reference additional PHP
requirements of 42 CFR part 410 (CMHC
services and definition) and § 424.24(e)
(the content of the certification and plan
of treatment requirements). We propose
to modify the current CoP at
§ 485.914(a)(2) to add IOP requirements
and reference applicable requirements
the CMHC must meet that are specific
to IOP services at proposed § 485.918(g).
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This proposed standard for IOP is
discussed later in section XVII.A.5 of
this proposed rule.
Currently, § 485.914(d) requires that
the CMHC update each client’s
comprehensive assessment through the
CMHC interdisciplinary treatment team,
in consultation with the client’s primary
health care provider (if any), when
changes in the client’s status, responses
to treatment, or goal achievement have
occurred and in accordance with
current standards of practice. Section
485.914(d)(2) requires that the
assessment must be updated no less
frequently than every 30 days for clients
that receive PHP services. We note that
this aligns with the changes made in
section 4124(a) of the CAA, 2023 to the
definition of ‘‘partial hospitalization
services’’ in section 1861(ff)(1) of the
Act, which requires that a physician
determine (not less frequently than
monthly) that a client has a need for
such services. This update includes
information on the client’s progress
toward desired outcomes, a
reassessment of the client’s response to
care and therapies, and the client’s
goals. We believe that for some clients,
more frequent reviews are necessary
since clients with ongoing mental
illness may be subject to frequent and/
or rapid changes in status, needs, acuity,
and circumstances, and the client’s
treatment goals may change, thereby
affecting the type and frequency of
services that should be furnished. The
CMHC interdisciplinary treatment team
uses assessment information to guide
necessary reviews and/or changes to the
client’s active treatment plan.611
Currently, § 485.914(d)(2) addresses
how often a CMHC must update a PHP
client’s assessment, and we propose to
add IOP requirements to this standard,
using the same period (30 days).
4. § 485.916 Treatment Team, PersonCentered Active Treatment Plan, and
Coordination of Services
The review and update of the CMHC
client’s person-centered active treatment
plan plays an integral role in outlining
the care and services provided by the
CMHC. The current requirements at
§ 485.916(d) indicate that the active
treatment plan be updated with current
information from the client’s
comprehensive assessment and
information concerning the client’s
progress toward achieving outcomes
and goals specified in the active
treatment plan. The active treatment
plan is reviewed at specified intervals
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but no less frequently than every 30
calendar days. Under this current
requirement, the revised active
treatment plan must include
information from the client’s initial
evaluation and comprehensive
assessments, the client’s progress
toward outcomes and goals specified in
the active treatment plan, and changes
in the client’s goals. In addition, the
CMHC is required to meet partial
hospitalization program requirements
specified under § 424.24(e).
We propose to modify language at
§ 485.916(d) to include IOP
requirements and a specific reference to
the proposed requirement at § 424.24(d).
As the CMHC must meet partial
hospitalization program requirements
specified under § 424.24(e), they must
meet IOP program requirements
specified under § 424.24(d) if such
services are included in the active
treatment plan.
5. § 485.918 Organization, Governance,
Administration of Services, Partial
Hospitalization Services
The CoP at § 485.918 establishes
requirements for CMHC organization,
governance, administration of services,
and partial hospitalization services.
This standard includes administrative
and governance structure standards and
clarifies the governing body’s
expectations. Other requirements under
this standard are professional
management responsibility, staff
training, and physical environment. The
overall goal of this CoP is to ensure that
the management structure is organized
and accountable. The requirement at
§ 485.918(b), Standard: Provision of
services, specifies a comprehensive list
of services that a CMHC is required to
furnish. This list of services that CMHCs
provide corresponds directly to the
Act’s statutory requirements in section
1861(ff)(3).
We propose to modify the section
heading at § 485.918 by adding
‘‘intensive outpatient services,’’ such
that the new section heading will be
‘‘Organization, governance,
administration of services, partial
hospitalization services, and intensive
outpatient services.’’
In addition, we propose to add IOP to
the requirement at § 485.918(b)(1)(iii)
for the provision of services. These
proposed changes would recognize IOP,
along with day treatment and PHP, as
services that can be provided by a
CMHC, other than in an individual’s
home or an inpatient or residential
setting or psychosocial rehabilitation
services.
We propose to redesignate the current
requirements at § 485.918(g) to
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paragraph (h) and add a new standard
for IOP services at § 485.918(g). This
new requirement would specify the
additional requirements a CMHC
providing IOP services must meet based
on the proposed requirements at § 410.2,
§ 410.44, § 410.111, and § 424.24(d) of
this chapter. See section VIII.B.2 and
VIII.C.2 of this proposed rule for a
discussion of these additional
requirements.
We solicit public comments on each
of our proposals. In addition, we request
comments from CMHC stakeholders
regarding the impact of the proposed
IOP requirements on the requirement
that CMHCs provide at least 40 percent
of their items and services to
individuals who are not eligible for
benefits under title XVIII of the Act, as
specified at § 485.918(b)(1)(v).
Specifically, we seek comment on the
following:
• Do you expect the total number of
clients served in your CMHC to increase
with the addition of IOP?
• Do you expect that your CMHC
would admit new clients directly into
the IOP program, and do you have a
sense of their anticipated insurance
status?
• Do you expect that any of your PHP
clients would step down to the IOP
program? If so, can you provide an
estimated percentage of PHP clients
who would step down to the IOP
program?
• Do you expect any of your
outpatient treatment clients, such as
office-based therapy, to step up to the
IOP program?
• Do you expect that offering IOP
would impact your ability to meet the
40 percent requirement at
§ 485.918(b)(1)(v)? This requirement
states that the CMHC provides at least
40 percent of its items and services to
individuals who are not eligible for
benefits under title XVIII of the Act.
XVIII. Proposed Updates to
Requirements for Hospitals To Make
Public a List of Their Standard Charges
A. Introduction and Overview
1. Statutory Basis and Background
Section 1001 of the Patient Protection
and Affordable Care Act (Pub. L. 111–
148), as amended by section 10101 of
the Health Care and Education
Reconciliation Act of 2010 (Pub. L. 111–
152), amended Title XXVII of the Public
Health Service Act (the PHS Act), in
part, by adding a new section 2718(e).
Section 2718 of the PHS Act, entitled
‘‘Bringing Down the Cost of Health Care
Coverage,’’ requires each hospital
operating within the United States
(U.S.) for each year to establish and
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update, and make public a list of the
hospital’s standard charges for items
and services provided by the hospital,
including for diagnosis-related groups
established under section 1886(d)(4) of
the Social Security Act (the Act).
Section 2718(b)(3) of the PHS Act
requires the Secretary of the Department
of Health and Human Services
(Secretary) to promulgate regulations to
enforce the provisions of section 2718 of
the PHS Act, and, in so doing, the
Secretary may provide for appropriate
penalties.
In a final rule dated November 2019
(84 FR 65524) (herein referred to as the
CY 2020 HPT final rule), we adopted
requirements for hospitals to make
public their standard charges in two
ways: (1) as a comprehensive machinereadable file (MRF); 612 and (2) in a
consumer-friendly format. We codified
these requirements at new 45 CFR part
180. We also explained our belief that
these two different methods of making
hospital standard charges public are
necessary to ensure that such data are
available to consumers where and when
they are needed, including through data
aggregation methods (for example, via
integration into price transparency
tools, electronic health records (EHRs),
and consumer apps), and direct
availability to consumers searching for
hospital-specific charge information.
Additionally, we believe such data can
be used specifically by employers,
researchers, and policy officials, and
similar members of the public to help
bring more value to healthcare.
Subsequently, in the CY 2022 OPPS/
ASC final rule with comment period (86
FR 63941), we strengthened the hospital
price transparency (HPT) enforcement
scheme in order to improve compliance
rates and made other updates to the
requirements. Specifically, we (1)
increased the penalty amount for
noncompliance through the use of a
scaling factor based on hospital bed
count; (2) deemed state forensic
hospitals that meet certain requirements
to be in compliance with the
requirements of 45 CFR part 180, and (3)
prohibited certain conduct that we
concluded were barriers to accessing the
standard charge information, including,
specifically, prohibiting hospitals from
coding their MRF in a fashion that made
it inaccessible to automated searches
and direct downloads.
In both of those final rules, we stated
that our policies requiring public release
of hospital standard charge information
612 We have previously generally described the
machine-readable file (MRF) as a single digital file
that is in a machine-readable format (as defined at
45 CFR 180.20), and we propose in this proposed
rule to codify that definition in our regulations.
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are a necessary and important first step
in ensuring transparency in healthcare
prices for consumers. We also recognize
that the release of hospital standard
charge information is not itself
sufficient to achieve our ultimate price
transparency goals. The regulations are,
therefore, designed to begin to address
some of the barriers that limit price
transparency, with a goal of increasing
competition among healthcare providers
to bring down costs.
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2. Summary of Proposals in This
Proposed Rule
We propose to amend several of our
HPT requirements in order to improve
our monitoring and enforcement
capabilities by improving access to, and
the usability of, hospital standard
charge information; reducing the
compliance burden on hospitals by
providing CMS templates and technical
guidance for display of hospital
standard charge information; aligning,
where feasible, certain HPT
requirements and processes with
requirements and processes we have
implemented in the Transparency in
Coverage (TIC) initiative; and making
other modifications to our monitoring
and enforcement capabilities that will,
among other things, increase its
transparency to the public. Specifically,
we propose to: (1) define several terms;
(2) revise the standard charge
information and data elements that
hospitals must include in their MRFs, as
well as require hospitals to use a
template developed by CMS (hereafter
referred to as a ‘CMS template’) for
purposes of complying with § 180.50 of
our regulations, in order to standardize
the displayed MRF data; (3) improve the
accessibility of the hospital MRF by
requiring hospitals to include a .txt file
in the root folder that includes a direct
link to the MRF and a link in the footer
on its website that links directly to the
publicly available web page that hosts
the link to the MRF; and (4) improve our
enforcement process by updating our
methods to assess hospital compliance,
requiring hospitals to acknowledge
receipt of warning notices, working with
health system officials to address
noncompliance issues in one or more
hospitals that are part of a health
system, and publicizing more
information about CMS enforcement
activities related to individual hospital
compliance. Additionally, we are
seeking comment on additional
considerations for improving
compliance and aligning consumerfriendly policies and requirements with
other federal price transparency
initiatives.
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B. Proposal To Modify the Requirements
for Making Public Hospital Standard
Charges at 45 CFR 180.50
In the CY 2020 HPT final rule, we
finalized, at 45 CFR 180.50, specific
requirements with which hospitals must
comply for the purpose of making
public a single comprehensive list of
standard charges for the items and
services they provide, including
requirements that govern the format,
data elements, location and accessibility
of the list, as well as the frequency by
which they must update the list.
In this section, for the reasons
discussed below, we propose to
substantially modify § 180.50(a) through
(d) of our regulations, which govern
some of the requirements for how
hospitals must make public their
standard charges for all items and
services they provide. Specifically, we
propose to (1) define several new terms;
(2) require hospitals to affirm the
accuracy and completeness of the
standard charges displayed in the MRF;
(3) require hospitals to display
additional data elements in their list of
standard charges; (4) require display of
standard charge information using a
CMS template; and (5) adopt new
requirements to improve the automated
accessibility of the machine-readable
file.
1. Proposed Definitions
We propose to add the following
definitions to § 180.20:
• ‘‘CMS template’’ means a CSV
format or JSON schema that CMS makes
available for purposes of compliance
with the requirements of § 180.40(a).
• ‘‘Consumer-friendly expected
allowed amount’’ means the average
dollar amount that the hospital
estimates it will be paid by a third party
payer for an item or service.
• ‘‘Encode’’ means to enter data items
into the fields of the CMS template.
• ‘‘Machine-readable file’’ means a
single digital file that is in a machinereadable format.
In light of these proposed definitions,
we further propose several technical
and conforming revisions to ensure
consistency of the use of these terms
across the regulation. Specifically, we
propose to replace references to ‘‘the
file’’ and ‘‘the digital file’’ in
§ 180.50(d)(4) through (5) with the
proposed defined term ‘‘machinereadable file’’. Revisions to references to
the ‘‘file’’ in the introductory text of
§ 180.50(c) and at § 180.50(e) are
addressed as a part of other proposed
changes within this proposed rule.
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2. Proposal To Require Hospitals To
Affirm the Accuracy and Completeness
of Their Standard Charge Information
Displayed in the MRF
Since we implemented the HPT
regulations, we have received questions
from the public regarding the accuracy
and completeness of the standard charge
information displayed by hospitals.
Similar questions have also arisen in the
course of our enforcement activities.
Section 2718(e) of the PHS Act requires
hospitals to make public each standard
charge the hospital has established;
however, a hospital may not have
established certain types of standard
charges defined by the regulation. For
example, under our current regulations,
a hospital that has not established any
discounted cash prices for any item or
service would not have any discounted
cash prices to display in its MRF.
Depending on the type of MRF format
chosen by the hospital, the file may
contain ‘blanks’ without explanation.
Although a hospital that chooses to
leave the discounted cash price field
blank under this scenario would be in
compliance with our regulations, a user
of the MRF could be unsure as to
whether the hospital has not established
such charges, or, instead, has not
complied with the requirement to
disclose them in the MRF. Although
many hospitals include explanatory
information on the web page associated
with the MRF or within the MRF itself
(for example, in a CSV format, inserting
‘N/A’ in blank cells or adding an
explanatory note), they currently do so
on a voluntary basis.
We believe that requiring the hospital
to affirm the accuracy and completeness
of its MRF would mitigate the potential
for public confusion as to whether the
MRF is accurate and complete because
it clarifies to the public that blank cells
left in some formats (such as CSV which
can be opened in a human-readable
format) are intentional. Such an
affirmation would also streamline our
enforcement efforts by removing the
need to initiate a compliance action
asking for the hospital to verify that
their file is accurate and complete. We
therefore propose to require that each
hospital affirm directly in its MRF
(using a CMS template, which we
propose in more detail at XVIII.B.2 of
this proposed rule) that it has included
all applicable standard charge
information in its MRF as of the date in
the MRF. We believe that requiring the
hospital to add this affirmation directly
in its MRF would make it clear to the
public that the affirmation relates
directly to that MRF, and would
mitigate the potential for confusion if
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we only required that the affirmation
appear on a website that links to the
hospital’s MRF, especially if that
website also links to other hospital
MRFs.
We therefore propose to add new
paragraph (a)(3) at § 180.50 to require
that, in its MRF, each hospital add a
statement affirming that, to the best of
its knowledge and belief, the hospital
has included all applicable standard
charge information in its MRF, in
accordance with the requirements of
§ 180.50, and that the information
displayed is true, accurate, and
complete as of the date indicated in the
file.
We seek comment on this proposal.
ddrumheller on DSK120RN23PROD with PROPOSALS2
3. Proposal To Improve the
Standardization of Hospital MachineReadable File (MRF) Formats and Data
Elements
In this section, we propose to revise
several requirements at § 180.50(b) and
(c). We also propose to adopt technical
edits to other sections of the HPT
regulations that are related to the
revisions for alignment, conformity, and
clarity.
a. Background
In the CY 2020 HPT final rule, we
expressed our concern that lack of
uniformity in the way that hospitals
display their standard charges leaves the
public unable to meaningfully use,
understand, and compare standard
charge information across hospitals (84
FR 65556). We stated that we agreed
with commenters that standardization
in some form is important to ensure
high utility for users of hospital
standard charge information, and we
finalized an initial set of rules for
making public all standard charges in an
MRF at § 180.50. Section 180.50(a)(1) of
our regulations states that a hospital
must establish, update, and make public
a list of all standard charges for all items
and services online in the form and
manner specified in that section, and
§ 180.50(a)(2) states that each hospital
location operating under a single
hospital license (or approval) that has a
different set of standard charges than
the other location(s) operating under the
same hospital license (or approval) must
separately make public the standard
charges applicable to that location. If a
hospital location operating under a
single hospital license or approval
shares the same set of standard charges
as another hospital location operating
under the same license or approval,
then both hospital locations may post
the same MRF. In other words, in the
interest of burden reduction, hospital
locations may share a file so long as the
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standard charges information displayed
in the file are applicable to the indicated
locations.
Section 180.50(b) of our regulations
describes the required data elements
that must be included, as applicable, in
the hospital’s MRF, which are the
following:
• Description of each item or service
provided by the hospital.
• The corresponding gross charge that
applies to each individual item or
service when provided in, as applicable,
the hospital inpatient setting and
outpatient department setting.
• The corresponding payer-specific
negotiated charge that applies to each
item or service when provided in, as
applicable, the hospital inpatient setting
and outpatient department setting. Each
payer-specific negotiated charge must be
clearly associated with the name of the
third party payer and plan.
• The corresponding de-identified
minimum negotiated charge that applies
to each item or service when provided
in, as applicable, the hospital inpatient
setting and outpatient department
setting.
• The corresponding de-identified
maximum negotiated charge that applies
to each item or service when provided
in, as applicable, the hospital inpatient
setting and outpatient department
setting.
• The corresponding discounted cash
price that applies to each item or service
when provided in, as applicable, the
hospital inpatient setting and outpatient
department setting.
• Any code used by the hospital for
purposes of accounting or billing for the
item or service, including, but not
limited to, the CPT code, HCPCS code,
DRG, NDC, or other common payer
identifier.
When we finalized this set of
standardized data elements, we stated
our belief that they would help ensure
that the public could compare standard
charges for similar or the same items
and services provided by different
hospitals. Commenters had provided
many additional suggestions for how to
standardize the standard charge
information displayed by hospitals, but
we declined at the time to be more
prescriptive in our approach. Instead,
we indicated that we might revisit the
requirements in future rulemaking
should we find it necessary to make
improvements in the display and
accessibility of hospital standard charge
information.
At § 180.50(c), the regulation specifies
that the required (but ‘‘as applicable’’)
data elements must be published in a
single digital file that is in a machinereadable format. The term ‘‘machine-
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49849
readable format’’ is defined at § 180.20
to mean a digital representation of data
or information in a file that can be
imported or read into a computer
system for further processing.
Since we first implemented the
regulation in January 2021, feedback in
reports developed and made public by
interested parties, particularly from IT
specialists, researchers, employers, and
others, indicates that more
standardization of the files (including a
specified template and standardization
of additional contextual data elements)
may be necessary to improve the
public’s use and understanding of, and
ability to make comparisons among,
hospital standard charge
information.613 614 615 616 617 In particular,
IT specialists have indicated that the
current flexibilities and lack of encoding
specifications hinder the machinereadability of the data in the files,
presenting a barrier to the intended use
of the data. Additionally, hospitals have
asked us for more specificity on how
they should publicly display their
standard charge information, with an
emphasis on how they should explain
and display their payer-specific
negotiated charges. Some hospitals have
suggested that a template developed by
CMS could be useful to improve
hospital compliance and reduce
hospital burden. Further, the
flexibilities that the current regulation
permit insofar as the format of hospital
standard charges information, and the
very limited set of data elements
required to be displayed under § 180.50,
have presented an enforcement
challenge. For example, because
hospitals are permitted to display their
information using a wide variety of file
formats and data encoding practices, we
must manually, via time and resourceintensive processes, review the
information in the files to assess
whether the information is consistent
with the data element requirements at
§ 180.50(b). Some hospitals rename data
elements, include additional data
elements, or exclude, without
explanation, data elements that are not
applicable, which can make it difficult
613 https://www.healthsystemtracker.org/brief/
ongoing-challenges-with-hospital-pricetransparency/.
614 https://energycommerce.house.gov/events/
improving-drug-pricing-transparency-and-loweringprices-for-american-consumers.
615 https://familiesusa.org/wp-content/uploads/
2023/04/Power-of-Price-Transparency-final4.19.23.pdf.
616 https://blog.turquoise.health/hospitalcompliance-assessments/.
617 https://static1.squarespace.com/static/
60065b8fc8cd610112ab89a7/t/60de0380cc09720
60d0354eb/1625162631437/PRA+OPPS+
Recommendations+June+2021%5B3%5D.pdf.
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to assess whether the information
contained in the file is accurate and
complete. This, in turn, slows
compliance reviews and often requires
us to engage in one-on-one discussions
with hospitals. We therefore came to
believe that requiring more specificity
in formatting and encoding the MRFs, as
well as increasing the number of
required corresponding data elements
hospitals must provide, would not only
create efficiencies for public users of the
MRFs and our efforts to enforce the
requirements, but also improve the
meaningfulness of the hospital’s
standard charges.
As a result, in the CY 2022 OPPS/ASC
proposed rule (86 FR 42321), we sought
comment on improving standardization
of the data disclosed by hospitals in the
MRF. In response, many commenters
urged CMS to create a standard template
for hospitals to use for posting their
MRF, noting that such standardization
could ease operational burdens,
improve the public’s (including
employers and researchers) ability to
make price comparisons across
hospitals, and better enable third party
data aggregation services to develop
user-friendly consumer tools for
displaying this information. Some
commenters recommended that CMS
work with providers and vendors to
better understand the benefits of a
standard template. Some hospitals also
urged CMS to be more prescriptive,
requesting that CMS standardize the
MRF format and contents and provide
additional clarification on how
hospitals should indicate that they have
not established all five types of standard
charges for a particular listed item or
service.
We requested the HHS Health
Federally Funded Research and
Development Center (FFRDC) 618 to
more fully explore the feasibility of
these commenters’ recommendations,
and to identify technical specifications
and categories of information (referred
to as ‘‘data elements’’) that we could
consider proposing in future rulemaking
to improve the usability and
meaningfulness of the standard charges
display. The Health FFRDC convened a
technical expert panel (TEP) and used
the TEP members’ advice to make
informed recommendations to CMS in
the summer of 2022.619 The TEP was
618 MITRE operates HHS’ Health FFRDC, a
federally funded research and development center.
For more information, see: https://www.mitre.org/
our-impact/rd-centers/health-ffrdc.
619 MITRE, Hospital Price Transparency MachineReadable File Technical Expert Panel Report and
MITRE Recommendations to the Centers for
Medicare & Medicaid Services, November, 2022.
https://mitre.box.com/v/MITRE-MRF-TEP.
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comprised of both MRF developers,
specifically, hospitals (representatives
of large and small acute and specialty
care hospitals), and primary users of
MRF data, specifically, researchers and
information technology innovators. The
TEP members discussed the challenges
and complexities of displaying, in a
meaningful way, all hospital standard
charges in an MRF. The TEP members
noted that increasing standardization of
the MRF and the required data elements
may improve the public’s ability to
make price comparisons across
hospitals. TEP members indicated their
belief that public display of hospital
standard charge information is an
important step toward transparency in
prices for hospital items and services,
but cautioned that hospitals use
different methods to establish standard
charges for items and services, resulting
in charge/item and charge/service
combinations that are often unique to
that hospital. Therefore, some direct
comparisons of hospital standard
charges may continue to be a challenge
if such comparisons are made under the
assumption that hospitals always use
the same methods to establish their
standard charges and that the same
charge/item and charge/service
combinations are consistent across
hospitals. As such, attempting to use
hospital standard charges in isolation,
without additional contextual
information, can result in erroneous
conclusions and comparisons. The
members went on to discuss the
potential benefits to both hospitals and
the public if CMS required hospitals to
display standard charge information
that better described or contextualized
their standard charges, including
standard charge information related to
complex contracting arrangements
between hospitals and third party
payers. The TEP also weighed the
benefits with the potential burden
hospitals would incur to display those
new data elements and encode data in
a more specified way.
First, the TEP members discussed
what general machine-readable
format(s) would be best suited to
display hospital standard charges. The
TEP members indicated that use of nonproprietary formats would be ideal
because they are widely and freely
available to both the developers (the
hospitals) and users (for example, IT
developers and researchers) of the
MRFs. The TEP members then
considered different types of nonproprietary formats. They first
considered whether a single nonproprietary format, such as JSON,
should be recommended because of its
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ability to represent hierarchical
relationships better than tabular nonproprietary formats, such as CSV.
Whereas JSON’s use of a hierarchical
format could be beneficial because it
would eliminate the need to leave data
fields, sometimes numerous, blank if the
hospital has no applicable
corresponding information. However,
TEP members noted that existing
hospital systems often produce files in
CSV, and that smaller, less-resourced,
hospitals often lack the in-house
capacity to develop and manage a JSON
file. The TEP members therefore
suggested that hospitals have a choice of
JSON and CSV formats. The TEP
members also discussed the specific
technical layout of a CSV file, including
a:
• ‘‘tall’’ format, with separate payer
and plan data elements that provide the
benefit of static header naming with less
opportunity for standardization error
and that is similar to existing output
files that many hospitals are using to
build their MRFs; and
• ‘‘wide’’ format, with variable payerspecific negotiated charge data elements
that incorporate the payer and plan
name into a single column header; this
may reduce the file size because many
data elements would not need to be
repeated as frequently.
Ultimately, MITRE, as informed by
TEP members, recommended to CMS
that CMS provide hospitals with an
option to use one of three layouts
representing two types of machinereadable formats for displaying their
standard charge information in an
MRFs: (1) JSON schema (plain format),
(2) CSV (‘‘tall’’ format), or (3) CSV
(‘‘wide’’ format). TEP members
indicated that this choice would balance
the need for greater standardization for
automated machine use of the files,
while providing a hospital some
flexibility to select the least burdensome
format and layout to incorporate into its
current MRF development process.
The TEP also discussed the data
elements, or categories of standard
charge information, that they believed
should be included in the MRF, with a
goal of improving the public’s
understanding and use of hospital
standard charges. These discussions
focused on the challenges of displaying
payer-specific negotiated charges, given
the variety of ways that hospitals
establish this type of standard charge,
and data elements that would be
necessary to help the public understand
them. TEP members discussed several
types of commercial contracting
methodologies commonly used by
hospitals to establish their payerspecific negotiated charges, including:
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fee schedule, case rate, per diem,
percentage of total billed (or gross)
charges, and others. Ultimately, the TEP
agreed on the following data elements to
improve the meaningfulness and
facilitate automated aggregation of
hospital standard charges: (1) general
information such as file version and
date of most recent update of the file; (2)
hospital-specific information (such as
hospital name and location, license
number, financial aid policy); (3) data
elements corresponding to the types of
standard charges defined by the HPT
regulation (that is, the gross charge,
payer-specific negotiated charges by
payer and plan, discounted cash price,
and minimum and maximum deidentified negotiated rates) and, for
payer-specific negotiated charges, the
type of contracting methodology and
whether the payer-specific negotiated
charge established by the hospital is
being expressed as a dollar amount
versus an algorithm or percentage; and
(4) data elements that enhance
understanding of the item or service to
which the standard charge applies, such
as a general description of the item/
service, billing class (for example,
whether the standard charge is billed as
a facility or professional service), the
hospital setting in which the item or
service is provided (for example, in the
inpatient or outpatient setting), drugspecific information such as the drug
unit and type of measurement (such as
number of milligrams), and information
related to corresponding codes (such as
common billing codes, revenue center
codes, modifiers). TEP participants also
suggested including an open field that a
hospital could use, as needed, to
provide additional contextual
information should it believe the
template’s data elements are insufficient
to ensure a user’s understanding of a
standard charge displayed in the file.
The TEP members discussed a
number of other data elements,620 but
620 Those data elements included: ‘Billing Code
Version’ which would be the version of a code set
used by providers and payers; ‘Unit of
Measurement’ which would be used for items and
services other than drugs; ‘Place of Service Code’
used by Medicare to indicate where in a hospital
a service would be provided; ‘Insurance Plan ID’
such as a Health Insurance Oversight System
(HIOS) identifier 620 or employer identification
number (EIN) of the payer; ‘Contract Expiration
Date’ to indicate how long a contract would be in
place; ‘Bundled Codes’ which would indicate all
individualized items and services that comprised a
payer-specific negotiated rate or discounted cash
price; ‘Covered Services’ which would indicate all
the codes for services covered under a capitation
arrangement; and a ‘Payment Learning & Action
Network’ field which would indicate whether the
hospital’s commercial contract met criteria for
different types of value-based arrangements as
defined by the Learning & Action Network’s
Alternative Payment Model Framework (https://
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concluded that the burden on hospitals
to gather and display such information
would outweigh their benefit to users,
or that it would be infeasible to include
such information in an MRF. As such,
MITRE did not recommend that CMS
adopt them.
MITRE presented its findings and
recommendations to CMS in the fall of
2022. After considering them, we
announced in November of 2022 the
availability of several ‘sample formats,’
that may be found on the HPT
website,621 that hospitals could
voluntarily use to make public their
standard charge information in an MRF.
At the same time, we developed and
made available a supplemental data
dictionary that provides technical
instructions to hospitals on how to
conform to the sample formats and
encode standard charge information.
The sample formats and data dictionary
can be found on the HPT website:
https://www.cms.gov/hospital-pricetransparency/resources. We encourage
commenters to review the sample
templates and data dictionary to inform
their comments on these proposals.
b. Proposals To Require Hospitals To
Encode All Data Items for Additional
Data Elements in Their MRF
(1) Proposal To Encode, as Applicable,
All Data Items in the MRF
Currently, the introductory text at
§ 180.50(b) states that a hospital must
include all of the data elements (as
specified in the paragraph) in its list of
standard charges, ‘‘as applicable’’. We
propose to revise the introductory text
for clarity to indicate that each hospital
must encode, as applicable, all standard
charge information corresponding to
each required data element in its MRF.
This proposed revision would
differentiate the standard charge
information, or data values, that must be
encoded in the MRF from the ‘‘data
elements,’’ or categories of data as the
basis for the CMS template. The term
‘‘data element’’ is currently used at
§ 180.50(b) in both ways, which, at the
time we implemented the regulations,
seemed appropriate because of the wide
latitude of flexibility we were giving
hospitals to display their standard
charges. However, now that we propose
to require hospitals to display complete
standard charge information for an
expanded set of data elements and to be
much more prescriptive in how such
data is encoded, we believe that
adopting more precise terminology will
innovation.cms.gov/innovation-models/health-carepayment-learning-and-action-network).
621 https://www.cms.gov/hospital-pricetransparency/resources.
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make the display requirements easier to
understand.
We believe that this proposed revision
is necessary in light of our other
proposals to be more prescriptive in the
form and manner in which hospitals
display their standard charge
information, and would clarify that the
term ‘‘data element’’ refers to a required
category of data items encoded in the
MRF, and not the standard charge
information itself.
Under our proposal, the term ‘‘as
applicable’’ would no longer refer to
data elements (which, if finalized as
proposed, would all be required) and
instead would qualify the standard
charge information that the hospital
encodes in the MRF. Hospitals would
thus be required to encode its MRF with
all applicable standard charge
information that corresponds to each of
the required data elements. We note that
the phrase ‘‘as applicable’’ does not
mean that encoding standard charge
information that corresponds to a
required data element is ‘‘optional.’’
Rather, if a hospital has established
standard charge information for a
required data element at proposed new
§ 180.50(b)(1) through (4), the hospital
would be required to display that
information accurately and completely,
in its MRF.
(2) Proposal To Revise and Expand the
Required Data Elements
At new § 180.50(b)(1) through (4), we
propose to revise and expand the
required data elements which describe
the categories of information the
hospital must encode in its MRF. We
propose to include most of the data
elements suggested by the TEP and
recommended by MITRE in its report to
CMS 622 and note that many of the
proposed data elements are
incorporated in the CMS ‘sample
formats’ currently available for
voluntary use by hospitals on CMS’s
HPT website.623
We propose to require hospitals to
encode all applicable standard charge
information for an expanded set of data
elements in its MRF, which we believe
would improve the public’s ability to
better understand and therefore more
meaningfully use hospital standard
charges. We believe that this expanded
set of data elements will make hospital
standard charges more understandable
and comparable across hospitals. We
622 MITRE, Hospital Price Transparency MachineReadable File Technical Expert Panel Report and
MITRE Recommendations to the Centers for
Medicare & Medicaid Services, November, 2022.
https://mitre.box.com/v/MITRE-MRF-TEP.
623 https://www.cms.gov/hospital-pricetransparency/resources.
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decided to make these proposals after
considering: the feedback discussed
above; our experience with enforcing
the current HPT requirements; the
FFRDC recommendations as informed
by their TEP; and our evolving
understanding of how hospitals
establish payer-specific negotiated
charges with third party payers.
We agree with the feedback we have
received from various interested parties,
the recommendations of the FFRDC, and
publicly available reports that the
machine-readable data needs to be
contextualized and more precisely
encoded to improve the public’s ability
to understand and use hospital standard
charges. We believe that this could
largely be accomplished by requiring
hospitals to conform to a CMS template
layout and encode all applicable
standard charge information in a
consistent form and manner specified
by CMS.
(a) Proposed General Data Elements
Proposed new § 180.50(b)(1) would
require a hospital to encode standard
charge information for each of the
following ‘‘general’’ data elements:
• Hospital name(s), license number,
and location name(s) and address(es)
under the single hospital license to
which the list of standard charges apply.
Under this proposal, a hospital would
be required to include the location to
which its list of standard charges
applies within the MRF itself, instead of
simply on its website, as is currently
required at 45 CFR 180.50(d). We
believe this change is necessary because
we have found that a single public
website may host the files of several
hospitals and identify each hospital
location in text on the web page.
Because the hospital location is
currently not listed on the file itself, the
hospital information sometimes
becomes disassociated from the file as it
is further processed, making it difficult
for end users of the data to connect
standard charge information to a
particular hospital, hospital location, or
address. This is a result we did not
intend when we finalized the initial
display requirements. We believe that
requiring hospitals to encode standard
charge information for these data
elements directly in the MRF will
permit the public, including end users
creating various aggregation tools, to
connect the standard charge information
in the file to a particular hospital’s site
of care as they seek to make the
information more actionable.
Additionally, the current requirement at
§ 180.50(a)(2) indicates that each
hospital location operating under a
single hospital license (or approval) that
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has a different set of standard charges
than the other location(s) operating
under the same hospital license (or
approval) must separately make public
the standard charges applicable to that
location. However, there is no current
requirement for a hospital to indicate
under what license the hospital is
operating, making enforcement of this
requirement challenging. By including
the license number of the hospital in the
file, CMS would better be able to
validate and ensure that hospitals are
complying with the requirements
because CMS would be able to directly
connect the hospital name, license and
MRF.
• The file version and date of the
most recent update to the standard
charge information in the MRF. First,
we propose that hospitals indicate in
their MRF the file version that
corresponds to the CMS template that
the hospital is using to display the
standard charge information. File
version information is necessary to
provide certainty to users of the file
(including CMS for purposes of
automating review of MRFs) that they
have coded to the correct format for
processing the data. Second, we note
that hospitals are currently required at
§ 180.50(e) to update, at least once
annually, the standard charge
information in the MRF and to clearly
indicate the date that the standard
charge information was most recently
updated. Hospitals also currently have
the flexibility to indicate the updated
date in the file itself or otherwise in a
manner that is clearly associated with
the file. That flexibility would be
eliminated with this proposal because
we would require the date of last update
to be indicated in the file itself. We
therefore propose to make a necessary
corresponding revision to § 180.50(e) to
remove the sentence ‘The hospital must
clearly indicate the date that the
standard charge data was most recently
updated, either within the file itself or
otherwise clearly associated with the
file.’ Requiring a hospital to include the
date of the last update in the file itself
is necessary for a machine to be able to
automatically validate that the standard
charge information in the file has been
updated by the hospital at least once
annually, as is required under section
2718(e) of the PHS Act and 45 CFR
180.50(e). Moreover, by placing the date
of most recent update within the MRF,
file users would be assured that the file
they are using is the most recently
available. Nothing in this proposal
would prohibit a hospital from
continuing to also indicate the date of
the last update on its website in
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addition to indicating the date of the
last update within its MRF.
(b) Proposals for Data Elements Related
to Types of Standard Charges
First, at proposed new § 180.50(b)(2),
we would consolidate into a single data
element the standard charges (that is,
the gross charge, payer-specific
negotiated charge, de-identified
minimum and maximum negotiated
charge, and discounted cash price) that
are currently listed as required data
elements at § 180.50(b)(2) through (6).
We note that this revision would
remove the phrase ‘‘that applies to each
individual item or service when
provided in, as applicable, the hospital
inpatient setting and outpatient
department setting’’ from each of the
individually referenced type of standard
charge at § 180.50(b)(2) through (6). This
concept, however, would be retained
and incorporated (as addressed in more
detail below) as a separate data element
(‘‘setting’’) and used to contextualize
hospital items and services at new
§ 180.50(b)(3).
Second, we would continue to require
that the payer-specific negotiated
charges be displayed by name of the
third party payer and plan(s), each
indicated as a separate data element (for
example, ‘‘payer name’’ and ‘‘plan
name’’). However—and as a result of our
acquiring a better understanding of
hospital and commercial payer
contracting, we propose that hospitals
may indicate plan(s) as categories (such
as ‘‘all PPO plans’’) when the
established payer-specific negotiated
charges are applicable to each plan in
the indicated category. We believe this
modification is necessary because we
have learned that many hospital
contracts are designed to negotiate the
same rates across a grouping of payer
plans, and not always on a plan-by-plan
basis. For example, some hospitals have
contracts stipulating that the payerspecific negotiated charges they
establish with third party payers are for
‘‘all plans’’ offered by the third party
payer, without specifying plan names.
Similarly, a hospital’s contract with a
payer may set forth the payer-specific
negotiated charges for ‘‘all PPO plans’’
or ‘‘all managed care plans’’ without
listing specific plan names. As a result,
hospitals would be required to indicate
payer-specific negotiated charges that
apply to ‘‘Payer A’’ for ‘‘all PPO plans’’,
for example, rather than having to
research and insert repetitious standard
charge information for each named PPO
plan offered by Payer A. We believe this
modification is necessary to ensure
hospitals are not penalized for
displaying information that is consistent
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with their contracting practices.
Moreover, this practice could improve
accessibility of the MRF by avoiding
repetition of standard charge
information that would unnecessarily
increase file size. Additionally, because
we propose to require hospitals to
encode standard charge information in
an MRF that conforms to a CMS
template layout, the use of such
template would ensure that the payerspecific negotiated charges remain
‘clearly associated’ with the name of
each payer and plan. Accordingly, we
propose to remove the phrase ‘‘clearly
associated’’ from the regulatory text as
a separate and distinct requirement in
relationship to the data elements.
Finally, we are aware of interested
parties’ recommendations that the payer
and plan be indicated in the MRF using
some uniform, nationally applicable set
of abbreviations. To the extent that a
uniform nationally applicable set of
abbreviations is available, we seek
comment on a publicly available data
source(s) that we may consider as we
develop the technical instructions.
Third, we propose to require that
hospitals indicate the contracting
method they used to establish the payerspecific negotiated charge. TEP
members indicated that including the
contracting method within the MRF
would bring necessary context to the
payer-specific negotiated charges
established by the hospital. For
example, a hospital may have
established a payer-specific negotiated
charge as a ‘base rate’ for a service
package.624 Without knowing that, a file
user might assume that the listed payerspecific negotiated charge included
every charge applicable to the provision
of the item or service when, in fact, a
‘base rate’ charge likely would include
non-standard adjustments and other
added charges. Additionally, including
this data element would align with the
data element in the TIC template. We
seek comment on contracting types that
we should consider as allowed values in
the CMS template, should this data
element be finalized.
Fourth, we propose to require that
hospitals indicate whether the payerspecific standard charge listed should
be interpreted by the user as a dollar
amount, percentage, or, if the standard
charge is based on an algorithm, the
algorithm that determines the dollar
amount for the item or service.
Specifying whether the number
indicated as the standard charge should
be interpreted as a dollar figure or
percentage would ensure that the data is
624 For
additional discussion, please see the CY
2020 HPT final rule, 84 FR 65534.
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machine-readable and would minimize
confusion about the value inserted into
a particular standard charge column.
Knowledge of the algorithm for a
standard charge that can only be
expressed as an algorithm is necessary
for consumer-friendly tools to estimate
in dollars an individual’s payer-specific
negotiated charge. Similar to the
existing technical instructions for the
sample templates, CMS will provide
technical instructions for hospitals to
display standard charges expressed in
dollars, percentages, and algorithms in
order to ensure consistency and
machine-readability.
Fifth, we propose a consumer-friendly
data element called the ‘expected
allowed amount’ that we would require
a hospital to display in situations where
the payer-specific negotiated charge
cannot be expressed as a dollar figure.
As finalized in the CY 2020 HPT final
rule, the definition of a standard charge
is the ‘regular rate’ established by the
hospital for items and services provided
to a ‘specific group of paying patients.’
In other words, the standard charge
displayed in the MRF represents the
exact rate that applies to all individuals
in the group, for example, all
individuals covered by a particular
payer and plan. This amount is
generally considered to be analogous to
the ‘allowed amount’ that is established
in the contract the hospital has with the
third party payer, and that appears on
a patient’s explanation of benefits. This
is the maximum payment the plan will
pay for a covered health care service,
and may also be called ‘‘eligible
expense,’’ ‘‘payment allowance,’’ or
‘‘negotiated rate.’’ 625 A portion of this
allowed amount is reimbursed to the
hospital by the third party payer while
the hospital bills the consumer for the
remainder which is described as the
‘out-of-pocket’ amount. As we explained
in the CY 2020 HPT final rule,
knowledge of the rate the insurer has
negotiated with the hospital on the
consumer’s behalf is essential for
helping consumers determine their outof-pocket cost estimates in advance.
However, while essential, the standard
charge information is not sufficient
because the individual must obtain
additional information from his or her
third party payer related to the
circumstances of their particular
insurance plan (for example, what
portion of the payer-specific negotiated
charges would be paid by the plan and
other plan dependencies such as the
patient’s co-insurance obligations or
625 https://www.cms.gov/files/document/
nosurpriseactfactsheet-health-insurance-terms-youshould-know508c.pdf.
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where the patient has not satisfied their
deductible for the year).
Since implementation of the HPT
regulation, hospitals have become more
transparent about how they establish
their payer-specific negotiated charges.
Based on our experience in enforcing
the requirements of the regulation, we
have learned that most commercial
contracting methods result in a
hospital’s ability to identify and display
as a dollar figure the payer-specific
negotiated charges they have established
with third party payers. For example, a
negotiated rate is established as a dollar
amount for an item or service or service
package (that is, the ‘base rate’), or is
established as a percent discount off the
gross charge for each item or service
provided, or as a percentage of the
Medicare rate which can be translated
and displayed by the hospital as a
standard dollar amount.
At other times, however, hospitals
and payers establish the payer-specific
negotiated charge by agreeing to an
algorithm that will determine the dollar
value of the allowed amount on a caseby-case basis after a pre-defined service
package has been provided. This means
that the standard charge that applies to
the group of patients in a particular
payer’s plan can only prospectively be
expressed as an algorithm, because the
resulting allowed amount in dollars will
be individualized on a case-by-case
basis for a pre-defined service package,
and thus cannot be known in advance
or displayed as a rate that applies to
each member of the group.
For example: Patients X and Y are
under the same payer’s plan. They both
go to a hospital for the same procedure
which is identified by the payer after
analyzing the claim as having the same
DRG code. The gross charges (that is, the
charges billed on the claim to the payer)
for each itemized item and service
provided by the hospital for Patient X’s
procedure total $1,500, while Patient
Y’s gross charges for each itemized item
and service provided by the hospital
total $2,000. The hospital and payer
have negotiated a payer-specific
negotiated charge that is calculated as
an amount equal to 50 percent off the
total gross (or billed) charges for the
procedure identified by the DRG code.
The resulting charge (in dollars) for
Patient X would be $750 while resulting
charge (in dollars) for Patient Y would
be $1,000. In this example, the payerspecific negotiated charge (as an
algorithm) is the same for each patient
in the payer’s plan for the procedure,
but it is possible that each patient
covered under this payer’s plan would
have a different resulting charge, in
dollars, for the same procedure. In other
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words, in this example, there is no
single dollar amount that would be
appropriate for the hospital to post in its
MRF as the payer-specific negotiated
charge. Instead, the only payer-specific
negotiated charge that applies to the
group is the algorithm used to calculate
the individualized dollar amount (in
this example, the algorithm would be
‘‘50 percent of the total gross charges’’
that are billed on the claim for the
procedure).
The reality of commercial healthcare
contracting practices highlights a
tension that sometimes exists between a
hospital’s establishment of a ‘standard
charge’ that applies to a group of paying
patients and the desire for individuals
within the group to know and
understand the specific cost of their care
in dollars for specific hospital items or
services. Currently, this tension is
largely mitigated by price estimator
tools that typically display ‘estimated’
dollar amounts that are based on past
claims and, when available, knowledge
of the contracting arrangements to
predict, often with very high
accuracy,626 the most likely or expected
allowed amount that will apply to an
individual. When combined with the
individual’s insurance information, the
individual’s out-of-pocket can be
determined and displayed. Therefore, as
an alternative to leaving a ‘blank’ or ‘N/
A’ in the MRF when no standard dollar
amount is available, we allow hospitals
to make public the standard algorithm
that applies to the group. The
publication of the algorithm makes it
possible for a user of the file (such as
a price estimator tool developer) to use
that algorithm in conjunction with
educated assumptions about the items
or services likely to be utilized by a
given patient for a given procedure,
along with their corresponding gross
charges, to estimate an allowed amount
in dollars for the individual. This
amount can be further personalized by
including insurance information (such
as the copay, co-insurance, or
deductible) to determine the
individual’s estimated out-of-pocket
dollar amount.
While we continue to support efforts
via other methods, such as price
estimator tools, for providing consumerfriendly and personalized out-of-pocket
information, we have heard from
interested parties that, when a hospital
has negotiated a standard charge that
can only be expressed as an algorithm,
some estimate displayed in dollars
626 Stults,
et al. Assessment of Accuracy and
Usability of a Fee Estimator for Ambulatory Care in
an Integrated Health Care Delivery Network. JAMA
Network Open. 2019;2(12):e1917445.
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within the MRF may be useful,
particularly for making comparisons
across hospitals. For example, an
estimate displayed in dollars would
permit users to make price comparisons
across hospitals when, with respect to
the same procedure and payer/plan, one
hospital has established a payer-specific
negotiated charge as an algorithm and a
second as a dollar amount. We therefore
considered whether and what data
element could be required in the MRF
to provide additional needed context for
a payer-specific negotiated charge that is
expressed as an algorithm.
We propose that when a hospital has
established a payer-specific negotiated
charge that can only be expressed as a
percentage or algorithm, it must display
alongside that percentage or algorithm a
consumer-friendly ‘expected allowed
amount’ in dollars for that payer/plan
for that particular item or service. The
‘expected allowed amount’ would be the
amount, on average, that the hospital
estimates it will be paid for the item or
service based on the contract with the
third party payer. It is our
understanding that hospitals often have
such information already calculated and
available as part of their revenue cycle
management systems to provide a backend check on their reimbursement from
the third party payer, so we do not
expect that the inclusion of such data in
the MRF would represent a large
burden. The ‘consumer-friendly
expected allowed amount’ is likely to
represent reimbursement for an average
patient, rather than an exact amount,
since, for a payer-specific negotiated
charge based on an algorithm, the
amount in dollars is known with
certainty only after the patient has been
discharged. As such, it is an estimate of
the average amount that the hospital
expects to receive for the item or service
for all group members but not the final
exact amount in dollars that would be
actually apply to each group member.
Even so, we believe this information
would provide context to the public that
is necessary to compare payer-specific
negotiated charges across hospitals and
a valuable benchmark against which
price estimator tools can use to develop
and estimate an individual’s
personalized out-of-pocket costs. We
propose to add this consumer-friendly
‘expected allowed amount’ to the list of
required data elements at § 180.50(b)(2).
(c) Proposals for Data Elements Related
to Hospital Items and Services
At new § 180.50(b)(3), we propose
that hospitals be required to provide
standard charge information for
additional data elements. These data
would describe hospital items and
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services that correspond to the standard
charges established by the hospital as
follows:
• Recasting as a separate data
element, but otherwise without change,
the presently required description of the
item or service and whether the
standard charge is for an item or service
provided in connection with an
inpatient admission or an outpatient
department visit.
• If a standard charge has been
established for a drug, we propose that
the hospital would be required to
indicate the drug unit and type of
measurement as separate data elements.
We have seen hospital MRFs in which
the drug unit and type of measurement
are either not specified or are included
in the same field as the description of
the item or service. In the first case,
when the drug unit and type of
measurement is not specified, the user
of the file has no basis for
understanding the standard charge that
the hospital has established. In other
words, the description is not sufficient
for the user to understand what quantity
of the item or service the user would
receive at the indicated standard charge
amount. In the second case, when the
drug unit and type of measurement are
included in the same field as the
description of the drug, the information
is not easily machine-readable because
computers are unable to parse the
description if expressed as a ‘string’ of
characters that are unique and
undefined. Under this proposal, if the
hospital has established a standard
charge for a drug, the hospital would be
required to encode the file with a
description of the drug, including the
applicable drug unit and type of
measurement as a separate and distinct
data element from the description. For
example, if a hospital establishes a gross
charge of $2 for an item or service it
describes as ‘aspirin 81mg chewable
tablet—each’, the hospital would be
required to input data for each of the
required separate data elements, which
would look something like this in the
MRF, based on the current technical
specifications in the data dictionary that
accompanies the currently available
sample templates: gross charge: 2;
description: aspirin 81mg chewable
tablet; unit of measurement: 1; type of
measurement: UN.627 This indicates to
the public that the standard charge
established by the hospital for this item
or service is $2.00 for a single tablet of
627 Where ‘‘UN’’ in the sample format data
dictionary (found here: https://www.cms.gov/
hospital-price-transparency/resources) stands for
‘‘unit’’ which, in this example, comes in the form
of a tablet.
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a drug described as ‘aspirin 81mg
chewable tablet.’
We are aware that hospitals may at
times establish standard charges for
units of items and services other than
drugs. While we would encourage
hospitals to be transparent about such
information in the MRF, we only
propose to add data elements for the
unit and type of measurement of drugs
because the codes (such as HCPCS
codes) for non-pharmaceutical items
and services typically include
instructions or additional descriptions
that clarify the unit and type of
measurement for the indicated item or
service, but the codes (typically
National Drug Codes (NDC)) used for
pharmaceutical agents do not, and we
do not believe it is necessary to burden
the hospital with a requirement to
publicly disclose information that is
already available to the users of the file.
Additionally, the TEP members
discussed this issue and concluded that
drugs are a unique class of items and
service when it comes to a user’s ability
to clearly understand how hospitals are
representing their standard charges. TEP
members speculated that such
challenges may arise because hospitals
establish and display their standard
charges for drugs using different
methodologies. For example, it is often
unclear in the hospital’s MRF whether
the payer-specific negotiated charge for
a drug is based on the billing unit for
the NDC associated with the drug or the
billing unit associated with the drug’s
HCPCS code.
Based on our own experience in
reviewing MRFs, we agree with the TEP
members that more prescriptive
requirements are necessary when it
comes to display of standard charges for
drugs and believe that requiring the
drug unit and type of measurement as
separate data elements would facilitate
machine-readability and ensure clarity
for the users of these files. We also agree
with the TEP members that this
proposal may introduce a burden on
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some hospitals that are already
including such information in the
description but would have to separate
it for display in the CMS template.
Because of this potential burden, we
considered an alternative approach by
which we would require the drug unit
and type of measurement to be included
in the description or encoded as
separate data elements. This alternative
would ensure availability of the data to
users of the MRF, albeit in a way that
would not be optimized for machinereadability. However, in this case we
believe the burden on hospitals is
outweighed by the need for
improvements in data machinereadability, and therefore propose to
require hospitals to report this
information as separate data elements.
We note that nothing would preclude
the hospital from also including the
information in its description of the
drug. We seek comment on this
proposal and the alternative we
considered but are not proposing.
(d) Proposals for Data Elements Related
to Item or Service Billing
At new § 180.50(b)(2)(iv), we propose
to specify data elements related to item
or service billing. We believe data
elements related to item or service
billing are necessary because the
standard charges that a hospital
establishes are often dependent on the
way an item or service is billed. As
such, including billing information may
improve the public’s understanding of
the standard charge that has been
established for the item or service. In
specifying these data elements, we
would retain, without modification, the
current requirement that the MRF
include any code used by the hospital
for purposes of accounting or billing for
the item or service (the example of such
codes would be removed from the reg
text as unnecessary). We propose to add
a requirement that the hospital specify
any relevant modifier(s) needed to
describe the established standard
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charge, and the code type(s) (for
example, whether the code is based on
HCPCS, CPT, APC, DRG, NDC, revenue
center, or other type of code). As
discussed by the TEP members, there
are instances where a hospital has
established different standard charges
for the same item or service description,
depending on additional factors such as
modifiers or revenue centers that are not
included in the file. As such, TEP
members agreed that some distinction to
ensure meaningfulness of the standard
charge would be helpful to users of the
file and impose minimal hospital
burden. Based on our experience in
reviewing MRFs, we have also seen
such instances and believe that
requirements to include applicable
codes that include modifiers and
revenue center codes would help make
necessary distinctions when multiple
standard charges have been established
for the same items or services.
Separating the code itself (for example,
the numbers of the code) from the code
type (for example, ‘‘HCPCS’’) would
directly improve machine-readability.
(e) Summary of Proposed Required Data
Elements
In summary, we believe these
proposed modifications to § 180.50(b)
are necessary to improve hospitals’
ability to display their standard charges
in a more specific, clear, and
standardized way. We believe the
proposals would increase the
meaningfulness of the standard charge
information and heighten the public’s
ability to understand and more
efficiently aggregate and use the data.
Further, as described above, we believe
these proposals would improve and
streamline CMS’s ability to enforce the
HPT requirements.
Table 84 summarizes and compares
the existing sample format data
elements with the proposed data
elements.
BILLING CODE 4120–01–P
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We seek comment on these proposed
revisions to § 180.50(b). Specifically, we
seek comment on whether we should
consider additional data elements to
ensure the public’s understanding and
ability to meaningful use the standard
charge information as displayed in
hospital MRFs. In particular, we seek
comment from hospitals related to
display of payer-specific negotiated
charges and solicit specific examples of
complex contracting methodologies so
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that we can provide specific
recommendations and technical
instructions on display of standard
charges resulting from such
methodologies in the CMS template.
c. Proposals To Specify Formatting
Requirements for Display of Standard
Charge Information Using a CMS
Template
In this section, we propose to require
each hospital to conform to the CMS
template layout, data specifications,
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data dictionary, and to meet any other
specifications related to the encoding of
the hospital’s standard charge
information in its MRF. We are making
these proposals in order to improve
automated aggregation of the standard
charge information in the hospital’s
MRFs. Additionally, we believe these
proposals will streamline our
enforcement capabilities.
While most hospitals are ensuring
that the data they display appears in a
machine-readable format (such as JSON
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or CSV), as required under the current
regulation, many are not taking as much
care to display the data that encodes the
file in a way that improves machinereadability that facilitates automated
aggregation of standard charge
information. Even when individual
hospitals make an effort to optimize the
machine-readability of the data they
include in the MRF, the lack of
standardization in the MRF format data
encoding limits the ability of users to
aggregate MRF data in an automated
way. This is because the format of the
data encoded in the MRF is unknown to
the user and therefore cannot be coded
by them for further processing. This lack
of standardization in format presents a
barrier to intended use of the MRFs as
expressed in the CY 2020 HPT final
rule—that is, for enhancing the public’s
ability to use the data in, for example,
consumer price estimator tools and in
EHRs at the point of care for value-based
referrals, or to aggregate and use the
data to increase competition.
As indicated throughout the CY 2020
HPT final rule, we believed the
flexibility that we initially afforded to
hospitals was necessary to ensure that
‘‘each hospital operating in the United
States’’ could implement the law and
regulatory requirements. Now that
hospitals have experience in making
their standard charges public in an MRF
and we have a better understanding of
how hospitals establish their standard
charges, we believe our data formatting
requirements can be made more
prescriptive to enhance the public’s
ability to use the hospital standard
charge information to its fullest
potential. These evolutionary changes
may serve to decrease hospital burden.
To accomplish this, we propose to
revise the introductory text at
§ 180.50(c) to require that each hospital
must conform to the CMS template
layout, data specifications, and data
dictionary when making public the
standard charge information required
under paragraph (b).
Should these proposed rules be
finalized, we propose to make at least
one CMS template available to
hospitals, and hospitals would be
required to conform to its layout and
comply with technical instructions
(located in the template, corresponding
data dictionary, and other technical
guidance) to be published on a CMS
website (such as the HPT website or
CMS GitHub). A hospital’s failure to
display its standard charge information
in the form and manner specified by
CMS could lead to a compliance action.
The CMS template and accompanying
technical specifications would describe
the form and manner in which the
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hospital must organize, arrange, and
encode its standard charge information
for the required data elements (if
finalized, and as discussed in
XVIII.B.3.b of this proposed rule) in its
MRF.
For purposes of this requirement, we
propose to make available a CMS
template in CSV and JSON formats.
Additionally, we propose to make
available three different layouts. The
three layouts would be similar to the
three ‘sample formats’ that are currently
available on the HPT website.628 The
three sample layout are: (1) JSON
schema (plain format), (2) CSV (‘‘wide’’
format), and (3) CSV (‘‘tall’’ format).
Although we considered proposing to
require hospitals to display their
standard charge information using only
the JSON format, we concluded that
some flexibility remains necessary given
the variability in hospital sophistication
and technical expertise, and the fact that
these two proposed non-proprietary
formats (CSV and JSON) appear to be
the most frequently used by hospitals
for displaying standard charges. We
seek comment on this issue, and on
whether we should instead require use
of a single format (such as JSON).
Technical guidance, to which the
hospital must conform for purposes of
encoding the standard charge
information, would be made available
through, for example, a data dictionary
and within the CMS template. The data
dictionary would be similar to the data
dictionary that CMS has developed for
the ‘sample templates,’ 629 but would be
updated to include any new policies
that we finalize in the CY 2024 OPPS/
ASC PPS final rule. This technical
instruction would ensure consistent
implementation and machinereadability of hospital MRFs across all
hospitals. For example, CMS would
provide guidance on how to conform to
the CMS template layout and encode the
data items for the required data
elements; that guidance would also
consist of the set of rules for the header
and attribute naming and rules for
allowed values for encoding standard
charge information, including the data
type (for example, enum, numeric,
alphanumeric), data format (for
example, string, float), and, in some
cases, specific (‘‘enum’’) valid values
(for example, ‘‘inpatient’’ ‘‘outpatient’’
‘‘both’’). The data dictionary could also
include a section on ‘how to use the
data dictionary’ which would provide
educational information about the
628 https:/www.cms.gov/hospital-pricetransparency/resources.
629 https://www.cms.gov/hospital-pricetransparency/resources.
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encoding instructions for those with low
technology expertise. We believe that
providing such direction via separate
technical instructions is reasonable
because such direction does not rise to
the meaningful substance that is subject
to notice-and-comment rulemaking, and
it would enable CMS to update such
technical specifications to keep pace
with and respond to technical
developments and inquiries. Moreover,
this proposal is consistent with data
disclosure formatting requirements of
other CMS programs such as the EHR
Incentive Program (see 42 CFR 412.614).
Hospitals that do not conform to the
CMS template layout, data
specifications, and data dictionary
would be determined to be
noncompliant with 42 CFR 180.50(c)
and could be subject to a compliance
action. In addition to providing a data
dictionary, to further aid hospitals, we
are considering whether we should
develop an MRF validator tool, similar
to the validator tool provided by TIC on
the CMS GitHub website.630 The
validator tool could be used by hospitals
as a check for compliance with the
formatting requirements of § 180.50(c),
thereby providing some additional
technical instruction and assurance that
the formatting requirements have been
met prior to posting the MRF online. We
seek comment on whether hospitals
would find a validator tool helpful and,
if so, what technical specifications such
a validator ought to assess.
We continue to encourage hospitals to
provide any additional information they
deem necessary to further explain or
contextualize their standard charges,
and we would provide technical
instructions and specifications for
hospitals to do so. For example, the data
dictionary could include one or more
optional data elements for inserting
additional explanatory notes (similar to
the ‘‘additional generic notes’’ data
element included in the sample formats
data dictionary), and could also permit
hospitals to add other optional data
elements such as ‘average
reimbursement amounts’ derived from
past claims, LAN designations, quality
information, or the hospital’s financial
aid policy, or any other categories of
information the hospital wishes to
convey to the public related to
hospital’s standard charges.
Consistent with our proposal that
hospitals must use a CSV or JSON
format, we propose to remove the
examples of specific types of machinereadable formats from the definition of
‘‘machine-readable format’’ at § 180.20.
630 https://github.com/CMSgov/pricetransparency-guide-validator.
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Similarly, we propose a technical edit to
the naming convention at § 180.50(d)(5)
to remove ‘‘[json|xml|csv]’’ and in its
place add ‘‘[json|csv].’’
If the proposals related to these
formatting requirements are finalized,
CMS will provide additional technical
instructions for how a hospital should
indicate non-applicability, when
necessary. As explained more fully in
section XVIII.B.3.b of this proposed
rule, we propose to apply the term ‘as
applicable’ to the standard charge
information that the hospital encodes in
the MRF, and not to the data elements
themselves. We continue to recognize
that a hospital may have no applicable
standard charge information to encode
in some fields within a CMS template
(this is particularly true for CSV
formats, which can be opened in a
human-readable spreadsheet format that
forces column/row cross relationships
between data elements which are not
always applicable). We therefore
reiterate that absence of encoded
information does not necessarily mean
that the MRF is incomplete. To illustrate
using a specific example, a hospital may
have established a gross charge for
operating room time described as ‘OR
time, first 15 minutes’ but may not have
established any payer-specific
negotiated charges that correspond to
the same item or service. If the hospital
has chosen to use the CMS CSV ‘‘wide’’
template (which can also be opened and
viewed as a human-readable
spreadsheet), a person may see that the
cell at the intersection of the column
‘gross charge’ and row of ‘OR time, first
15 minutes’ would be encoded with the
applicable standard charge amount but
the cell at the intersection of any payer
and plan’s ‘payer-specific negotiated
charge’ column(s) and the row of ‘OR
time, first 15 minutes’ would be empty.
In this example, the absence of encoded
data would be a result of nonapplicability, not non-compliance,
because the hospital has not established
a standard charge with the payers for a
15-minute increment of OR time.
We caution users of the files who
choose to view MRFs in humanreadable formats from concluding that a
hospital is noncompliant solely based
on blanks or the hospital’s use of ‘‘N/A’’
(or other indicator(s) specified by CMS
in guidance). To help mitigate ongoing
misunderstandings by users of hospital
MRF data, CMS intends to continue to
educate the public on the standard
charge information displayed by
hospitals and proper interpretation of
the information they contain.
Additionally, as discussed in this
proposed rule, we propose that
hospitals include an affirmation of
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accuracy and completeness within the
CMS template (see proposal in section
XVIII.B.2.b of this proposed rule), which
we believe would provide some
assurance to users of hospital MRFs that
the data is accurate and complete to the
best of the hospital’s knowledge and
belief. Such an affirmation may also
mitigate the need for a hospital to insert
any indicator of non-applicability into
its MRF. We are therefore not proposing
to require insertion of such an indicator,
although such indicators would not be
precluded should a hospital wish to add
them, so long as the hospital adheres to
the technical specifications to preserve
the machine-readability of the file.
However, we seek comment on this
issue. We seek comment on whether an
indicator of non-applicability is
necessary, whether such an indicator
should be required or just
recommended, and how CMS can best
educate the public on the nature of
standard charge information display,
and, in particular, the potential for nonapplicability in certain MRF formats.
Finally, if finalized, we propose a 60day enforcement grace period for
adoption and conformation to the new
CMS template layout and encoding of
standard charge information of the
newly proposed data elements. To be
clear, this proposal would be with
respect solely to enforcement actions
based on the new (if finalized) CMS
template display requirements at
revised § 180.50(b) and (c); it would in
no way affect already-initiated
compliance actions or actions for
noncompliance with other requirements
under part 180 as they are currently
being implement. Additionally, this
proposal would not apply to other
proposals in this proposed rule which
would become effective and enforced on
January 1, 2024 including proposals
related to inclusion of an affirmation
statement in the hospital’s MRF
(discussed in section XVIII.B.2), the
accessibility requirements as proposed
and discussed in section XVIII.B.4 of
this proposed rule, and any other
proposals related to enforcement
revisions discussed in section XVIII.C of
this proposed rule. The effect of this
proposal is that CMS would not begin
to enforce any finalized requirement for
hospitals to use the CMS template until
2 months after the effective date of the
CY 2024 OPPS/ASC PPS final rule with
comment period. We understand that
some hospitals may have already
adopted the sample format that CMS
made available in November 2022,
however, we propose to implement an
enforcement grace period to
accommodate hospitals that have
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adopted formats that vary significantly
from the sample format. We seek
comment on this proposal. In particular,
we seek comment on whether and why
an enforcement grace period should or
should not be applied.
4. Proposal To Improve the Accessibility
of Hospital MRFs
Currently, the HPT regulations at
§ 180.50(d) describe our requirements
for the location and accessibility of the
hospital’s MRF. Specifically, the
regulations require a hospital to select a
publicly available website for purposes
of making public its standard charges
(§ 180.50(d)(1)) and displaying the
standard charges information in a
prominent manner and clearly
identified with the hospital location
with which the standard charge
information is associated
(§ 180.50(d)(2)). Additionally, at
§ 180.50(d)(3), the hospital must ensure
that the standard charge information is
easily accessible, without barriers,
including, but not limited to, ensuring
the information is accessible: free of
charge; without having to establish a
user account or password; without
having to submit personal identifying
information (PII); and to automated
searches and direct file downloads
through a link posted on a publicly
available website. At § 180.50(d)(4), the
digital file and the standard charge
information contained within that file
must be digitally searchable and, at
§ 180.50(d)(5), the file must use a
naming convention specified by CMS.
As we explained in the CY 2020 HPT
final rule, because of the flexibility we
allowed to hospitals to choose the
internet location, we recognized and
expected that there would be some
variability in how hospitals would
choose to publicly display their MRF
and how quickly the file could be found
by the public. However, we indicated
our belief that standardizing a file name
or website location information could
provide consumers with a standard
pathway to find the information and
would provide some uniformity, making
it easier for potential software to review
information on each website. We
expressed our belief that specific
requirements for file naming
conventions and locations for posting
on websites could also facilitate the
monitoring and enforcement of the
requirements.
We believe our current policies are
sufficient for purposes of manual
searches but may not be sufficient for
automated searches. As we noted in the
CY 2022 OPPS/ASC proposed rule, in
our experience, many publicly available
web pages that hospitals select to host
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the MRF (or a link to the MRF) are
discoverable using simple manual
internet searches (using key words such
as the hospital name plus ‘standard
charges,’ ‘price,’ or ‘machine-readable
file’) or, for example, by navigating to
the hospital’s home page and clicking
and searching through pages related to
patient billing and financing. However,
despite the requirement for the MRF
and the standard charge information
contained in that file to be digitally
searchable and the required naming
convention, various MRF users,
including IT developers and technology
innovators, continue to express
concerns that they can’t efficiently, via
automated techniques, aggregate the
files. We believe these challenges
should be addressed because we believe
that ensuring that the MRFs and their
data contents are easily accessible,
including by members of the public who
develop tools that improve the public’s
overall understanding and ability to use
the information in meaningful ways,
aligns with the MRFs’ intended use. As
we indicated in the CY 2020 HPT final
rule, we believe that ‘‘[b]y ensuring
accessibility to all hospital standard
charge data for all items and services,
these data will be available for use by
the public in price transparency tools, to
be integrated into EHRs for purposes of
clinical decision-making and referrals,
or to be used by researchers and policy
officials to help bring more value to
healthcare.’’
As a result, we considered methods
that would specifically improve the
automated accessibility of MRFs. Thus,
at proposed new § 180.50(d)(6), we
propose to require that a hospital ensure
that the public website it chooses to
host the MRF establishes and maintains
automated access to the MRF in two
specific ways.
First, we propose, at new
§ 180.50(d)(6)(i) that the hospital ensure
the public website includes a .txt file in
the root folder that includes a
standardized set of fields including the
hospital location name that corresponds
to the MRF, the source page URL that
hosts the MRF, a direct link to the MRF
(the MRF URL), and hospital point of
contact information. CMS would make
available the technical specifications for
implementing this file in technical
instructions, and could also consider
creating a simple .txt generator tool to
assist non-technical hospital personnel
in generating a .txt file as well as plainlanguage instructions for complying
with the requirement to post a .txt file
to the root folder of the public website.
In considering this proposed
approach to automating access to
hospital MRFs, we identified several
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benefits, including: a standardized text
file at a consistent location (for example,
the root folder of the website) would
provide automated tools a direct link to
the MRF as opposed to the current
approach of having to locate the correct
web page within the website; technical
experts suggest this is a relatively
simple, low burden method that could
be applied by maintainers of any public
website that hosts the MRF; and
information included in the .txt file
could include information necessary to
validate the contents of the file, for
example, by including hospital point-ofcontact information. We also considered
potential drawbacks of this approach,
including that any standardization of
this nature is subject to errors in
formatting which could negate the
benefit to automated access and
generate a compliance action. We
believe the benefits outweigh the
drawbacks for having a hospital ensure
that the public website it chooses to
host the MRF includes a .txt file in the
root folder that includes a direct link to
the MRF to establish and maintain
automated access.
Second, we propose at new
§ 180.50(d)(6)(ii) that the hospital
ensure the public website includes a
link in the footer on its website,
including but not limited to the
homepage, that is labeled ‘‘Hospital
Price Transparency’’ and links directly
to the publicly available web page that
hosts the link to the MRF. We propose
this requirement because we believe the
addition of standardized hyperlinks in
the footer of hospital websites would
aid in the automation of MRF data
retrieval by creating a predictable
navigation path to internal web pages
that describe the HPT program and
providing direct links to the MRF
location. Once a human or web crawler
arrives at the web page on which the
MRF is located, it would be able to
identify the specific location of the
file(s) containing the pricing data. We
believe that by making this information
more easily accessible to automated
searches and data aggregation, it would
help third parties develop tools that
further assist the public in
understanding this information and
capturing it in a meaningful way for
making informed health care decisions.
Moreover, we believe this requirement
would be simple for hospitals to
understand and implement, due to the
website footer being a common place for
hospitals to link to other information. In
addition, using a standardized label for
the link in the footer may make the
location of the MRFs more visible to
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individual consumers manually
searching for such files.
We seek comment on this proposed
approach to improving accessibility of
MRFs to automated searches. We
particularly seek comment on whether
there: may be better or more efficient
ways of improving access to MRFs or
the direct links to the MRFs; are
additional benefits or challenges that we
should alternatively consider; might be
any challenges for automation tools to
find MRFs when they are hosted by a
publicly available website other than a
website hosted by the hospital, and
ways that would make those automated
searches more easily accessible; and,
might be any challenges for hospitals to
meet the proposed requirements when
the publicly available website hosting
the MRF is not under direct control of
the hospital. We also seek comment on
whether the proposals to require use of
a footer and .txt file, if finalized, are
complementary to, or duplicative of, the
requirements at § 180.50(d)(4) and (5)
which, respectively, require that the
digital file and standard charge
information contained in that file must
be digitally searchable; and that the file
must use the naming convention
specified by CMS at § 180.50(d)(5). We
also seek comment on whether there is
a better or more efficient standardized
label for the link in the footer on the
website, including but not limited to the
homepage, that links directly to the
publicly available website that hosts the
link to the MRF.
C. Proposals To Improve and Enhance
Enforcement
Section 2718(b)(3) of the PHS Act
requires the Secretary to promulgate
regulations to enforce the provisions of
section 2718 of the PHS Act, and, in so
doing, the Secretary may provide for
appropriate penalties. Our current
monitoring and enforcement scheme is
codified in our regulations at 45 CFR
180 subpart C. Section 180.70(a) states
that CMS may monitor and assess
hospital compliance with section
2718(e) of the PHS Act via methods
including, but not limited to, evaluating
complaints made by individuals or
entities to CMS, reviewing individuals’
or entities’ analysis of noncompliance,
and auditing hospitals’ websites. Should
CMS conclude that a hospital is
noncompliant with one or more of the
requirements to make public standard
charges, CMS may take any of the
following actions described at
§ 180.70(b), which generally, but not
necessarily, will occur in the following
order:
• Provide a written warning notice to
the hospital of the specific violation(s).
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• Request a corrective action plan
from the hospital if its noncompliance
constitutes a material violation of one or
more requirements.
• Impose a CMP on the hospital and
publicize the penalty on a CMS website
if the hospital fails to respond to CMS’
request to submit a corrective action
plan or comply with the requirements of
a corrective action plan.
To better understand hospitals’ HPT
compliance and the impact of our
implementation efforts, CMS conducted
website assessments in 2021 and in
2022. CMS evaluated fourteen criteria
for the MRF, and either eleven criteria
for the shoppable services display or
two criteria for the price estimator tool,
depending upon which the hospital
chose to offer. In the first 2 years of
program implementation, our website
assessments demonstrated a substantial
increase in hospitals meeting website
assessment criteria, increasing from 27
percent to 70 percent between 2021 and
2022.631 Of the remainder of that 30
percent that failed to meet the criteria,
3 percent fully failed to meet website
assessment criteria and 27 percent
partially met website assessment
criteria. Although these website
assessments were not formal
compliance reviews (which often
require additional information from the
hospital to make a final determination
of compliance), we believe this
demonstrates that hospitals are making
improvements to come into compliance
and that the increase is largely
attributable to the increase in
compliance penalties that went into
effect in CY 2022, and our significant
education, monitoring, and enforcement
activities. We remain committed to
ensuring compliance with our
requirements and taking enforcement
actions in areas of noncompliance.
Recently, we announced updates to
our enforcement process 632 that are
intended to increase the rates of HPT
compliance. In this section, we make
proposals that would further improve
the efficiency, timeliness, and
transparency of the compliance process.
1. Proposals for Improving Assessment
of Hospital Compliance
At § 180.70(a), we finalized a process
for monitoring hospital compliance with
section 2718(e) of the PHS Act by which
we may use monitoring efforts
including, but not limited to, evaluating
complaints made by individuals or
entities to the CMS’, reviewing
631 https://www.healthaffairs.org/content/
forefront/hospital-price-transparency-progress-andcommitment-achieving-its-potential.
632 https://www.cms.gov/newsroom/fact-sheets/
hospital-price-transparency-enforcement-updates.
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individuals’ or entities’ analysis of
noncompliance, and auditing hospitals’
websites. The regulation text at
§ 180.70(a)(2) indicates that such
methods are also used to ‘assess’
hospital compliance; however, we have
found these methods to be more
appropriate for monitoring, and not as
appropriate or sufficient for assessing
hospital compliance.
For example, a review of an MRF
(such as is performed in a typical
website assessment) may reveal some
obvious deficiencies which can trigger a
compliance action. Similarly, a
complaint made by the public may be
helpful in identifying an allegedly
noncompliant hospital. While we
appreciate and continue to encourage
submission of complaints, there are
many nuances and complexities
associated with the way hospitals
establish standard charges that can lead
to questions related to, in particular, the
accuracy and completeness of the
standard charges information that is
included in a hospital’s MRF. By way of
example, if a hospital’s MRF does not
include any ‘discounted cash prices,’ it
can be difficult to determine whether
the hospital is noncompliant with the
requirement to disclose established
discounted cash prices or whether the
hospital has simply not established such
charges and therefore has nothing to
make public. Often, a hospital will
preempt questions by making
statements on its website or in the file
to indicate when there is no applicable
standard charges data to share with the
public. But when such a public
statement is absent, we find that it may
be necessary for us to contact the
hospital through our enforcement
process to assess or determine whether
the hospital is complying with the
requirements of the regulation. In short,
we have found it is necessary to employ
methods beyond a simple audit of a
hospital’s website to definitively assess
hospital compliance. We believe this
distinction between monitoring and
assessment activities is necessary
because while monitoring activities can
be used (by anyone, including CMS) to
evaluate alleged noncompliance, only a
formal CMS assessment can determine a
hospital’s compliance with the HPT
requirements. We expect that many of
these issues would be resolved if the
proposed improvements to
standardizing display of hospital
standard charges (as discussed in
section XVIII.B.3 of this proposed rule)
are finalized as proposed. However,
there could still be times when CMS
would need additional information from
the hospital to assess compliance.
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We therefore propose to amend
§ 180.70(a)(2) to propose additional
activities that CMS may use to monitor
and assess for compliance. Specifically,
we propose:
• To revise § 180.70(a)(2)(iii) to
indicate that CMS may conduct a
comprehensive compliance review of a
hospital’s standard charges information
posted on a publicly available website.
We believe this proposal is necessary to
clarify the methods we may use to
determine a hospital’s compliance with
HPT requirements.
• At new § 180.70(a)(2)(iv), requiring
an authorized hospital official to submit
to CMS a certification to the accuracy
and completeness of the standard
charges information posted in the MRF
at any stage of the monitoring,
assessment, or compliance phase. We
also propose at new § 180.50(a)(3) that
the hospital affirm within the MRF the
accuracy and completeness of the
standard charges information. However,
we believe that this additional authority
to require a formal certification by an
authorized official is necessary to assist
CMS in enforcement of the regulations
when questions or complaints arise
about the completeness or accuracy of
the data. This certification authority is
necessary because CMS may need a
formal certification to resolve any
specific questions related to the
standard charges displayed and the
items and services for which the
hospital has established a standard
charge, which might not be answered by
the proposed affirmation statement in
§ 180.50(a)(3). For example, a formal
certification may be necessary if a
complainant alleges that specific
standard charges displayed in the
hospital’s MRF are incomplete or
inaccurate, or if certain items and
services were provided by the hospital
but are not displayed in the MRF with
corresponding standard charges. Formal
certification would provide assurance to
CMS that the information within the
MRF has been verified by the authorized
official and is valid.
• At new § 180.70(a)(2)(v), requiring
submission to CMS of additional
documentation as may be necessary to
assess hospital compliance. Such
documentation may include contracting
documentation to validate the standard
charges the hospital displays, and
verification of the hospital’s licensure
status or license number, in the event
that information was not provided in
the MRF. We believe that this proposal
is necessary to enable CMS to
adequately evaluate the hospital’s
publicly posted information to be able
to assess compliance.
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2. Proposal To Require Hospital
Acknowledgement of Receipt of
Warning Notice
Since the HPT regulations first
became effective in January 2021,
through June 2023, we have issued
approximately 906 warning notices to
hospitals. Though we send the
compliance actions by tracked mail, a
few hospitals have reported they did not
receive the compliance action
notifications. This causes delays in
resolution of the deficiencies and in
some cases resulted in additional
compliance actions (for example, a
request for a CAP) from CMS. Requiring
that a hospital respond to CMS upon
receipt of the warning notice will
confirm receipt to CMS and hopefully
prompt hospital personnel to
appropriately route the warning notice
to ensure timely corrective action.
We make clear that hospitals’ internal
process challenges do not (and in
enforcement proceedings will not)
excuse a hospital’s HPT noncompliance.
But, knowledge of this concern caused
CMS to consider modifications to the
compliance process for purposes of
streamlining compliance activities and
avoiding unnecessary re-reviews when a
hospital has taken no action in response
to a warning notice. Additionally,
receiving confirmation of receipt
directly from individuals at the
organization responsible for resolving
the deficiencies would streamline our
enforcement by providing an
appropriate compliance contact earlier
in the enforcement process. We
therefore propose at § 180.70(b)(1) that
CMS will require that a hospital submit
an acknowledgement of receipt of the
warning notice in the form and manner,
and by the deadline, specified in the
notice of violation issued by CMS to the
hospital. As part of the confirmation of
receipt, we may request contact
information from the hospital to
streamline further communications.
when CMS determines that a hospital is
out of compliance with the regulations,
CMS takes a compliance action against
the individual hospital. Many hospitals,
however, are part of a broader health
system where common management
officials have some degree of oversight
and management over multiple
hospitals. For example, some health
systems have centralized administrative
activities that establish standard charges
for all the hospitals in the system, or
that are responsible for ensuring
compliance with Federal requirements.
Under our current regulation, as
explained in more detail in section
XVIII.C.4 of this proposed rule, we have
authority to disclose information about
CMS compliance activity only when
CMS issues a CMP, at which time CMS
posts the CMP notice on its website. We
believe that amending the regulation to
provide CMS with express authority to
notify health system officials of a
compliance action that CMS has taken
against one or more hospitals within
their system, and working directly with
them, where appropriate, to educate
health system leadership and aid them
in bringing all hospitals in the system
into compliance, could aid in
streamlining hospital compliance and
our enforcement process.
Therefore, we propose to add new
§ 180.70(c) to state that, in the event
CMS takes an action to address hospital
noncompliance (as specified in
paragraph (b)) and the hospital is
determined by CMS to be part of a
health system, CMS may notify the
health system leadership of the action
and may work with hospital system
leadership to address similar
deficiencies for hospitals across the
health system. In determining whether a
hospital is part of a health system and
health system contact information, we
anticipate using data from sources
including, but not limited to, internal
CMS systems such as the Medicare
Provider Enrollment, Chain, and
Ownership System (PECOS) or the
Chronic Conditions Data Warehouse
(CCW). For example, PECOS may be
used to identify relationships among
organizations including ownership or
enrollment associations.633
We believe that notifying health
system officials of a compliance action
taken against one of the hospitals in the
system and working with health system
officials and (where different) the
3. Proposal for Actions To Address
Noncompliance Within Hospital
Systems
Section 2718(e) of the PHS Act and
the HPT regulations apply to ‘each
hospital’ operating in the U.S. As such,
633 Cohen GR, Jones DJ, Heeringa J, Barrett K,
Furukawa MF, Miller D, Mutti A, Reschovsky JD,
Machta R, Shortell SM, Fraze T, Rich E. Leveraging
Diverse Data Sources to Identify and Describe U.S.
Health Care Delivery Systems. EGEMS (Wash DC).
2017 Dec 15;5(3):9. doi: 10.5334/egems.200. PMID:
29881758; PMCID: PMC5983023.
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Further, we propose two technical
revisions. First, we propose a technical
revision to the introductory text at
§ 180.70(a) so that it would read
‘‘Monitoring and Assessment.’’ Second,
we propose to amend § 180.90 by
revising paragraph (b)(2)(ii)(C) to
remove the phrase ‘‘resulting from
monitoring activities’’ and adding in its
place the phrase ‘‘resulting from
monitoring and assessment activities.’’
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hospital’s officials to help the hospital
to come into compliance would have
several benefits. First, it could serve to
ensure full and consistent compliance
across all hospitals in the health system.
Second, we believe the ability to work
directly with health system officials, in
addition to working with the
noncompliant hospital, could reduce
the need for compliance actions against
other health system hospitals because
the health system could more quickly
and efficiently implement system-wide
changes. For example, in one case
multiple hospitals designated the same
hospital system official as the point of
contact to work with CMS. This allowed
the hospital official to effectively correct
violations cited across multiple
locations and resulted in system-wide
changes.
We seek comment on this proposal,
including on whether there are
additional data sources that CMS could
access for purposes of identifying health
system affiliation and leadership contact
information.
4. Proposal To Publicize Compliance
Actions and Outcomes
In the CY 2020 HPT final rule, we
sought comment related to publicizing
complaints and posting results of CMS
assessments of hospitals’ HPT
compliance, including on the most
effective way for CMS to publicize
information regarding hospitals that fail
to comply. Some commenters
recommended publicizing
noncompliant hospitals, while one
commenter expressed the belief that
publicizing noncompliance even after
imposition of a CMP would amount to
‘‘public shaming,’’ which the
commenter believed would not be of
benefit. We considered these comments
and ultimately finalized a policy at
§ 180.90(e)(1) that, should CMS issue a
CMP to a hospital it determines is
noncompliant, CMS would post the
notice of imposition of the CMP on a
CMS website.
In finalizing this policy, we explained
that we believed that publicizing a
hospital’s noncompliance prior to
imposing a CMP (for example) could be
an effective tool to raise public
awareness of, for example, incomplete
hospital data, and could encourage
hospitals to promptly remedy its
violation(s) to avoid being publicly
identified as noncompliant. However,
we declined at the time to finalize
publicizing information beyond
publicizing the notice of imposition of
a CMP. We indicated that we would
consider revisiting through future
rulemaking the timing for, and approach
by, which CMS publicizes its
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determination of a hospital’s
noncompliance with the requirements
to make public standard charges.
As of June 27, 2023, CMS had issued
approximately 906 warning notices and
371 requests for CAPs since the initial
regulation went into effect in January
2021. Approximately 301 hospitals were
determined by CMS after a
comprehensive compliance review to
not require any compliance action and
approximately 457 hospitals received a
closure notice from CMS after having
addressed deficiencies indicated in a
prior warning notice or a request for a
CAP following an initial comprehensive
compliance review. We have imposed
CMPs on four hospitals and publicized
those CMP impositions on our
website.634 Every other hospital that we
have identified as being noncompliant
has either corrected its deficiencies or is
cooperating with CMS to work towards
correcting its deficiencies.
CMS routinely receives inquiries from
the public, including state hospital
associations, related to its compliance
activities, asking, among other things,
whether CMS has reviewed certain
hospitals in certain states or other
geographic locations. Given this
significant public interest, we
considered whether publicizing more
information about CMS compliance
activities and hospital-specific actions
would be useful. We reviewed other
federal programs that make public
compliance actions for various
programs, such as HHS/HRSA’s 340B
Drug Pricing Program which publicly
posts audit results that include the
name of the entity and state, audit
findings, sanction, and corrective action
status,635 CMS’ Part C and D results
related to the Medicare Advantage and
Prescription Drug Plan program
audits 636 and compliance actions,637
and the FDA which provides the public
access to an online, searchable
dashboard of compliance actions,
including warning letters.638
We believe that such information
could improve the public’s
understanding and transparency of
CMS’ enforcement process by allowing
interested parties to view compliance
actions and determinations made by
CMS. Additionally, making public
634 https://www.cms.gov/hospital-pricetransparency/enforcement-actions.
635 https://www.hrsa.gov/opa/program-integrity/
fy-22-audit-results.
636 https://www.cms.gov/medicare/complianceand-audits/part-c-and-part-d-compliance-andaudits/programaudits.
637 https://www.cms.gov/Medicare/Complianceand-Audits/Part-C-and-Part-D-Compliance-andAudits/PartCandPartDComplianceActions.
638 https://datadashboard.fda.gov/ora/cd/
complianceactions.htm.
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compliance information may reduce
repetitive complaints to CMS about
hospital compliance issues and provide
a central source of information for
inquirers, including the media and state
officials, who have expressed interest in
this issue. Additionally, making these
enforcement actions transparent may
increase the likelihood that hospitals
will more quickly come into compliance
due to public scrutiny.
As a result, we propose at § 180.70(d)
that CMS may publicize on its website
information related to CMS’ assessment
of a hospital’s compliance, any
compliance actions taken against a
hospital, the status of such compliance
action(s), and the outcome of such
compliance action(s). Additionally, we
propose at § 180.70(d) that CMS may
publicize on its website information
related to notifications that CMS may
send to health system leadership, if
proposals discussed in section XVIII.C.3
of this proposed rule are finalized.
Should CMS decide to publicize this
information on its website, it would
apply uniformly to all hospitals. We
further note that, similar to other such
assessments, the information we would
make public would only be relevant as
of the date indicated, and should not be
taken to suggest any ongoing state of
compliance or noncompliance.
D. Seeking Comment on ConsumerFriendly Displays and Alignment With
Transparency in Coverage and No
Surprises Act
As we concluded in the CY 2020 HPT
final rule, transparency in pricing is
necessary and can be effective to help
bring down the cost of healthcare
services, reduce price dispersion, and
benefit consumers of healthcare
services, including patients and
employers. We discussed research
suggesting that making consumerfriendly pricing information available to
the public can reduce healthcare costs
for consumers. We noted that despite
the growing consumer demand and
awareness of the need for healthcare
pricing data, there continued to be a gap
in easily accessible pricing information
for consumers to use for healthcare
shopping purposes. Specifically, there is
inconsistent (and many times
nonexistent) availability of provider
charge information, among other
limitations to understanding data made
available or barriers to use of the data.
We stated our belief that this
information gap could, in part, be filled
by the release of hospital standard
charges as required by section 2718(e) of
the PHS Act.
In response to comments, we
acknowledged that there are additional
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barriers that must be overcome to allow
consumers to identify appropriate sites
of care for needed services, determine
out-of-pocket costs in advance, and
utilize indicators of quality of care to
make value-based decisions. As we
previously described in the CY 2020
HPT final rule, we stated our
(continuing) belief that the HPT
regulations requiring hospitals to make
public standard charges are a necessary
and important first step in ensuring
transparency in healthcare prices for
consumers, but that the release of
hospital standard charge information is
not sufficient by itself to achieve our
ultimate goals for price transparency.
We noted that HHS was continuing to
explore other authorities to advance the
Administration’s goal of enhancing
consumers’ ability to choose the
healthcare that is best for them, to make
fully informed decisions about their
healthcare, and to access both useful
price and quality information. We also
agreed with commenters that ‘‘surprise
billing’’ was an issue of great concern to
consumers and of great interest to both
federal and state lawmakers. We noted
that the HPT policies would not resolve
that issue entirely, although we
expressed our belief that it was possible
that disclosure of hospital standard
charges could help mitigate some
consumer surprise billing (86 FR
65530).
As a result of comments indicating
that long lists of standard charges might
be difficult for the average person to
directly use and understand, we
considered ways that the authorities
under section 2718(e) of the PHS Act
could be used to require or encourage
hospitals to make public standard
charges for frequently provided services
in a form and manner that might be
more directly accessible and consumerfriendly. Ultimately, we finalized
requirements for hospitals to display a
list of payer-specific negotiated charges
for a specified set and number of
‘‘shoppable’’ services as well as
requirements intended to ensure the
charge information for ‘‘shoppable’’
services would be presented in a way
that is consumer-friendly, including
presenting the information as a service
package. We were also persuaded by
commenters’ suggestions that hospitals
offering online price estimator tools that
meet certain requirements including
providing real-time individualized outof-pocket cost estimates adequately
satisfy our aim that hospitals
communicate their standard charges in
a consumer-friendly manner, and
therefore deemed these price estimator
tools as meeting our requirements for
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making public standard charges for a
limited set of shoppable services (84 FR
65579).
Since finalizing these policies,
additional federal price transparency
initiatives that rely on other authorities
that more directly empower consumers
with pricing information have been, or
are in the process of being,
implemented. Specifically, since
publication of the CY 2020 HPT final
rule in 2019, the Transparency in
Coverage (TIC) rule (85 FR 72158,
finalized in 2020) 639 and the No
Surprises Act (NSA) (enacted as part of
the Consolidation Appropriations Act of
2021) have been promulgated or
enacted. Under the TIC final rules, with
respect to plan years (in the individual
market, policy years) beginning on or
after January 1, 2023, most group health
plans and issuers of group or individual
health insurance coverage are required,
among other requirements, to disclose
personalized pricing information for
covered items and service to their
participants, beneficiaries, and enrollees
through an online consumer tool, or in
paper form, upon request. Cost
estimates must be provided in real-time
based on cost-sharing information that
is accurate at the time of the request.640
This requirement is being phased in
over 2 years. An initial list of 500
shoppable services as determined by the
DOL, HHS, and the Treasury
(collectively, the Departments) will be
required to be available via the internet
based self-service tool for plan years
that begin on or after January 1, 2023.
The remainder of all items and services
will be required to be available via these
self-service tools for plan years that
begin on or after January 1, 2024.
The NSA, which contains many
provisions to protect consumers from
surprise medical bills and to improve
price transparency, will help patients
understand health care costs in advance
of care and to minimize unforeseen—or
surprise—medical bills.641 Section 9819
of the Internal Revenue Code (Code),
section 719 of the Employee Retirement
Income Security Act (ERISA), and
section 2799A–4 of the PHS Act, as
added by section 114 of division BB of
the CAA, 2021, require group health
plans and issuers of group or individual
health insurance coverage to offer price
comparison guidance by telephone and
make available on the plan’s or issuer’s
website a ‘‘price comparison tool’’ that
(to the extent practicable) allows an
639 https://www.federalregister.gov/documents/
2020/11/12/2020-24591/transparency-in-coverage.
640 https://www.cms.gov/healthplan-pricetransparency/plans-and-issuers.
641 https://www.cms.gov/nosurprises.
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individual enrolled under such plan or
coverage, with respect to such plan year,
such geographic region, and
participating providers with respect to
such plan or coverage, to compare the
amount of cost-sharing that the
individual would be responsible for
paying under such plan or coverage
with respect to the furnishing of a
specific item or service by any such
provider. In guidance issued on August
20, 2021, the Departments indicated that
because the price comparison methods
required by the CAA are largely
duplicative of the internet-based selfservice tool component of the TIC final
rules, the Departments intend to
propose rulemaking and seek public
comment regarding whether compliance
with the internet-based self-service tool
requirements of the TIC Final Rules
satisfies the analogous requirements set
forth in section 9819 of the Code,
section 719 of the ERISA, and section
2799A–4 of the PHS Act.642
Under section 2799B–6 of the PHS
Act, as added by section 112 of title I
of Division BB of the CAA, 2021, health
care providers, health care facilities, and
providers of air ambulance services are
required to provide a good faith estimate
(GFE) of expected charges for items and
services to individuals who are not
enrolled in a group health plan or group
or individual health insurance coverage,
Federal health care program, or Federal
Employees Health Benefits (FEHB)
program health benefits plan (uninsured
individuals) or not seeking to file a
claim with their group health plan,
health insurance coverage, or FEHB
health benefits plan (self-pay
individuals). This GFE for uninsured (or
self-pay) individuals must be provided
in writing, either on paper or
electronically (and may also be
provided orally, if an uninsured (or selfpay) individual requests a good faith
estimate in a method other than on
paper or electronically), upon request or
at the time of scheduling health care
items and services.
On October 7, 2021, HHS issued
regulations implementing section
2799B–6 of the PHS Act related to GFEs
for uninsured (or self-pay) individuals
at 45 CFR 149.610.643 Under 45 CFR
149.610(b)(A) through (C), information
regarding the availability of GFEs for
uninsured (or self-pay) individuals must
642 FAQS about Affordable Care Act and
Consolidated Appropriations Act, 2021
Implementation Part 49 (August 20, 2021), available
at https://www.cms.gov/CCIIO/Resources/FactSheets-and-FAQs/Downloads/FAQs-Part-49.pdf.
643 Requirements Related to Surprise Billing; Part
II, 86 FR 55980, 55983 (October 7, 2021), available
at https://www.govinfo.gov/content/pkg/FR-202110-07/pdf/2021-21441.pdf.
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be written in a clear and understandable
manner, prominently displayed (and
easily searchable from a public search
engine) on the convening provider’s or
convening facility’s website, in the
office, and on-site where scheduling or
questions about the cost of items or
services occur; orally provided when
scheduling an item or service or when
questions about the cost of items or
services occur; and made available in
accessible formats, and in the
language(s) spoken by individual(s)
considering or scheduling items or
services with the convening provider or
convening facility. At 45 CFR
149.610(c)(1), the content requirements
of the GFE are outlined. The
Departments have provided a sample of
the GFE form online that includes the
required information.644
For individuals who are enrolled in a
group health plan or group or individual
health insurance coverage, section
2799B–6 of the PHS Act requires
providers and facilities to submit a GFE
of expected charges to the covered
individual’s plan or issuer.645 Section
9816(f) of the Code, section 716(f) of the
ERISA, and section 2799A–1(f) of the
PHS Act, as added by section 111 of title
I of Division BB of the CAA, 2021,
require plans and issuers, upon
receiving the GFE, to send an advanced
explanation of benefits (AEOB) in clear
and understandable language to the
covered individual, through mail or
electronic means, as requested by the
covered individual.646 The AEOB must
include the following information: (1)
the network status of the provider or
facility; (2) the contracted rate for the
item or service, or, if the provider or
facility is not a participating provider or
facility, a description of how the
covered individual can obtain
information on providers and facilities
that are participating; (3) the GFE
received from the provider or facility;
(4) a GFE of the amount the plan or
coverage is responsible for paying; (5)
the amount of any cost sharing which
the covered individual would be
responsible for paying with respect to
the GFE received from the provider or
644 https://www.cms.gov/files/document/goodfaith-estimate-example.pdf.
645 The Department of Health and Human
Services (HHS) interprets the requirements
described in section 2799B–6 of the PHS Act apply
to providers and facilities furnishing items or
services to individuals covered by the Federal
Employees Health Benefits (FEHB) Program in the
same manner as for individuals enrolled in a group
health plan or group or individual health insurance
coverage.
646 Pursuant to 5 U.S.C. 8902(p), FEHB carriers
must comply with AEOB requirements in the same
manner as those provisions apply to a group health
plan or health insurance issuer offering group or
individual health insurance coverage.
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facility; (6) a GFE of the amount that the
covered individual has incurred
towards meeting the limit of the
financial responsibility (including with
respect to deductibles and out-of-pocket
maximums) under the plan or coverage
as of the date of the AEOB; and (7)
disclaimers indicating whether coverage
is subject to any medical management
techniques (including concurrent
review, prior authorization, and steptherapy or fail-first protocols). The
AEOB must also indicate that the
information provided is only an
estimate based on the items and services
reasonably expected to be furnished, at
the time of scheduling (or requesting)
the item or service, and is subject to
change; and any other information or
disclaimer the plan, issuer, or carrier
determines is appropriate and that is
consistent with information and
disclaimers required under this section
of the statute.
In September 2022, the Departments
and the Office of Personnel Management
(OPM) published a request for
information to inform rulemaking on the
provisions of the No Surprises Act
related to the AEOB and GFE for
covered individuals. (See 87 FR
56905.) 647 The RFI requested
information and recommendations on
transferring data from providers and
facilities to plans, issuers, and carriers;
other policy approaches; and the
economic impacts of implementing
these requirements. The Departments
and OPM are carefully considering the
public comments on the RFI as they,
along with industry stakeholders,
continue work toward developing the
technical standards and policy
framework necessary to support
successful implementation of the AEOB
and GFE for covered individuals.
As these new consumer-friendly
requirements are in the process of
becoming fully realized, we are
interested in hearing from the public
how the HPT requirements, in accord
with the contours of the statutory
authority conferred by section 2718(e) of
the PHS Act, can best support and
complement the consumer-friendly
requirements found in these other price
transparency initiatives. We particularly
seek comment on:
• How, if at all, and consistent with
its underlying legal authority, could the
HPT consumer-friendly requirements at
§ 180.60 be revised to align with other
price transparency initiatives?
• How aware are consumers about
healthcare pricing information available
from hospitals? We solicit
647 https://www.govinfo.gov/content/pkg/FR2022-09-16/pdf/2022-19798.pdf.
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recommendations on raising consumer
awareness.
• What elements of health pricing
information do you think consumers
find most valuable in advance of
receiving care? How do consumers
currently access this pricing
information? What are consumers’
preferences for accessing this price
information?
• Given the new requirements and
authorities through TIC final rules and
the NSA, respectively, is there still
benefit to requiring hospitals to display
their standard charges in a ‘‘consumerfriendly’’ manner under the HPT
regulations?
• Within the contours of the statutory
authority conferred by section 2718(e) of
the PHS Act, should information in the
hospital consumer-friendly display
(including the information displayed in
online price estimator tools) be revised
to enhance alignment with price
information provided under the TIC
final rules and NSA regulations? If so,
which data should be revised and how?
• How effective are hospital price
estimator tools in providing consumers
with actionable and personalized
information? What is the minimum
amount of personalized information that
a consumer must provide for a price
estimator tool to produce a personalized
out-of-pocket estimate?
• How are third parties using MRF
data to develop consumer-friendly
pricing tools? What additional
information is added by third parties to
make standard charges consumerfriendly?
• Should we consider additional
consumer-friendly requirements for
future rulemaking, and to the extent our
authorities permit? For example, what
types of pricing information might give
consumers the ability to compare the
cost of healthcare services across
healthcare providers? Is there an
industry standard set of healthcare
services or service packages that
healthcare providers could use as a
benchmark when establishing prices for
consumers?
XIX. Proposed Changes to the Inpatient
Prospective Payment System Medicare
Code Editor
As discussed in the FY 2024 Inpatient
Prospective Payment System (IPPS)/
Long-Term Care Hospital (LTCH)
Prospective Payment System (PPS)
proposed rule (88 FR 26752), the
Medicare Code Editor (MCE) is a
software program that detects and
reports errors in the coding of Medicare
claims data. Patient diagnoses,
procedure(s), and demographic
information are entered into the
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Medicare claims processing systems and
are subjected to a series of automated
screens. The MCE screens are designed
to identify cases that require further
review before classification into a
Medicare Severity Diagnosis Related
Group (MS–DRG). If any of the MCE
claim edits are triggered, the claim is
returned to the provider to correct any
issues related to the coded claims data
and resubmit the claim for processing
by the MAC.
After patient information is screened
through the MCE and further
development of the claim is conducted,
the cases are classified into the
appropriate MS–DRG by the Medicare
GROUPER software program. The
GROUPER program was developed as a
means of classifying each case into an
MS–DRG. The GROUPER software used
under the LTCH PPS is the same
GROUPER software program used under
the IPPS and therefore, also utilizes the
MCE to identify cases that require
further review before assignment into a
Medicare Severity Long-Term Care
Diagnosis Related Group (MS–LTC–
DRG) can be made.
As discussed in the FY 2023 IPPS/
LTCH PPS final rule (87 FR 48874), we
made available the FY 2023 ICD–10
MCE Version 40 manual file. The
manual contains the definitions of the
Medicare code edits, including a
description of each coding edit with the
corresponding diagnosis and procedure
code edit lists. The link to this MCE
manual file, along with the link to the
mainframe and computer software for
the MCE Version 40 (and ICD–10 MS–
DRGs) are posted on the CMS website
at: https://www.cms.gov/medicare/
medicare-fee-for-service-payment/
acuteinpatientpps/ms-drgclassifications-and-software. The MCE
manual is currently comprised of two
chapters: Chapter 1: Edit code lists
provides a listing of each edit, an
explanation of each edit, and as
applicable, the diagnosis and/or
procedure codes for each edit, and
Chapter 2: Code list changes
summarizes the changes in the edit code
lists (for example, additions and
deletions) from the prior release of the
MCE software.
As discussed in the FY 2024 IPPS/
LTCH PPS proposed rule (88 FR 26758)
and prior rulemaking, as we continue to
evaluate the purpose and function of the
MCE with respect to ICD–10, we
encourage public input for future
discussion, including with respect to
whether there are concerns with the
current edits, including specific edits or
language that should be removed or
revised, edits that should be combined,
or new edits that should be added to
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assist in detecting errors or inaccuracies
in the coded data. We note that
historically, CMS has typically
addressed the addition or deletion of
MCE edits in its annual IPPS
rulemakings, as well as the addition or
deletion of ICD–10 diagnosis and
procedure codes for the applicable MCE
edit code lists effective October 1,
consistent with the October 1 updates to
the ICD–10 code set. We also note that
currently, any changes applicable to the
MCE edit code list in connection with
the April 1 updates to the ICD–10 code
set are made available on the CMS
website at: https://www.cms.gov/
Medicare/Medicare-Fee-for-ServicePayment/AcuteInpatientPPS/MS-DRGClassifications-and-Software.
As we have continued to evaluate the
purpose and function of the MCE with
respect to ICD–10, we recognize a need
to further examine the operability of the
MCE software program, including the
current list of edits and the definitions
of those edits. We have also considered
the operation of the MCE as compared
to the claims editing programs used for
other Medicare payment systems,
including how those edits are defined
and applied, as well as how they are
updated and maintained. For example,
the Outpatient Prospective Payment
System (OPPS) ‘‘Integrated’’ Outpatient
Code Editor (I/OCE) is a software
program that combines editing logic
with an ambulatory payment
classification (APC) assignment
program. Similar to the IPPS MCE, the
I/OCE edits the claims data to identify
errors and ensure accuracy of submitted
data. The I/OCE also serves additional
claims editing functions as compared to
the IPPS MCE. CMS makes updates to
the I/OCE through quarterly releases
with effective dates of January 1, April
1, July 1, and October 1 of each year.
The updates reflect modifications to the
program logic, such as additions and
deletions of the ICD–10–CM diagnosis
codes and Healthcare Common
Procedure Coding System (HCPCS)
codes, adding, removing or revising
APCs, activating and deactivating edits,
and other related actions. Changes and
updates to the I/OCE are announced
through quarterly I/OCE Change
Requests (CRs) that are posted to the
CMS website for MACs and public
download at: https://www.cms.gov/
Medicare/Coding/OutpatientCodeEdit/
OCEQtrReleaseSpecs. The public may
submit any questions or concerns
related to the I/OCE through the CMS
website at: https://www.cms.gov/
Medicare/Coding/OutpatientCodeEdit/
ContactUs.
Similar to the claims editing programs
used for the OPPS and other Medicare
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payment systems, the claims edits under
the MCE serve the operational function
of identifying cases that require further
review before classification into an MS–
DRG. As previously discussed, if an edit
is triggered, the claim is returned to the
provider to correct any issues related to
the coded claims data and to resubmit
the claim for processing. Accordingly,
consistent with the process that is used
for updates to the I/OCE and other
Medicare claims editing systems, we
propose to address any future revisions
to the MCE, including any additions or
deletions of claims edits, as well as the
addition or deletion of ICD–10 diagnosis
and procedure codes to the applicable
MCE edit code lists, outside of the
annual IPPS rulemakings. As described
further in this section, we anticipate
generally announcing any such changes
or updates to the MCE as part of our
instructions issued to the MACs in
connection with the April 1 and October
1 ICD–10 code updates.
Under our current process, we
announce updates to the MCE in
connection with the April 1 and October
1 ICD–10 code updates, as applicable.
For example, as discussed in the FY
2024 IPPS/LTCH PPS proposed rule (88
FR 26767), we issued Change Request
(CR) 13034, Transmittal 11746, titled
‘‘April 2023 Update to the Medicare
Severity—Diagnosis Related Group
(MS–DRG) Grouper and Medicare Code
Editor (MCE) Version 40.1 for the
International Classification of Diseases,
Tenth Revision (ICD–10) Diagnosis
Codes for Collection of Health-Related
Social Needs (HRSNs) and New ICD–10
Procedure Coding System (PCS) Codes’’,
on December 15, 2022 (available on the
CMS website at: https://www.cms.gov/
Regulations-and-Guidance/Guidance/
Transmittals/Transmittals/r11746cp)
regarding the release of an updated
version of the ICD–10 MS–DRG
GROUPER and Medicare Code Editor
software, Version 40.1, effective with
discharges on and after April 1, 2023,
reflecting the new diagnosis and
procedure codes. We noted in the CR
that the updated software, along with
the updated ICD–10 MS–DRG V40.1
Definitions Manual and the Definitions
of Medicare Code Edits V40.1 manual is
available at: https://www.cms.gov/
Medicare/Medicare-Fee-for-ServicePayment/AcuteInpatientPPS/MS-DRGClassifications-and-Software. We issued
similar instructions with respect to the
October 1, 2022 updates to the MCE and
related materials, including the release
of the updated Version 40 ICD–10 MS–
DRG GROUPER and Medicare Code
Editor software, effective with
discharges on and after October 1, 2022,
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available at: https://www.cms.gov/
Medicare/Medicare-Fee-for-ServicePayment/AcuteInpatientPPS/MS-DRGClassifications-and-Software.
Under our proposed approach, we
would continue to issue instructions to
the MACs in connection with any April
1 or October 1 updates to the IPPS MCE,
including the effective date for the
appropriate version of the MCE software
program and the Definitions of Medicare
Code Edits manual, and where these
resources may be found on the CMS
website. We would be interested in
feedback as to whether it would also be
helpful to list the specific MCE updates
in the CR, including any additions or
deletions of diagnosis or procedure
codes or any addition or deletion of
particular MCE edits. As previously
noted, Chapter 2 of the MCE manual
currently identifies the changes in the
edit code lists (for example, additions
and deletions) from the prior release of
the MCE software. Beginning with the
FY 2025 rulemaking, we would no
longer address the addition or deletion
of MCE edits or the addition or deletion
of ICD–10 diagnosis and procedure
codes for the applicable MCE edit code
lists in the annual IPPS rulemakings.
We note that under this revised
approach, we would also continue to
welcome input from the public on the
current edits, including input from
providers and other users on how the
MCE may currently be utilized in their
respective workflow processes, as well
as feedback on users’ experience with
the MCE, to inform any future revisions
to the MCE.
We invite public comments on our
proposal to remove discussion of the
MCE from the annual IPPS rulemakings,
beginning with the FY 2025 rulemaking,
and to generally address future changes
or updates to the MCE through
instruction to the MACs, as previously
described.
XX. Proposed Technical Edits for REH
Conditions of Participation and Critical
Access Hospital (CAH) CoP Updates
On November 23, 2022, we published
a final rule for the Rural Emergency
Hospital health and safety standards (or
the Conditions of Participation) titled,
‘‘REH Conditions of Participation (CoP)
and Critical Access Hospital (CAH) CoP
Updates (CMS–3419–F)’’, which was
included in the ‘‘Medicare Program:
Hospital Outpatient Prospective
Payment and Ambulatory Surgical
Center Payment Systems and Quality
Reporting Programs; Organ Acquisition;
Rural Emergency Hospitals: Payment
Policies, Conditions of Participation,
Provider Enrollment, Physician SelfReferral; New Service Category for
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Hospital Outpatient Department Prior
Authorization Process; Overall Hospital
Quality Star Rating; COVID–19’’ final
rule with comment period (87 FR
71748). In that rule, we finalized the
designation and certification for Rural
Emergency Hospitals of part 485,
subpart E, at 42 CFR 485.506. In the
section titled, Statutory Authority and
Establishment of Rural Emergency
Hospitals as a Medicare Provider Type,
we noted the following:
In order to become an REH, section
1861(kkk)(3) of the Act requires that the
facility, on the date of enactment of the CAA,
2021 (December 27, 2020), was a CAH or a
rural hospital with not more than 50 beds.
For the purpose of REH designation, section
1861(kkk)(3)(B) defines rural hospital as a
subsection (d) hospital (as defined in section
1886(d)(1)(B) with not more than 50 beds
located in a county (or equivalent unit of
local government) in a rural area (as defined
in section 1886(d)(2)(D) of the Act)), or
treated as being located in a rural area
pursuant to section 1886(d)(8)(E) of the Act.’’
We reiterated these requirements in
the discussion of the Designation and
Certification of REHs (§ 485.506) and
finalized the regulatory text for the
requirement at 42 CFR 485.506;
however, we inadvertently cited the
incorrect statutory references. We
propose to correct these statutory
citations from ‘‘1881(d)(2)(D)’’ to
‘‘1886(d)(2)(D)’’ and from
‘‘1881(d)(1)(B)’’ to ‘‘1886(d)(1)(B)’’ at
§ 485.506(b) and (c).
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XXI. Rural Emergency Hospitals
(REHs): Proposal Regarding Payment
for Rural Emergency Hospitals (REHs)
A. Background on Rural Emergency
Hospitals
The Consolidated Appropriations Act
(CAA), 2021 (Pub. L. 116–260), was
signed into law on December 27, 2020.
In this legislation, Congress established
Rural Emergency Hospitals (REHs), a
new rural Medicare provider type, to
help maintain access to rural outpatient
hospital services and prevent rural
hospital closures. These providers
furnish emergency department and
observation care, and other specified
outpatient medical and health services,
if elected by the REH, that do not exceed
an annual per patient average of 24
hours. Hospitals are eligible to convert
to REHs if they were CAHs or rural
hospitals with not more than 50 beds
participating in Medicare as of the date
of enactment of the CAA. For more
information on the statutory authority
for and the regulations implementing
this new Medicare provider type, please
refer to the CY 2023 OPPS/ASC final
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rule with comment period (87 FR 72160
through 72161).
published annually in the Federal
Register.
B. REH Payment Methodology
D. Proposal To Pay IHS and Tribal
Hospitals That Convert to an REH
Under the AIR
Pursuant to section 1834(x)(1) of the
Act and CMS’s implementing
regulations at 42 CFR 419.91 and
419.92(a)(1), payment for REH services
is defined in terms of the amount of
payment ‘‘that would otherwise apply
under section 1833(t),’’ for covered
outpatient department (OPD) services,
increased by 5 percent. As discussed in
the CY 2023 OPPS/ASC final rule with
comment period, CMS interprets ‘‘rural
emergency hospital services,’’ as
defined by section 1861(kkk)(1) of the
Act, to include the scope of covered
OPD services as defined in 1833(t)(1)(B)
of the Act (excluding 1833(t)(1)(B)(ii) of
the Act) (87 FR 72162). In the CY 2023
OPPS/ASC final rule with comment
period, CMS also finalized regulations
at 42 CFR 419.92(c) which address
payment for services furnished by an
REH that fall outside the scope of the
covered OPD services under section
1833(t)(1)(B) of the Act. In addition,
pursuant to section 1834(x)(2) of the
Act, CMS codified at 42 CFR 419.92(b)
that REHs will be paid an additional
monthly facility payment, which was
calculated for CY 2023 pursuant to the
methodology described in the CY 2023
OPPS/ASC final rule with comment
period and will be updated in
subsequent years by the hospital market
basket percentage increase as described
in section 1886(b)(3)(B)(iii) of the Act.
C. Background on the IHS Outpatient
All-Inclusive Rate (AIR) for Tribal and
IHS Hospitals
For many years, tribal and IHS
hospitals have been paid for hospital
outpatient services furnished to
Medicare beneficiaries based upon an
outpatient per visit rate (the AllInclusive Rate or ‘‘AIR’’), which is
published annually by the IHS in the
Federal Register. For additional
information about the annual allinclusive rates that IHS sets for
inpatient and outpatient medical care
provided by IHS facilities, please refer
to IHS’s CY 2023 Reimbursement Rate
Notice which appeared in the Federal
Register on February 27, 2023 (88 FR
12387).
In the CY 2002 OPPS final rule, CMS
explicitly excluded IHS hospitals from
the OPPS (66 FR at 59893) and codified
that exclusion at § 419.20(b)(4),
explaining that these facilities would
continue to be paid under the separately
established rate (the AIR) that is
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While some tribal and IHS hospitals
have expressed interest in converting to
an REH, they have expressed significant
reservations about doing so due to
having to transition from their existing
payment methodology under the AIR to
the REH payment methodology. As
discussed above, in accordance with 42
CFR 419.20(b)(4) and CMS’s
longstanding policy, tribal and IHS
hospitals are excluded from payment
under the OPPS and instead are paid for
hospital outpatient services under the
AIR. In contrast, payment for REH
services is defined in section 1834(x)(1)
of the Act and under § 419.92(a)(1) as
‘‘the amount of payment that would
otherwise apply under section 1833(t) of
the Act for the equivalent covered OPD
service.’’ Because there is no amount
that would otherwise apply under
section 1833(t) of the Act for hospital
outpatient services furnished by tribal
and IHS hospitals (because these
hospitals have always been excluded
from the OPPS for payment for hospital
outpatient services), such services,
when furnished by IHS operated or
tribally operated REHs (hereinafter
referred to as ‘‘IHS–REHs’’), do not fall
within the scope of ‘‘REH services.’’
Under § 419.92(c), ‘‘a service furnished
by an REH that does not meet the
definition of an REH service under
§ 419.91 is paid for under the payment
system applicable to the service,
provided the requirements for payment
under that system are met.’’
Consequently, we propose that IHS–
REHs be paid for hospital outpatient
services under the same rate (the
applicable AIR that is established and
published annually by the IHS) that
would otherwise apply if these services
were performed by an IHS or tribal
hospital, consistent with the
requirements of § 419.92(c). Under this
proposal, the AIR would serve as
payment for services furnished by IHS–
REHs as part of an outpatient hospital
encounter in the same manner as the
AIR currently applies to IHS operated
hospitals. Accordingly, to the extent
that IHS hospitals are currently
compensated via the AIR, rather than
other Medicare payment mechanisms,
for services other than hospital
outpatient services that are furnished as
part of an outpatient hospital encounter,
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CMS is proposing that an IHS–REH
would also be paid via the AIR when
furnishing such services as part of an
outpatient hospital encounter. Further,
we note that existing beneficiary
coinsurance policies applicable to such
services under the AIR would remain
unchanged by our proposal.
We propose that IHS–REHs would
receive the REH monthly facility
payment consistent with how this
payment is made to REHs that are not
tribally or IHS operated. CMS pays the
monthly facility payment, pursuant to
section 1834(x)(2) of the Act, as a
separate payment to the REH that is not
tied to specific services. Likewise, there
is nothing in the statute and CMS’s
implementing regulations (42 CFR
419.92(b)) that would preclude REHs,
including tribally or IHS operated REHs,
from receiving this payment, even if
they are paid under a separate payment
framework for hospital outpatient
services provided to beneficiaries (87 FR
72167 through 72181). Therefore, we
propose that IHS–REHs would receive
the monthly facility payment, consistent
with § 419.92(b).
We also believe that for IHS–REHs it
would be most efficient from a claims
processing perspective for the IHS–
REHs to process their claims separately
from other REHs. Therefore, we propose
to update the OPPS claims processing
logic to include an IHS–REH specific
payment flag, which an IHS–REH
provider would utilize to indicate that
the provider is an IHS–REH and should
be paid the AIR.
Allowing tribal and IHS hospitals to
continue receiving payment for hospital
outpatient services through the AIR
would remove several barriers to these
hospitals converting to REHs. This
proposal would provide tribal or IHS
hospitals that convert to REHs greater
predictability by allowing these
facilities to continue to be paid via a
familiar payment mechanism (the AIR),
that will enable payment at the same
rate that these hospitals are currently
paid for outpatient hospital encounters.
This proposal would also reduce the
administrative burden for tribal and IHS
hospitals to convert to an REH since
they would already be familiar with
reporting services and receiving
payment using the AIR and would not
need to invest in new software and
additional staff training to receive
payment for individual REH services at
the REH payment rate. The continued
use of the AIR would also make it easier
for tribal and IHS providers that convert
to an REH, but later determine it was the
wrong decision for their facility, to
convert back to a CAH or an inpatient
hospital. Finally, CMS anticipates that
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this proposal would enable an increased
number of rural tribal and IHS hospitals
to attain an REH designation in a
manner that would allow them to
maintain their outpatient services,
which may have a positive impact on
health equity for Native Americans and
people adversely affected by persistent
poverty or inequality by facilitating
access to health care in rural tribal
communities.
We propose to add a new paragraph
(d) to § 419.92 to codify that, beginning
in CY 2024, IHS and tribally operated
REHs, as defined in a proposed new
paragraph (e) in § 419.92 as discussed
below, will be paid under the outpatient
hospital AIR that is established and
published annually by the IHS instead
of being paid the rates for REH services
described in § 419.92(a)(1).
We also propose to amend
§ 419.93(a)(2), relating to services
furnished by an off-campus providerbased department of an REH, to add a
reference to the proposed new provision
at § 419.92(d) for purposes of payment
for services furnished by off-campus
provider-based departments of IHS and
tribally operated REHs.
Finally, we propose to establish a
definition for IHS or tribally operated
REHs, to identify the REHs that will be
eligible to receive payment under the
proposed new policy in § 419.92(d).
Accordingly, we propose to add
paragraph (e) to § 419.92 to codify that
for purposes of § 419.92, an IHS or
tribally operated REH means an REH, as
defined in § 485.502, that is operated by
the IHS or by a tribe or tribal
organization with funding authorized by
Title I or III of the Indian SelfDetermination and Education
Assistance Act (Pub. L. 93–638).
E. Exclusion of REHs From the OPPS
Hospitals that are excluded from
payment under the OPPS are specified
under § 419.20(b) of the regulations.
Because, as described above, REHs are
paid outside of the OPPS, we intended
to revise § 419.20(b) during the CY 2023
rulemaking cycle to exclude REHs from
payment under the OPPS. However, this
intended revision was inadvertently
omitted. Consequently, we are now
proposing to codify the exclusion of
REHs from the OPPS by adding new
paragraph (5) to § 419.20(b).
XXII. Request for Public Comments on
Potential Payment Under the IPPS and
OPPS for Establishing and Maintaining
Access to Essential Medicines
A. Overview
On January 26, 2021, President Biden
issued Executive Order 14001, ‘‘A
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49867
Sustainable Public Health Supply
Chain’’ (86 FR 7219), which launched a
whole-of-government effort to
strengthen the resilience of medical
supply chains, especially for
pharmaceuticals and simple medical
devices. This effort was bolstered
subsequently by Executive Orders
14005, 14017, and 14081 (86 FR 7475,
11849, and 25711, respectively). In June
2021, as tasked in Executive Order
14017 on ‘‘America’s Supply Chains,’’
the Department of Health and Human
Services released a review of
pharmaceuticals and active
pharmaceutical ingredients, analyzing
risks in these supply chains and
recommending solutions to increase
their reliability.648 In July 2022, as
tasked in Executive Order 14001, the
Biden–Harris Administration also
released the National Strategy for a
Resilient Public Health Supply Chain,
which laid out a roadmap to support
reliable access to products for public
health in the future, including through
prevention and mitigation of medical
product shortages.649
Over the last few years, shortages for
critical medical products have persisted
and continued to increase.650 For
pharmaceuticals, even before the
COVID–19 pandemic, nearly two-thirds
of hospitals reported more than 20 drug
shortages at any one time—from
antibiotics used to treat severe bacterial
infections to crash cart drugs necessary
to stabilize and resuscitate critically ill
adults.651 The frequency and severity of
these supply disruptions has only been
exacerbated over the last few years.
Recent data supports that hospitals
are estimated to spend more than 8.6
million personnel hours and $360
million per year to address drug
shortages, which will likely further
result in treatment delays and denials,
changes in treatment regimens,
648 Department of Health and Human Services,
Review of Pharmaceuticals and Active
Pharmaceutical Ingredients (pp. 207–250), June
2021: https://www.whitehouse.gov/wp-content/
uploads/2021/06/100-day-supply-chain-reviewreport.pdf.
649 Department of Health and Human Services,
National Strategy for a Resilient Public Health
Supply Chain, July 2021: https://www.phe.gov/
Preparedness/legal/Documents/National-Strategyfor-Resilient-Public-Health-Supply-Chain.pdf.
650 Senate Committee on Homeland Security &
Governmental Affairs, Short Supply: The Health
and National Security Risks of Drug Shortages,
March 2023: https://www.hsgac.senate.gov/wpcontent/uploads/2023-06-06-HSGAC-MajorityDraft-Drug-Shortages-Report.-FINALCORRECTED.pdf.
651 Vizient, Drug Shortages and Labor Costs:
Measuring the Hidden Costs of Drug Shortages on
U.S. Hospitals, June 2019: https://wieck-vizientproduction.s3.us-west-1.amazonaws.com/pageBrum/attachment/c9dba646f40b9b5def
8032480ea51e1e85194129.
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medication errors,652 653 654 as well as
higher rates of hospital-acquired
infections and in-hospital
mortality.655 656 The additional time,
labor, and resources required to navigate
drug shortages also increase health care
costs.657
Hospitals’ procurement preferences
directly influence upstream
intermediary and manufacturer behavior
and can be leveraged to help foster a
more resilient supply chain for
lifesaving drugs and biologicals. With
respect to shortages, supply chain
resiliency includes having sufficient
inventory that can be leveraged in the
event of a supply disruption or demand
increase—as opposed to ‘‘just-in-time’’
inventory-management efficiency that
can leave supply chains vulnerable to
shortage.658 659 This concept is
especially true for essential medicines,
which generally comprise of products
that are medically necessary to have
available at all times in an amount
adequate to serve patient needs and in
the appropriate dosage forms. A
resilient supply can also include
essential medicines from multiple
manufacturers, including the
availability of domestic pharmaceutical
manufacturing capacity, to diversify the
sourcing of essential medicines. We
believe it is necessary to support
practices that can curtail
pharmaceutical shortages of essential
medicines and promote resiliency in
652 American Journal of Health System
Pharmacology, National Survey on the Effect of
Oncology. Drug Shortages on Cancer Care, 2013:
https://pubmed.ncbi.nlm.nih.gov/23515514/.
653 JCO Oncology Practice, National Survey on the
Effect of Oncology Drug Shortages in Clinical
Practice, 2022: https://pubmed.ncbi.nlm.nih.gov/
35544740/.
654 Journal of the American Medical Association,
Association between U.S. Norepinephrine Shortage
and Mortality Among Patients with Septic Shock,
2017: https://pubmed.ncbi.nlm.nih.gov/28322415/.
655 Clinical Infectious Diseases, The Effect of a
Piperacillin/Tazobactam Shortage on Antimicrobial
Prescribing and Clostridium difficile Risk in 88 US
Medical Centers, 2017: https://
pubmed.ncbi.nlm.nih.gov/28444166/.
656 New England Journal of Medicine, The Impact
of Drug Shortages on Children with Cancer: The
Example of Mechlorethamine, 2012: https://
pubmed.ncbi.nlm.nih.gov/23268661/.
657 Department of Health and Human Services,
ASPE Report to Congress: Impact of Drug Shortages
on Consumer Costs, May 2023: https://
aspe.hhs.gov/reports/drug-shortages-impactsconsumer-costs.
658 Department of Health and Human Services,
Review of Pharmaceuticals and Active
Pharmaceutical Ingredients (pp. 207–250), June
2021: https://www.whitehouse.gov/wp-content/
uploads/2021/06/100-day-supply-chain-reviewreport.pdf.
659 Department of Health and Human Services,
National Strategy for a Resilient Public Health
Supply Chain, July 2021: https://www.phe.gov/
Preparedness/legal/Documents/National-Strategyfor-Resilient-Public-Health-Supply-Chain.pdf.
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order to safeguard and improve the care
hospitals are able to provide to
beneficiaries.
We are seeking comment on, and may
consider finalizing based on the review
of comments received, as early as for
cost reporting periods beginning on or
after January 1, 2024, separate payment
under the IPPS, for establishing and
maintaining access to a buffer stock of
essential medicines to foster a more
reliable, resilient supply of these
medicines. This separate payment
would not be budget neutral. An
adjustment under the OPPS could be
considered for future years.
B. Establishing and Maintaining a Buffer
Stock of Essential Medicines
The report Essential Medicines
Supply Chain and Manufacturing
Resilience Assessment, as developed by
the U.S. Department of Health and
Human Services (HHS) Office of the
Assistant Secretary for Preparedness
and Response (ASPR) prioritized 86
essential medicines (hereinafter referred
to as, the ‘‘essential medicines’’)
identified as either critical for minimum
patient care in acute settings or
important for acute care or important for
acute care of respiratory illnesses/
conditions, with no comparable
alternative available. 660 661 When
hospitals have insufficient supply of
these essential medicines, such as
during a shortage, care for Medicare
beneficiaries can be negatively
impacted. To mitigate negative care
outcomes in the event of insufficient
supply, hospitals can adopt
procurement strategies that foster a
consistent, safe, stable, and resilient
supply of these essential medicines.
Such procurement strategies can
include provisions to maintain or
otherwise provide for extra stock of
product (for example, either to maintain
or to hold directly at the hospital,
arrange contractually for a distributor to
hold, or arrange contractually with a
wholesaler for a manufacturer to hold),
which can act as a buffer in the event
of an unexpected increase in product
use or disruption to supply. We expect
that the resources required to establish
and maintain access to a minimal
‘‘buffer stock’’ of essential medicines,
such as a 3-month supply, will generally
be greater than the resources required to
establish and maintain access to these
medicines through alternative means
that are more susceptible to supply
chain disruptions (for example, through
660 https://www.armiusa.org/wp-content/uploads/
2022/07/ARMI_Essential-Medicines_Supply-ChainReport_508.pdf.
661 https://aspr.hhs.gov/newsroom/Pages/
Essential-Medicines-May22.aspx.
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so-called ‘‘just-in-time’’ inventory
practices). Given these additional
resource costs, we are considering
separate payment under the IPPS for
2024, and the OPPS for future years, for
the costs of establishing and
maintaining access to a buffer stock of
essential medicines.
For the IPPS for 2024 and subsequent
years, the Secretary could potentially
make this separate payment for the
additional resource costs of establishing
and maintaining access to a buffer stock
of essential medicines under section
1886(d)(5)(I) of the Act, which
authorizes the Secretary to provide by
regulation for such other exceptions and
adjustments to the payment amounts
under section 1886(d) of the Act as the
Secretary deems appropriate.
For the OPPS, for future years, the
Secretary could potentially make this
separate payment for the additional
resource costs under section
1833(t)(2)(E) of the Act. Section
1833(t)(2)(E) of the Act provides that the
Secretary shall establish, in a budget
neutral manner, other adjustments (in
addition to outlier and transitional passthrough payments and payments for
non-opioid treatments for pain relief)
necessary to ensure equitable payments,
such as adjustments for certain classes
of hospitals.
Additionally, sustaining sources of
domestically sourced medical supplies
can also help support continued
availability in the event of public health
emergencies and other disruptions.662 663
This concept is consistent with our
current policy for domestic National
Institute for Occupational Safety and
Health (NIOSH) approved surgical N95
respirators (87 FR 72037). Hospitals, as
major purchasers and users in the U.S.
of essential medicines, can support the
existence of domestic sources by
sourcing domestically made essential
medicines. However, we expect that
domestically manufactured essential
medicines may be more expensive than
those sourced from some other countries
that may have lower manufacturing
costs.664 Given these additional resource
662 Department of Health and Human Services,
Review of Pharmaceuticals and Active
Pharmaceutical Ingredients (pp. 207–250), June
2021: https://www.whitehouse.gov/wp-content/
uploads/2021/06/100-day-supply-chain-reviewreport.pdf.
663 Department of Health and Human Services,
National Strategy for a Resilient Public Health
Supply Chain, July 2021: https://www.phe.gov/
Preparedness/legal/Documents/National-Strategyfor-Resilient-Public-Health-Supply-Chain.pdf.
664 Department of Health and Human Services,
Review of Pharmaceuticals and Active
Pharmaceutical Ingredients (pp. 207–250), June
2021: https://www.whitehouse.gov/wp-content/
uploads/2021/06/100-day-supply-chain-reviewreport.pdf.
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costs, we took into account in
developing the potential payment
outlined in the previous paragraph (for
the costs of establishing and
maintaining access to a buffer stock of
essential medicines) the increased costs
to establish and maintain access to a
buffer stock of domestically
manufactured essential medicines.
In addition to essential medicines, we
may consider expanding a potential
Medicare payment policy in future years
to include critical medical devices once
the FDA’s Critical Medical Device List
(CMDL) becomes available. In
accordance with implementation of
Executive Order 14001 on a Sustainable
Public Health Supply Chain, the FDA is
leading an effort to develop this list of
recommended medical devices that are
critical to have on hand, at all times for
patients, healthcare workers, and the
U.S. public because of their clinical
need. The list is expected to be available
by the end of 2023.
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C. Potential Separate Payment Under
IPPS and OPPS for Establishing and
Maintaining Access to a Buffer Stock of
Essential Medicines
Currently, payment for the resources
required to establish and maintain
access to medically reasonable and
necessary drugs and biologicals is
generally part of the IPPS or OPPS
payment. As noted in section XXII.B, we
expect that the resources required to
establish and maintain access to a buffer
stock of essential medicines will
generally be greater than the resources
required to establish and maintain
access to these medicines without such
a buffer stock. Additionally, the
resources required to establish and
maintain access to a buffer stock of
domestically manufactured essential
medicines may generally be greater than
the resources required to establish and
maintain access to a buffer stock of
these medicines from non-domestic
sources. Given the policy goals
discussed in sections XXII.A and XXII.B
of this proposed rule, we believe it may
be appropriate to pay separately for the
additional resource costs associated
with establishing and maintaining
access, including through contractual
arrangement, to a buffer stock of
essential medicines. These potential
separate payments would be in addition
to payment for the essential medicines
themselves, whether that payment is
bundled with other items or services or
the essential medicines are separately
paid, and would help account for the
additional resource costs associated
with establishing and maintaining
access, including through contractual
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arrangements, to a buffer stock of these
essential medicines.
It is challenging to quantify these
additional resource costs precisely
based on currently available
information. As noted in section XXII.B,
hospitals could establish and maintain
access to a buffer stock in a variety of
ways, including, but not limited to,
through contractual arrangements with
distributors and wholesalers. Given the
current challenge in precisely
quantifying these additional resource
costs, CMS could initially base the IPPS
payment on the IPPS shares of the
additional reasonable costs of a hospital
to establish and maintain access to its
buffer stock. The use of IPPS shares in
this payment adjustment would be
consistent with the use of these shares
for the payment adjustment for domestic
NIOSH approved surgical N95
respirators (87 FR 72037). These costs,
which could include costs to hold
essential medicines directly at the
hospital, arrange contractually for a
distributor to hold, or arrange
contractually with a wholesaler for a
manufacturer to hold, could be reported
to CMS by a hospital in aggregate on its
cost report. These costs would not
include the costs of the essential
medicine itself. This reported
information, along with existing
information already collected on the
cost report, could be used to calculate
a Medicare payment for the estimated
cost, specific to each hospital, incurred
to establish and maintain access to its
buffer stock of these essential
medicines. (As noted in section XXII.B,
essential medicines refers to the 86
essential medicines prioritized in the
report Essential Medicines Supply
Chain and Manufacturing Resilience
Assessment.) In accordance with the
principles of reasonable cost as set forth
in section 1861(v)(1)(A) of the Act and
in 42 CFR 413.1 and 413.9, Medicare
could make a lump-sum payment for
Medicare’s share of these additional
inpatient costs at cost report settlement.
These payments for the IPPS shares of
establishing and maintaining access to a
buffer stock of essential medicines
could be provided biweekly as interim
lump-sum payments to the hospital and
would be reconciled at cost report
settlement. A provider could make a
request for these biweekly interim lump
sum payments for an applicable cost
reporting period, as provided under 42
CFR 413.64 (Payments to providers:
Specific rules) and 42 CFR 412.116(c)
(Special interim payments for certain
costs). These payment amounts would
be determined by the Medicare
Administrative Contractor (MAC),
consistent with existing policies and
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procedures. In general, interim
payments are determined by estimating
the reimbursable amount for the year
using Medicare principles of cost
reimbursement and dividing it into 26
equal biweekly payments. The
estimated amount is based on the most
current cost data available, which will
be reviewed and, if necessary, adjusted
at least twice during the reporting
period. (See CMS Pub 15–1 2405.2 for
additional information.) The MACs
could determine the interim lump-sum
payments based on the data the hospital
may provide that reflects the
information that could be included on a
supplemental cost reporting form. CMS
will separately seek comment through
the PRA process on a potential
supplemental cost reporting form that
could be used for this purpose. In future
years, the MACs could determine the
interim biweekly lump-sum payments
utilizing information from the prior
year’s cost report, which may be
adjusted based on the most current data
available. This would be consistent with
the current policies for medical
education costs, and bad debts for
uncollectible deductibles and
coinsurance paid on interim biweekly
basis as noted in CMS Pub 15–1 2405.2.
It is also consistent with the payment
adjustment for domestically sourced
NIOSH approved surgical N95
respirators (87 FR 72037).
We are seeking comment on, and may
consider finalizing based on the review
of comments received, as early as for
cost reporting periods beginning on or
after January 1, 2024, separate payment
under IPPS for the IPPS share of the
reasonable costs of establishing and
maintaining access to a 3-month buffer
stock of one or more essential
medicine(s). Essential medicines for the
potential IPPS separate payment would
be the 86 essential medicines prioritized
in the report Essential Medicines Supply
Chain and Manufacturing Resilience
Assessment. An adjustment under OPPS
could be considered for future years. We
seek comment on all aspects of this
potential payment policy.
If CMS were to finalize based on the
review of comments received, as early
as for cost reporting periods beginning
on or after January 1, 2024, separate
payment under IPPS, we are considering
amending our regulations at 42 CFR
412.1 by revising paragraph (a)(1)(iv) to
read as follows: ‘‘(iv) Additional
payments are made for outlier cases, bad
debts, indirect medical education costs,
for serving a disproportionate share of
low-income patients, for the additional
resource costs of domestic National
Institute for Occupational Safety and
Health approved surgical N95
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respirators, and for the additional
resource costs of establishing and
maintaining access to a buffer stock of
essential medicines.’’
We are also considering amending our
regulations, and seek comment on these
potential revisions, at 42 CFR 412.2 by
adding paragraph (f)(11) to read as
follows: ‘‘(11) A payment adjustment for
the additional resource costs of
establishing and maintaining access to a
buffer stock of essential medicines as
specified in § 412.113.’’
We are also considering amending our
regulations, and seek comment on these
potential revisions, at § 412.113 by
adding paragraph (g) to read as follows:
‘‘(g) Additional resource costs of
establishing and maintaining access to a
buffer stock of essential medicines: (1)
Essential medicines are the 86
medicines prioritized in the report
Essential Medicines Supply Chain and
Manufacturing Resilience Assessment
developed by the U.S. Department of
Health and Human Services Office of
the Assistant Secretary for Preparedness
and Response and published in May of
2022. A buffer stock of essential
medicines for a hospital is a 3-month
supply of one or more essential
medicines; (2) The additional resource
costs of establishing and maintaining
access to a buffer stock of essential
medicines for a hospital are the
additional resource costs incurred by
the hospital to directly hold a buffer
stock of essential medicines for its
patients, or arrange contractually for
such a buffer stock to be held for use by
the hospital for its patients. The
additional resource costs of establishing
and maintaining access to a buffer stock
of essential medicines does not include
the resource costs of the essential
medicines themselves; (3) For cost
reporting periods beginning on or after
January 1, 2024, a payment adjustment
to a hospital for the additional resource
costs of establishing and maintaining
access to a buffer stock of essential
medicines is made as described in
paragraph (g)(4) of this section; and (4)
The payment adjustment is based on the
reasonable cost incurred by the hospital
for establishing and maintaining access
to a buffer stock of essential medicines
during the cost reporting period.’’
D. Comment Solicitation on Additional
Considerations
In addition to the potential payment
policy as described in section XXII.C of
this proposed rule, we also take
particular interest, and seek comment
on, the following. We note that we may
consider amending, and finalizing, the
potential policy under XXII.C of this
proposed rule based on a review of the
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comments received on the following
questions:
• How effective would this potential
payment policy be at improving the
resiliency of the supply chain for
essential medicines and the care
delivery system? How could it be
improved, either initially or through
future rulemaking? Are there suggested
alternative pathways for establishing
similar separate payments?
• The potential payment policy
specified under section XXII.C of this
proposed rule would account for any
increased resource costs for a hospital to
establish and maintain access to a buffer
stock of domestically manufactured
essential medicines compared to nondomestically manufactured ones. Even
though the costs of essential medicines
themselves is not considered a resource
cost of establishing and maintaining
access to a buffer stock, it is possible
that there are additional resource costs,
perhaps contractual, to establishing and
maintaining access to a buffer stock of
more expensive domestically
manufactured essential medicines
compared to non-domestically
manufactured ones. What type of
additional hospital resource costs are
involved in establishing and
maintaining access to domestically
manufactured essential medicines
compared to non-domestically
manufactured ones? Are there
alternative approaches that might better
recognize the increased resource costs
for a hospital to establish and maintain
access to a buffer stock of domestically
manufactured essential medicines? How
might any suggested alternatives be
better at improving the resiliency of the
supply chain for essential medicines
and the care delivery system? What
standard should be used to define
domestic manufacturing for suggested
alternatives? Specifically, would the
international trade rule of ‘‘substantial
transformation’’ be appropriate to define
domestic manufacturing, if that product
was substantially transformed in the
U.S.? Would hospitals have sufficient
access to that information when making
procurement decisions or doing
reporting to CMS?
• Are the 86 essential medicines
prioritized in the report Essential
Medicines Supply Chain and
Manufacturing Resilience Assessment
the appropriate initial list of essential
medicines for this potential payment
policy? How often should HHS consider
updating the respective list used for
establishing these potential additional
payments? For example, HHS expects it
may update the essential medicine list
every two years. Should that be the
frequency for purposes of administering
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these additional payments? Also, what
additional criteria should be considered
when determining whether the list
should be updated?
• Should HHS consider expanding
the list of essential medicines used in
establishing these potential additional
payments to include essential medicines
used in the treatment of cancer?
• Is a 3-month supply the appropriate
amount of supply for the buffer stock or
should an alternative duration be used?
We recognize that a 3-month supply
may not be feasible in all circumstances,
given various factors, including, but not
limited to, the shelf life of certain
essential medicines. What additional
considerations, if any, are needed?
• In general, how much of a buffer
stock of these essential medicines are
hospitals currently maintaining across
different hospital types and regions
(whether directly, or contractually
through distributors or other partners)?
Are there unique circumstances for
safety net hospitals that should be taken
into consideration in any potential
payment policy?
• What type of additional hospital
resource costs are involved in
establishing and maintaining access to a
buffer stock of essential medicines? To
what degree, and under what
circumstances, might hospitals use
contractual arrangements? What type of
contractual arrangements might be
used?
• What flexibilities should exist for
implementing buffer stock practices?
• What immediate impacts on the
supply of essential medicines could be
expected upon implementation of this
potential policy? What steps, if any,
would need to be taken to mitigate risks
of possible demand-driven shortages as
a result of implementation of such a
policy?
• While the availability of essential
medicines is critical at all times, it is
especially the case for emergencies.
Should there be a separate payment
adjustment to more acutely address
supply issues that emerge specific to the
case of preparedness as a pandemic or
other public health emergency emerges?
• How should such a policy be
considered for essential medicines that
are currently in shortage, and thus
potentially not appropriate for arranging
to have buffer stock? What steps, if any,
would need to be taken if an eligible
essential medicine enters shortage while
such a policy is in place?
• Should critical medical devices be
considered in future rulemaking for
inclusion in a potential payment policy?
++ Which types of medical devices do
hospitals currently maintain in a buffer
stock?
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++ Do single use devices (including
consumables) or reusable devices pose a
greater risk of supply chain impact
leading to shortages?
++ Are hospitals more likely to have
a buffer stock of devices that are single
use (including consumables) or
reusable?
++ What levels of buffer stock do
hospitals currently keep on hand for
devices they consider critical?
++ Is the quantity of buffer stock
dependent on type of medical device
(single use vs. reusable)?
++ Generally, how many days of
buffer stock is typically carried by
device type?
++ What other factors are considered
when determining which types of
medical devices to maintain in a buffer
stock?
+ What are the prevailing buffer stock
strategies employed across deice types
(e.g., just in time, consignment, single
warehousing, warehouse to warehouse)?
XXIII. Files Available to the Public via
the Internet
The Addenda to the OPPS/ASC
proposed rules and final rules with
comment period are published and
available via the internet on the CMS
website. In the CY 2019 OPPS/ASC final
rule with comment period (83 FR
59154), for CY 2019, we changed the
format of the OPPS Addenda A, B, and
C by adding a column titled
‘‘Copayment Capped at the Inpatient
Deductible of $1,364.00’’ where we flag,
through use of an asterisk, those items
and services with a copayment that is
equal to or greater than the inpatient
hospital deductible amount for any
given year (the copayment amount for a
procedure performed in a year cannot
exceed the amount of the inpatient
hospital deductible established under
section 1813(b) of the Act for that year).
In the CY 2022 OPPS/ASC final rule
with comment period (85 FR 86266), we
updated the format of the OPPS
Addenda A, B, and C by adding a
column titled ‘‘Drug Pass-Through
Expiration during Calendar Year’’ where
we flagged, through the use of an
asterisk, each drug for which passthrough payment was expiring during
the calendar year on a date other than
December 31. For CY 2024 and
subsequent years, we propose to retain
these columns that are updated to
reflect the drug codes for which passthrough payment is expiring in the
applicable year.
In the CY 2023 OPPS/ASC final rule
with comment period (87 FR 72250) for
CY 2023, we changed the format of the
OPPS Addenda A, B, and C by adding
a column titled ‘‘Drug Pass-Through
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Expiration during Calendar Year’’ to
include devices, so that the column
reads: ‘‘Drug and Device Pass-Through
Expiration during Calendar Year’’ where
we flagged, through the use of an
asterisk, each drug and device for which
pass-through payment was expiring
during the calendar year on a date other
than December 31. For CY 2024 and
subsequent years, we propose to retain
these columns that are updated to
reflect the devices for which passthrough payment is expiring in the
applicable year.
In addition, we propose to delete the
column titled ‘‘Copayment Capped at
the Inpatient Deductible’’ and instead to
add a new column for ‘‘Adjusted
Beneficiary Copayment’’ to identify any
copayment adjustment due to either the
inpatient deductible amount copayment
cap or the inflation-adjusted copayment
of a Part B rebatable drug per section
1833(t)(8)(F) and section 1833(i)(9) of
the Act, as added by section 11101 of
the Inflation Reduction Act (IRA). We
also propose to add another column for
notes. We propose that the ‘‘Note’’
column would contain multiple
messages including, but not limited to,
inflation-adjusted copayment of a Part B
rebatable drug, the copayment for a code
capped at the inpatient deductible, or 8
percent of the reference product add-on
applied for a biosimilar.
To view the Addenda to this proposed
rule pertaining to proposed CY 2024
payments under the OPPS, we refer
readers to the CMS website at: https://
www.cms.gov/Medicare/Medicare-Feefor-Service-Payment/
HospitalOutpatientPPS/HospitalOutpatient-Regulations-andNotices.html; select ‘‘CMS–1786–P’’
from the list of regulations. All OPPS
Addenda to this proposed rule are
contained in the zipped folder titled
‘‘2024 NPRM OPPS Addenda’’ in the
related links section at the bottom of the
page. To view the Addenda to the CY
2024 OPPS/ASC proposed rule
pertaining to CY 2024 payments under
the ASC payment system, we refer
readers to the CMS website at: https://
www.cms.gov/Medicare/Medicare-Feefor-Service-Payment/ASCPayment/ASCRegulations-and-Notices.html; select
‘‘CMS–1786–P’’ from the list of
regulations. The ASC Addenda to the
CY 2024 OPPS/ASC proposed rule are
contained in a zipped folder titled
‘‘2024 NPRM Addendum AA, BB, DD1,
DD2, EE, and FF’’ in the related links
section at the bottom of the page.
XXIV. Collection of Information
Requirements
Under the Paperwork Reduction Act
of 1995, we are required to provide 60-
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day notice in the Federal Register and
solicit public comment before a
collection of information requirement is
submitted to the Office of Management
and Budget (OMB) for review and
approval. In order to fairly evaluate
whether an information collection
should be approved by OMB, section
3506(c)(2)(A) of the Paperwork
Reduction Act of 1995 requires that we
solicit comment on the following issues:
• The need for the information
collection and its usefulness in carrying
out the proper functions of our agency.
• The accuracy of our estimate of the
information collection burden.
• The quality, utility, and clarity of
the information to be collected.
• Recommendations to minimize the
information collection burden on the
affected public, including automated
collection techniques.
We are soliciting public comment on
each of these issues for the following
sections of this document that contain
information collection requirements
(ICRs):
A. ICRs Related to Proposed Intensive
Outpatient Physician Certification
Requirements
As discussed in section VIII.B.3 of
this proposed rule, we propose to codify
the content of certification and plan of
treatment requirements for intensive
outpatient services at § 424.24(d).
Specifically, we propose to mirror the
PHP content of certification and plan of
care treatment requirements at
§ 424.24(e), with the following
exceptions: require the content of
certification to include documentation
that the individual requires such
services for a minimum of 9 hours per
week (with no requirement for a need
for inpatient psychiatric care if the IOP
services were not provided).
The proposed ICRs at § 424.24(d) are
subject to the Act. However, we believe
the burden associated with these ICRs
are exempt, as defined by 5 CFR
1320.3(b)(2), because the time, effort,
and financial resources necessary to
comply with these requirements would
be incurred by persons in the normal
course of their activities. We believe the
record keeping requirements described
in section VIII.B.3 of this proposed rule
are a usual and customary part of
physicians’ activities in developing the
plan of treatment for existing patients in
intensive outpatient programs, and that
the requirements are similar to existing
ICRs under Medicare for partial
hospitalization patients.
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B. ICRs Related to the Hospital OQR
Program
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1. Background
The Hospital Outpatient Quality
Reporting (OQR) Program is generally
aligned with the CMS quality reporting
program for hospital inpatient services
known as the Hospital Inpatient Quality
Reporting (IQR) Program. We refer
readers to the CY 2011 through CY 2023
OPPS/ASC final rules (75 FR 72111
through 72114; 76 FR 74549 through
74554; 77 FR 68527 through 68532; 78
FR 75170 through 75172; 79 FR 67012
through 67015; 80 FR 70580 through
70582; 81 FR 79862 through 79863; 82
FR 59476 through 59479; 83 FR 59155
through 59156; 84 FR 61468 through
61469; 85 FR 86266 through 86267; 86
FR 63961 through 63968, and 87 FR
72250 through 72252, respectively) for
detailed discussions of the previously
finalized Hospital OQR Program ICRs.
The ICRs associated with the Hospital
OQR Program are currently approved
under OMB control number 0938–1109,
which expires on February 28, 2025. In
the CY 2023 OPPS/ASC final rule, our
burden estimates were based on an
assumption that approximately 3,350
hospitals would report data to the
Hospital OQR Program. For this
proposed rule, based on data from the
CY 2023 Hospital OQR Program
payment determination, which supports
this assumption, we will continue to
estimate that 3,350 hospitals will report
data to the Hospital OQR Program,
unless otherwise noted. While the exact
number of hospitals required to submit
data annually may vary, we use this
estimate to be consistent with previous
rules and for ease of calculation across
reporting periods.
In the CY 2018 OPPS/ASC final rule
(82 FR 52617), we finalized a policy to
utilize the median hourly wage rate for
Medical Records and Health
Information Technicians, in accordance
with the Bureau of Labor Statistics
(BLS), to calculate our burden estimates
for the Hospital OQR Program. We note
that since the CY 2023 OPPS/ASC final
rule, BLS removed this labor category
and added a new labor category titled
‘‘Medical Records Specialists.’’ While
the most recent data from the BLS
reflects a median hourly wage of $24.56
per hour for all medical records
specialists, $26.06 is the hourly mean
wage for ‘‘general medical and surgical
hospitals,’’ 665 which is an industry
within medical records specialists. We
665 U.S. Bureau of Labor Statistics. Occupational
Outlook Handbook, Medical Records Specialists.
Accessed on March 6, 2023. Available at: https://
www.bls.gov/oes/current/oes292072.htm.
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believe the industry of ‘‘general medical
and surgical hospitals’’ is more specific
to our settings for use in our
calculations than other industries that
fall under medical records specialists,
such as ‘‘office of physicians’’ or
‘‘nursing care facilities.’’ We have
finalized a policy to calculate the cost
of overhead, including fringe benefits, at
100 percent of the mean hourly wage
(82 FR 52617). This is necessarily a
rough adjustment, both because fringe
benefits and overhead costs can vary
significantly from employer-to-employer
and because methods of estimating
these costs vary widely from study-tostudy. Nonetheless, we believe that
doubling the hourly wage rate ($26.06 ×
2 = $52.12) to estimate the total cost is
a reasonably accurate estimation
method and allows for a conservative
estimate of hourly costs.
In section XIV.B.2 of this proposed
rule, we propose to modify three
previously adopted measures: (1) the
COVID–19 Vaccination Coverage
Among Healthcare Personnel measure,
beginning with the CY 2024 reporting
period/CY 2026 payment determination;
(2) the Cataracts: Improvement in
Patient’s Visual Function Within 90
Days Following Cataract Surgery
measure survey instrument usage,
beginning with the voluntary CY 2024
reporting period; and (3) the
Appropriate Follow-Up Interval for
Normal Colonoscopy in Average Risk
Patients measure, beginning with the CY
2024 reporting period/CY 2026 payment
determination. We propose to adopt
three new measures: (1) Risk
Standardized Patient-Reported
Outcome-Based Performance Measure
(PRO–PM) Following Elective Primary
Total Hip Arthroplasty (THA) and/or
Total Knee Arthroplasty (TKA) in the
HOPD Setting, beginning with the
voluntary CYs 2025 and 2026 reporting
periods followed by mandatory
reporting beginning with the CY 2027
reporting period/CY 2030 payment
determination; (2) the Excessive
Radiation Dose or Inadequate Image
Quality for Diagnostic Computed
Tomography (CT) in Adults (Hospital
Level—Outpatient) electronic clinical
quality measure (eCQM), beginning with
the voluntary CY 2025 reporting period
followed by mandatory reporting
beginning with the CY 2026 reporting
period/CY 2028 payment determination;
and (3) readoption of the Hospital
Outpatient Volume on Selected
Outpatient Surgical Procedures measure
with modification, with voluntary CY
2025 reporting period followed by
mandatory reporting beginning with the
CY 2026 reporting period/CY 2028
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payment determination. We are also
proposing to remove the Left Without
Being Seen measure beginning with the
CY 2024 reporting period/CY 2026
payment determination.
2. Information Collection Burden for the
Proposal To Modify the COVID–19
Vaccination Coverage Among
Healthcare Personnel (HCP) Measure
Beginning With the CY 2024 Reporting
Period/CY 2026 Payment Determination
In the CY 2022 OPPS/ASC final rule,
we finalized adoption of the COVID–19
Vaccination Coverage Among
Healthcare Personnel (HCP) measure for
the Hospital OQR Program (87 FR 71748
through 72310). In section XIV.B.2.a of
this proposed rule, we propose to
modify the COVID–19 Vaccination
Coverage Among HCP measure to utilize
the term ‘‘up to date’’ in the HCP
vaccination definition and update the
numerator to specify the timeframes
within which an HCP is considered up
to date with recommended COVID–19
vaccines, including booster doses,
beginning with the CY 2024 reporting
period/CY 2026 payment determination
for the Hospital OQR Program. We
previously discussed information
collection burden associated with this
measure in the CY 2022 OPPS/ASC final
rule (86 FR 63962).
We do not believe that the use of the
term ‘‘up to date’’ or the update to the
numerator will impact information
collection or reporting burden because
the modification changes neither the
amount of data being submitted to CMS
nor the frequency of data submission.
Additionally, because we are not
proposing any updates to the form,
manner, and timing of data submission
for this measure, we do not anticipate
any increase in burden associated with
this proposal. The modified COVID–19
Vaccination Coverage Among HCP
measure would continue to be
calculated using data submitted to the
CDC under a separate OMB control
number (0920–1317; expiration date
January 31, 2024). However, the CDC
currently has a PRA waiver for the
collection and reporting of vaccination
data under section 321 of the National
Childhood Vaccine Injury Act of 1986
(enacted on November 14, 1986)
(NCVIA) (Pub. L. 99–660).
3. Information Collection Burden for the
Proposal To Modify the Cataracts:
Improvement in Patient’s Visual
Function Within 90 Days Following
Cataract Surgery Measure Survey
Instrument Use Beginning With the CY
2024 Reporting Period
In the CY 2014 OPPS/ASC final rule
(78 FR 75102 through 75104), we
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finalized the adoption of the Cataracts:
Improvement in Patient’s Visual
Function Within 90 Days Following
Cataract Surgery beginning with the CY
2016 payment determination; this
measure currently is voluntary. In
section XIV.B.2.b of this proposed rule,
we propose to limit the survey
instruments that can be used to
administer this measure to three
assessment tools: NEI VFQ–25, VF–14,
and VF–8R, beginning with the CY 2024
reporting period.
Because the three assessment tools
being proposed are currently allowable
for collecting data for this measure, we
do not believe limiting use to these
three surveys would result in a change
in burden. As a result, we are not
proposing any changes in burden per
response associated with this proposal.
Additionally, as currently stated in the
Hospital OQR Program Specifications
Manual, the maximum annual sample
case size for chart abstraction for this
measure is 63 cases for hospitals with
an outpatient population size of
between 0 and 900 and 96 cases for
hospitals with an outpatient population
size of greater than 900.666 We are not
proposing an increase in the required
sample size for chart abstraction;
therefore we do not believe there is any
increase in burden associated with this
proposal.
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4. Information Collection Burden for the
Proposal To Modify the Appropriate
Follow-Up Interval for Normal
Colonoscopy in Average Risk Patients
Measure Beginning With the CY 2024
Reporting Period/CY 2026 Payment
Determination
In the CY 2014 OPPS/ASC final rule,
we finalized the Appropriate Follow-Up
Interval for Normal Colonoscopy in
Average Risk Patients measure (78 FR
75101 through 75102). In section
XIV.B.2.c of this proposed rule, we
propose to amend the measure
denominator language by removing the
phrase ‘‘aged 50 years’’ and adding in its
place the phrase ‘‘aged 45 years.’’
As currently stated in the Hospital
OQR Program Specifications Manual,
the maximum annual sample case size
for chart abstraction for this measure is
63 cases for hospitals with an outpatient
population size of between 0 and 900
and 96 cases for hospitals with an
outpatient population size of greater
than 900. We are not proposing an
increase in the required sample size for
chart abstraction; therefore, we do not
666 https://qualitynet.cms.gov/files/
63c8361058e56000179b310e?filename=OQR_
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believe there is any increase in burden
associated with this proposal.
5. Information Collection Burden for the
Proposal To Adopt the Risk
Standardized Patient-Reported
Outcome-Based Performance Measure
(PRO–PM) Following Elective Primary
Total Hip Arthroplasty (THA) and/or
Total Knee Arthroplasty (TKA) in the
HOPD Setting Beginning With
Voluntary CYs 2025 and 2026 Reporting
Periods Followed by Mandatory
Reporting Beginning With the CY 2027
Reporting Period/CY 2030 Payment
Determination
In section XIV.B.3.b of this proposed
rule, we propose to adopt the THA/TKA
PRO–PM beginning with voluntary CYs
2025 and 2026 reporting periods,
followed by mandatory reporting
beginning with the CY 2027 reporting
period/CY 2030 payment determination.
This measure was previously adopted
for the Hospital IQR Program in the FY
2023 IPPS/LTCH PPS final rule with an
estimated burden of 7.25 minutes
(0.120833 hours) per patient to complete
both the pre-operative and postoperative surveys and 10 minutes (0.167
hours) per hospital per response to
collect and submit the measure data via
the Hospital Quality Reporting (HQR)
system (87 FR 49386 through 49387).
We believe the estimated burden for
both patient surveys and data
submission would be the same for the
Hospital OQR Program.
The THA/TKA PRO–PM uses four
sources of data for the calculation of the
measure: (1) patient-reported outcome
(PRO) data; (2) claims data; (3) Medicare
enrollment and beneficiary data; and (4)
U.S. Census Bureau survey data. We
estimate no additional burden
associated with claims data, Medicare
enrollment and beneficiary data, and
U.S. Census Bureau survey data as these
data are already collected via other
mechanisms such as Medicare
enrollment forms, CMS Form 1500, and
U.S. Census Informational
Questionnaires. While we are not
proposing to require how hospitals
collect PRO data for this measure,
hospitals collecting PRO data would
have multiple options for when and
how they would collect these data so
they could best determine the mode and
timing of collection that works best for
their patient population.
The possible patient touchpoints for
pre-operative PRO data collection
include the doctor’s office, pre-surgical
steps such as education classes, or
medical evaluations that can occur in an
office or at the hospital. The modes of
PRO data collection could include
completion of the pre-operative surveys
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using electronic devices (such as an
iPad or tablet), pen and paper, mail,
telephone, or through a patient portal.
Post-operative PRO data collection
modes are similar to pre-operative
modes. The possible patient touchpoints
for post-operative data collection can
occur before the follow-up appointment,
at the doctor’s office, or after the followup appointment. The potential modes of
PRO data collection for post-operative
data are the same as for pre-operative
data. If the patient does not or cannot
attend a follow-up appointment, the
modes of collection could include
completion of the post-operative survey
using email, mail, telephone, or through
a patient portal. Similar to other
surveys, like the Outpatient and
Ambulatory Surgery Consumer
Assessment of Healthcare Providers and
Systems (OAS CAHPS) survey, we
believe the use of multiple modes
would maximize response rates as it
allows for different patient preferences.
For the THA/TKA PRO–PM data,
hospitals would be able to submit data
during two voluntary periods. The first
voluntary reporting period would begin
in CY 2025 for eligible procedures
occurring between January 1, 2025
through December 31, 2025, and the
second voluntary reporting period
would begin with CY 2026 for eligible
procedures occurring between January
1, 2026 through December 31, 2026.
Voluntary reporting would be followed
by mandatory reporting for eligible
elective procedures beginning with the
CY 2027 reporting period (occurring
January 1, 2027 through December 31,
2027), impacting the CY 2030 payment
determination. Hospitals would need to
submit data twice (pre-operative data
and post-operative data).
For the purposes of calculating
burden, similar to assumptions used for
the Hospital IQR Program in the FY
2023 IPPS/LTCH PPS final rule (87 FR
49386 through 49387), we estimate that
during the voluntary periods, 50 percent
of hospitals that perform at least one
THA/TKA procedure would submit data
for 50 percent of THA/TKA patients. For
purposes of calculating burden, we
estimate that, during the mandatory
period, hospitals would submit for 100
percent of patients. While we propose to
require hospitals to submit, at
minimum, 50 percent of eligible,
complete pre-operative data with
matching eligible, complete postoperative data, we are conservative in
our estimate for the mandatory period in
case hospitals exceed this threshold.
To estimate the cost burden for
patients completing the surveys for this
proposed measure, we refer to the
‘‘Valuing Time in U.S. Department of
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Health and Human Services Regulatory
Impact Analyses: Conceptual
Framework and Best Practices,’’ as it
identifies the approach for valuing time
when individuals undertake activities
on their own time.667 Therefore, we
estimate that the cost for beneficiaries
undertaking administrative and other
tasks on their own time is a post-tax
wage of $20.71/hour. To derive the costs
for beneficiaries, a measurement of the
usual weekly earnings of wage and
salary workers of $998, divided by 40
hours to calculate an hourly pre-tax
wage rate of $24.95/hour. This rate is
adjusted downwards by an estimate of
the effective tax rate for median income
households of about 17 percent,
resulting in the post-tax hourly wage
rate of $20.71/hour. Unlike our State
and private sector wage adjustments, we
are not adjusting beneficiary wages for
fringe benefits and other indirect costs
since the individuals’ activities, if any,
would occur outside the scope of their
employment.
For burden estimating purposes for
this proposed measure, we assume that
most hospitals would likely undertake
PRO data collection through a screening
tool incorporated into their electronic
health record (EHR) or other patient
intake process. We estimate that
approximately 526,793 THA/TKA
procedures occur in the outpatient
setting each year, and that many
patients could complete both the preoperative and post-operative
questionnaires. However, from our
experience with using this measure in
the Comprehensive Joint Replacement
model, we are also aware that not all
patients who complete the pre-operative
questionnaire would complete the postoperative questionnaire. For CY 2025
and CY 2026 reporting periods, we
assume 131,698 patients would
complete the survey (526,793 patients ×
0.50 × 0.50 of hospitals) for a total of
15,914 hours annually (131,698
respondents × 0.120833 hours) at a cost
of $329,579 (15,914 hours × $20.71)
across all hospitals. Beginning with
mandatory reporting in the CY 2027
reporting period, we estimate a total of
63,654 hours (526,793 patients ×
0.120833 hours) at a cost of $1,318,274
(63,654 hours × $20.71) across all
hospitals.
Regarding hospitals’ burden related to
submitting data for this proposed
measure, which would be reported via
the HQR System, we estimate a burden
of 10 minutes per response. Hospitals
would submit data associated with pre667 https://aspe.hhs.gov/reports/valuing-time-usdepartment-health-human-services-regulatoryimpact-analyses-conceptual-framework.
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operative surveys by March 31 of the CY
following the CY in which the eligible
procedures took place and would
submit data associated with postoperative surveys by March 31 of the CY
following the CY in which pre-operative
data was submitted. Therefore, for the
initial voluntary reporting period for
eligible procedures occurring in CY
2025, pre-operative survey data
submission would occur in the first
quarter of the CY 2026 reporting period
and post-operative survey data
submission would occur in the first
quarter of the CY 2027 reporting period.
For each reporting period, we estimate
that each hospital would spend 20
minutes (0.33 hours) annually (10
minutes × 2 surveys) to collect and
submit the data. For the voluntary CY
2026 reporting period, we estimate a
burden for all participating hospitals of
279.2 hours (0.167 hours × 3,350
hospitals × 50 percent) at a cost of
$14,552 (279.2 hours × $52.12). For the
voluntary CY 2027 reporting period, we
estimate a burden for all participating
hospitals of 558.3 hours (0.33 hours ×
3,350 hospitals × 50 percent) at a cost
of $29,099 (558.3 hours × $52.12). For
the mandatory CY 2028 reporting
period, we estimate a burden for all
participating hospitals of 837.5 hours
[(0.167 hours × 3,350 hospitals × 50
percent) + (0.167 hours × 3,350
hospitals)] at a cost of $43,651 (837.5
hours × $52.12). For the mandatory CY
2029 reporting period and subsequent
years, we estimate a total of 1,116.7
hours (0.33 hours × 3,350 hospitals) at
a cost of $58,202 (1,116.7 hours ×
$52.12).
With respect to any costs/burdens
unrelated to data submission, we refer
readers to section XXVI.C.3.b
‘‘Regulatory Impact Analysis’’ of this
proposed rule.
6. Information Collection Burden for the
Proposal To Adopt the Excessive
Radiation Dose or Inadequate Image
Quality for Diagnostic Computed
Tomography (CT) in Adults (Hospital
Level—Outpatient) eCQM, Beginning
With the Voluntary CY 2025 Reporting
Period, followed by Mandatory
Reporting Beginning With the CY 2026
Reporting Period/CY 2028 Payment
Determination
In section XIV.B.3.c of this proposed
rule, we propose to adopt the Excessive
Radiation Dose or Inadequate Image
Quality for Diagnostic CT in Adults
(Hospital Level—Outpatient) eCQM,
beginning with the voluntary CY 2025
reporting period, followed by
mandatory reporting beginning with the
CY 2026 reporting period/CY 2028
payment determination. For the CY
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2025 voluntary reporting period,
hospitals would be able to voluntarily
report the measure for one or more
quarters during the year. For subsequent
years, as described in section XIV.E.6.b
of this proposed rule, we propose to
gradually increase the number of
quarters of data hospitals would be
required to report on the measure
starting with two self-selected quarters
for the CY 2026 reporting period/CY
2028 payment determination, and all
four quarters for the CY 2027 reporting
period/CY 2029 payment determination.
For the voluntary reporting period in
CY 2025, we estimate 20 percent of
hospitals would voluntarily report at
least one quarter of data for the measure
with 100 percent of hospitals reporting
the measure as proposed to be required
in subsequent years. Similar to the STelevation myocardial infarction (STEMI)
eCQM for which adoption was finalized
in the CY 2022 OPPS/ASC final rule for
the Hospital OQR Program, we assume
a Medical Records Specialist would
require 10 minutes to submit the data
required per quarter for each hospital
(86 FR 63962 through 63963). For the
CY 2025 voluntary reporting period, we
estimate an annual burden for all
participating hospitals of 111.7 hours
(3,350 hospitals × 20 percent × 0.1667
hours × 1 quarter) at a cost of $5,822
(111.7 hours × $52.12). For the CY 2026
reporting period/CY 2028 payment
determination, we estimate the annual
burden for all participating hospitals to
be 1,116.7 hours (3,350 hospitals ×
.1667 hours × 2 quarters) at a cost of
$58,202 (1,116.7 hours × $52.12). For
the CY 2027 reporting period/CY 2029
payment determination, we estimate the
annual burden for all participating
hospitals to be 2,233.3 hours (3,350
hospitals × .1667 hours × 4 quarters) at
a cost of $116,400 (2,233.3 hours ×
$52.12).
7. Information Collection Burden for the
Proposal To Re-Adopt With
Modification the Hospital Outpatient
Volume on Selected Outpatient Surgical
Procedures Measure, Beginning With
the Voluntary CY 2025 Reporting Period
Followed by Mandatory Reporting
Beginning With the CY 2026 Reporting
Period/CY 2028 Payment Determination
In section XIV.B.3.a of this proposed
rule, we propose to re-adopt with
modification the Hospital Outpatient
Volume on Selected Outpatient Surgical
Procedures measure, beginning with the
voluntary CY 2025 reporting period
followed by mandatory reporting
beginning with the CY 2026 reporting
period/CY 2028 payment determination.
This measure was previously finalized
in the CY 2012 OPPS/ASC final rule
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payment determination, we estimate an
annual burden of 558.3 hours (3,350
hospitals × 0.167 hours) at a cost of
$29,099 (558.3 hours × $52.12).
with the assumption that, because
hospitals must determine their
populations for data reporting
purposes—and most hospitals are
voluntarily reporting population and
sampling data for Hospital OQR
Program purposes—the only additional
burden would be the reporting of the
data using a web-based tool (now the
HQR system) (76 FR 74552 through
74553). This assumption continues to be
applicable; therefore, we estimate the
burden to be consistent with both the
CY 2012 OPPS/ASC final rule when the
measure was initially adopted (76 FR
74552) and with the CY 2018 OPPS/
ASC final rule when the measure was
previously removed (82 FR 52618). We
estimate that each participating hospital
would spend 10 minutes per year to
collect and submit the data for this
measure. For the voluntary CY 2025
reporting period, we assume 20 percent
of hospitals will report data, resulting in
an annual burden of 111.7 hours (3,350
hospitals × 20 percent × 0.167 hours) at
a cost of $5,822 (111.7 hours × $52.12).
For mandatory reporting beginning with
the CY 2026 reporting period/CY 2028
In section XIV.B.1.a of this proposed
rule, we proposed to remove the Left
Without Being Seen measure beginning
with the CY 2024 reporting period/CY
2026 payment determination. Under
OMB control number 0938–1109
(expiration date February 28, 2025), the
currently approved burden for this
measure is estimated to be 10 minutes
(0.1667 hours) per hospital to report
measure data via a web-based tool
located on a CMS website.668 In
addition, as stated under OMB control
number 0938–1109, there is no
additional burden for abstraction of
chart data associated with this measure.
Therefore, we estimate the decrease in
burden associated with the removal of
this measure to be 558.3 hours (0.1667
668 CY 2023 Final Rule Hospital OQR Program
‘‘Supporting Statement-A’’. Available at: https://
www.reginfo.gov/public/do/
DownloadDocument?objectID=129107500.
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8. Information Collection Burden for the
Proposal To Remove the Left Without
Being Seen Measure Beginning With the
CY 2024 Reporting Period/CY 2026
Payment Determination
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49875
hours × 3,350 hospitals) at a cost of
$29,100 (558.3 hours × $52.12/hour).
9. Summary of Information Collection
Burden Estimates for the Hospital OQR
Program
In summary, under OMB control
number 0938–1109 (expiration date
February 28, 2025), we estimate that the
proposals in this proposed rule would
result in an increase of 67,004 hours at
a cost of $1,492,875 for 3,350 OPPS
hospitals across a 6-year period from the
CY 2024 reporting period/CY 2026
payment determination through the CY
2029 reporting period/CY 2030 payment
determination. The following Tables 85
through 90 summarize the total burden
changes for each respective CY payment
determination compared to our
currently approved information
collection burden estimates (the table
for the CY 2030 payment determination
reflects the cumulative burden changes).
We will submit the revised information
collection estimates to OMB for
approval under OMB control number
0938–1109.
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C. ICRs Related to the ASCQR Program
1. Background
We refer readers to the CY 2012
OPPS/ASC final rule (76 FR 74554), the
FY 2013 IPPS/LTCH PPS final rule (77
FR 53672), and the CY 2013 through CY
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2023 OPPS/ASC final rules (77 FR
68532 through 68533; 78 FR 75172
through 75174; 79 FR 67015 through
67016; 80 FR 70582 through 70584; 81
FR 79863 through 79865; 82 FR 59479
through 59481; 83 FR 59156 through
59157; 84 FR 61469; 85 FR 86267; 86 FR
63968 through 63971; and 87 FR 72252
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through 72253 respectively) for detailed
discussions of the ASCQR Program ICRs
we have previously finalized. The ICRs
associated with the ASCQR Program for
the CY 2014 through CY 2027 payment
determinations are currently approved
under OMB control number 0938–1270,
which expires on August 31, 2025.
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While the most recent data from the
BLS reflects a median hourly wage of
$24.56 per hour for medical records
specialists generally, $26.06 is the
hourly mean wage for medical records
specialists in ‘‘general medical and
surgical hospitals,’’ 669 which we believe
is more specific to our settings for use
in our calculations than a position that
may be found in other settings, such as
‘‘office of physicians’’ or ‘‘nursing care
facilities.’’ We have finalized a policy to
calculate the cost of overhead, including
fringe benefits, at 100 percent of the
mean hourly wage (81 FR 79863 through
79864). This is necessarily a rough
adjustment, both because fringe benefits
and overhead costs can vary
significantly from employer-to-employer
and because methods of estimating
these costs vary widely from study-tostudy. Nonetheless, we believe that
doubling the hourly wage rate ($26.06 ×
2 = $52.12) to estimate the total cost is
a reasonably accurate estimation
method and allows for a conservative
estimate of hourly costs.
Based on an analysis of the CY 2023
payment determination data, we found
that, of the 5,697 ambulatory surgical
centers (ASCs) that met eligibility
requirements for the ASCQR Program,
5,181 ASCs received the full annual
payment update (APU) because they
complied with all applicable data
reporting requirements for the ASCQR
Program. In addition, 687 ASCs that
were not required to participate in
reporting did so, as well as 195
Hospitals Without Walls returned to
active ASC billing, for a total of 6,063
participating facilities participating in
the ASCQR Program. As noted in
section XV.C.1 ‘‘Regulatory Impact
Analysis’’ of this proposed rule, for the
CY 2023 payment determination, all
5,181 ASCs that met eligibility
requirements for the ASCQR Program
received the APU including all facilities
who were required, but exempted; 4,175
of these ASCs were required to
participate without the public health
emergency (PHE) exception (not
applicable for current APU). On this
basis, we estimate that 5,057 ASCs
(4,175 + 687 + 195) will submit data for
the ASCQR Program for the CY 2026
payment determination unless
otherwise noted.
In section XV.B.4 of this proposed
rule, we propose to modify three
previously adopted measures: (1) the
COVID–19 Vaccination Coverage
Among Healthcare Personnel measure,
669 U.S. Bureau of Labor Statistics. Occupational
Outlook Handbook, Medical Records Specialists.
Accessed on March 6, 2023. Available at: https://
www.bls.gov/oes/current/oes292072.htm.
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beginning with the CY 2024 reporting
period/CY 2026 payment determination;
(2) the Cataracts: Improvement in
Patient’s Visual Function Within 90
Days Following Cataract Surgery
measure survey instrument usage,
beginning with the voluntary CY 2024
reporting period; and (3) Endoscopy/
Polyp Surveillance: Appropriate
Follow-Up Interval for Normal
Colonoscopy in Average Risk Patients
measure, beginning with the CY 2024
reporting period/CY 2026 payment
determination. We also propose to readopt with modification the ASC
Facility Volume on Selected ASC
Surgical Procedures measure, beginning
with the voluntary CY 2025 reporting
period followed by mandatory reporting
beginning with the CY 2026 reporting
period/CY 2028 payment determination.
Lastly, we propose to adopt the Risk
Standardized Patient-Reported
Outcome-Based Performance Measure
(PRO–PM) Following Elective Primary
Total Hip Arthroplasty (THA) and/or
Total Knee Arthroplasty (TKA) in the
ASC Setting, beginning with the
voluntary CYs 2025 and 2026 reporting
periods, followed by mandatory
reporting beginning with the CY 2027
reporting period/CY 2030 payment
determination.
2. Information Collection Burden for the
Proposal To Modify the COVID–19
Vaccination Coverage Among
Healthcare Personnel (HCP) Measure
Beginning With the CY 2024 Reporting
Period/CY 2026 Payment Determination
In the CY 2022 OPPS/ASC proposed
rule, we finalized adoption of the
COVID–19 Vaccination Coverage
Among Healthcare Personnel (HCP)
measure for the ASCQR Program (86 FR
63875 through 63883). In section
XV.B.4.a of this proposed rule, we
propose to modify the COVID–19
Vaccination Coverage Among HCP
measure to utilize the term ‘‘up to date’’
in the HCP vaccination definition and
update the numerator to specify the
time frames within which an HCP is
considered up to date with
recommended COVID–19 vaccines,
including booster doses, beginning with
the CY 2024 reporting period/CY 2026
payment determination for the ASCQR
Program. We previously discussed
information collection burden
associated with this measure in the CY
2022 OPPS/ASC final rule (86 FR
63969).
We do not believe that the use of the
term ‘‘up to date’’ or the update to the
numerator will impact information
collection or reporting burden because
the modification changes neither the
amount of data being submitted to CMS
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nor the frequency of data submission.
Additionally, because we are not
proposing any updates to the form,
manner, and timing of data submission
for this measure, we do not anticipate
any increase in burden associated with
this proposal. Furthermore, the
modified COVID–19 Vaccination
Coverage Among HCP measure would
continue to be calculated using data
submitted to the CDC under a separate
OMB control number (0920–1317;
expiration date January 31, 2024).
However, the CDC currently has a PRA
waiver for the collection and reporting
of vaccination data under section 321 of
the National Childhood Vaccine Injury
Act of 1986 (enacted on November 14,
1986) (NCVIA).670
3. Information Collection Burden for the
Proposal To Modify the Cataracts:
Improvement in Patient’s Visual
Function Within 90 Days Following
Cataract Surgery Measure Survey
Instrument Use Beginning With the CY
2024 Reporting Period
In the CY 2014 OPPS/ASC final rule
with comment period (78 FR 75126
through 75127), we finalized the
adoption of the Cataracts: Improvement
in Patient’s Visual Function Within 90
Days Following Cataract Surgery
measure beginning with the CY 2016
payment determination. In section
XV.B.4.b of this proposed rule, we
propose to limit the survey instruments
that can be used to administer this
measure to three assessment tools: NEI
VFQ–25, VF–14, and VF–8R, beginning
with the CY 2024 reporting period.
Because the three assessment tools
being proposed are currently allowable
for administering this measure, we do
not believe limiting use to these three
surveys would result in a change in
burden. As a result, we are not
proposing any changes in burden per
response associated with this proposal.
Additionally, as currently stated in the
ASCQR Program Specifications Manual,
the maximum annual sample case size
for chart abstraction for this measure is
63 cases for ASCs with an outpatient
population size of between 0 and 900
and 96 cases for ASCs with an
outpatient population size of greater
than 900.671 We are not proposing an
increase in the required sample size for
chart abstraction; therefore we do not
believe there is any increase in burden
associated with this proposal.
670 Public
Law 99–660.
671 https://qualitynet.cms.gov/files/
62900933404aa300169072f1?filename=12.0_ASC_
Full_Specs_Mnl.pdf.
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4. Information Collection Burden for the
Proposal To Modify the Endoscopy/
Polyp Surveillance: Appropriate
Follow-Up Interval for Normal
Colonoscopy in Average Risk Patients
Measure, Beginning With the CY 2024
Reporting Period/CY 2026 Payment
Determination
In the CY 2014 OPPS/ASC final rule,
we finalized the Endoscopy/Polyp
Surveillance: Appropriate Follow-Up
Interval for Normal Colonoscopy in
Average Risk Patients measure (78 FR
75127 through 75128). In section
XV.B.4.c of this proposed rule, we
propose to amend the measure
denominator language by removing the
removing the phrase ‘‘aged 50 years’’
and adding in its place the phrase ‘‘aged
45 years.’’
As currently stated in the ASCQR
Program Specifications Manual, the
maximum annual sample case size for
chart abstraction for this measure is 63
cases for ASCs with an outpatient
population size of between 0 and 900
and 96 cases for ASCs with an
outpatient population size of greater
than 900. We are not proposing an
increase in the required sample size for
chart abstraction; therefore, we do not
believe there is any increase in burden
associated with this proposal.
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5. Information Collection Burden for the
Proposal To Readopt With Modification
the ASC Facility Volume on Selected
ASC Surgical Procedures Measure With
the Voluntary CY 2025 Reporting Period
Followed by Mandatory Reporting
Beginning With the CY 2026 Reporting
Period/CY 2028 Payment Determination
In section XV.B.5.a of this proposed
rule, we propose to re-adopt with
modification the ASC Facility Volume
on Selected ASC SurgicalProcedures
measure with the voluntary CY 2025
reporting period followed by mandatory
reporting beginning with the CY 2026
reporting period/CY 2028 payment
determination. This measure was
previously finalized in the CY 2012
OPPS/ASC final rule with a burden
estimate of 10 minutes per response (76
FR 74554). This measure was
subsequently removed from the ASCQR
Program in the CY 2017 OPPS/ASC final
rule with the same estimate of 10
minutes per response (82 FR 59479).
Because this measure was originally
adopted with the same burden estimate
as the similar measure for the Hospital
OQR Program, we continue to believe
the burden per response is the same as
the measure for the Hospital OQR
Program, which we estimate to be 10
minutes per year in section XXIII.B.7 of
this proposed rule. As a result, we
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estimate that each participating ASC
would spend 10 minutes per year to
collect and submit the data for this
measure. For the voluntary CY 2025
reporting period, we assume 20 percent
of ASCs will report data, resulting in an
annual burden of 168.5 hours (5,057
ASCs × 20 percent × 0.167 hours) at a
cost of $8,782 (168.5 hours × $52.12).
For mandatory reporting beginning with
the CY 2026 reporting period/CY 2028
payment determination, we estimate an
annual burden of 843 hours (5,057 ASCs
× 0.167 hours) at a cost of $43,937 (843
hours × $52.12).
6. Information Collection Burden for the
Proposal To Adopt the Risk
Standardized Patient-Reported
Outcome-Based Performance Measure
(PRO–PM) Following Elective Primary
Total Hip Arthroplasty (THA) and/or
Total Knee Arthroplasty (TKA) in the
ASC Setting, Beginning With the
Voluntary CY 2025 and CY 2026
Reporting Periods Followed by
Mandatory Reporting Beginning With
the CY 2027 Reporting Period/CY 2030
Payment Determination
In section XV.B.5.b of this proposed
rule, we propose to adopt the THA/TKA
PRO–PM, beginning with the voluntary
CY 2025 and CY 2026 reporting periods,
followed by mandatory reporting
beginning with the CY 2027 reporting
period/CY 2030 payment determination.
This measure was previously adopted
for the Hospital IQR Program in the FY
2023 IPPS/LTCH PPS final rule with an
estimated burden of 7.25 minutes
(0.120833 hours) per patient to complete
both the pre-operative and postoperative surveys and 10 minutes (0.167
hours) per hospital per response to
collect and submit the measure data via
the HQR system (87 FR 49386 through
49387). We believe the estimated
burden for both patient surveys and data
submission would be the same for the
ASCQR Program.
The THA/TKA PRO–PM uses four
sources of data for the calculation of the
measure: (1) patient-reported outcome
(PRO) data; (2) claims data; (3) Medicare
enrollment and beneficiary data; and (4)
U.S. Census Bureau survey data. We
estimate no additional burden
associated with claims data, Medicare
enrollment and beneficiary data, and
U.S. Census Bureau survey data as these
data are already collected via other
mechanisms such as Medicare
enrollment forms, CMS Form 1500, and
U.S. Census Informational
Questionnaires. While we are not
proposing to require how ASCs collect
PRO data for this measure, ASCs
collecting PRO data would have
multiple options for when and how they
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would collect these PRO data so they
could best determine the mode and
timing of collection that works best for
their patient population.
The possible patient touchpoints for
pre-operative PRO data collection
include the doctor’s office, pre-surgical
steps such as education classes, or
medical evaluations that could occur in
an office or at the ASC. The modes of
PRO data collection could include
completion of the pre-operative surveys
using electronic devices (such as an
iPad or tablet), pen and paper, mail,
telephone, or through a patient portal.
Post-operative PRO data collection
modes are similar to pre-operative
modes. The possible patient touchpoints
for post-operative data collection could
occur before the follow-up appointment,
at the doctor’s office, or after the followup appointment. The potential modes of
PRO data collection for post-operative
data are the same as for pre-operative
data. If the patient does not or cannot
attend a follow-up appointment, the
modes of collection could include
completion of the post-operative survey
using email, mail, telephone, or through
a patient portal.
Similar to other surveys like the
Outpatient and Ambulatory Surgery
Consumer Assessment of Healthcare
Providers and Systems (OAS CAHPS)
survey, we believe the use of multiple
modes would maximize response rates
as it allows for different patient
preferences. For the THA/TKA PRO–PM
data, ASCs would be able to submit data
during two voluntary periods. The first
voluntary reporting period would begin
in CY 2025 for eligible procedures
occurring between January 1, 2025
through December 31, 2025, and the
second voluntary reporting period
would begin with CY 2026 for eligible
procedures occurring between January
1, 2026 through December 31, 2026.
Voluntary reporting would be followed
by mandatory reporting for eligible
elective procedures beginning with the
CY 2027 reporting period (occurring
between January 1, 2027 through
December 31, 2027), impacting the CY
2030 payment determination.
Whether participating in the
voluntary reporting period or during
subsequent mandatory reporting, ASCs
would need to submit data twice (preoperative data and post-operative data).
For the purposes of calculating burden,
we applied similar assumptions used for
the Hospital IQR Program in the FY
2023 IPPS/LTCH PPS final rule (87 FR
49386 through 49387). Specifically, we
estimate that, during the voluntary
periods, 50 percent of ASCs that
perform at least one THA/TKA
procedure would submit data and
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would do so for 50 percent of THA/TKA
patients. For purposes of calculating
burden for the mandatory period, we
estimate that ASCs would submit for
100 percent of patients. While we
propose to require ASCs to submit, at
minimum, 50 percent of eligible,
complete pre-operative data with
matching eligible, complete postoperative data, we are conservative in
our estimate for the mandatory period in
case ASCs exceed this threshold.
To estimate the cost burden for
patients completing the surveys for this
proposed measure, we believe that the
cost for beneficiaries undertaking
administrative and other tasks on their
own time is a post-tax wage of $20.71/
hour. We base this estimate on the
Valuing Time in U.S. Department of
Health and Human Services Regulatory
Impact Analyses: Conceptual
Framework and Best Practices, which
identifies the approach for valuing time
when individuals undertake activities
on their own time.672 To derive the
costs for beneficiaries, a measurement of
the usual weekly earnings of wage and
salary workers of $998, divided by 40
hours to calculate an hourly pre-tax
wage rate of $24.95/hour. This rate is
adjusted downwards by an estimate of
the effective tax rate for median income
households of about 17 percent,
resulting in the post-tax hourly wage
rate of $20.71/hour. Unlike our state and
private sector wage adjustments, we are
not adjusting beneficiary wages for
fringe benefits and other indirect costs
since the individuals’ activities, if any,
would occur outside the scope of their
employment.
To estimate the burden of information
collection for patients completing
surveys for this proposed measure, we
assume that most ASCs would likely
undertake PRO data collection through
a screening tool incorporated into their
electronic health record (EHR) or other
patient intake process. We estimate that
approximately 42,706 THA/TKA
672 https://aspe.hhs.gov/reports/valuing-time-us-
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procedures occur in an ASC each year,
and that many patients could complete
both the pre-operative and postoperative questionnaires. However, from
our experience with using this measure
in the Comprehensive Joint
Replacement model, we are also aware
that not all patients who complete the
pre-operative questionnaire would
complete the post-operative
questionnaire. For the voluntary CY
2025 and CY 2026 reporting periods, we
assume 10,677 patients would complete
the survey (42,706 patients × 0.50 × 0.50
of ASCs) for a total of 1,290 hours
annually (10,677 respondents ×
0.120833 hours) at a cost of $26,716
(1,290 hours × $20.71) across all ASCs.
Beginning with mandatory reporting in
the CY 2027 reporting period/CY 2030
payment determination, we estimate a
total of 5,160 hours (42,706 patients ×
0.120833 hours) at a cost of $106,864
(5,160 hours × $20.71) across all ASCs.
Regarding ASCs’ burden related to
submitting data for this proposed
measure, which would be reported via
the HQR System, we estimate a burden
of 10 minutes per response. ASCs would
submit data associated with preoperative surveys by March 31 of the CY
following the CY in which the eligible
procedures took place and would
submit data associated with postoperative surveys by March 31 of the CY
following the CY in which pre-operative
data was submitted. Therefore, for the
first voluntary reporting period for
eligible procedures occurring in CY
2025, pre-operative survey data
submission would occur in the first
quarter of the CY 2026 reporting period
and post-operative survey data
submission would occur in the first
quarter of the CY 2027 reporting period.
For each of the two voluntary reporting
periods, we estimate that each ASC
would spend 20 minutes (0.33 hours)
annually (10 minutes × 2 surveys) to
collect and submit the data. For the
voluntary CY 2026 reporting period, we
estimate a burden for all participating
ASCs of 422 hours (0.167 hours × 2,529
ASCs) at a cost of $21,995 (422 hours ×
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49883
$52.12). For the voluntary CY 2027
reporting period, we estimate a burden
for all participating ASCs of 843 hours
(0.33 hours × 2,529 ASCs) at a cost of
$43,937 (843 hours × $52.12). For the
mandatory CY 2028 reporting period,
we estimate a burden for all
participating ASCs of 1,264 hours
[(0.167 hours × 2,529 ASCs) + (0.167
hours × 5,057 ASCs)] at a cost of
$65,880 (1,264 hours × $52.12). For the
CY 2029 reporting period and
subsequent years, we estimate a total of
1,686 hours (0.33 hours × 5,057 ASCs)
at a cost of $87,874 (1,686 hours ×
$52.12).
With respect to any costs or burdens
unrelated to data submission, we refer
readers to section XXVI.C.4.b
‘‘Regulatory Impact Analysis’’ of this
proposed rule.
7. Summary of Information Collection
Burden Estimates for the ASCQR
Program
In summary, under OMB control
number 0938–1270 (expiration date
August 31, 2025), we estimate that the
proposals in this proposed rule would
result in an increase of 7,689 hours at
a cost of $238,675 for 5,057 ASCs across
a 6-year period from the CY 2024
reporting period/CY 2026 payment
determination through the CY 2029
reporting period/CY 2030 payment
determination. The following Tables 91
through 95 summarize the total burden
changes for each respective CY payment
determination compared to our
currently approved information
collection burden estimates (the table
for the CY 2030 payment determination
reflects the cumulative burden changes).
We will submit the revised information
collection estimates to OMB for
approval under OMB control number
0938–1270.673
BILLING CODE 4120–01–P
673 CY 2023 Final Rule ASCQR Program
‘‘Supporting Statement-A’’. Available at: https://
www.reginfo.gov/public/do/PRAView
Document?ref_nbr=201911-0938-015.
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D. ICRs Related to the REHQR Program
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1. Background
In section XVI. of this proposed rule,
we discuss the requirements for the REH
Quality Reporting (REHQR) Program. In
this proposed rule, we propose to adopt
four new measures, beginning with the
CY 2024 reporting period: (1) the
Abdomen Computed Tomography (CT)
Use of Contrast Material measure; (2)
the Median Time from ED Arrival to ED
Departure for Discharged ED Patients
measure; (3) the Facility 7-Day RiskStandardized Hospital Visit Rate after
Outpatient Colonoscopy measure; and
(4) the Risk-Standardized Hospital
Visits Within 7 Days After Hospital
Outpatient Surgery measure. As we are
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establishing the REHQR Program in this
proposed rule, the ICRs associated with
the REHQR Program will be submitted
for OMB approval under a new OMB
control number.
While the most recent data from the
Bureau of Labor Statistics reflects a
median hourly wage of $24.56 per hour
for all medical records specialists,
$26.06 is the hourly mean wage for
medical records specialists in ‘‘general
medical and surgical hospitals.’’ 674 We
believe specialists in ‘‘general medical
and surgical hospitals’’ is more specific
to our settings for use in our
calculations than a position that may be
674 U.S. Bureau of Labor Statistics. Occupational
Outlook Handbook, Medical Records Specialists.
Accessed on March 6, 2023. Available at: https://
www.bls.gov/oes/current/oes292072.htm.
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found in other medical record specialist
settings, such as ‘‘office of physicians’’
or ‘‘nursing care facilities.’’ We propose
to calculate the cost of overhead,
including fringe benefits, at 100 percent
of the mean hourly wage similar to the
policy previously finalized in the CY
2018 OPPS/ASC final rule for the
Hospital OQR Program (82 FR 52617).
This is necessarily a rough adjustment,
both because fringe benefits and
overhead costs can vary significantly
from employer-to-employer and because
methods of estimating these costs vary
widely from study-to-study.
Nonetheless, we believe that doubling
the hourly wage rate ($26.06 × 2 =
$52.12) to estimate the total cost is a
reasonably accurate estimation method
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2. Information Collection Burden for the
Proposal To Adopt Three Claims-Based
Measures Beginning With the CY 2024
Reporting Period
In sections XVI.B.5.a, XVI.B.5.c, and
XVI.B.5.d of this proposed rule, we
propose to adopt the following claimsbased measures beginning with the CY
2024 reporting period: (1) the Abdomen
Computed Tomography (CT) Use of
Contrast Material measure; (2) the
Facility 7-Day Risk-Standardized
Hospital Visit Rate After Outpatient
Colonoscopy measure; and (3) the RiskStandardized Hospital Visits Within 7
Days After Hospital Outpatient Surgery
measure. Because these measures are
calculated using data that are already
reported to the Medicare program for
payment purposes, adopting these
measures does not result in additional
burden for REHs participating in the
REHQR Program.
3. Information Collection Burden for the
Proposal To Adopt the Median Time
From ED Arrival to ED Departure for
Discharged ED Patients Measure
Beginning With the CY 2024 Reporting
Period
In section XVI.B.5.b of this proposed
rule, we propose to adopt the Median
Time from ED Arrival to ED Departure
for Discharged ED Patients measure
beginning with the CY 2024 reporting
period. This chart-abstracted measure
was previously adopted as part of the
Hospital OQR Program in the CY 2011
OPPS/ASC final rule with comment
period (75 FR 72086). Similar to
reporting of this measure to the Hospital
OQR Program as currently approved
under OMB control number 0938–1109
(expiration date February 28, 2025), we
estimate that chart-abstracted measures
where patient-level data are submitted
directly to CMS would take 2.9 minutes,
or 0.049 hours. Further, based on
sample size requirements for the
measure in the Hospital OQR Program,
we assume that each REH would
similarly abstract and submit data from
63 cases per quarter, for a total of 252
cases per year.675 We therefore estimate
that it would take approximately 12.2
hours (0.049 hours × 252 cases) at a cost
of approximately $636 per hospital (12.2
hours × $52.12/hour) to collect and
report data for this measure. Therefore,
for all participating REHs, we estimate
an annual chart-abstraction burden of
9,101 hours (12.2 hours per REH × 746
REHs) at a cost of $474,344 per measure
(9,101 hours × $52.12/hour).
4. Summary of Information Collection
Burden Estimates for the REHQR
Program
In summary, we estimate that the
proposals in this proposed rule would
result in an initial burden of 9,101 hours
at a cost of $474,344 for 746 REHs
annually beginning with the CY 2024
reporting period, as reflected in Table
96. We will submit these information
collection estimates to OMB for
approval as part of a new information
collection request.
With respect to any costs/burdens
unrelated to data submission, we refer
readers to section XXVI.C.5.a
‘‘Regulatory Impact Analysis’’ of this
proposed rule.
675 https://qualitynet.cms.gov/files/
63c8361058e56000179b310e?filename=OQR_
v16.0a_SpecsManual_011723.pdf.
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and allows for a conservative estimate of
hourly costs.
Based on our analysis of CAHs and
subsection (d) hospitals currently
participating in the Hospital OQR
Program with 50 beds or less, we have
estimated 746 hospitals which would be
both eligible to transition to REH status
and are located in a State where
legislation has passed as of March 2023
enabling transition to occur. We will
revise this estimate in future rules when
updated data are available.
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E. ICRs Related to Conditions of
Participation (CoPs): Admission, Initial
Evaluation, Comprehensive Assessment,
and Discharge or Transfer of the Client
(§ 485.914)
To implement Division FF, section
4124 of the CAA 2023, we propose to
modify the regulation text at
§ 485.914(a)(2) to include a crossreference to § 485.918(g), which are
additional requirements CMHCs must
meet when assessing and admitting
clients into the IOP program. At present,
§ 485.914(a)(2) solely pertains to PHP
services with reference to § 485.918(f),
which provides distinct criteria for
clients evaluated and accepted for PHP
services. We believe the burdens
associated with these requirements are
usual and customary business practice
under 5 CFR 1320.3(b)(2). As such, the
burden associated with these
requirements is exempt from PRA;
therefore, we are not proposing to seek
PRA approval for any information
collection or recordkeeping activities
that may be conducted in connection
with the proposed revisions to
§ 485.914(a)(2).
We also propose to revise
§ 485.914(d)(2), which sets forth
standards for updating a PHP client’s
comprehensive assessment no less
frequently than every 30 days. We
propose to add ‘‘and IOP services,’’
which would require the PHP and IOP
client’s interdisciplinary treatment team
to update the assessment no less
frequently than every 30 days. We
believe that the burden associated with
these requirements is the time required
to update the comprehensive
assessment and that this documentation
is usual and customary business
practice under 5 CFR 1320.3(b)(2).
Therefore, we do not propose seeking
PRA approval for any information
collection or recordkeeping activities
that may be conducted in connection
with the proposed revisions to
§ 485.914(d)(2).
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F. ICRs Related to Conditions of
Participation (CoPs): Treatment Team,
Person-Centered Active Treatment Plan,
and Coordination of Services (§ 485.916)
We propose to modify § 485.916(d),
which sets forth requirements for
reviewing the person-centered active
treatment plan. Currently, the
interdisciplinary team is required to
review, revise, and document the active
treatment plan as frequently as the
client’s condition requires, but no less
frequently than every 30 calendar days.
A revised active treatment plan must
include information from the client’s
updated comprehensive assessment and
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must document the client’s progress
toward the outcomes specified in the
active treatment plan. CMHCs must also
meet PHP program requirements
specified under § 424.24(e) if such
services are included in the active
treatment plan. As Division FF, section
4124 of the CAA 2023 included
coverage of IOP services for CMHCs, we
believe it is necessary to add IOP
services to this requirement and
reference the specific IOP program
requirements being proposed in section
VIII.C.2 at § 424.24(d) of this proposed
rule. We propose to cross-reference
additional requirements specified under
§ 424.24(d) if a client’s active treatment
plan includes IOP services. The 2013
CMHC CoP final rule (78 FR 64603)
included a burden for § 485.916(d) and
is collected under OMB control number
0938–1245. The proposed revision to
this requirement does not affect the
burden. Therefore, we do not propose
seeking PRA approval for any
information collection or recordkeeping
activities that may be conducted in
connection with the proposed revisions
to § 485.916(d).
G. ICRs Related to Conditions of
Participation (CoPs): Organization,
Governance, Administration of Services,
Partial Hospitalization Services
(§ 485.918)
To implement Division FF, section
4124 of the CAA, 2023, which extended
coverage of IOP services for CMHCs, we
propose to revise the title of § 485.918
to include IOP services. The overall goal
of this section is to ensure that the
management structure is organized and
accountable for the services furnished.
We propose to add ‘‘and intensive
outpatient services’’ to the end of the
section heading.
The requirement at § 485.918(b)
‘‘Standard: Provision of services’’
specifies a comprehensive list of
services that a CMHC must furnish. This
list of services that CMHCs provide
corresponds directly to the Statutory
requirements in section 1861(ff)(3) of
the Act. We propose to add ‘‘and
intensive outpatient services’’ to
§ 485.918(b)(1)(iii), which states where
specific services cannot be furnished,
such as other than in an individual’s
home or an inpatient or residential
setting, or psychosocial rehabilitation
services. We believe that adding IOP
services to § 485.918(b)(1)(iii) is a usual
and customary business practice under
5 CFR 1320.3(b)(2). Therefore, we are
not proposing to seek PRA approval for
any information collection or
recordkeeping activities that may be
conducted in connection with the
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proposed revisions to
§ 485.918(b)(1)(iii).
We propose to add a new standard at
§ 485.918(g), ‘‘Standard: Intensive
Outpatient Services’’, which will
require all IOP services to meet all
applicable requirements of 42 CFR 410
and 424. We also believe adding the IOP
services requirement in the new
proposed § 485.918(g) is a usual and
customary business practice under 5
CFR 1320.3(b)(2). Therefore, we do not
propose seeking PRA approval for any
information collection or recordkeeping
activities that may be conducted in
connection with the proposed revisions
to § 485.918(g).
H. ICRs Related to Hospital Price
Transparency
In a final rule dated November 2019
(84 FR 65524) (herein referred to as the
CY 2020 HPT final rule), we adopted
requirements for hospitals to make
public their standard charges in two
ways: (1) as a comprehensive machinereadable file (MRF); and (2) in a
consumer-friendly format. We codified
these requirements at new 45 CFR part
180.50 and 180.60, respectively.
The existing information collection
requirement and the associated burden
were finalized in the CY 2020 HPT final
rule and are currently approved under
OMB control number is 0938–1369,
which expires on December 31, 2023.
We originally estimated the number of
hospitals to be 6,002. We finalized an
initial one-time burden 150 hours and
cost of $11,898.60 per hospital, resulting
in a total national burden of 900,300
hours (150 hours × 6,002 hospitals) and
$71,415,397 ($11,898.60 × 6,002
hospitals) to build processes and make
required system updates to make their
standard charge data publicly available:
(1) as a comprehensive machinereadable file and (2) in a consumerfriendly format. Additionally, we
estimated an on-going annual burden of
46 hours per hospital with a cost of
$3,610.88 per hospital, resulting in a
total national burden of 276,092 hours
(46 hours × 6,002 hospitals) and total
cost of $21,672,502 ($3,610.88 × 6,002
hospitals), to make required annual
updates to the hospital’s standard
charge data information. For a detailed
discussion of the cost estimates for the
requirements related to hospitals
making their standard charge data
publicly available we refer readers to
our discussion in the collection of
information section in the CY 2020 HPT
final rule (84 FR 65591 through 65596).
In section XVIII of this proposed rule,
we propose to revise regulations at 45
CFR 180.50 related to making public
hospital standard charges in an MRF.
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First, we propose to add data elements
to be included in the hospital’s MRF
and to require hospitals to conform to a
CMS template layout. Second, to
enhance automated access to the MRF,
we propose that hospitals include a .txt
file in the root folder of the public
website it selects to host its MRF in the
form and manner specified by CMS that
includes a standardized set of fields,
and a link in the footer on its website
that is labeled ‘‘Hospital Price
Transparency’’ and links directly to the
publicly available web page that hosts
the link to the MRF. We believe these
proposed revisions would result in an
increased collection burden to hospitals,
both in one-time cost and ongoing
annual cost.
Additionally, we are increasing the
number of hospitals we believe to be
subject to these requirements from 6,002
to 7,098 which would increase the
estimated national burden. In the CY
2020 HPT final rule (84 FR 65591), we
estimated that 6,002 hospitals would be
subject to the hospital price
transparency requirements. To derive
the estimated number, we relied on data
from the American Hospital Association
(AHA).676 For this collection of
information estimate, we are using
updated hospital numbers based on the
publicly available dataset from the
Homeland Infrastructure FoundationLevel Data (HIFLD) 677 hospital dataset
because the HIFLD dataset compiles a
directory of hospital facilities based on
data acquired directly from state
hospital licensure information and
federal sources, and validates this data
annually. Thus, we believe the HIFLD
dataset is more accurate than the AHA
Directory. The source data was available
in a variety of formats (pdfs, tables, web
pages, etc.) which is reviewed and
geocoded and then converted into a
spatial database. To estimate the
number of hospitals subject to these
requirements, we leveraged the HIFLD
hospital dataset to identify 8,013 total
hospitals. We then subtracted out 379
hospitals HIFLD identified as ‘‘closed’’
as well as hospitals that are deemed
under the regulation to have met
requirements (see 45 CFR 180.30) which
included 339 federally owned nonmilitary and military hospitals, and 197
State, local, and district run forensic
hospitals. We therefore estimate that
this proposed rule applies to 7,098
hospitals operating within the United
States under the definition of
‘‘hospital.’’ Finally, we estimate the
hourly cost for each labor category used
in this analysis by referencing Bureau of
Labor Statistics report on Occupational
Employment and Wages (May 2022) 678
in Table 97 below.
First, we believe that hospitals would
incur a one-time cost to update their
processes and systems to (1) identify
and collect the standard charge
information represented by the newly
proposed data elements, and (2) to
conform the standard charge
information for both the existing and
newly proposed data elements in the
proposed CMS template layout. To
implement these requirements, we
estimate that it would take, on average,
1 hour (at a cost of $118.14 per hour)
for a General and Operations Manager
(BLS 11–1021) to review and determine
proposed compliance requirements. We
estimate it will take a Business
Operations Specialist (BLS 13–1000), on
average, 10 hours (at a cost of $80.08 per
hour) to develop and update the
necessary processes and procedures and
develop the requirements to implement
the proposed CMS template. Once the
existing systems have been identified
and requirements developed, we
estimate that a network and computer
system administrator (BLS 15–1244)
would spend, on average, 20 hours (at
a cost of $93.42 per hour), to make
updates to existing systems to conform
to the proposed CMS template layout
and post it to the internet, including
developing and posting the proposed txt
file in the root folder of the public web
page it selects to host its MRF in the
form and manner specified by CMS that
includes a standardized set of fields
specified by this proposed rule.
Therefore, we are finalizing the total
annual burden estimate for the first year
to be 31 hours (1 hours + 10 hours + 20
hours) per hospital with a cost of
$2,787.34 ($118.14 + $800.80 +
$1,868.40) per hospital. The one-time
national burden is calculated to be
$19,784,539.32 dollars ($2,787.34 per
hospital × 7,098 hospitals). (See Table
98 below.)
676 American Hospital Association. Fast Facts on
U.S. Hospitals, 2019. Available at: https://
www.aha.org/statistics/fast-facts-us-hospitals. The
AHA listed 6,210 total hospitals operating in the
U.S. To arrive at 6,002 hospitals, we subtracted the
208 federally owned or operated hospitals.
677 Homeland Infrastructure Foundation-Level
Data hospital dataset accessed on May 3, 2023,
located at https://hifldgeoplatform.opendata.arcgis.com/datasets/
hospitals/data.
678 U.S. Bureau of Labor Statistics, May 2022
national Occupational Employment and Wage
Estimates United States, Occupational Employment
and Wage Statistics. Accessed at https://
www.bls.gov/oes/tables.htm.
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In addition to the one-time cost to
implement the proposed CMS template,
we are providing a revised estimate of
our annual burden estimates. As noted,
we originally estimated an on-going
annual burden of 46 hours, per hospital,
for 6,002 hospitals to make annual
updates to display their standard charge
data. Originally, we estimated it would
take on average: a general or operations
manager 2 hours, per hospital, to review
and determine updates in compliance
with requirements; a business
operations specialist 32 hours, per
hospital, to gather and compile required
information and post it to the internet;
and a network and computer system
administrator 12 hours to maintain
requirements specified in the CY 2020
HPT final rule (84 FR 65596).
We estimate it will still take a general
or operations manager 2 hours, per
hospital, to review and determine
updates in compliance with
requirements. However, we now
estimate an increased ongoing amount
of time for a business operations
specialist, from 32 hours to 40 hours per
hospital, to identify and gather required
additional data elements on an annual
basis. This increase acknowledges that
some hospitals may not update their
systems in the first year to maintain and
abstract newly required data elements in
an automated way to facilitate future
annual updates to the MRF, thus we
expect a subset of hospitals will
continue to spend time annually to
gather their standard charge
information. We continue to believe that
it will still take a computer system
administrator 12 hours to maintain and
post the MRF in a manner that conforms
to the CMS template layout. Therefore,
we estimate an annual national burden
of 383,292 hours (54 hours × 7,098
hospitals) and an annual national cost of
$32,370,571 dollars ($4,560.52 per
respondent × 7,098 hospitals). This
represents a $10,698,069
($32,370,571¥$21,672,502) increase
over our previous estimated national
annual burden for subsequent years. We
summarize our updated annual burden
estimates in the Table 99 below.
The new information collection
requirements, as well as the one-time
cost estimates and updated annual
burden estimates discussed in this
section will be submitted for OMB
review and approval for OMB control
number is 0938–1369.
If you comment on these information
collection, that is, reporting,
recordkeeping or third-party disclosure
requirements, please submit your
comments electronically as specified in
the ADDRESSES section of this proposed
rule.
Comments must be received on/by
September 11, 2023.
individually. We will consider all
comments we receive by the date and
time specified in the DATES section of
this preamble; and, when we proceed
with a subsequent document, we will
respond to the comments in the
preamble to that document.
section 1833(t)(9)(A) of the Act to
review, not less often than annually,
and revise the groups, the relative
payment weights, and the wage and
other adjustments described in section
1833(t)(2) of the Act. We must review
the clinical integrity of payment groups
and relative payment weights at least
annually. We propose to revise the APC
relative payment weights using claims
data for services furnished on and after
January 1, 2022, through and including
December 31, 2022, and processed
through June 30, 2023, and updated
HCRIS cost report information, as
discussed in section X.F of this
proposed rule.
This proposed rule is also necessary
to make updates to the ASC payment
rates for CY 2024, enabling CMS to
make changes to payment policies and
payment rates for covered surgical
XXV. Response to Comments
Because of the large number of public
comments we normally receive on
Federal Register documents, we are not
able to acknowledge or respond to them
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XXVI. Economic Analyses
A. Statement of Need
This proposed rule is necessary to
make updates to the Medicare hospital
OPPS rates. It is also necessary to make
changes to the payment policies and
rates for outpatient services furnished
by hospitals and CMHCs in CY 2024.
We are required under section
1833(t)(3)(C)(ii) of the Act to update
annually the OPPS conversion factor
used to determine the payment rates for
APCs. We also are required under
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procedures and covered ancillary
services that are performed in ASCs in
CY 2024. Because ASC payment rates
are based on the OPPS relative payment
weights for most of the procedures
performed in ASCs, the ASC payment
rates are updated annually to reflect
annual changes to the OPPS relative
payment weights. In addition, we are
required under section 1833(i)(1) of the
Act to review and update the list of
surgical procedures that can be
performed in an ASC, not less
frequently than every 2 years.
In the CY 2019 OPPS/ASC final rule
with comment period (83 FR 59075
through 59079), we finalized a policy to
update the ASC payment system rates
using the hospital market basket update
instead of the CPI–U for CY 2019
through 2023. In this CY 2024 OPPS/
ASC proposed rule, we propose to
extend the 5-year interim period to an
additional 2 years, through CY 2024 and
CY 2025, to enable us to more
accurately analyze whether the
application of the hospital market
basket update to the ASC payment
system resulted in a migration of
services from the hospital setting to the
ASC setting. Further discussion of this
proposed policy can be found in section
XIII.G.2.b of this proposed rule.
B. Overall Impact of Provisions of This
Proposed Rule
We have examined the impacts of this
proposed rule, as required by Executive
Order 12866, as amended, on Regulatory
Planning and Review (September 30,
1993), Executive Order 13563 on
Improving Regulation and Regulatory
Review (January 18, 2011), Executive
Order 14094 entitled ‘‘Modernizing
Regulatory Review’’ (April 6, 2023), the
Regulatory Flexibility Act (RFA)
(September 19, 1980, Pub. L. 96–354),
section 1102(b) of the Social Security
Act, section 202 of the Unfunded
Mandates Reform Act of 1995 (March
22, 1995, Pub. L. 104–4), and Executive
Order 13132 on Federalism (August 4,
1999)
Executive Orders 12866, as amended,
and 13563 direct agencies to assess all
costs and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). The Executive Order 14094
entitled ‘‘Modernizing Regulatory
Review’’ (hereinafter, the Modernizing
E.O.) amends section 3(f) of Executive
Order 12866 (Regulatory Planning and
Review). The amended section 3(f) of
Executive Order 12866 defines a
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‘‘significant regulatory action’’ as an
action that is likely to result in a rule:
(1) having an annual effect on the
economy of $200 million or more in any
1 year (adjusted every 3 years by the
Administrator of OIRA for changes in
gross domestic product), or adversely
effect in a material way the economy, a
sector of the economy, productivity,
competition, jobs, the environment,
public health or safety, or State, local,
territorial, or tribal governments or
communities; (2) creating a serious
inconsistency or otherwise interfering
with an action taken or planned by
another agency; (3) materially altering
the budgetary impacts of entitlement
grants, user fees, or loan programs or the
rights and obligations of recipients
thereof; or (4) raise legal or policy issues
for which centralized review would
meaningfully further the President’s
priorities or the principles set forth in
this Executive order, as specifically
authorized in a timely manner by the
Administrator of OIRA in each case. A
regulatory impact analysis (RIA) must
be prepared for major rules with
significant regulatory action/s and/or
with significant effects as per section
3(f)(1) ($200 million or more in any 1
year). Based on our estimates, OMB’s
Office of Information and Regulatory
Affairs has determined this rulemaking
is significant per section 3(f)(1)) as
measured by the $200 million or more
in any 1 year. Accordingly, we have
prepared a Regulatory Impact Analysis
that to the best of our ability presents
the costs and benefits of the rulemaking.
We estimate that the total increase in
Federal Government expenditures under
the OPPS for CY 2024, compared to CY
2023, due to the changes to the OPPS in
this proposed rule, would be
approximately $1.92 billion. Taking into
account our estimated changes in
enrollment, utilization, and case-mix for
CY 2024, we estimate that the OPPS
expenditures, including beneficiary
cost-sharing, for CY 2024 will be
approximately $88.6 billion, which is
approximately $6.0 billion higher than
estimated OPPS expenditures in CY
2023. Table 100 of this proposed rule
displays the distributional impact of the
CY 2024 changes in OPPS payment to
various groups of hospitals and for
CMHCs.
We note that under our proposed CY
2024 policy, drugs and biologicals are
generally proposed to be paid at ASP
plus 6 percent, WAC plus 6 percent, or
95 percent of AWP, as applicable. The
impacts on hospital rates as a result of
this proposed policy are reflected in the
discussion of the estimated effects of
this proposed rule.
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We estimate that the proposed update
to the conversion factor and other
budget neutrality adjustments would
increase total OPPS payments by 2.8
percent in CY 2024. The proposed
changes to the APC relative payment
weights, the proposed changes to the
wage indexes, the proposed
continuation of a payment adjustment
for rural SCHs, including EACHs, and
the proposed payment adjustment for
cancer hospitals would not increase
total OPPS payments because these
changes to the OPPS are budget neutral.
However, these updates would change
the distribution of payments within the
budget neutral system. We estimate that
the total change in payments between
CY 2023 and CY 2024, considering all
budget-neutral payment adjustments,
changes in estimated total outlier
payments, the application of the frontier
State wage adjustment, in addition to
the application of the OPD fee schedule
increase factor after all adjustments
required by sections 1833(t)(3)(F),
1833(t)(3)(G), and 1833(t)(17) of the Act
would increase total estimated OPPS
payments by 2.9 percent.
We estimate the total increase (from
changes to the ASC provisions in this
proposed rule, as well as from
enrollment, utilization, and case-mix
changes) in Medicare expenditures (not
including beneficiary cost-sharing)
under the ASC payment system for CY
2024 compared to CY 2023, to be
approximately $220 million. Tables 101
and 102 of this proposed rule display
the redistributive impact of the CY 2024
changes regarding ASC payments,
grouped by specialty area and then
grouped by procedures with the greatest
ASC expenditures, respectively.
C. Detailed Economic Analyses
1. Estimated Effects of OPPS Changes in
This Proposed Rule
a. Limitations of Our Analysis
The distributional impacts presented
here are the projected effects of the
proposed CY 2024 policy changes on
various hospital groups. We post our
hospital-specific estimated payments for
CY 2024 on the CMS website with the
other supporting documentation for this
proposed rule. To view the hospitalspecific estimates, we refer readers to
the CMS website at: https://
www.cms.gov/Medicare/Medicare-Feefor-Service-Payment/
HospitalOutpatientPPS/. On
the website, select ‘‘Regulations and
Notices’’ from the left side of the page
and then select ‘‘CMS–1786–P’’ from the
list of regulations and notices. The
hospital-specific file layout and the
hospital-specific file are listed with the
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other supporting documentation for this
proposed rule. We show hospitalspecific data only for hospitals whose
claims were used for modeling the
impacts shown in Table 100 of this
proposed rule. We do not show
hospital-specific impacts for hospitals
whose claims we were unable to use.
We refer readers to section II.A of this
proposed rule for a discussion of the
hospitals whose claims we do not use
for ratesetting or impact purposes.
We estimate the effects of the
individual policy changes by estimating
payments per service, while holding all
other payment policies constant. We use
the best data available but do not
attempt to predict behavioral responses
to our policy changes in order to isolate
the effects associated with specific
policies or updates, but any policy that
changes payment could have a
behavioral response. In addition, we
have not made any adjustments for
future changes in variables, such as
service volume, service-mix, or number
of encounters.
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b. Estimated Effects of OPPS Changes on
Hospitals
Table 100 shows the estimated impact
of this proposed rule on hospitals.
Historically, the first line of the impact
table, which estimates the change in
payments to all facilities, has always
included cancer and children’s
hospitals, which are held harmless to
their pre-Balanced Budget Act (BBA)
amount. We also include CMHCs in the
first line that includes all providers. We
include a second line for all hospitals,
excluding permanently held harmless
hospitals and CMHCs.
We present separate impacts for
CMHCs in Table 100, and we discuss
them separately below, because CMHCs
have historically been paid only for
partial hospitalization services under
the OPPS and are a different provider
type from hospitals. In CY 2024, we
propose to pay CMHCs for partial
hospitalization services under APCs
5853 (Partial Hospitalization (three
services per day) for CMHCs) and 5854
(Partial Hospitalization (four or more
services per day) for CMHCs) and to pay
hospitals for partial hospitalization
services under APCs 5863 (Partial
Hospitalization (three services per day)
for hospital-based PHPs) and 5864
(Partial Hospitalization (four or more
services per day) for hospital-based
PHPs). In addition, we propose to
establish payment for four Intensive
Outpatient Program (IOP) APCs, two for
each provider type, including an APC
for three services per day and an APC
for four or more services per day.
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The estimated increase in the total
payments made under the OPPS is
determined largely by the increase to
the conversion factor under the
statutory methodology. The
distributional impacts presented do not
include assumptions about changes in
volume and service-mix. The
conversion factor is updated annually
by the OPD fee schedule increase factor,
as discussed in detail in section II.B of
this proposed rule.
Section 1833(t)(3)(C)(iv) of the Act
provides that the OPD fee schedule
increase factor is equal to the market
basket percentage increase applicable
under section 1886(b)(3)(B)(iii) of the
Act, which we refer to as the IPPS
market basket percentage increase. The
proposed IPPS market basket percentage
increase applicable to the OPD fee
schedule for CY 2024 is 3.0 percent.
Section 1833(t)(3)(F)(i) of the Act
reduces that 3.0 percent by the
productivity adjustment described in
section 1886(b)(3)(B)(xi)(II) of the Act,
which is proposed to be 0.2 percentage
point for CY 2024 (which is also the
productivity adjustment for FY 2024 in
the FY 2024 IPPS/LTCH PPS proposed
rule (88 FR 27005)), resulting in the
proposed CY 2024 OPD fee schedule
increase factor of 2.8 percent. We are
using the OPD fee schedule increase
factor of 2.8 percent in the calculation
of the proposed CY 2024 OPPS
conversion factor. Section 10324 of the
Affordable Care Act, as amended by
HCERA, further authorized additional
expenditures outside budget neutrality
for hospitals in certain frontier States
that have a wage index less than 1.0000.
The amounts attributable to this frontier
State wage index adjustment are
incorporated in the estimates in Table
100 of this proposed rule.
To illustrate the impact of the CY
2024 changes, our analysis begins with
a baseline simulation model that uses
the CY 2023 relative payment weights,
the FY 2023 final IPPS wage indexes
that include reclassifications, and the
final CY 2023 conversion factor. Table
100 shows the estimated redistribution
of the increase or decrease in payments
for CY 2024 over CY 2023 payments to
hospitals and CMHCs as a result of the
following factors: the impact of the APC
reconfiguration and recalibration
changes between CY 2023 and CY 2024
(Column 2); the wage indexes and the
provider adjustments (Column 3); the
combined impact of all of the changes
described in the preceding columns
plus the 2.8 percent OPD fee schedule
increase factor update to the conversion
factor (Column 4); the estimated impact
taking into account all payments for CY
2024 relative to all payments for CY
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2023, including the impact of changes
in estimated outlier payments and
changes to the pass-through payment
estimate (Column 5).
We did not model an explicit budget
neutrality adjustment for the rural
adjustment for SCHs because we
propose to maintain the current
adjustment percentage for CY 2024.
Because the proposed updates to the
conversion factor (including the update
of the OPD fee schedule increase factor),
the estimated cost of the rural
adjustment, and the estimated cost of
projected pass-through payment for CY
2024 are applied uniformly across
services, observed redistributions of
payments in the impact table for
hospitals largely depend on the mix of
services furnished by a hospital (for
example, how the APCs for the
hospital’s most frequently furnished
services would change), and the impact
of the wage index changes on the
hospital. However, total payments made
under this system and the extent to
which this proposed rule would
redistribute money during
implementation also will depend on
changes in volume, practice patterns,
and the mix of services billed between
CY 2023 and CY 2024 by various groups
of hospitals, which CMS cannot
forecast.
Overall, we estimate that the
proposed rates for CY 2024 would
increase Medicare OPPS payments by
an estimated 2.9 percent. Removing
payments to cancer and children’s
hospitals because their payments are
held harmless to the pre-OPPS ratio
between payment and cost and
removing payments to CMHCs results in
an estimated 3.0 percent increase in
Medicare payments to all other
hospitals. These estimated payments
would not significantly impact other
providers.
Column 1: Total Number of Hospitals
The first line in Column 1 in Table
100 shows the total number of facilities
(3,567), including designated cancer and
children’s hospitals and CMHCs, for
which we were able to use CY 2022
hospital outpatient and CMHC claims
data to model CY 2023 and CY 2024
payments, by classes of hospitals, for
CMHCs and for dedicated cancer
hospitals. We excluded all hospitals and
CMHCs for which we could not
plausibly estimate CY 2023 or CY 2024
payment and entities that are not paid
under the OPPS. The latter entities
include CAHs, all-inclusive hospitals,
and hospitals located in Guam, the U.S.
Virgin Islands, Northern Mariana
Islands, American Samoa, and the State
of Maryland. This process is discussed
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in greater detail in section II.A of this
proposed rule. At this time, we are
unable to calculate a DSH variable for
hospitals that are not also paid under
the IPPS because DSH payments are
only made to hospitals paid under the
IPPS. Hospitals for which we do not
have a DSH variable are grouped
separately and generally include
freestanding psychiatric hospitals,
rehabilitation hospitals, and long-term
care hospitals. We show the total
number of OPPS hospitals (3,472),
excluding the hold harmless cancer and
children’s hospitals and CMHCs, on the
second line of the table. We excluded
cancer and children’s hospitals because
section 1833(t)(7)(D) of the Act
permanently holds harmless cancer
hospitals and children’s hospitals to
their ‘‘pre-BBA amount’’ as specified
under the terms of the statute, and
therefore, we removed them from our
impact analyses. We show the isolated
impact on the 27 CMHCs at the bottom
of the impact table (Table 100) and
discuss that impact separately below.
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Column 2: APC Recalibration—All
Changes
Column 2 shows the estimated effect
of APC recalibration. Column 2 also
reflects any changes in multiple
procedure discount patterns or
conditional packaging that occur as a
result of the changes in the relative
magnitude of payment weights. As a
result of APC recalibration, we estimate
that urban hospitals will experience a
0.0 increase, with the impact ranging
from a decrease of 0.4 percent to an
increase of 0.5, depending on the
number of beds. Rural hospitals will
experience an estimated increase of 0.4
overall. Major teaching hospitals will
experience an estimated decrease of 0.3
percent.
Column 3: Wage Indexes and the Effect
of the Provider Adjustments
Column 3 demonstrates the combined
budget neutral impact of the APC
recalibration, the updates for the wage
indexes with the FY 2024 IPPS postreclassification wage indexes, the rural
adjustment, the frontier adjustment, and
the cancer hospital payment adjustment.
We modeled the independent effect of
the budget neutrality adjustments and
the OPD fee schedule increase factor by
using the relative payment weights and
wage indexes for each year and using a
CY 2023 conversion factor that included
the OPD fee schedule increase and a
budget neutrality adjustment for
differences in wage indexes.
Column 3 reflects the independent
effects of the updated wage indexes,
including the application of budget
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neutrality for the rural floor policy on a
nationwide basis, as well as the
proposed CY 2024 changes in wage
index policy, discussed in section II.C of
this proposed rule. We did not model a
budget neutrality adjustment for the
rural adjustment for SCHs because we
are continuing the rural payment
adjustment of 7.1 percent to rural SCHs
for CY 2024, as described in section II.E
of this proposed rule. We modeled a
budget neutrality adjustment for the
proposed cancer hospital payment
adjustment because the proposed
payment-to-cost ratio target for the
cancer hospital payment adjustment in
CY 2024 is 0.88, which is different from
the 0.89 PCR target for the CY 2023
OPPS/ASC final rule with comment
period (87 FR 71788). We note that, in
accordance with section 16002 of the
21st Century Cures Act, we are applying
a budget neutrality factor calculated as
if the cancer hospital adjustment target
payment-to-cost ratio was 0.89, not the
0.88 target payment-to-cost ratio we
propose to apply in section II.F of this
proposed rule.
We modeled the independent effect of
updating the wage indexes by varying
only the wage indexes, holding APC
relative payment weights, service-mix,
and the rural adjustment constant and
using the CY 2024 scaled weights and
a CY 2023 conversion factor that
included a budget neutrality adjustment
for the effect of the proposed changes to
the wage indexes between CY 2023 and
CY 2024.
Column 4: All Budget Neutrality
Changes Combined With the Market
Basket Update
Column 4 demonstrates the combined
impact of all of the proposed changes
previously described and the proposed
update to the conversion factor of 2.8
percent. Overall, these changes would
increase payments to urban hospitals by
2.8 percent and to rural hospitals by 4.7
percent. Rural sole community hospitals
would receive an estimated increase of
4.9 percent while other rural hospitals
would receive an estimated increase of
4.4 percent.
Column 5: All Changes for CY 2024
Column 5 depicts the full impact of
the proposed CY 2024 policies on each
hospital group by including the effect of
all changes for CY 2024 and comparing
them to all estimated payments in CY
2023. Column 5 shows the combined
budget neutral effects of Columns 2 and
3; the OPD fee schedule increase; the
impact of estimated OPPS outlier
payments, as discussed in section II.G of
this proposed rule; the change in the
Hospital OQR Program payment
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reduction for the small number of
hospitals in our impact model that
failed to meet the reporting
requirements (discussed in section XIV
of this proposed rule); and other
proposed adjustments to the CY 2024
OPPS payments.
Of those hospitals that failed to meet
the Hospital OQR Program reporting
requirements for the full CY 2023
update (and assumed, for modeling
purposes, to be the same number for CY
2023), we included 59 hospitals in our
model because they had both CY 2022
claims data and recent cost report data.
We estimate that the cumulative effect
of all changes for CY 2024 would
increase payments to all facilities by 2.9
percent for CY 2023. We modeled the
independent effect of all changes in
Column 5 using the final relative
payment weights for CY 2023 and the
proposed relative payment weights for
CY 2024. We used the final conversion
factor for CY 2023 of $85.585 and the
proposed CY 2024 conversion factor of
$84.788 discussed in section II.B of this
proposed rule.
Column 5 contains simulated outlier
payments for each year. We used the 1year charge inflation factor used in the
FY 2024 IPPS/LTCH PPS proposed rule
(87 FR 49427) of 5.8 percent (1.05755)
to increase charges on the CY 2022
claims, and we used the overall CCR in
the April 2023 Outpatient ProviderSpecific File (OPSF) to estimate outlier
payments for CY 2023. Using the CY
2022 claims and a 5.8 percent charge
inflation factor, we currently estimate
that outlier payments for CY 2023, using
a multiple threshold of 1.75 and a fixeddollar threshold of $8,625, would be
approximately 0.78 percent of total
payments. The estimated current outlier
payments of 0.78 percent are
incorporated in the comparison in
Column 5. We used the same set of
claims and a charge inflation factor of
11.8 percent (1.118412) and the CCRs in
the April 2023 OPSF, with an
adjustment of 0.977799 (88 FR 27221),
to reflect relative changes in cost and
charge inflation between CY 2022 and
CY 2024, to model the proposed CY
2024 outliers at 1.0 percent of estimated
total payments using a multiple
threshold of 1.75 and a fixed dollar
threshold of $6,875. The charge
inflation and CCR inflation factors are
discussed in detail in the FY 2024 IPPS/
LTCH PPS final rule (88 FR 27219
through 27223).
Overall, we estimate that facilities
would experience an increase of 2.9
percent under this proposed rule in CY
2024 relative to total spending in CY
2023. This projected increase (shown in
Column 5) of Table 100 of this proposed
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rule reflects the proposed 2.8 percent
OPD fee schedule increase factor, added
by the difference in estimated outlier
payments between CY 2023 (0.78
percent) and CY 2024 (1.0 percent),
minus 0.10 percent for the change in the
pass-through payment estimate between
CY 2023 and CY 2024. We estimate that
the combined effect of all changes for
CY 2024 would increase payments to
urban hospitals by 2.8 percent. Overall,
we estimate that rural hospitals would
experience a 4.4 percent increase as a
result of the combined effects of all the
changes for CY 2024.
Among hospitals, by teaching status,
we estimate that the impacts resulting
from the combined effects of all changes
would include an increase of 2.4
percent for major teaching hospitals and
an increase of 3.5 percent for
nonteaching hospitals. Minor teaching
hospitals would experience an
estimated increase of 3.0 percent.
In our analysis, we also have
categorized hospitals by type of
ownership. Based on this analysis, we
estimate that voluntary hospitals would
experience an increase of 3.0 percent,
proprietary hospitals would experience
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an increase of 3.4 percent, and
governmental hospitals would
experience an increase of 5.8 percent.
c. Estimated Effects of OPPS Changes on
CMHCs
The last line of Table 100
demonstrates the isolated impact on
CMHCs, which historically have only
furnished partial hospitalization
services under the OPPS. As discussed
in section VIII.D of this proposed rule,
we propose for CY 2024 to pay CMHCs
under APC 5853 (Partial Hospitalization
(3 services per day) for CMHCs) for PHP
days with three or fewer services, and
APC 5854 (Partial Hospitalization (four
or more services per day) for CMHCs)
for days with four or more services. We
modeled the impact of this APC policy
assuming CMHCs will continue to
provide the same PHP care as seen in
the CY 2022 claims used for ratesetting
in this proposed rule. We did not
exclude days with one or two services
from our modeling for CY 2024, because
our proposed policy would pay the per
diem rate for APC 5853 for such days
beginning in CY 2024. As a result of the
proposed PHP APC changes for CMHCs,
we estimate that CMHCs would
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experience a 5.8 percent increase in CY
2024 payments relative to their CY 2023
payments (shown in Column 5). For a
detailed discussion of our proposed
PHP policies, please see section VIII of
this proposed rule.
Column 3 shows the estimated impact
of adopting the proposed FY 2024 wage
index values, which result in an
estimated decrease of 1.0 percent to
CMHCs. Column 4 shows that
combining the OPD fee schedule
increase factor, along with the proposed
changes in APC policy for CY 2024 and
the proposed FY 2024 wage index
updates, would result in an estimated
increase of 5.9 percent.
Lastly, we note that as discussed in
section VIII of this proposed rule, we
propose to establish payment for
intensive outpatient services furnished
by CMHCs under APCs 5851 (Intensive
Outpatient (3 services per day) for
CMHCs) and 5852 (Intensive Outpatient
(4 or more services per day) for CMHCs).
Payment estimates for APCs 5851 and
5852 are not reflected in Table 100 but
are discussed in section XXI.C.1.i of this
proposed rule.
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d. Estimated Effect of OPPS Changes on
Beneficiaries
For services for which the beneficiary
pays a copayment of 20 percent of the
payment rate, the beneficiary’s payment
would increase for services for which
the OPPS payments will rise and will
decrease for services for which the
OPPS payments will fall. For further
discussion of the calculation of the
national unadjusted copayments and
minimum unadjusted copayments, we
refer readers to section II.H of this
proposed rule. In all cases, section
1833(t)(8)(C)(i) of the Act limits
beneficiary liability for copayment for a
procedure performed in a year to the
hospital inpatient deductible for the
applicable year.
We estimate that the aggregate
beneficiary coinsurance percentage
would be approximately 18.0 percent
for all services paid under the OPPS in
CY 2024. The estimated aggregate
beneficiary coinsurance reflects general
system adjustments, including the
proposed CY 2024 comprehensive APC
payment policy discussed in section
II.A.2.b of this proposed rule. We note
that the individual payments, and
therefore copayments, associated with
services may differ based on the setting
in which they are furnished. However,
at the aggregate system level, we do not
currently observe significant impact on
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beneficiary coinsurance as a result of
those policies.
e. Estimated Effects of OPPS Changes on
Other Providers
The relative payment weights and
payment amounts established under the
OPPS affect the payments made to
ASCs, as discussed in section XIII of
this proposed rule. Hospitals, CMHCs,
and ASCs would be affected by the
changes in this proposed rule.
Additionally, as discussed in section
VIII of this proposed rule, we propose
to establish payment for IOP furnished
by RHCs, FQHCs, and OTPs. These
providers of IOP are not paid under the
OPPS and are not included in the
impact analysis shown in Table 100;
however, the proposed payment amount
for OPPS APC 5861 would affect
payments to these providers. We discuss
estimated effects of proposed IOP
policies in section XXI.C.1.i of this
proposed rule.
f. Estimated Effects of OPPS Changes on
the Medicare and Medicaid Programs
The effect of the update on the
Medicare program is expected to be an
increase of $1.9 billion in program
payments for OPPS services furnished
in CY 2024. The effect on the Medicaid
program is expected to be limited to
copayments that Medicaid may make on
behalf of Medicaid recipients who are
also Medicare beneficiaries. We estimate
that the changes in this proposed rule
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would increase these Medicaid
beneficiary payments by approximately
$115 million in CY 2024. Currently,
there are approximately 10 million dualeligible beneficiaries, which represent
approximately 30 percent of Medicare
Part B fee-for-service beneficiaries. The
impact on Medicaid was determined by
taking 30 percent of the beneficiary costsharing impact. The national average
split of Medicaid payments is 57
percent Federal payments and 43
percent State payments. Therefore, for
the estimated $115 million Medicaid
increase, approximately $65 million
would be from the Federal Government
and $50 million will be from State
governments.
g. Alternative OPPS Policies Considered
Alternatives to the OPPS changes we
propose and the reasons for our selected
alternatives are discussed throughout
this proposed rule.
• Alternatives Considered for the
Claims Data used in OPPS and ASC
Ratesetting due to the PHE.
We refer readers to section X.F. of this
proposed rule for a discussion of our
proposed policy of returning to the
standard update process of using
updated cost report data for OPPS
ratesetting. In that section, we discuss
our consideration of issues regarding
data updates, and in particular the
selection of cost report data used, which
would include some cost report data
including the timeframe of the PHE. We
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note that were we to continue using cost
report data from prior to the PHE it
would potentially not be reflective of
more updated cost and charging
patterns. In this proposed rule, as
discussed in section X.F. of this
proposed rule, we propose a policy of
resuming our regular cost report update
process for CY 2024 OPPS ratesetting.
We note that these policy
considerations also have ASC
implications since the relative weights
for certain surgical procedures
performed in the ASC setting are
developed based on the OPPS relative
weights and claims data.
h. Health Equity Comment Solicitation
Advancing health equity is the first
pillar of the CMS 2022 Strategic
Framework.679 To gain insight into how
OPPS and ASC policies could affect
health equity, we are considering
adding elements to our impact analysis
that would detail how OPPS and ASC
policies impact particular beneficiary
populations. Beneficiary populations
that have been disadvantaged or
underserved by the healthcare system
may include patients with the following
characteristics, among others: members
of racial and ethnic minorities; members
of federally recognized Tribes; people
with disabilities; members of the
lesbian, gay, bisexual, transgender, and
queer (LGBTQ+) community;
individuals with limited English
proficiency; members of rural
communities; and persons otherwise
adversely affected by persistent poverty
or inequality.
We are seeking comment from
interested parties about how we might
structure an impact analysis that
addresses how OPPS and ASC changes
may impact beneficiaries of different
groups. We currently present OPPS
impacts by provider type, rural versus
urban area, geographic region, teaching
status, and ownership type. We are
interested in what health equity
questions we can examine within these
existing categories to better understand
the heath equity impact of our policies.
We also welcome suggestions about
adding new categories or measures of
health equity in our impact analyses,
such as using the area deprivation index
(ADI) as a proxy for disparities related
to geographic variation. Additionally,
we are seeking comment on ways to
continue building an OPPS health
equity framework that allows us to
develop policies that enhance health
equity under our existing statutory
authority.
679 Available at: https://www.cms.gov/files/
document/2022-cms-strategic-framework.pdf.
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i. Effects of Proposed IOP Policies on
Hospitals, CMHCs, FQHCs, RHCs, and
OTPs
As discussed in section VIII of this
proposed rule, we propose to establish
payment for intensive outpatient
services furnished by hospitals, CMHCs,
FQHCs, and RHCs under a new IOP
benefit. We also propose to establish
payment for intensive outpatient
services provided by OTPs under the
existing OTP benefit. Estimates of the
payment impacts for IOP furnished by
hospitals are included in Table 100 of
this proposed rule, based on utilization
in the CY 2022 claims for days that we
believe would likely be billed as IOP
beginning in CY 2024. Specifically, we
modeled non-PHP days furnished by
hospitals with 3 and 4 or more services
from Table 43 of this proposed rule and
at least one service from the list of
primary services shown in Table 44 of
this proposed rule.
Because CMHCs are currently only
permitted to bill for partial
hospitalization services, we are unable
to model payments for IOP APCs 5851
and 5852 based on utilization from CY
2022 claims. Therefore, the payment
impacts for IOP furnished by CMHCs
are not included in Table 100. However,
we anticipate there would be an
increase in utilization for CMHCs
beginning in CY 2024. We simulated
potential utilization for IOP APCs 5851
and 5852 based on estimates of the
volume of such services that we expect
would be provided beginning in CY
2024. We calculated the number of nonPHP 3-service and 4-service days in the
hospital setting, and compared this to
the number of PHP 3-service and 4service days in the hospital setting. We
applied the same ratio of non-PHP to
PHP days to estimate anticipated IOP
claims in the CMHC setting for CY 2024.
We believe this is appropriate, because
as discussed in section VIII.C of this
proposed rule, we propose that IOP and
PHP days would consist of the same
services and use the same HCPCS codes.
Therefore, for public awareness, we are
including projections about potential
IOP utilization for CMHCs using claims
with a comparable number and type of
services, which we believe is the best
available estimate of IOP utilization in
the future. Based on this methodology,
we estimate that CMHCs would provide
approximately 35,511 IOP days with
three services and approximately 22,558
IOP days with four or more services.
These projections correspond to an
estimated $6,593,452 in additional
payments to CMHCs for the provision of
intensive outpatient services. This
represents an increase of roughly 165
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percent relative to current CMHC
payments for partial hospitalization
services. We solicit comment on our
assumptions and the methodology used
to derive this estimate.
In section VIII.F.4 of this proposed
rule, we discuss the special payment
rules for FQHCs and RHCs to furnish
intensive outpatient services as
mandated by sections 4124(c)(1) and
(c)(2) of the CAA, 2023. For both FQHCs
and RHCs, we propose to set the IOP
payment rate as based on the per diem
payment amount determined for APC
5861 (Intensive Outpatient (3 services
per day) for hospital-based IOPs).
However, for IOP services furnished in
FQHCs, we propose that that payment
amount is based on the lesser of a
FQHC’s actual charges or the rate
determined for APC 5861. Additionally,
we propose that grandfathered tribal
FQHCs will continue to have their
payment based on the outpatient per
visit rate when furnishing IOP services.
That is, payment is based on the lesser
of a grandfathered tribal FQHC’s actual
charges or the outpatient per visit rate.
FQHCs and RHCs currently bill for
mental health services. Beginning
January 1, 2024 these settings will be
able to bill for certain mental health
services determined to be IOP services
that they were not able to furnish
previously, for example group therapy.
We anticipate there would be utilization
of IOP services for both RHCs and
FQHCs in CY 2024; however, since this
is a new program for both settings, we
are unable to project what that
utilization would be or the associated
Medicare expenditures. FQHCs and
RHCs typically furnish primary care
services therefore we believe that it may
take time for these settings to build the
internal framework needed to initiate
and foster an IOP. With regard to RHCs,
we note the statutory provision which
defines the term ‘‘rural health clinic’’ in
section 1861(aa)(2)(K)(iv) of the Act,
states that a RHC is not a facility which
is primarily for the care and treatment
of mental diseases. We believe this
provision could cause low utilization of
IOP services until RHCs can determine
what they can or cannot furnish.
Therefore, we believe extending
coverage for IOP services in FQHCs and
RHCs is unlikely to have a significant
impact on overall Medicare spending.
As discussed in section VIII.G of this
proposed rule, for CY 2024 and
subsequent years, we propose to
establish a weekly add-on code for IOP
services furnished by OTPs for the
treatment of opioid use disorder (OUD)
and to revise the definition of OUD
treatment services to include IOP
services. In accordance with our
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methodology for other add-on
adjustments to the bundled payment for
OUD treatment services, we propose to
apply an annual update based on the
Medicare Economic Index (MEI)
described in § 414.30, and apply a
geographic adjustment based on the
Geographic Adjustment Factor (GAF)
described in § 414.26. Under this
proposal, we would permit OTPs to bill
a new HCPCS code (GOTP1) for IOP
services based on a minimum of at least
nine IOP services furnished to eligible
patients per week, which would result
in a payment rate of $719.67.
We estimate that these proposed
policies to allow OTPs to bill for IOP
services beginning in CY 2024 would
result in a negligible cost increase. In
our analysis, we evaluated mental
health services furnished to
beneficiaries receiving care at OTPs,
including for levels of care and types of
services that are not currently reflected
in the OTP benefit. Approximately 557
OTPs offer IOP services nationwide
according to the National Substance Use
and Mental Health Services Survey in
2021.680 However, our analysis of
claims data from Medicare beneficiaries
receiving care under the OTP benefit
from CY 2020–2022 indicated a small
number of beneficiaries actually receive
intensive care services equivalent to 9
hours or more a week to meet the
minimum threshold for IOP services.
Specifically, 85 percent of Medicare
beneficiaries received only medications
for OUD with basic counseling and no
other mental health care, and thus did
not likely utilize a higher level of care
required for IOP services. For the
remaining 15 percent of Medicare
beneficiaries, approximately 0.5–0.7
percent received a higher acuity of care
likely to meet the minimum 9 hours or
more of services under IOPs. The
estimated total annual cost per Medicare
beneficiary with an OUD receiving IOP
services at an OTP would be
approximately $38,000, however, this
estimate assumes that a beneficiary
would require this level of care every
week of the calendar year, which we do
not believe would be likely. Therefore,
extending coverage for IOP services in
OTP settings is unlikely to have a
significant impact on overall Medicare
spending.
2. Estimated Effects of CY 2024 ASC
Payment System Changes
680 Substance Abuse and Mental Health Services
Administration, National Substance Use and Mental
Health Services Survey (N–SUMHSS), 2021:
Annual Detailed Tables. Rockville, MD: Substance
Abuse and Mental Health Services Administration,
2023. Weblink: https://www.samhsa.gov/data/sites/
default/files/reports/rpt39450/2021%20NSUMHSS%20Annual%20Detailed%20Tables_508_
Compliant_2_8_2023.pdf.
a. Limitations of Our Analysis
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Most ASC payment rates are
calculated by multiplying the ASC
conversion factor by the ASC relative
payment weight. As discussed fully in
section XIII of this proposed rule, we are
setting the CY 2024 ASC relative
payment weights by scaling the
proposed CY 2024 OPPS relative
payment weights by the proposed CY
2024 ASC scalar of 0.8649. The
estimated effects of the updated relative
payment weights on payment rates are
varied and are reflected in the estimated
payments displayed in Tables 101 and
102.
Beginning in CY 2011, section 3401 of
the Affordable Care Act requires that the
annual update to the ASC payment
system after application of any quality
reporting reduction be reduced by a
productivity adjustment. In CY 2019, we
adopted a policy for the annual update
to the ASC payment system to be the
hospital market basket update for CY
2019 through CY 2023. Section
1886(b)(3)(B)(xi)(II) of the Act defines
the productivity adjustment to be equal
to the 10-year moving average of
changes in annual economy-wide
private nonfarm business multifactor
productivity (as projected by the
Secretary for the 10-year period, ending
with the applicable fiscal year, year,
cost reporting period, or other annual
period). For ASCs that fail to meet their
quality reporting requirements, the CY
2024 payment determinations would be
based on the application of a 2.0
percentage point reduction to the
annual update factor, which would be
the hospital market basket update for
CY 2024. We calculated the proposed
CY 2024 ASC conversion factor by
adjusting the CY 2023 ASC conversion
factor by 1.0017 to account for changes
in the pre-floor and pre-reclassified
hospital wage indexes between CY 2023
and CY 2024 and by applying the CY
2024 productivity-adjusted hospital
market basket update factor of 2.8
percent (which is equal to the proposed
inpatient hospital market basket
percentage increase of 3.0 percent
reduced by a productivity adjustment of
0.2 percentage point). The proposed CY
2024 ASC conversion factor is $53.397
for ASCs that successfully meet the
quality reporting requirements.
Presented here are the projected
effects of the proposed changes for CY
2024 on Medicare payment to ASCs. A
key limitation of our analysis is our
inability to predict changes in ASC
service-mix between CY 2022 and CY
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2024 with precision. We believe the net
effect on Medicare expenditures
resulting from the proposed CY 2024
changes will be small in the aggregate
for all ASCs. However, such changes
may have differential effects across
surgical specialty groups, as ASCs
continue to adjust to the payment rates
based on the policies of the revised ASC
payment system. We are unable to
accurately project such changes at a
disaggregated level. Clearly, individual
ASCs would experience changes in
payment that differ from the aggregated
estimated impacts presented below.
b. Estimated Effects of ASC Payment
System Policies on ASCs
Some ASCs are multispecialty
facilities that perform a wide range of
surgical procedures from excision of
lesions to hernia repair to cataract
extraction; others focus on a single
specialty and perform only a limited
range of surgical procedures, such as
eye, digestive system, or orthopedic
procedures. The combined effect of the
proposed update to the CY 2024
payments on an individual ASC will
depend on a number of factors,
including, but not limited to, the mix of
services the ASC provides, the volume
of specific services provided by the
ASC, the percentage of its patients who
are Medicare beneficiaries, and the
extent to which an ASC provides
different services in the coming year.
The following discussion includes
tables that display estimates of the
impact of the proposed CY 2024 updates
to the ASC payment system on Medicare
payments to ASCs, assuming the same
mix of services, as reflected in our CY
2022 claims data. Table 101 depicts the
estimated aggregate percent change in
payment by surgical specialty or
ancillary items and services group by
comparing estimated CY 2023 payments
to estimated CY 2024 payments, and
Table 102 shows a comparison of
estimated CY 2023 payments to
estimated CY 2024 payments for
procedures that we estimate would
receive the most Medicare payment in
CY 2023.
In Table 101, we have aggregated the
surgical HCPCS codes by specialty
group, grouped all HCPCS codes for
covered ancillary items and services
into a single group, and then estimated
the effect on aggregated payment for
surgical specialty and ancillary items
and services groups. The groups are
sorted for display in descending order
by estimated Medicare program
payment to ASCs. The following is an
explanation of the information
presented in Table 101.
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• Column 1—Surgical Specialty or
Ancillary Items and Services Group
indicates the surgical specialty into
which ASC procedures are grouped and
the ancillary items and services group,
which includes all HCPCS codes for
covered ancillary items and services. To
group surgical procedures by surgical
specialty, we used the CPT code range
definitions and Level II HCPCS codes
and Category III CPT codes, as
appropriate, to account for all surgical
procedures to which the Medicare
program payments are attributed.
• Column 2—Estimated CY 2023 ASC
Payments were calculated using CY
2022 ASC utilization data (the most
recent full year of ASC utilization) and
CY 2023 ASC payment rates. The
surgical specialty groups are displayed
in descending order based on estimated
CY 2023 ASC payments.
• Column 3—Estimated CY 2024
Percent Change is the aggregate
percentage increase or decrease in
Medicare program payment to ASCs for
each surgical specialty or ancillary
items and services group that is
attributable to proposed updates to ASC
payment rates for CY 2024 compared to
CY 2023.
As shown in Table 101, for the six
specialty groups that account for the
most ASC utilization and spending, we
estimate that the final update to ASC
payment rates for CY 2023 will result in
a 6 percent increase in aggregate
payment amounts for eye and ocular
adnexa procedures, a 6 percent decrease
in aggregate payment amounts for
nervous system procedures, 3 percent
increase in aggregate payment amounts
for musculoskeletal system procedures,
a 7 percent increase in aggregate
payment amounts for digestive system
procedures, a 4 percent increase in
aggregate payment amounts for
cardiovascular system procedures, and a
6 percent increase in aggregate payment
amounts for genitourinary system
procedures. We note that these changes
can be a result of different factors,
including updated data, payment weight
changes, and changes in policy. In
general, spending in each of these
categories of services is increasing due
to the 2.8 percent payment rate update.
After the payment rate update is
accounted for, aggregate payment
increases or decreases for a category of
services can be higher or lower than a
2.8 percent increase, depending on if
payment weights in the OPPS APCs that
correspond to the applicable services
increased or decreased or if the most
recent data show an increase or a
decrease in the volume of services
performed in an ASC for a category. For
example, we estimate a 6 percent
increase in aggregate eye and ocular
adnexa procedure payments. The
increase in payment rates for eye and
ocular andexa procedures is a result of
increased OPPS relative weights as a
result of the APC restructuring to the
Intraocular APC family and is further
increased by the 2.8 percent ASC rate
update for these procedures.
Conversely, we estimate a 6 percent
decrease in nervous system procedures
related to the American Medical
Association’s RVU Update Committee
(RUC) estimated shift in utilization from
an existing high-cost neurostimulator
procedure (CPT code 64685) to a new,
lower-cost neurostimulator procedure
(CPT code 0X43T) for CY 2024. For
estimated changes for selected
procedures, we refer readers to Table
101 provided later in this section.
Table 102 shows the estimated impact
of the updates to the revised ASC
payment system on aggregate ASC
payments for selected surgical
procedures during CY 2024. The table
displays 30 of the procedures receiving
the greatest estimated CY 2023 aggregate
Medicare payments to ASCs. The
HCPCS codes are sorted in descending
order by estimated CY 2023 program
payment.
• Column 1—CPT/HCPCS code.
• Column 2—Short Descriptor of the
HCPCS code.
• Column 3—Estimated CY 2023 ASC
Payments were calculated using CY
2022 ASC utilization (the most recent
full year of ASC utilization) and the CY
2023 ASC payment rates. The estimated
CY 2023 payments are expressed in
millions of dollars.
• Column 4—Estimated CY 2024
Percent Change reflects the percent
differences between the estimated ASC
payment for CY 2023 and the estimated
payment for CY 2024 based on the
proposed update.
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c. Estimated Effects of ASC Payment
System Policies on Beneficiaries
We estimate that the CY 2024 update
to the ASC payment system will be
generally positive (that is, result in
lower cost-sharing) for beneficiaries
with respect to the new procedures to be
designated as office-based for CY 2024.
First, other than certain preventive
services where coinsurance and the Part
B deductible is waived to comply with
sections 1833(a)(1) and (b) of the Act,
the ASC coinsurance rate for all
procedures is 20 percent. This contrasts
with procedures performed in HOPDs
under the OPPS, where the beneficiary
is responsible for copayments that range
from 20 percent to 40 percent of the
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procedure payment (other than for
certain preventive services), although
the majority of HOPD procedures have
a 20-percent copayment. Second, in
almost all cases, the ASC payment rates
under the ASC payment system are
lower than payment rates for the same
procedures under the OPPS. Therefore,
the beneficiary coinsurance amount
under the ASC payment system will
almost always be less than the OPPS
copayment amount for the same
services. (The only exceptions will be if
the ASC coinsurance amount exceeds
the hospital inpatient deductible since
the statute requires that OPPS
copayment amounts not exceed the
hospital inpatient deductible. Therefore,
in limited circumstances, the ASC
coinsurance amount may exceed the
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hospital inpatient deductible and,
therefore, the OPPS copayment amount
for similar services.) Beneficiary
coinsurance for services migrating from
physicians’ offices to ASCs may
decrease or increase under the ASC
payment system, depending on the
particular service and the relative
payment amounts under the MPFS
compared to the ASC. While the ASC
payment system bases most of its
payment rates on hospital cost data used
to set OPPS relative payment weights,
services that are performed a majority of
the time in a physician office are
generally paid the lesser of the ASC
amount according to the standard ASC
ratesetting methodology or at the
nonfacility practice expense-based
amount payable under the PFS. For
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a. Background
We refer readers to the CY 2023
OPPS/ASC final rule (87 FR 72278
through 72279) for the previously
estimated effects of changes to the
Hospital OQR Program for the CY 2025
payment determination. Of the 3,097
hospitals that met eligibility
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requirements for the CY 2023 payment
determination for the Hospital OQR
Program, we determined that 77
hospitals did not meet the requirements
to receive the full annual Outpatient
Department (OPD) fee schedule increase
factor.
b. Impact of CY 2024 OPPS/ASC
Proposed Rule Policies
We do not anticipate that the
proposed Hospital OQR Program
policies would significantly impact the
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number of hospitals that will receive
payment reductions. In this proposed
rule, we propose to: (1) modify the
COVID–19 Vaccination Coverage
Among Healthcare Personnel (HCP)
measure, beginning with the CY 2024
reporting period/CY 2026 payment
determination; (2) modify the Cataracts:
Improvement in Patient’s Visual
Function Within 90 Days Following
Cataract Surgery measure beginning
with the voluntary CY 2024 reporting
period; (3) modify the Appropriate
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3. Effects of Changes in Requirements
for the Hospital Outpatient Quality
Reporting (OQR) Program
As required by OMB Circular A–4
(available on the Office of Management
and Budget website at: https://
www.whitehouse.gov/sites/
whitehouse.gov/files/omb/assets/OMB/
circulars/a004/a-4.html), we have
prepared accounting statements to
illustrate the impacts of the OPPS and
ASC changes in this proposed rule. The
first accounting statement, Table 103,
illustrates the classification of
expenditures for the CY 2024 estimated
hospital OPPS incurred benefit impacts
associated with the final CY 2024 OPD
fee schedule increase. The second
accounting statement, Table 104,
illustrates the classification of
expenditures associated with the 2.8
percent CY 2024 update to the ASC
payment system, based on the
provisions of this proposed rule and the
baseline spending estimates for ASCs.
Both tables classify most estimated
impacts as transfers. Table 105 includes
the annual estimated impact of hospital
OQR and ASCQR programs.
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Accounting Statements and Tables for
OPPS and ASC Payment System
EP31JY23.147
those additional procedures that we
proposed to designate as office-based in
CY 2024, the beneficiary coinsurance
amount under the ASC payment system
generally will be no greater than the
beneficiary coinsurance under the PFS
because the coinsurance under both
payment systems generally is 20 percent
(except for certain preventive services
where the coinsurance is waived under
both payment systems).
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Follow-Up Interval for Normal
Colonoscopy in Average Risk Patients
measure, beginning with the CY 2024
reporting period/CY 2026 payment
determination; (4) adopt the RiskStandardized Patient-Reported
Outcome-Based Performance Measure
(PRO–PM) Following Elective Primary
Total Hip Arthroplasty (THA) and/or
Total Knee Arthroplasty (TKA) in the
HOPD Setting (THA/TKA PRO–PM),
beginning with the voluntary CYs 2025
and 2026 reporting period followed by
mandatory reporting beginning with the
CY 2027 reporting period/CY 2030
payment determination; (5) adopt the
Excessive Radiation Dose or Inadequate
Image Quality for Diagnostic Computed
Tomography (CT) in Adults (Hospital
Level—Outpatient) electronic clinical
quality measure (eCQM), beginning with
the CY 2025 voluntary reporting period
followed by mandatory reporting
beginning with the CY 2026 reporting
period/CY 2028 payment determination;
(6) re-adopt with modification the
Hospital Outpatient Volume Data on
Selected Outpatient Surgical Procedures
measure, beginning with voluntary
reporting for the CY 2025 reporting
period and mandatory reporting
beginning with the CY 2026 reporting
period/CY 2028 payment determination;
and (7) remove the Left Without Being
Seen measure beginning with the CY
2024 reporting period/CY 2026 payment
determination.
We refer readers to section XXIV.B of
this proposed rule (information
collection requirements) for a detailed
discussion of the calculations estimating
the changes to the information
collection burden for submitting data to
the Hospital OQR Program where we
state that for purposes of burden
estimation, 3,350 hospitals will be
considered and Table 89 where we
estimate a total information collection
burden increase for 3,350 OPPS
hospitals of 67,004 hours at a cost of
$1,492,875 annually associated with our
proposed policies for the CYs 2024
reporting period/CY 2026 payment
determination and subsequent years,
compared to our currently approved
information collection burden estimates.
In section XIV.B.2.a of this proposed
rule, we propose to modify the COVID–
19 Vaccination Coverage among HCP
measure to utilize the term ‘‘up to date’’
in the HCP vaccination definition and
update the numerator to specify the
time frames within which an HCP is
considered up to date with
recommended COVID–19 vaccines,
including booster doses. Although we
anticipate this modification may require
some hospitals to update information
technology (IT) systems or workflow
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related to maintaining accurate
vaccination records for HCP, we assume
most hospitals are currently recording
all necessary information for HCP such
that this modification would not require
additional information to be collected.
Therefore, the financial impact of any
required updates would be minimal.
Finally, we do not estimate any changes
to the effects previously discussed in
the CY 2022 OPPS/ASC final rule for
the Hospital OQR Program (86 FR
63984).
In section XIV.B.2.b of this proposed
rule, we propose to modify the
Cataracts: Improvement in Patient’s
Visual Function Within 90 Days
Following Cataract Surgery measure by
limiting the survey instrument that can
be used to administer this measure to
three assessment tools: National Eye
Institute Visual Function Questionnaire
(NEI VFQ–25), Visual Function Index
(VF–14), and VF–8R. These surveys
were found to have fewer noted
limitations, present the lowest
administrative burden, and achieve
adequate validity and reliability
compared to other surveys. We
understand some hospitals may be
currently using one of the other surveys
which would no longer be allowable for
collecting data for this measure,
however, we believe any costs
associated with modifying clinical
practices would be negligible as these
surveys are all publicly available at no
additional cost and are comparable
survey instruments in form and manner
for data collection and measure
calculation to other surveys used for
this measure.
In section XIV.B.3.b of this proposed
rule, we propose the adoption of the
THA/TKA PRO–PM. We assume the
effects on outpatient hospitals would be
similar to the effects previously
discussed in the FY 2023 IPPS/LTCH
PPS final rule for the inpatient hospital
setting under the Hospital Inpatient
Quality Reporting (IQR) Program (87 FR
49492). For hospitals that would not
already be collecting these data for the
Hospital IQR Program, there would be
some non-recurring costs associated
with changes in workflow and IT
systems to collect the data for the
Hospital OQR Program. The extent of
these costs is difficult to quantify as
different hospitals may utilize different
modes of data collection (such as paperbased, electronically patient-directed, or
clinician-facilitated). While we assume
the majority of hospitals would report
data for this measure directly to CMS
via the CMS-designated information
system (currently, the Hospital Quality
Reporting (HQR) system), we assume
some hospitals may elect to submit
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measure data using a third-party vendor,
for which there are associated costs. To
determine an estimate of third-party
vendor costs, we looked at the Hospital
Consumer Assessment of Healthcare
Providers and Systems (HCAHPS)
measure (OMB control number 0938–
098; expiration date September 30,
2024), which used an estimate of
approximately $4,000 per hospital to
account for these costs. This per
hospital cost estimate originates from
this Paperwork Reduction Act analysis
performed for 2012, therefore, to
account for inflation (assuming end of
CY 2012 to January CY 2023), we adjust
the price using the Bureau of Labor
Statistics Consumer Price Index and
estimate an updated cost of
approximately $5,212 ($4,000 × 130.3
percent).681
In section XIV.B.3.c of this proposed
rule, we propose the adoption of the
Excessive Radiation Dose or Inadequate
Image Quality for Diagnostic CT in
Adults (Hospital Level—Outpatient)
eCQM. Similar to the CY 2022 OPPS/
ASC final rule (86 FR 63837 through
63840), we believe that costs associated
with adoption of eCQMs are
multifaceted and include not only the
burden associated with reporting but
also the costs associated with
implementing and maintaining program
requirements, such as maintaining
measure specifications in hospitals’
electronic health record (EHR) systems
for the eCQMs used in the Hospital OQR
Program (83 FR 41771).
Regarding the remaining proposals,
we do not believe any of these proposals
would result in any additional
economic impact beyond those
discussed in section XXIV ‘‘Collection
of Information’’ of this proposed rule, if
adopted.
4. Effects of Requirements for the
Ambulatory Surgical Center Quality
Reporting (ASCQR) Program
a. Background
In section XV of this proposed rule,
we discuss our proposed policies
affecting the ASCQR Program. For the
CY 2023 payment determination, of the
5,697 Ambulatory Surgical Centers
(ASCs) that met eligibility requirements,
we determined that 516 ASCs did not
meet the requirements to receive the full
annual payment rate update under the
ASC fee schedule.
681 U.S. Bureau of Labor Statistics. Historical CPI–
U data. Accessed on March 9, 2023. Available at:
https://www.bls.gov/cpi/tables/supplemental-files/
historical-cpi-u-202301.pdf.
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b. Impact of CY 2024 OPPS/ASC
Proposed Policies
In this proposed rule, we propose to:
(1) modify the COVID–19 Vaccination
Coverage Among Healthcare Personnel
(HCP) measure, beginning with the CY
2024 reporting period/CY 2026 payment
determination; (2) modify the Cataracts:
Improvement in Patient’s Visual
Function Within 90 Days Following
Cataract Surgery measure beginning
with the voluntary CY 2024 reporting
period; (3) modify the Endoscopy/Polyp
Surveillance: Appropriate Follow-Up
Interval for Normal Colonoscopy in
Average Risk Patients measure,
beginning with the CY 2024 reporting
period/CY 2026 payment determination;
(4) re-adopt with modification the ASC
Facility Volume Data on Selected ASC
Surgical Procedures measure, beginning
with voluntary reporting for the CY
2025 reporting period followed by
mandatory reporting beginning with the
CY 2026 reporting period/CY 2028
payment determination; and (5) adopt
the Risk-Standardized Patient-Reported
Outcome-Based Performance Measure
(PRO–PM) Following Elective Primary
Total Hip Arthroplasty (THA) and/or
Total Knee Arthroplasty (TKA) in the
ASC Setting (THA/TKA PRO–PM),
beginning with voluntary CYs 2025 and
CY 2026 reporting periods followed by
mandatory reporting beginning with the
CY 2027 reporting period/CY 2030
payment determination.
We refer readers to section XXIV.C of
this proposed rule (information
collection requirements) for a detailed
discussion of the calculations estimating
the changes to the information
collection burden for submitting data to
the ASCQR Program and Table 94 where
we estimate a total information
collection burden increase for 5,057
ACSs of 7,689 hours at a cost of
$238,675 annually associated with our
proposed policies and updated burden
estimates for the CY 2025 reporting
period/CY 2027 payment determination
and subsequent years, compared to our
currently approved information
collection burden estimates.
In section XV.B.4.a of this proposed
rule, we propose to modify the COVID–
19 Vaccination Coverage among HCP
measure to utilize the term ‘‘up to date’’
in the HCP vaccination definition and
update the numerator to specify the
time frames within which an HCP is
considered up to date with
recommended COVID–19 vaccines,
including booster doses. Although we
anticipate this modification may require
some facilities to update information
technology (IT) systems or workflow
related to maintaining accurate
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vaccination records for HCP, we assume
most facilities are currently recording
all necessary information for HCP such
that this modification would not require
additional information to be collected
and, therefore, the financial impact of
any required updates would be
minimal. Finally, we do not estimate
any changes to the effects previously
discussed in the CY 2022 OPPS/ASC
final rule for the ASCQR Program (86 FR
63985).
In section XV.B.4.b of this proposed
rule, we propose to modify the
Cataracts: Improvement in Patient’s
Visual Function Within 90 Days
Following Cataract Surgery measure by
limiting the survey instrument that can
be used to administer this measure to
three assessment tools: NEI VFQ–25,
VF–14, and VF–8R. These surveys were
found to have fewer noted limitations,
present the lowest administrative
burden, and achieve adequate validity
and reliability compared to other
surveys. We understand some ASCs
may be currently using one of the other
surveys which would no longer be
allowable for collecting data for this
measure, however, we believe any costs
associated with modifying clinical
practices would be negligible as these
surveys are all publicly available at no
additional cost and are comparable
survey instruments in form and manner
for data collection and measure
calculation to other surveys used for
this measure.
In section XV.B.5.b of this proposed
rule, we propose the adoption of the
THA/TKA PRO–PM. We assume the
effects on ASCs would be similar to
those previously finalized for the
inpatient hospital setting under the
Hospital IQR Program as discussed in
the FY 2023 IPPS/LTCH PPS final rule
(87 FR 49492). For ASCs that are not
currently collecting these data, there
would be some non-recurring costs
associated with changes in workflow
and information systems to collect the
data. The extent of these costs is
difficult to quantify as different ASCs
may utilize different modes of data
collection (such as paper-based,
electronically patient-directed, or
clinician-facilitated). While we assume
the majority of ASCs would report data
for this measure directly to CMS via the
CMS-designated information system
(currently, the HQR System), we also
assume some ASCs may elect to submit
measure data via a third-party vendor,
for which there are associated costs. To
determine an estimate of third-party
vendor costs, we looked at the HCAHPS
measure (OMB control number 0938–
0981; expiration date September 30,
2024), which used an estimate of
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approximately $4,000 per hospital to
account for these costs. This estimate
originates from 2012, therefore, to
account for inflation (assuming end of
CY 2012 to January CY 2023), we adjust
the price using the Bureau of Labor
Statistics Consumer Price Index and
estimate an updated cost of
approximately $5,212 ($4,000 × 130.3
percent).682
Regarding the remaining proposals,
we do not believe any of these proposals
would result in any additional
economic impact beyond those
discussed in section XXIV ‘‘Collection
of Information’’ of this proposed rule, if
adopted.
5. Effects of Requirements for the Rural
Emergency Hospital Quality Reporting
(REHQR) Program
a. Background
In section XVI of this proposed rule,
we discuss our proposed policies
affecting the REHQR Program. We
propose to adopt four new measures,
beginning with the CY 2024 reporting
period: (1) the Abdomen Computed
Tomography (CT)—Use of Contrast
Material measure; (2) the Median Time
from ED Arrival to ED Departure for
Discharged ED Patients measure; (3) the
Facility 7-Day Risk-Standardized
Hospital Visit Rate After Outpatient
Colonoscopy measure; and (4) the RiskStandardized Hospital Visits Within 7
Days After Hospital Outpatient Surgery
measure.
We refer readers to section XXIV.D
‘‘Collection of Information’’ of this
proposed rule for a detailed discussion
of the calculations estimating the
changes to the information collection
burden for submitting data to the
REHQR Program and Table 96 where we
estimate a total information collection
burden for 746 REHs of 9,101 hours at
a cost of $474,344 annually associated
with our proposed policies for the CY
2024 reporting period and subsequent
years. Regarding the remaining
proposals, we do not believe any of
these proposals would result in any
additional economic impact beyond
those discussed in section XXIV
‘‘Collection of Information’’ of this
proposed rule, if adopted.
b. Impact of CY 2024 OPPS/ASC
Proposed REHQR Program Policies
For CY 2024, we have determined
there are 1,716 CAHs and rural
subsection (d) hospitals with 50 or
fewer beds that are eligible to convert to
682 U.S. Bureau of Labor Statistics. Historical CPI–
U data. Accessed on March 9, 2023. Available at:
https://www.bls.gov/cpi/tables/supplemental-files/
historical-cpi-u-202301.pdf.
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become an REH in the nation. Based on
the March 2023 numbers of REH-eligible
hospitals currently in the Hospital OQR
program and in states with REH
licensure provisions, we estimate 746
hospitals which could convert to REH
status, and we use this number of REHs
for our impact analyses. We
acknowledge that the number of
conversions could be less than or
significantly greater than this estimate.
As hospitals eligible to convert to
REH status have been eligible to report
quality measures under the Hospital
OQR Program and most of these
hospitals have been reporting, we do not
believe any of our administrative
proposals would result in additional
impact on these hospitals.
6. Estimated Effects of Changes to the
CMHC CoPs
a. Impacts Related to Conditions of
Participation: Admission, Initial
Evaluation, Comprehensive Assessment,
and Discharge or Transfer of the Client
(§ 485.914)
Under the Medicare Program, in
accordance with section 4124 of
division FF of the CAA. 2023, we
propose conforming regulations text
changes to establish coverage for
Intensive Outpatient Services (IOP) in
CMHC at § 485.914 ‘‘Admission, initial
evaluation, comprehensive assessment,
and discharge or transfer of the client’’.
At § 485.914(a), we require that for
clients who are assessed and admitted
to receive partial hospitalization
services, the CMHC must also meet
separate requirements specified in
§ 485.918(f). In § 418.918(d)(2), we
propose to add IOP services to the
update of the assessment no less
frequently than every 30 days. We do
not expect any increase in burden for
this modification, nor do we expect the
changes for this provision will cause
any appreciable expense or anticipated
savings. Therefore, we do not believe
this standard would impose any
additional regulatory burden.
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b. Impacts Related to Conditions of
Participation: Treatment Team, PersonCentered Active Treatment Plan, and
Coordination of Services (§ 485.916)
This standard requires the active
treatment plan to be updated with
current information from the client’s
comprehensive assessment and
information concerning the client’s
progress toward achieving outcomes
and goals specified in the active
treatment plan. With the addition of IOP
services to CMHCs, we believe it is
necessary to add IOP into this
requirement and to reference the
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specific IOP program requirements
being proposed in section VIII.B.2 at
§ 424.24(d) of this proposed rule. We do
not expect any increase in burden for
this modification, nor do we expect the
changes for this provision will cause
any appreciable expense or anticipated
savings. Therefore, we do not believe
this standard would impose any
additional regulatory burden.
7. Impacts Related to Conditions of
Participation: Organization,
Governance, Administration of Services,
Partial Hospitalization Services
(§ 485.918)
The requirement at § 485.918(b)
Standard: Provision of services,
specifies a comprehensive list of
services that a CMHC is required to
furnish. This list of services that CMHCs
provide corresponds directly to the
Statutory requirements in (section
1861(ff)(3) of the Act). We propose to
modify the title at § 485.918, by adding
intensive outpatient services after
partial hospitalization services. In
addition, we propose to add IOP to the
requirement at § 485.918(b)(1)(iii) for
the provision of services. This proposed
change will recognize IOP, along with
day treatment and PHP, as services that
can be provided by a CMHC, other than
in an individual’s home or in an
inpatient or residential setting, or
psychosocial rehabilitation services.
Lastly, we propose to add a new
standard for IOP services at § 485.918(g).
This new requirement would specify the
additional requirements a CMHC
providing IOP services must meet under
proposed requirements at § 410.2,
§ 410.44, § 410.111, and § 424.24(d) of
this chapter. We believe that modifying
the title of this CoP to include IOP
services, as well as adding IOP services
to § 485.918(b)(1)(iii) and the proposed
new standard at § 485.918(g) will not
increase the burden for this
modification. In addition, we do not
expect the changes to this provision will
cause any appreciable amount of
expense or anticipated savings, and we
do not believe this standard would
impose any additional regulatory
burden.
8. Effects of Proposals Relating to
Hospital Price Transparency
a. Background
Since the hospital price transparency
regulation’s (at 45 CFR 180) effective
date on January 1, 2021, hospitals have
been required to make their standard
charges available to the public. Various
interested parties have reported success
in using the data to realize savings.
These interested parties come from
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various parts of the healthcare industry
and range from individuals to large
organizations. Individual consumers of
healthcare have accessed the pricing
data to shop for care and save money,
and they have created tutorials to teach
others how to use this information to
achieve similar results.683 Employers
have used the data to reconsider their
employee healthcare plans and
renegotiate hospital contracts.684 685 686
Innovators have identified and
aggregated the data allowing consumers
of healthcare to more easily make
meaningful comparisons.687 Insurers
have evaluated data, identified hospitals
that are cost outliers, and successfully
renegotiated their contracts.688
Researchers 689 and industry experts 690
continue to expose potential savings by
publishing on variation in negotiated
charges and discounted cash prices for
the same items and services both within
and across hospitals. Taken together,
such actions can motivate hospitals to
compete on prices. Furthermore, as
interested parties continue to identify
new sources of value in this pricing
data, the full potential is likely beyond
what we previously imagined.
As discussed in more detail in section
XVIII of this proposed rule, we believe
the revisions we are proposing a number
of changes to the hospital price
transparency regulations at 45 CFR 180
683 R&R Insurance. How I Saved Over 1K.
Available at: https://rrins.wistia.com/medias/
rkefb7g3aq.
684 Minemyer, P. New Playbook Aims to Help
Employers, Plan Sponsors Negotiate Hospital
Prices. Fierce Healthcare. September 8, 2022.
Available at: https://www.fiercehealthcare.com/
payers/new-playbook-aims-help-employers-plansponsors-negotiate-hospital-prices.
685 Hansard, S. One County Combed Hospital
Data to Slash Health Plan Costs 43 percent.
Bloomberg. February 6, 2023. Available at: https://
news.bloomberglaw.com/health-law-and-business/
employer-health-plan-eyes-43-savings-frompayment-data-audits.
686 Hansard, S. Employer, Hospital Tensions Rise
Over Price Transparency. Bloomberg. August 2,
2022. Available at: https://news.bloomberglaw.com/
health-law-and-business/tensions-betweenemployers-hospitals-up-with-transparency-push.
687 Turquoise Health. Patients—Shop Healthcare
Like You Shop Anything Else. Available at: https://
turquoise.health/patients.
688 Pierce, S. Why BlueCross Blue Shield
Tennessee is Renegotiating Provider Network
Contracts. The Tennessean. August 18, 2022.
Available at: https://www.tennessean.com/story/
opinion/2022/08/18/bluecross-blue-shieldtennessee-health-insurance-contracts/
10333329002/.
689 Mouslim, M., Henderson, M. How New Data
on Hospital ‘‘Discounted Cash Prices’’ Might Lead
to Patient Savings. Health Affairs. November 8,
2021. Available at: https://www.healthaffairs.org/
do/10.1377/forefront.20211103.716124/full/.
690 Smith, C., et al. Hospital Price Transparency
Data: Case Studies for How to Use It. Milliman. May
3, 2022. Available at: https://us.milliman.com/en/
insight/hospital-price-transparency-data-casestudies-for-how-to-use-it.
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to accelerate automated aggregation of
hospital standard charge information,
improve the public’s ability to
meaningfully understand and use the
data, and support and streamline CMS
compliance efforts. We propose to: (1)
define several new terms; (2) require
hospitals to include standard charge
information for an increased number of
data elements within the MRF and to
conform to a CMS template layout data
encoding specifications; (3) require
hospitals to include a txt file in the root
folder that includes a direct link to the
MRF and a link in the footer on its
homepage that links directly to the
publicly available web page that hosts
the link to the MRF; and (4) improve our
enforcement process by updating our
methods to assess hospital compliance,
requiring hospitals to acknowledge
receipt of warning notices, working with
health system officials to address
noncompliance issues in one or more
hospitals that are part of a health
system, and publicizing more
information about CMS enforcement
activities related to individual hospital
compliance. Additionally, we are
seeking comment on additional
considerations for improving
compliance and aligning consumerfriendly policies and requirements with
other federal price transparency
initiatives.
b. Overall Estimated Burden on
Hospitals Due to Hospital Price
Transparency Requirements
The hospital price transparency
proposed policies are estimated to
increase burden on hospitals (as defined
at 45 CFR 180.20), as detailed in section
XXIV ‘‘Collection of Information’’,
including a one-time cost and increased
ongoing costs. However, we believe that
the benefits to the public justify this
proposed regulatory action.
To analyze the costs of this proposed
requirement, we used a baseline that
assumes the existing requirements
(adopted in the CY 2020 HPT final rule
and the CY 2022 OPPS/ASC final rule
and codified at 45 CFR 180) remain in
place over the time horizon of this RIA.
That is, the retrospective analysis and
revised cost estimates for recurring
administrative burden contained in
section XXIV ‘‘Collection of
Information’’ inform our baseline
scenario of no further regulatory action.
As detailed in the Collection of
Information section, we estimate a onetime cost for this proposed requirement
of approximately $2,787 per hospital, or
$19,784,539 ($2,787 × 7,098) for all
hospitals combined. To estimate a lower
bound of potential burden, we assume
hospitals may be sorted into three
subsets. First, we note that the proposed
MRF templates have been available
since November 2022 and a number of
hospitals may be already voluntarily
meeting these proposed requirements.
As a result, a potentially large subset of
these hospitals with robust information
systems who are fully compliant may
only need to review this regulation to
ensure that these proposed requirements
are being met, which represents our low
estimate. A second group of hospitals
may have less flexible information
systems and limited ability to leverage
their existing ad-hoc efforts to adapt to
the new requirements; for these
hospitals we assume the full collection
and implementation cost estimated
above. A third subset of hospitals are
assumed to not currently be meeting the
requirements of existing HPT
regulations and would be effectively
implementing HPT requirements for the
first time. The marginal burden on these
hospitals would be limited to the
difference in burden under the proposed
regulation compared to the existing
requirements which the hospital has yet
to comply with; we assume the marginal
burden to only be 20 percent of the
preceding group because these hospitals
would have been required to comply
with existing regulations regardless of
the new proposals. For the low estimate
we assume hospitals are distributed 40,
40, and 20 percent across the three
subsets described above, respectively.
Finally, to account for uncertainty
inherent in these types of estimates of
administrative costs, we also provide a
high estimate which reflects
administrative burden 50 percent
greater than the primary estimate also
detailed in section XXIV ‘‘Collection of
Information’’ of this proposed rule.
These cost range estimates are displayed
in Table 106.
In the CY 2020 HPT final rule, we
estimated an on-going annual burden of
46 hours per hospital with a cost of
$3,610.88 per hospital, resulting in a
total national burden of 276,092 hours
and total cost of $21,672,502. We
anticipate the proposals in this
proposed rule would increase hospital
annual burden by 8 hours per year, as
discussed in greater detail in section
XXIV ‘‘Collection of Information’’ of this
proposed rule. This would result in an
increase the total national annual
burden to 383,292 hours (54 hours x
7,098 hospitals) and an annual national
cost of $32,370,571 dollars ($4,560.52
per respondent x 7,098 hospitals). This
represents a $10,698,069 ($32,370,571—
$21,672,502) increase over our previous
estimated national annual burden for
subsequent years.
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c. Benefits of Proposals
Although we cannot quantify the
benefits of including additional data
elements and encoding such data in a
CMS template layout, as proposed in
this rule, we believe the proposed
standardization requirements would
help streamline the development and
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consumption of the MRF data, making
it more actionable for consumers,
employers, third party tool developers,
and researchers.
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(1) Benefits to Hospitals
We believe that requiring the
proposed CMS template would assist
hospitals with implementing the
hospital price transparency regulation
and would improve compliance rates,
thereby supporting the overarching goal
of increasing healthcare pricing
competition and lowering costs. As
discussed in section XXIV ‘‘Collection
of Information’’ of this proposed rule,
hospitals have sought clarification on
how to display their standard charges,
particularly payer-specific negotiated
charges established by the hospital, and
they have indicated that having access
to a CMS-developed template could be
useful for improving hospital
compliance with the HPT regulation.691
As we noted in section XXIV
‘‘Collection of Information’’ of this
proposed rule, in response to the CY
2022 OPPS/ASC final rule request for
information, hospitals urged CMS to be
more prescriptive, requesting that CMS
standardize the MRF format and
contents. Additionally, researchers and
experts suggest that a clear standard
format would better support hospital
compliance with the
regulation.692 693 694 695 This sentiment
was echoed in a Congressional hearing,
when witnesses favored a standard
template for MRF data, as a means, to
support more hospitals complying with
the regulation.696
691 American Hospital Association. AHA
Statement on Lowering Unaffordable Costs:
Examining Transparency and Competition in
Health Care. March 28, 2023 https://www.aha.org/
testimony/2023-03-28-aha-statement-loweringunaffordable-costs-examining-transparency-andcompetition-health-care.
692 The State of Hospital Pricing Transparency in
Texas. Texas 2036. Available at: https://
pricetransparency.texas2036.org/.
693 Fourth Semi-Annual Hospital Price
Transparency Report. Patient Rights Advocate.
February 14, 2023. Available at: https://
www.patientrightsadvocate.org/february-semiannual-compliance-report-2023.
694 Severn, Chris. Price Transparency Hospital
Data: Why Am I Seeing Different Assessments of
Hospital Compliance? Turquoise Health. October
18, 2022. Available at: https://blog.turquoise.health/
hospital-compliance-assessments/.
695 Andrews, M. A Progress Check on Hospital
Price Transparency. KFF News. March 29, 2023.
Available at: https://kffhealthnews.org/news/article/
hospital-price-transparency-federal-rule-checkup2023/?utm_campaign=KHN%3A%20Daily%20
Health%20Policy%20Report&utm_
medium=email&_hsmi=252217703&_
hsenc=p2ANqtz-9H9illkRczNZhnmE0zhKuwC1oytc
Dvawv29aM7Fq7gAXWHc_9mjsY3PZkLrJX2vjIDAD
MQaZ0Yh01jC-NkJqQqflpFlg&utm_
content=252217703&utm_source=hs_email.
696 ‘‘Lowering Unaffordable Costs: Examining
Transparency and Competition in Health Care.’’
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(2) Benefits to Other Interested Parties
As discussed in the CY 2020 HPT
final rule (84 FR 65538), we believe
public access to hospital standard
charge information can be useful to the
public, including patients who need to
obtain items and services from a
hospital, consumers of healthcare who
wish to view hospital prices prior to
selecting a hospital, clinicians who use
the data at the point of care when
making referrals, employers searching
for lower cost options for healthcare
coverage, and other users of the data
who may develop consumer-friendly
price transparency tools or perform
analyses to drive value-based policydevelopment. Since the establishment of
the HPT regulation, innovators have
made price information accessible to
researchers, academics, employers, and
the public. Numerous peer-reviewed
academic studies have used the MRF
data to conduct price
analyses.697 698 699 700 Additionally,
journalists and news outlets are now
commonly conducting their own price
analyses and research with HPT data
obtained either directly from the
hospital MRF or vendor price estimator
tools. For example, some have
compared prices of common medical
procedures like childbirth, or hip and
knee replacements among hospitals
within specific regions.701 702 Across
Congressional House Committee on Energy and
Commerce, Subcommittee on Health. March 28,
2023. Available at: https://
energycommerce.house.gov/events/healthsubcommittee-hearing-lowering-unaffordable-costsexamining-transparency-and-competition-in-healthcare
697 Gul, Z., et al. Large Variations in the Prices of
Urologic Procedures at Academic Medical Centers
1 Year After Implementation of the Price
Transparency Final Rule. JAMA. January 5, 2023.
Available at: https://jamanetwork.com/journals/
jamanetworkopen/fullarticle/2800088.
698 Rochlin, D., et al. Commercial Price Variation
for Breast Reconstruction in the Era of Price
Transparency. JAMA. December 14, 2022. Available
here: https://jamanetwork.com/journals/
jamasurgery/article-abstract/2799698.
699 Jiang, X., et al. Price Variability for Common
Radiology Services Within U.S. Hospitals.
Radiology. October 18, 2022. Available at: https://
pubs.rsna.org/doi/10.1148/radiol.221815.
700 Mullens, C., et al. Evaluation of Prices for
Surgical Procedures Within and Outside Hospital
Networks in the US. JAMA. February 13, 2023.
Available at: https://jamanetwork.com/journals/
jamanetworkopen/fullarticle/2801354?utm_
source=For_The_Media&utm_
medium=referral&utm_campaign=ftm_links&utm_
term=021323.
701 Maddox, W. How Much Do Insurance Plans
Pay for Childbirth in North Texas? D Magazine.
April 11, 2023. Available at: https://
www.dmagazine.com/healthcare-business/2023/04/
how-much-do-insurance-plans-pay-for-childbirthin-north-texas/.
702 Analysis: Inconsistencies Within Hospital
Price Transparency Data Make Costs Comparisons
Difficult. KFF. February 10, 2023. Available at:
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49909
these publications, authors routinely
state that some price comparisons may
not be fully accurate due to lack of
specificity and standardization of the
available hospital MRF data.
Early feedback from interested parties,
particularly from IT specialists,
researchers, employers, and others who
seek to use the standard charge
information that hospitals are now
required to make public, has indicated
that increased standardization may be
necessary to improve the public’s
understanding of the standard charges
established by hospitals and the public’s
ability to make comparisons of standard
charges from one hospital to the next.
The proposed data elements and CMS
templates would not only support
hospitals in complying with the rule but
also improve the quality and usefulness
of MRF data available to consumers of
the data, including researchers,
innovators, employers, and payers.
Studies suggest that standardization
would improve the accuracy of price
comparisons, the quality and usefulness
of MRF data, and perhaps reduce wide
variations in hospital prices.703 704 In a
previous rule, we cited literature
regarding consumer engagement with
existing price transparency
interventions demonstrating that
disclosing price information positively
impacts consumers of healthcare by
allowing them to compare prices for
common procedures and shift their
demand towards lower-priced options
(84 FR 65600). Similarly, studies have
indicated that, as these MRF analyses
are becoming more widespread,
consumers are able to make better use
of the pricing information.
Standardization would likely remove
many of the existing barriers to allow
innovators to create more useful data
products for consumers of healthcare
and reduce some of the uncertainty that
currently exists about how hospitals
establish standard charges for the items
and services they provide.705
https://www.kff.org/health-costs/press-release/
analysis-inconsistencies-within-hospital-pricetransparency-data-make-cost-comparisonsdifficult/.
703 Lo, J, et al. Ongoing Challenges with Hospital
Price Transparency. Peterson-KFF Health System
Tracker. February 10, 2023. Available here: https://
www.healthsystemtracker.org/brief/ongoingchallenges-with-hospital-price-transparency/#Select
%20data%20for%20University
%20of%20Chicago%20Hospitals.
704 Hospital Price Transparency: Understanding
and Using the Data. National Consumer Law Center.
January 25, 2023. Available at: https://
www.nclc.org/event/hospital-pricing-transparencyunderstanding-and-using-the-data/.
705 Severn, Chris. Price Transparency Impact
Report Q3 2022. Turquoise Health. October 19,
2022. Available at: https://s3.us-west-
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d. Consideration of Increased Burden to
Hospitals Due to Hospital Price
Transparency Proposals
ddrumheller on DSK120RN23PROD with PROPOSALS2
(1) Proposals Related to MRF
Standardization and Accessibility of
Hospital MRFs
Many hospitals have expressed
concern over two major hurdles in
implementing the HPT rule
requirements: administrative burden 706
and cost,707 708 and we acknowledge that
the proposals for increasing the data
elements and requiring use of a CMS
template would impose an additional
one-time burden on hospitals. However,
for the reasons discussed in this
proposed rule, we believe that
transparency is necessary to improve
healthcare value, and that the proposals
related to MRF standardization would
assist hospitals in implementing the
HPT regulations and assist numerous
interested parties by creating clearer,
more accurate data for purposes of price
comparison and data analysis that can
then be used to drive down healthcare
costs. We believe these benefits justify
the additional burden to hospitals. We
continue to believe that improved
hospital compliance with the required
disclosure of this pricing information
would allow providers, hospitals,
insurers, employers, and patients to
begin to engage each other and better
utilize market forces to address the high
cost of healthcare in a more widespread
fashion. In addition, we continue to
believe, as we noted in the CY 2020
HPT final rule (84 FR 65528), that there
is a direct connection between
transparency in hospital standard
charge information and having more
affordable healthcare and lower
healthcare costs.
In our CY 2020 HPT final rule, we
finalized requirements for MRF
accessibility. We prioritized
accessibility because we want to be sure
hospital standard charge information
can be available for use by the public for
1.amazonaws.com/assets.turquoise.health/impact_
reports/TQ_Price-Transparency-Impact-Report_
2022_Q3.pdf.
706 Kacik, A. Hospital Price Transparency: Fines
or Full Compliance? Modern Healthcare. January
24, 2023. Available at: https://
www.modernhealthcare.com/finance/hospitalprice-transparency-compliance-cms-deaconesssanford.
707 Jiang, J., et al. Price Transparency in HospitalsCurrent Research and Future Directions. JAMA.
January 5, 2023. Available at: https://
jamanetwork.com/journals/jamanetworkopen/
fullarticle/2800088.
708 Meghjani, T. Lawmakers Question Why
Hospital Pricing Isn’t Living Up to Transparency
Goals. Bloomberg. March 28, 2023. Available at:
https://www.bloomberg.com/news/articles/2023-0328/what-s-the-best-way-to-compare-hospital-costsus-hearing-seeks-transparency?leadSource
=uverify%20wall#xj4y7vzkg.
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creating price transparency tools, to be
integrated into EHRs for purposes of
clinical decision making and referrals,
or to be used by researchers and policy
officials to help bring more value to
healthcare (45 FR 65555). Despite the
requirement for the MRF and the
standard charge information contained
in that file to be digitally searchable and
the required naming convention, users
of the MRF information, such as IT
developers and innovators, continue to
express concerns related to challenges
in efficiently aggregating the files in an
automated way. Some innovators and
researchers noted the difficulty in
locating hospital MRFs because they are
posted on obscure website locations or
with links redirecting to vendor
websites.709 710 We believe that ensuring
the MRFs and the data contents are
easily accessible to automation aligns
with the intended use of the MRFs and
their content. Therefore, to increase
access to the MRFs, we propose to
require hospitals to post a .txt file to the
root folder of the public website. To
reduce burden on hospitals, CMS would
provide both plain language instruction
and develop a .txt generator to support
this proposed requirement.
As we noted in the preamble, there
would be several benefits to requiring a
hospital to post a .txt file to the root
folder of the public website. This
proposed requirement would allow for
automated tools to directly link to the
MRF, as opposed to the manual location
of the correct web page within the
website and may make the location of
the MRFs more visible to individual
consumers who are manually searching
for such files. We believe that the
benefit of automating the identification
of the MRF location would outweigh the
minimal burden to maintainers of the
public web page that hosts the MRF.
(2) Improvements in CMS Enforcement
of Hospital Price Transparency
In the CY 2020 HPT final rule (84 FR
65525), we finalized actions to address
hospital noncompliance by requiring
hospitals determined by CMS to be in
material violation of the HPT
regulations to submit a corrective action
plan (CAP) and to comply with the
requirements of the CAP. For hospitals
that fail to respond to or comply with
the CAP, CMS may impose CMPs and
709 Zuradzki, P. How to Parse Hospital Price
Transparency Files. Turquoise Health. October 3,
2022. Available at: https://blog.turquoise.health/
how-to-parse-hospital-price-transparency-files/.
710 Fourth Semi-Annual Hospital Price
Transparency Report. Patient Rights Advocate.
February 14, 2023. Available at: https://
www.patientrightsadvocate.org/february-semiannual-compliance-report-2023.
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publicize these penalties on a CMS
website. However, there are many
nuances and complexities associated
with the way hospitals establish
standard charges that can lead to
questions related to the accuracy and
completeness of the standard charges
information that is included in a
hospital’s MRF. As mentioned before,
we have found it is necessary to employ
methods beyond a simple audit of a
hospital’s website to definitively assess
hospital compliance. Although we
expect that the deployment of a
standardized MRF template would
mitigate many of these questions, we
may need additional clarification from
the hospital to assess or determine
accuracy and completeness of the data.
As mentioned above, CMS proposes
additional methods to assess
compliance which include receiving
confirmation of receipt of warning
notices directly from individuals at the
organization responsible for resolving
the deficiencies.
While requiring that hospitals
acknowledge receipt of warning notices
may require additional effort for
hospitals who have received notification
of a deficiency, we believe it will
streamline our enforcement by
providing an appropriate compliance
contact earlier in the enforcement
process, so that we may provide any
necessary technical assistance earlier in
the compliance process. We also believe
this proposed requirement would
provide benefits to others, including
consumers, researchers, and innovators,
by supporting the public release of
standard charge data in a timely and
accurate manner.
We do not believe that our
compliance activities represent a burden
to hospitals and therefore have not
included any costs in this burden
related to them.
e. Limitations of Our Analysis
It would be difficult for us to conduct
a detailed quantitative analysis given
the lack of studies at the national level
on the regulatory impact of making
price transparency information publicly
available. Additionally, implementation
of the requirements is relatively new, so
the impacts may not yet be realized.
Finally, several other price transparency
initiatives have been implemented, or
are in the process of being implemented,
that may make a definitive analysis
challenging. Since we cannot produce a
detailed quantitative analysis, we have
developed a qualitative discussion for
this regulatory impact analysis, drawing
from examples of experiences of the use
of public price transparency data that
has been released publicly. We have
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ddrumheller on DSK120RN23PROD with PROPOSALS2
taken an approach that assesses
potential directional impact of these
proposed requirements (that is,
increasing versus decreasing health care
costs, increasing, or decreasing
likelihood of certain market behaviors)
rather than attempting more specific
estimates due to the lack of empirical
data. We believe there are many benefits
with this regulation, particularly to
speed the ability of users of the
machine-readable files to identify,
ingest, analyze and draw more
meaningful comparisons of the hospital
standard charge data and ultimately for
consumers who will be able to benefit
from cost savings through employerpayer negotiations, or through direct
access to hospital cost comparison data
developed by innovators and
researchers, allowing the ability to shop
for the best value.
f. Alternatives Considered
This proposal is designed to begin to
address some of the barriers identified
that limit price transparency, with a
goal of increasing competition among
healthcare providers to bring down
costs. Specifically, this proposed rule
aims to make hospital standard charges
more readily available to the public by
improving machine-readability of the
data and improving automated access to
the MRFs. We considered a number of
alternative approaches including
reducing or increasing the number of
proposed data elements, or limiting the
CMS template to a single format (for
example, JSON).
The proposal to increase data
elements that are necessary to provide
context to hospital standard charges
represents nearly the entire cost in our
burden estimate. Thus, reducing the
number of proposed data elements
would reduce hospital burden and the
cost associated with gathering the data
necessary to display which increasing
the number of proposed data elements
would increase hospital burden and the
cost associated with gathering data for
display. The proposed number of data
elements is based on CMS contractor
recommendations which took into
consideration technical expert input
(including input from hospital experts).
These technical experts indicated that
the data elements currently included in
the sample formats found on the CMS
website were necessary for providing
context to hospital standard charges.
They also indicated that the data
elements we included in the sample
formats strike a balance between burden
on the hospital and benefit to the
public.
The alternative proposal considered
to limit hospital choice of format for the
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MRF to JSON would be expected to
increase hospital burden for hospitals
that lack technical expertise.
Ultimately, however, we determined
that the alternatives would either limit
the usefulness of hospital standard
charge information or increase burden
for hospitals without any additional
benefit to for users of MRF standard
charge information.
D. Regulatory Review Cost Estimation
If regulations impose administrative
costs on private entities, such as the
time needed to read and interpret this
proposed or final rule, we should
estimate the cost associated with
regulatory review. Due to the
uncertainty involved with accurately
quantifying the number of entities that
will review the rule, we assume that the
total number of unique commenters on
last year’s proposed rule will be the
number of reviewers of this proposed
rule. We acknowledge that this
assumption may understate or overstate
the costs of reviewing this rule. It is
possible that not all commenters
reviewed last year’s rule in detail, and
it is also possible that some reviewers
chose not to comment on the proposed
rule. For these reasons we thought that
the number of past commenters would
be a fair estimate of the number of
reviewers of this rule. We welcome any
comments on the approach in
estimating the number of entities which
will review this proposed rule.
We also recognize that different types
of entities are in many cases affected by
mutually exclusive sections of this
proposed rule, and therefore for the
purposes of our estimate we assume that
each reviewer reads approximately 50
percent of the rule. We seek comments
on this assumption.
Using the wage information from the
BLS for medical and health service
managers (Code 11–9111), we estimate
that the cost of reviewing this rule is
$123.06 per hour, including overhead
and fringe benefits https://www.bls.gov/
oes/current/oes_nat.htm. Assuming an
average reading speed, we estimate that
it would take approximately 8 hours for
the staff to review half of this proposed
or final rule. For each entity that
reviews the rule, the estimated cost is
$984.48 (8 hours x $123.06). Therefore,
we estimate that the total cost of
reviewing this regulation is $1,574,184
($984.48 x 1,599).
E. Regulatory Flexibility Act (RFA)
Analysis
The RFA requires agencies to analyze
options for regulatory relief of small
entities, if a rule has a significant impact
on a substantial number of small
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49911
entities. For purposes of the RFA, we
estimate that, many hospitals are
considered small businesses either by
the Small Business Administration’s
size standards with total revenues of
$41.5 million or less in any single year
or by the hospital’s not-for-profit status.
Most ASCs and most CMHCs are
considered small businesses with total
revenues of $16.5 million or less in any
single year. For details, we refer readers
to the Small Business Administration’s
‘‘Table of Size Standards’’ at https://
www.sba.gov/content/table-smallbusiness-sizestandards.
Individuals and states are not
included in the definition of a small
entity. As its measure of significant
economic impact on a substantial
number of small entities, HHS uses a
change in revenue of more than 3 to 5
percent. We believe that this threshold
will be reached by the requirements in
this proposed rule. As a result, the
Secretary has determined that this
proposed rule may have a significant
impact on a substantial number of small
entities.
In addition, section 1102(b) of the Act
requires us to prepare a regulatory
impact analysis if a rule may have a
significant impact on the operations of
a substantial number of small rural
hospitals. This analysis must conform to
the provisions of section 603 of the
RFA. For purposes of section 1102(b) of
the Act, we define a small rural hospital
as a hospital that is located outside of
a metropolitan statistical area and has
100 or fewer beds. We estimate that this
proposed rule will increase payments to
small rural hospitals by approximately 5
percent; therefore, it should have a
negligible impact on approximately 555
small rural hospitals. We note that the
estimated payment impact for any
category of small entity will depend on
both the services that they provide as
well as the payment policies and/or
payment systems that may apply to
them. Therefore, the most applicable
estimated impact may be based on the
specialty, provider type, or payment
system.
The analysis above, together with the
remainder of this preamble, provides a
regulatory flexibility analysis and a
regulatory impact analysis.
F. Unfunded Mandates Reform Act
Analysis
Section 202 of the Unfunded
Mandates Reform Act of 1995 (UMRA)
also requires that agencies assess
anticipated costs and benefits before
issuing any rule whose mandates
require spending in any 1 year of $100
million in 1995 dollars, updated
annually for inflation. In 2023, that
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threshold is approximately $177
million. This proposed rule would not
impose a mandate that will result in the
expenditure by State, local, and Tribal
Governments, in the aggregate, or by the
private sector, of more than $177
million in any 1 year.’’
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G. Federalism
Executive Order 13132 establishes
certain requirements that an agency
must meet when it promulgates a
proposed rule (and subsequent final
rule) that imposes substantial direct
requirement costs on state and local
governments, preempts state law, or
otherwise has Federalism implications.
We have examined the OPPS and ASC
provisions included in this proposed
rule in accordance with Executive Order
13132, Federalism, and have
determined that they will not have a
substantial direct effect on State, local,
or tribal governments, preempt State
law, or otherwise have a federalism
implication. As reflected in Table 100 of
this proposed rule, we estimate that
OPPS payments to governmental
hospitals (including State and local
governmental hospitals) would increase
by 2.8 percent under this proposed rule.
While we do not know the number of
ASCs or CMHCs with government
ownership, we anticipate that it is
small. The analyses we have provided
in this section of this proposed rule, in
conjunction with the remainder of this
document, demonstrate that this
proposed rule is consistent with the
regulatory philosophy and principles
identified in Executive Order 12866, the
RFA, and section 1102(b) of the Act.
This proposed rule would affect
payments to a substantial number of
small rural hospitals and a small
number of rural ASCs, as well as other
classes of hospitals, CMHCs, and ASCs,
and some effects may be significant.
However, as noted in section XXIII of
this proposed rule, this rule should not
have a significant effect on small rural
hospitals.
H. Conclusion
The changes we propose in this
proposed rule will affect all classes of
hospitals paid under the OPPS as well
as both CMHCs and ASCs. We estimate
that most classes of hospitals paid under
the OPPS would experience a modest
increase or a minimal decrease in
payment for services furnished under
the OPPS in CY 2024. Table 100
demonstrates the estimated
distributional impact of the OPPS
budget neutrality requirements that
would result in a 2.9 percent increase in
payments for all services paid under the
OPPS in CY 2024, after considering all
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of the changes to APC reconfiguration
and recalibration, as well as the OPD fee
schedule increase factor, wage index
changes, including the frontier State
wage index adjustment, and estimated
payment for outliers, changes to the
pass-through payment estimate, and
changes to outlier payments. However,
some classes of providers that are paid
under the OPPS would experience more
significant gains or losses in OPPS
payments in CY 2024.
The updates we are making to the
ASC payment system for CY 2024 will
affect each of the approximately 6,000
ASCs currently approved for
participation in the Medicare program.
The effect on an individual ASC will
depend on its mix of patients, the
proportion of the ASCs patients who are
Medicare beneficiaries, the degree to
which the payments for the procedures
offered by the ASC are changed under
the ASC payment system, and the extent
to which the ASC provides a different
set of procedures in the coming year
than in previous years. Table 101
demonstrates the estimated
distributional impact among ASC
surgical specialties of the productivityadjusted hospital market basket update
factor of 2.8 percent for CY 2024.
Chiquita Brooks-LaSure,
Administrator of the Centers for
Medicare & Medicaid Services,
approved this document on June 26,
2023.
List of Subjects
42 CFR Part 405
Administrative practice and
procedure, Diseases, Health facilities,
Health professions, Medical devices,
Medicare, Reporting and recordkeeping
requirements, Rural areas, and X-rays.
42 CFR Part 485
Grant programs-health, Health
facilities, Medicaid, Privacy, Reporting
and recordkeeping requirements.
42 CFR Part 488
Administrative practice and
procedure, Health facilities, Medicare,
Reporting and recordkeeping
requirements.
42 CFR Part 489
Health facilities, Medicare, and
Reporting and recordkeeping
requirements.
45 CFR Part 180
Hospitals, Reporting and
recordkeeping requirements.
For the reasons set forth in the
preamble, the Centers for Medicare and
Medicaid Services proposes to amend
42 CFR chapter IV as set forth below:
PART 405—FEDERAL HEALTH
INSURANCE FOR THE AGED AND
DISABLED
1. The authority citation for part 405
continues to read as follows:
■
Authority: 42 U.S.C. 263a, 405(a), 1302,
1320b–12, 1395x, 1395y(a), 1395ff, 1395hh,
1395kk, 1395rr, and 1395ww(k).
2. Section 405.2400 is amended by
adding paragraph (d) to read as follows:
■
§ 405.2400
Basis.
*
*
*
*
*
(d) Section 1834(y)—Payment for
certain services furnished by rural
health clinics.
■ 3. Section 405.2401(b) is amended by
adding the definition of ‘‘Intensive
outpatient services’’ in alphabetical
order to read as follows:
§ 405.2401
Scope and definitions.
*
42 CFR Part 419
*
*
*
*
(b) * * *
Intensive outpatient services means a
distinct and organized intensive
ambulatory treatment program that
offers less than 24-hour daily care other
than in an individual’s home or in an
inpatient or residential setting and that
furnishes the services as described in
§ 410.44 of this chapter.
*
*
*
*
*
■ 4. Section 405.2410 is amended by
adding paragraph (c) to read as follows:
Hospitals, Medicare, Reporting and
recordkeeping requirements.
§ 405.2410 Application of Part B
deductible and coinsurance.
42 CFR Part 424
*
42 CFR Part 410
Diseases, Health facilities, Health
professions, Laboratories, Medicare,
Reporting and recordkeeping
requirements, Rural areas, X-rays.
42 CFR Part 416
Health facilities, Health professions,
Medicare, Reporting and recordkeeping
requirements
Emergency medical services, Health
facilities, Health professions, Medicare,
Reporting and recordkeeping
requirements.
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*
*
*
*
(c) Application of deductible and
coinsurance for RHCs and FQHCs paid
on the basis of the special payment rule
described under § 405.2462(j) of this
section. (1) For RHCs, a coinsurance
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amount that does not exceed 20 percent
of the payment determined under
§ 405.2462(j)(1) of this part; or
(2) For FQHCs, a coinsurance amount
that does not exceed 20 percent of the
payment determined under
§ 405.2462(j)(2).
■ 5. Section 405.2411 is amended by
adding paragraph (a)(7) to read as
follows:
(ii) Medicare pays eighty (80) percent
of the lesser of a grandfathered tribal
FQHC’s actual charge or the amount
described under paragraphs (f)(2) and
(f)(3) of this section.
(iii) No deductible is applicable to
FQHC services.
■ 8. Section 405.2463 is amended by
revising paragraphs (c)(1)(ii) and (iii),
and (c)(4)(ii) to read as follows:
§ 405.2411
§ 405.2463
Scope of benefits.
(a) * * *
(7) Intensive outpatient services when
provided in accordance with section
1861(ff)(4) of the Act and § 410.44 of
this chapter.
*
*
*
*
*
■ 6. Amend § 405.2446 by adding
paragraph (b)(10) to read as follows:
§ 405.2446
Scope of services.
*
*
*
*
*
(b) * * *
(10) Intensive outpatient services
when provided in accordance with
section 1861(ff)(4) of the Act and
§ 410.44 of this chapter.
*
*
*
*
*
■ 7. Section 405.2462 is amended by
adding paragraph (j) to read as follows:
§ 405.2462
services.
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*
*
*
*
(j) An RHC is paid the payment rate
determined under § 419.21(a) of this
chapter for services described under
§ 410.44 of this chapter. There are no
adjustments to this rate.
(1) If the deductible has been fully
met by the beneficiary prior to the RHC
service, Medicare pays eighty (80)
percent of the payment amount
determined under paragraph (j)(1) of
this section.
(2) If the deductible has not been fully
met by the beneficiary prior to the RHC
service, Medicare pays eighty (80)
percent of the difference between the
remaining deductible and the payment
amount determined under paragraph
(j)(1) of this section; or
(3) If the deductible has not been fully
met by the beneficiary prior to the RHC
service, no payment is made to the RHC
if the deductible is equal to or exceeds
the payment amount determined under
paragraph (j)(1) of this section.
(4) FQHCs are paid the payment rate
determined under § 419.21(a) of this
chapter for services described under
§ 410.44 of this chapter, there are no
adjustments to this rate. Except as noted
in paragraph (f) of this section.
(i) Medicare pays eighty (80) percent
of the lesser of the FQHC’s actual charge
or the payment rate determined under
paragraph (j)(2) of this section; or
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*
*
*
*
(c) * * *
(1) * * *
(ii) Has a medical visit and a mental
health visit or intensive outpatient
services on the same day: or
(iii) Has an initial preventive physical
exam visit and a separate medical,
mental health, or intensive outpatient
services visit on the same day.
*
*
*
*
*
(4) * * *
(ii) Has a medical visit and a mental
health visit or intensive outpatient
services on the same day.
■ 9. Section 405.2464 is amended by
adding paragraph (f) to read as follows:
§ 405.2464
Payment rate.
*
Payment for RHC and FQHC
*
What constitutes a visit.
*
*
*
*
*
(f) Payment for intensive outpatient
services. Payment to RHCs and FQHCs
is at the rate determined under
§ 405.2462(j).
■ 10. Section 405.2468 is amended by
adding paragraph (g) to read as follows:
§ 405.2468
Allowable costs.
*
*
*
*
*
(g) Intensive outpatient services. (1)
For RHCs, costs associated with
intensive outpatient services are not
used to determine the amount of
payment for RHC services under the
methodology for all-inclusive rates
under section 1833(a)(3) of the Act as
described in § 405.2464(a).
(2) For FQHCs, costs associated with
intensive outpatient services are not
used to determine the amount of
payment for FQHC services under the
prospective payment system under
section 1834(o)(2)(B) of the Act as
described in § 405.2464(b).
■ 11. Section 405.2469 is amended by
revising paragraphs (a)(1) and (a)(2), and
adding paragraphs (a)(3) and (b)(4) to
read as follows:
§ 405.2469
FQHC supplemental payments.
(a) * * *
(1) The PPS rate if the FQHC is
authorized to bill under the PPS;
(2) The Medicare outpatient per visit
rate as set annually by the Indian Health
Service for grandfathered tribal FQHCs;
or
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(3) The payment rate as determined in
§ 405.2462(j).
(b) * * *
(4) Payments received by the FQHC
from the MA plan as determined on a
per visit basis and the payment rate as
determined in § 405.2462(j), less any
amount the FQHC may charge as
described in section 1857(e)(3)(B) of the
Act.
*
*
*
*
*
PART 410—SUPPLEMENTARY
MEDICAL INSURANCE (SMI)
BENEFITS
12. The authority citation for part 410
continues to read as follows:
■
Authority: 42 U.S.C. 1302, 1395m,
1395hh, and 1395ddd.
13. Section 410.2 is amended by—
a. In the definition r ‘‘Community
mental health center (CMHC)’’, revise
paragraph (3);
■ b. Adding the definition ‘‘Intensive
outpatient services’’ in alphabetical
order; and
■ c. Revising the definition for
‘‘Participating’’.
The revisions and addition read as
follows:
■
■
§ 410.2
Definitions.
*
*
*
*
*
Community mental health center
(CMHC) means an entity that—
*
*
*
*
*
(3) Provides day treatment or other
partial hospitalization services or
intensive outpatient services, or
psychosocial rehabilitation services;
*
*
*
*
*
Intensive outpatient services mean a
distinct and organized intensive
ambulatory treatment program that
offers less than 24-hour daily care other
than in an individual’s home or in an
inpatient or residential setting and
furnishes the services as described in
§ 410.44. Intensive outpatient services
are not required to be provided in lieu
of inpatient hospitalization.
*
*
*
*
*
Participating refers to a hospital,
CAH, SNF, HHA, CORF, or hospice that
has in effect an agreement to participate
in Medicare; or a clinic, rehabilitation
agency, or public health agency that has
a provider agreement to participate in
Medicare but only for purposes of
providing outpatient physical therapy,
occupational therapy, or speech
pathology services; or a CMHC that has
in effect a similar agreement but only for
purposes of providing partial
hospitalization services and intensive
outpatient services, and
nonparticipating refers to a hospital,
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CAH, SNF, HHA, CORF, hospice, clinic,
rehabilitation agency, public health
agency, or CMHC that does not have in
effect a provider agreement to
participate in Medicare.
*
*
*
*
*
■ 14. Section 410.3 is amended by
revising paragraph (a)(2) to reads as
follows:
§ 410.3
Scope of benefits.
(a) * * *
(2) Services furnished by ambulatory
surgical centers (ASCs), home health
agencies (HHAs), comprehensive
outpatient rehabilitation facilities
(CORFs), and partial hospitalization
services and intensive outpatient
services provided by community mental
health centers (CMHCs).
*
*
*
*
*
■ 15. Section 410.10 is amended by
revising paragraph (c) to read as follows:
§ 410.10 Medical and other health
services: Included services.
*
*
*
*
*
(c) Services and supplies, including
partial hospitalization services and
intensive outpatient services, that are
incident to physician services and are
furnished to outpatients by or under
arrangements made by a hospital or a
CAH.
*
*
*
*
*
■ 16. Section 410.27 is amended by
revising paragraphs (a)(1)(iv)(B)(1),
(a)(2), and (e) introductory text to read
as follows:
§ 410.27 Therapeutic outpatient hospital or
CAH services and supplies incident to a
physician’s or nonphysician practitioner’s
service: Conditions.
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*
*
*
*
*
(a) * * *
(1) * * *
(iv) * * *
(B) * * *
(1) For purposes of this section, direct
supervision means that the physician or
nonphysician practitioner must be
immediately available to furnish
assistance and direction throughout the
performance of the procedure. It does
not mean that the physician or
nonphysician practitioner must be
present in the room when the procedure
is performed. For pulmonary
rehabilitation, cardiac rehabilitation,
and intensive cardiac rehabilitation
services, direct supervision must be
furnished as specified in §§ 410.47 and
410.49, respectively. Through December
31, 2024, the presence of the physician
or nonphysician practitioner for the
purpose of the supervision of
pulmonary rehabilitation, cardiac
rehabilitation, and intensive cardiac
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rehabilitation services includes virtual
presence through audio/video real-time
communications technology (excluding
audio-only); and
*
*
*
*
*
(2) In the case of partial
hospitalization services or intensive
outpatient services, also meet the
conditions of paragraph (e) of this
section.
*
*
*
*
*
(e) Medicare Part B pays for partial
hospitalization services and intensive
outpatient services if they are—
*
*
*
*
*
■ 17. Section 410.44 is added to read as
follows:
§ 410.44 Intensive outpatient services:
Conditions and exclusions.
(a) Intensive outpatient services are
services that—
(1) Are reasonable and necessary for
the diagnosis or active treatment of the
individual’s condition;
(2) Are reasonably expected to
improve or maintain the individual’s
condition and functional level and to
prevent relapse or hospitalization;
(3) Are furnished in accordance with
a physician certification and plan of
care as specified under § 424.24(d) of
this chapter; and
(4) Include any of the following:
(i) Individual and group therapy with
physicians or psychologists or other
mental health professionals to the extent
authorized under State law.
(ii) Occupational therapy requiring
the skills of a qualified occupational
therapist, provided by an occupational
therapist, or under appropriate
supervision of a qualified occupational
therapist by an occupational therapy
assistant as specified in part 484 of this
chapter.
(iii) Services of social workers, trained
psychiatric nurses, and other staff
trained to work with psychiatric
patients.
(iv) Drugs and biologicals furnished
for therapeutic purposes, subject to the
limitations specified in § 410.29.
(v) Individualized activity therapies
that are not primarily recreational or
diversionary.
(vi) Family counseling, the primary
purpose of which is treatment of the
individual’s condition.
(vii) Patient training and education, to
the extent the training and educational
activities are closely and clearly related
to the individual’s care and treatment.
(viii) Diagnostic services.
(b) The following services are
separately covered and not paid as
intensive outpatient services:
(1) Physician services that meet the
requirements of § 415.102(a) of this
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chapter for payment on a fee schedule
basis.
(2) Physician assistant services, as
defined in section 1861(s)(2)(K)(i) of the
Act.
(3) Nurse practitioner and clinical
nurse specialist services, as defined in
section 1861(s)(2)(K)(ii) of the Act.
(4) Qualified psychologist services, as
defined in section 1861(ii) of the Act.
(5) Services furnished to SNF
residents as defined in § 411.15(p) of
this chapter.
(c) Intensive outpatient programs are
intended for patients who (1) Require a minimum of 9 hours per
week of therapeutic services as
evidenced in their plan of care;
(2) Are likely to benefit from a
coordinated program of services and
require more than isolated sessions of
outpatient treatment;
(3) Do not require 24-hour care;
(4) Have an adequate support system
while not actively engaged in the
program;
(5) Have a mental health diagnosis;
(6) Are not judged to be dangerous to
self or others; and
(7) Have the cognitive and emotional
ability to participate in the active
treatment process and can tolerate the
intensity of the intensive outpatient
program.
■ 18. Section 410.67 is amended by—
■ a. In paragraph (b), amend the
definition of ‘‘Opioid use disorder
treatment service’’ by adding paragraph
(ix);
■ b. Adding paragraph (c)(5);
■ d. Revising paragraph (d)(3);
■ e. Adding (d)(4)(i)(F); and
■ f. Revising paragraphs (d)(4)(ii) and
(iii).
The revisions and additions read as
follows:
§ 410.67 Medicare coverage and payment
of Opioid use disorder treatment services
furnished by Opioid treatment programs.
*
*
*
*
*
(b) * * *
(ix) OTP intensive outpatient services,
which means one or more services
specified in § 410.44(a)(4) when
furnished by an OTP as part of a distinct
and organized intensive ambulatory
treatment program for the treatment of
Opioid Use Disorder and that offers less
than 24-hour daily care other than in an
individual’s home or in an inpatient or
residential setting. OTP intensive
outpatient services are reasonable and
necessary for the diagnosis or active
treatment of the individual’s condition;
are reasonably expected to improve or
maintain the individual’s condition and
functional level and to prevent relapse
or hospitalization; and are furnished in
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accordance with a physician
certification and plan of care, in which
a physician must certify that the
individual has a need for a minimum of
nine hours of services per week and
requires a higher level of care intensity
compared to other non-intensive
outpatient OTP services. OTP intensive
outpatient services do not include FDAapproved opioid agonist or antagonist
medications for the treatment of OUD,
opioid antagonist medications for the
emergency treatment of known or
suspected opioid overdose, or
toxicology testing.
*
*
*
*
*
(c) * * *
(5) OTPs that provide OTP intensive
outpatient services must meet the
requirements set forth in § 424.24(d)(1)
through (3) of this chapter related to
content of certification, plan of
treatment, and recertification for the
purposes of furnishing OTP intensive
outpatient services, except that the
recertification required under
§ 424.24(d)(3)(ii) of this chapter may
occur any time during an episode of
care in which the 30th day from the
start of IOP services falls.
*
*
*
*
*
(d) * * *
(3) At least one OUD treatment service
described in paragraphs (i) through (v)
of the definition of Opioid use disorder
treatment service in paragraph (b) of this
section must be furnished to bill for the
bundled payment for an episode of care.
(4) * * *
(i) * * *
(F) For OTP intensive outpatient
services, an adjustment will be made
when at least nine OTP intensive
outpatient services described in
paragraph (b)(ix) of this section are
furnished in a week. This adjustment
will be based on the per diem payment
rate for intensive outpatient services at
hospital-based programs defined at
410.44(c) and multiplied by a factor of
three for a weekly payment adjustment,
excluding an amount equivalent to the
amount included in the OTP weekly
bundled payment for individual and
group therapy.
(ii) The payment amounts for the nondrug component of the bundled
payment for an episode of care, the
adjustments for counseling or therapy,
intake activities, periodic assessments,
and OTP intensive outpatient services,
and the non-drug component of the
adjustment for take-home supplies of
opioid antagonist medications will be
geographically adjusted using the
Geographic Adjustment Factor
described in § 414.26 of this subchapter.
For purposes of this adjustment, OUD
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treatment services that are furnished via
an OTP mobile unit will be treated as if
they were furnished at the physical
location of the OTP registered with the
Drug Enforcement Administration
(DEA) and certified by SAMHSA.
(iii) The payment amounts for the
non-drug component of the bundled
payment for an episode of care, the
adjustments for counseling or therapy,
intake activities, periodic assessments
and OTP intensive outpatient services,
and the non-drug component of the
adjustment for take-home supplies of
opioid antagonist medications will be
updated annually using the Medicare
Economic Index described in
§ 405.504(d) of this subchapter.
*
*
*
*
*
■ 19. Revise the heading to Subpart E to
read as follows:
Subpart E—Community Mental Health
Centers (CMHCs) Providing Partial
Hospitalization Services and Intensive
Outpatient Services
20. Section 410.111 is added to read
as follows:
(b) * * *
(2) * * *
(iii) Partial hospitalization services or
intensive outpatient services not
directly provided by a physician.
*
*
*
*
*
■ 23. Section 410.173 is added to read
as follows:
§ 410.173 Payment for intensive outpatient
services in CMHCs: Conditions.
Medicare Part B pays for intensive
outpatient services furnished in a
CMHC on behalf of an individual only
if the following conditions are met:
(a) The CMHC files a written request
for payment on the CMS form 1450 and
in the manner prescribed by CMS; and
(b) The services are furnished in
accordance with the requirements
described in § 410.111.
PART 416—AMBULATORY SURGICAL
SERVICES
24. The authority citation for part 416
continues to read as follows:
■
Authority: 42 U.S.C. 1302 and 1395hh.
■
§ 410.111 Requirements for coverage of
intensive outpatient services in CMHCs.
Medicare part B covers intensive
outpatient services furnished by or
under arrangements made by a CMHC if
they are provided by a CMHC as defined
in § 410.2 that has in effect a provider
agreement under part 489 of this chapter
and if the services are—
(a) Prescribed by a physician and
furnished under the general supervision
of a physician;
(b) Subject to certification by a
physician in accordance with
§ 424.24(d)(1) of this subchapter; and
(c) Furnished under a plan of
treatment that meets the requirements of
§ 424.24(d)(2) of this subchapter.
■ 21. Section 410.150 is amended by
revising paragraph (b)(13) to read as
follows:
§ 410.150
To whom payment is made.
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(b) * * *
(13) To a community mental health
center (CMHC) on the individual’s
behalf, for partial hospitalization
services or intensive outpatient services
furnished by the CMHC (or by others
under arrangements made with them by
the CMHC).
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■ 22. Section 410.155 is amended by
revising paragraph (b)(2)(iii) to read as
follows:
§ 410.155 Outpatient mental health
treatment limitation.
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25. Section 416.171 is amended by
revising paragraphs (a)(2)(iii), (iv), (vi),
and (vii), and (a)(2)(viii)(B) and (C) to
read as follows:
■
§ 416.171 Determination of payment rates
for ASC services.
(a) * * *
(2) * * *
(iii) For CY 2019 through CY 2025,
the update is the hospital inpatient
market basket percentage increase
applicable under section
1886(b)(3)(B)(iii) of the Act.
(iv) For CY 2026 and subsequent
years, the update is the Consumer Price
Index for All Urban Consumers (U.S.
city average) as estimated by the
Secretary for the 12-month period
ending with the midpoint of the year
involved.
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(vi) For CY 2019 through CY 2025, the
hospital inpatient market basket update
determined under paragraph (a)(2)(iii) of
this section is reduced by 2.0 percentage
points for an ASC that fails to meet the
standards for reporting of ASC quality
measures as established by the Secretary
for the corresponding calendar year.
(vii) For CY 2026 and subsequent
years, the Consumer Price Index for All
Urban Consumers update determined
under paragraph (a)(2)(iv) of this section
is reduced by 2.0 percentage points for
an ASC that fails to meet the standards
for reporting of ASC quality measures as
established by the Secretary for the
corresponding calendar year.
(viii) * * *
(B) For CY 2019 through CY 2025, the
hospital inpatient market basket update
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determined under paragraph (a)(2)(iii) of
this section, after application of any
reduction under paragraph (a)(2)(vi) of
this section, is reduced by the
productivity adjustment described in
section 1886(b)(3)(B)(xi)(II) of the Act.
(C) For CY 2026 and subsequent
years, the Consumer Price Index for All
Urban Consumers determined under
paragraph (a)(2)(iv) of this section, after
application of any reduction under
paragraph (a)(2)(vii) of this section, is
reduced by the productivity adjustment
described in section 1886(b)(3)(B)(xi)(II)
of the Act.
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■ 26. Section 416.172 is amended by
revising paragraph (d) to read as
follows:
§ 416.172 Adjustments to national
payment rates.
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(d) Deductibles and coinsurance. Part
B deductible and coinsurance amounts
apply as specified in §§ 410.152(a) and
(i)(2) of this subchapter and in 42 CFR
489.30(b)(6).
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■ 27. Section 416.305 is amended by
revising paragraph (b)(1) to read as
follows:
§ 416.305 Participation and withdrawal
requirements under the ASCQR Program.
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(b) * * *
(1) An ASC may withdraw from the
ASCQR Program by submitting to CMS
a withdrawal of participation form that
can be found in the secure portion of the
CMS-designated information system.
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■ 28. Section 416.310 is amended by
revising paragraphs (c)(1)(i) and (d)(1) to
read as follows:
§ 416.310 Data collection and submission
requirements under the ASQR Program.
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(c) * * *
(1) * * *
(i) CMS-designated information
system account for web-based measures.
ASCs, and any agents submitting data
on an ASC’s behalf, must maintain an
account for the CMS-designated
information system in order to submit
quality measure data to the CMSdesignated information system for all
web-based measures submitted via a
CMS online data submission tool. A
security official is necessary to set up
such an account for the CMS-designated
information system for the purpose of
submitting this information.
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(d) * * *
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(1) Upon request of the ASC. Specific
requirements for submission of a request
for an exception are available on the
CMS website.
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■ 29. Section 416.320 is amended by
revising paragraph (b) to read as follows:
§ 416.320 Retention and removal of quality
measures under the ASCQR Program.
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(b) Immediate measure removal. In
cases where CMS believes that the
continued use of a measure as specified
raises patient safety concerns, CMS will
immediately remove a quality measure
from the ASCQR Program and will
promptly notify ASCs and the public of
the removal of the measure and the
reasons for its removal through the
ASCQR Program ListServ and the
ASCQR Program CMS website. CMS
will confirm the removal of the measure
for patient safety concerns in the next
ASCQR Program rulemaking.
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■ 30. Section 416.325 is amended by
revising paragraph (c) to read as follows:
§ 416.325 Measure maintenance under the
ASCQR Program.
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(c) Non-substantive changes. If CMS
determines that a change to a measure
previously adopted in the ASCQR
Program is non-substantive, CMS will
use a sub-regulatory process to revise
the ASCQR Program Specifications
Manual so that it clearly identifies the
changes to that measure and provide
links to where additional information
on the changes can be found. When a
measure undergoes sub-regulatory
maintenance, CMS will provide
notification of the measure specification
update on the CMS website and in the
ASCQR Program Specifications Manual,
and will provide sufficient lead time for
ASCs to implement the revisions where
changes to the data collection systems
would be necessary.
PART 419—PROSPECTIVE PAYMENT
SYSTEMS FOR HOSPITAL
OUTPATIENT DEPARTMENT
SERVICES
31. The authority citation for part 419
continues to read as follows:
■
Authority: 42 U.S.C. 1302, 1395l(t), and
1395hh.
32. Section 419.20 is amended by
adding paragraph (b)(5) to read as
follows:
■
§ 419.20 Hospitals subject to the hospital
outpatient prospective payment system.
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(5) A rural emergency hospital (REH).
33. Section 419.21 is amended by
revising paragraph (c) for read as
follows:
■
§ 419.21 Hospital services subject to the
outpatient prospective payment system.
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(c) Partial hospitalization services and
intensive outpatient services furnished
by community mental health centers
(CMHCs).
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■ 34. Section 419.41 is amended by
adding paragraphs (d), (e), (f), and (g) to
read as follows:
§ 419.41 Calculation of national
beneficiary copayment amounts and
national Medicare program payment
amounts.
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(d) Notwithstanding the foregoing, for
a drug or biological for which payment
is not packaged into a payment for a
covered OPD service (or group of
services) and is not a rebatable drug (as
defined in section 1847A(i)(2)(A)), to
calculate the program payment and
copayment amounts CMS does the
following:
(1) Determines the payment rate for
the drug or biological for the quarter
established under the methodology
described by section 1842(o), section
1847A, or section 1847B of the Act, as
the case may be, as calculated and
adjusted by the Secretary as necessary
for purposes of paragraph (14) of section
1833(t) of the Act.
(2) Subtracts from the amount
determined under paragraph (d)(1) of
this section the amount of the
applicable Part B deductible provided
under § 410.160 of this chapter.
(3) Multiples the amount determined
under paragraph (d)(1) of this section
(less any applicable deductible under
paragraph (d)(2) of this section) by 20
percent. This is the beneficiary’s
copayment amount for the drug or
biological.
(4) Subtracts the amount determined
under paragraph (d)(3) of this section
from the amount determined under
paragraph (d)(1) of this section (less any
applicable deductible determined under
paragraph (d)(2) of this section). This
amount is the preliminary program
amount.
(5) Adds to the preliminary program
amount determined under paragraph
(d)(4) of this section the amount by
which the copayment amount would
have exceeded the inpatient hospital
deductible for that year. This amount is
the final Medicare program payment
amount.
(e) In the case of a rebatable drug (as
defined in section 1847A(i)(2)(A) of the
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Act), except if such drug does not have
a copayment amount as a result of
application of section 1833(t)(8)(E) of
the Act, for which payment is not
packaged into payment for a covered
OPD service (or group of services)
furnished on or after April 1, 2023, and
the payment for such drug under the
OPPS is the same as the amount for a
calendar quarter under section
1847A(i)(3)(A)(ii)(I) of the Act, in lieu of
the calculation of the copayment
amount and the Medicare program
payment amount otherwise applicable
under paragraph (d) of this section
(other than application of the limitation
described in paragraph (c)(4)(i) of this
section), the copayment and Medicare
program payment amounts determined
under §§ 410.152(m) and 489.30(b)(6) of
this chapter shall apply.
(f) In the case of a qualifying
biosimilar biological product (as defined
in § 414.902 of this subchapter) that is
furnished during the applicable fiveyear period (as defined in § 414.902 of
this subchapter) for such product, the
payment amount for such product with
respect to such period is the amount
determined in § 414.904(j)(2) of this
subchapter.
(g) For dates of service on or after July
1, 2024, the payment amount for a
biosimilar biological product (as defined
in § 414.902 of this subchapter) during
the initial period is the amount
determined in § 414.904(e)(4)(ii) of this
subchapter.
■ 35. Section 419.46 is amended by
revising the section heading and
paragraphs (b), (c), (d)(2), (e)(1), (g)(1),
and (i)(2) to read as follows:
§ 419.46 Requirements Under the Hospital
Outpatient Quality Reporting (OQR)
Program.
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(b) Participation in the Hospital OQR
Program. To participate in the Hospital
OQR Program, a hospital as defined in
section 1886(d)(1)(B) of the Act and is
paid under the OPPS must—
(1) Register on the CMS-designated
information system before beginning to
report data;
(2) Identify and register a CMSdesignated information system security
official as part of the registration process
under paragraph (b)(1) of this section;
and
(3) Submit at least one data element.
(c) Withdrawal from the Hospital OQR
Program. A participating hospital may
withdraw from the Hospital OQR
Program by submitting to CMS a
withdrawal form that can be found in
the secure portion of the CMSdesignated information system. The
hospital may withdraw any time up to
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and including August 31 of the year
prior to the affected annual payment
updates. A withdrawn hospital will not
be able to later sign up to participate in
that payment update, is subject to a
reduced annual payment update as
specified under paragraph (i) of this
section, and is required to renew
participation as specified in paragraph
(b) of this section in order to participate
in any future year of the Hospital OQR
Program.
(d) * * *
(2) Submission deadlines. Submission
deadlines by measure and by data type
are posted on the CMS website. All
deadlines occurring on a Saturday,
Sunday, or legal holiday, or on any
other day all or part of which is
declared to be a non-work day for
Federal employees by statute or
Executive order are extended to the first
day thereafter which is not a Saturday,
Sunday, or legal holiday or any other
day all or part of which is declared to
be a non-work day for Federal
employees by statute or Executive order.
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(e) * * *
(1) Upon request by the hospital.
Specific requirements for submission of
a request for an exception are available
on the CMS website.
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(g) * * *
(1) A hospital may request
reconsideration of a decision by CMS
that the hospital has not met the
requirements of the Hospital OQR
Program in paragraph (b) of this section
for a particular calendar year. Except as
provided in paragraph (e) of this
section, a hospital must submit a
reconsideration request to CMS via the
CMS-designated information system, no
later than March 17, or if March 17 falls
on a nonwork day, on the first day after
March 17 which is not a nonwork day
as defined in paragraph (d)(2) of this
section, of the affected payment year as
determined using the date the request
was mailed or submitted to CMS.
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(i) * * *
(2) Immediate measure removal. For
cases in which CMS believes that the
continued use of a measure as specified
raises patient safety concerns, CMS will
immediately remove a quality measure
from the Hospital OQR Program and
will promptly notify hospitals and the
public of the removal of the measure
and the reasons for its removal through
the Hospital OQR Program ListServ and
the CMS website.
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36. Section 419.92 is amended by
adding paragraphs (d) and (e) to read as
follows:
■
§ 419.92 Payment to rural emergency
hospitals.
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(d) Payment for IHS or tribally
operated REHs. An Indian Health
Service (IHS) or tribally operated REH,
as defined in paragraph (e) of this
section will be paid under the
outpatient hospital All-Inclusive Rate
that is established and published
annually by the Indian Health Service
rather than the rates for REH services
described in paragraph (a)(1) of this
section.
(e) IHS or tribally operated REHs. An
Indian Health Service (IHS) or tribally
operated REH is an REH, as defined in
§ 485.502 of this chapter, that is
operated by the IHS or by a tribe or
tribal organization with funding
authorized by Title I or III of the Indian
Self-Determination and Education
Assistance Act (Pub. L. 93–638).
■ 37. Section 419.93 is amended by
revising paragraph (a)(2) to read as
follows:
§ 419.93 Payment for an off-campus
provider-based department of a rural
emergency hospital.
(a) * * *
(2) Services that do not meet the
definition of REH services under
§ 419.91 that are furnished by an offcampus provider-based department of
an REH are paid as described under
§ 419.92(c) or, if applicable, § 419.92(d).
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■ 38. Section 419.95 is added to read as
follows:
§ 419.95 Requirements under the Rural
Emergency Hospital Quality Reporting
(REHQR) Program.
(a) Statutory authority. Section
1861(kkk) (7) of the Social Security Act
authorizes the Secretary to implement a
quality reporting program requiring
Rural Emergency Hospitals (REHs) to
submit data on measures in accordance
with the Secretary’s requirements in this
part.
(b) Participation in the REHQR
Program. To participate in the REHQR
Program, an REH as defined in section
1861(kkk) (2) of the Act must—
(1) Register on a CMS website before
beginning to report data;
(2) Identify and register a security
official as part of the registration process
under paragraph (b)(1) of this section;
and
(3) Submit data on all quality
measures to CMS as specified under
paragraph (d) of this section.
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(c) Submission of REHQR Program
data—(1) General rule. REHs that
participate in the REHQR Program must
submit to CMS data on measures
selected under section 1861(kkk)(7)(C)
of the Act in a form and manner, and
at a time specified by CMS. REHs
sharing the same CMS Certification
Number (CCN) must combine data
collection and submission across their
multiple campuses for all clinical
measures for public reporting purposes.
(2) Submission deadlines. Submission
deadlines by measure and by data type
are posted on a CMS website. All
deadlines occurring on a Saturday,
Sunday, or legal holiday, or on any
other day all or part of which is
declared to be a non-work day for
Federal employees by statute or
executive order are extended to the first
day thereafter which is not a Saturday,
Sunday, or legal holiday or any other
day all or part of which is declared to
be a non-work day for Federal
employees by statute or executive order.
(3) Review and corrections period. For
all quality data submitted, REHs will
have a review and corrections period,
which runs concurrently with the data
submission period. During this
timeframe, REHs can enter, review, and
correct data submitted. However, after
the submission deadline, these data
cannot be changed.
(d) Technical specifications and
measure maintenance under the REHQR
Program.
(1) CMS will update the specifications
manual for measures in the REHQR
Program at least every 12 months.
(2) CMS follows different procedures
to update the measure specifications of
a measure previously adopted under the
REHQR Program based on whether the
change is substantive or nonsubstantive. CMS will determine what
constitutes a substantive versus a nonsubstantive change to a measure’s
specifications.
(i) Substantive changes. CMS will use
rulemaking to adopt substantive updates
to measures in the REHQR Program.
(ii) Non-substantive changes. If CMS
determines that a change to a measure
previously adopted in the REHQR
Program is non-substantive, CMS will
use a sub-regulatory process to revise
the specifications manual for the
REHQR Program so that it clearly
identifies the change to that measure
and provide links to where additional
information on the change can be found.
When a measure undergoes subregulatory maintenance, CMS will
provide notification of the measure
specification update on a designated
website and in the specifications
manual, and will provide sufficient lead
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time for REHs to implement the
revisions where changes to the data
collection systems would be necessary.
(e) Retention and removal of quality
measures under the REHQR Program.
(1) General rule for the retention of
quality measures. Quality measures
adopted for the REHQR Program
measure set are retained for use, except
when they are removed, suspended, or
replaced as set forth in paragraphs (e)(2)
and (e)(3) of this section.
(2) Immediate measure removal. In
cases where CMS believes that the
continued use of a quality measure as
specified raises patient safety concerns,
CMS will immediately remove the
measure from the REHQR Program and
will promptly notify REHs and the
public of the removal of the measure
and the reasons for its removal. CMS
will confirm the removal of the measure
in the next appropriate rulemaking.
(3) Measure removal, suspension, or
replacement through the rulemaking
process. Unless a measure raises
specific safety concerns as set forth in
paragraph (e)(2) of this section, CMS
will use rulemaking to remove, suspend,
or replace quality measures in the
REHQR Program.
(i) Factors for consideration for
removal of quality measures. CMS will
weigh whether to remove measures
based on the following factors:
(A) Factor 1. Measure performance
among REHs is so high and unvarying
that meaningful distinctions and
improvements in performance can no
longer be made (‘‘topped-out’’
measures);
(B) Factor 2. Performance or
improvement on a measure does not
result in better patient outcomes;
(C) Factor 3. A measure does not align
with current clinical guidelines or
practice;
(D) Factor 4. The availability of a
more broadly applicable (across settings,
populations, or conditions) measure for
the topic;
(E) Factor 5. The availability of a
measure that is more proximal in time
to desired patient outcomes for the
particular topic;
(F) Factor 6. The availability of a
measure that is more strongly associated
with desired patient outcomes for the
particular topic;
(G) Factor 7. Collection or public
reporting of a measure leads to negative
unintended consequences other than
patient harm; and
(H) Factor 8. The costs associated
with a measure outweigh the benefit of
its continued use in the program.
(ii) Criteria to determine topped-out
measures. For the purposes of the
REHQR Program, a measure is
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considered to be topped-out under
paragraph (e)(3)(i)(A) of this section
when it meets both of the following
criteria:
(A) Statistically indistinguishable
performance at the 75th and 90th
percentiles (defined as when the
difference between the 75th and 90th
percentiles for an REH’s measure is
within two times the standard error of
the full data set); and
(B) A truncated coefficient of
variation less than or equal to 0.10.
(iii) Application of measure removal
factors. The benefits of removing a
measure from the REHQR Program will
be assessed on a case-by-case basis.
Under this case-by-case approach, a
measure will not be removed solely on
the basis of meeting any specific factor.
(f) Public reporting of data under the
REHQR Program. Data that an REH
submits for the REHQR Program will be
made publicly available on a CMS
website in an easily understandable
format after providing the REH an
opportunity to review the data to be
made public. CMS will publicly display
REH data by the CCN when data are
submitted under the CCNs.
(g) Exception. CMS may grant an
exception to one or more data
submission deadlines and requirements
in the event of extraordinary
circumstances beyond the control of the
hospital, such as when an act of nature
affects an entire region or locale or a
systemic problem with one of CMS’ data
collection systems directly or indirectly
affects data submission. CMS may grant
an exception as follows:
(1) Upon request by the REH. Specific
requirements for submission of a request
for an exception are available on a CMS
website.
(2) At the discretion of CMS. CMS
may grant exceptions to REHs that have
not requested them when CMS
determines that an extraordinary
circumstance has occurred.
PART 424—CONDITIONS FOR
MEDICARE PAYMENT
39. The authority citation for part 424
continues to read as follows:
■
Authority: 42 U.S.C. 1302 and 1395hh.
40. Section 424.24 is amended by—
a. Revising paragraphs (b);
b. Adding paragraph (d), and
c. Revising paragraph (e)(1)(i).
The revisions and addition read as
follows:
■
■
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■
§ 424.24 Requirements for medical and
other health services furnished by
providers under Medicare Part B.
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(b) General rule. Medicare Part B pays
for medical and other health services
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furnished by providers (and not
exempted under paragraph (a) of this
section) only if a physician certifies the
content specified in paragraphs (c)(1),
(c)(4), (d)(1), or (e)(1) of this section, as
appropriate.
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(d) Intensive outpatient services:
Content of certification and plan of
treatment requirements—
(1) Content of certification. (i) The
individual requires such services for a
minimum of 9 hours per week.
(ii) The services are or were furnished
while the individual was under the care
of a physician.
(iii) The services were furnished
under a written plan of treatment that
meets the requirements of paragraph
(d)(2) of this section.
(2) Plan of treatment requirements. (i)
The plan is an individualized plan that
is established and is periodically
reviewed by a physician in consultation
with appropriate staff participating in
the program, and that sets forth—
(A) The physician’s diagnosis;
(B) The type, amount, duration, and
frequency of the services; and
(C) The treatment goals under the
plan.
(ii) The physician determines the
frequency and duration of the services
taking into account accepted norms of
medical practice and a reasonable
expectation of improvement in the
patient’s condition.
(3) Recertification requirements—(i)
Signature. The physician recertification
must be signed by a physician who is
treating the patient and has knowledge
of the patient’s response to treatment.
(ii) Timing. Recertifications are
required at intervals established by the
provider, but no less frequently than
every 60 days.
(iii) Content. The recertification must
specify that the patient continues to
require at least 9 hours of intensive
outpatient services and describe the
following:
(A) The patient’s response to the
therapeutic interventions provided by
the intensive outpatient program.
(B) The patient’s psychiatric
symptoms that continue to place the
patient at risk of relapse or
hospitalization.
(C) Treatment goals for coordination
of services to facilitate discharge from
the intensive outpatient program.
(e) * * *
(1) * * *
(i) The individual requires such
services for a minimum of 20 hours per
week, and would require inpatient
psychiatric care if the partial
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hospitalization services were not
provided.
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PART 485—CONDITIONS OF
PARTICIPATION: SPECIALIZED
PROVIDERS
41. The authority citation for part 485
continues to read as follows:
■
Authority: 42 U.S.C. 1302 and 1395(hh).
42. Section 485.506 is amended by
revising paragraphs (b) and (c) to read
as follows:
■
§ 485.506
REHs.
Designation and certification of
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(b) A hospital as defined in section
1886(d)(1)(B) of the Act with not more
than 50 beds located in a county (or
equivalent unit of local government)
that is considered rural (as defined in
section 1886(d)(2)(D) of the Act); or
(c) A hospital as defined in section
1886(d)(1)(B) of the Act with not more
than 50 beds that was treated as being
located in a rural area that has had an
active reclassification from urban to
rural status as specified in § 412.103 of
this chapter as of December 27, 2020.
■ 43. Section 485.900 is amended by
revising paragraphs (a)(1), (2), and (3) to
read as follows:
§ 485.900
Basis and scope.
(a) * * *
(1) Section 1832(a)(2)(J) of the Act
specifies that payments may be made
under Medicare Part B for partial
hospitalization services and intensive
outpatient services furnished by a
community mental health center
(CMHC) as described in section
1861(ff)(3)(B) of the Act.
(2) Section 1861(ff) of the Act
describes the items and services that are
covered under Medicare Part B as
‘‘partial hospitalization services’’ and
‘‘intensive outpatient services’’ and the
conditions under which the items and
services must be provided. In addition,
section 1861(ff) of the Act specifies that
the entities authorized to provide partial
hospitalization services and intensive
outpatient services under Medicare Part
B include CMHCs and defines that term.
(3) Section 1866(e)(2) of the Act
specifies that a provider of services for
purposes of provider agreement
requirements includes a CMHC as
defined in section 1861(ff)(3)(B) of the
Act, but only with respect to providing
partial hospitalization services and
intensive outpatient services.
*
*
*
*
*
■ 44. Section 485.904 is amended by
revising paragraph (b)(5) and adding
paragraph (b)(12) to read as follows:
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§ 485.904 Condition of participation:
Personnel qualifications.
*
*
*
*
*
(b) * * *
(5) Mental health counselor. An
individual who meets the applicable
education, training, and other
requirements of § 410.54 of this chapter.
*
*
*
*
*
(12) Marriage and family therapist.
An individual who meets the applicable
education, training, and other
requirements of § 410.53 of this chapter.
*
*
*
*
*
■ 45. Section 485.914 is amended by
revising paragraphs (a)(2) and (d)(2) to
read as follows:
§ 485.914 Condition of participation:
Admission, initial evaluation,
comprehensive assessment, and discharge
or transfer of the client.
(a) * * *
(2) For clients assessed and admitted
to receive partial hospitalization
services and intensive outpatient
services, the CMHC must also meet
separate requirements as specified in
§§ 485.918(f) and 485.918(g), as
applicable.
*
*
*
*
*
(d) * * *
(2) For clients that receive PHP or IOP
services, the assessment must be
updated no less frequently than every
30 days.
*
*
*
*
*
■ 46. Section 485.916 is amended by
revising paragraph (d) to read as
follows:
§ 485.916 Condition of participation:
Treatment team, person-centered active
treatment plan, and coordination of
services.
*
*
*
*
*
(d) Standard: Review of the personcentered active treatment plan. The
CMHC interdisciplinary treatment team
must review, revise, and document the
individualized active treatment plan as
frequently as the client’s condition
requires, but no less frequently than
every 30-calendar day. A revised active
treatment plan must include
information from the client’s initial
evaluation and comprehensive
assessments, the client’s progress
toward outcomes and goals specified in
the active treatment plan, and changes
in the client’s goals. The CMHC must
also meet partial hospitalization
program requirements specified under
§ 424.24(e) of this chapter or intensive
outpatient service requirements as
specified under § 424.24(d) of this
chapter, as applicable, if such services
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§ 489.2
are included in the active treatment
plan.
*
*
*
*
*
■ 47. Section 485.918 is amended by:
■ a. Revising the section heading;
■ b. Revising paragraph (b)(1)(iii);
■ c. Redesignating paragraph (g) as
paragraph (h); and
■ d. Adding paragraph (g).
The revisions and addition read as
follows:
§ 485.918 Condition of participation:
Organization, governance, administration of
services, partial hospitalization services
and intensive outpatient services.
*
*
*
*
*
(b) * * *
(1) * * *
(iii) Provides day treatment, partial
hospitalization services, or intensive
outpatient services, other than in an
individual’s home or in an inpatient or
residential setting, or psychosocial
rehabilitation services.
*
*
*
*
*
(g) Standard: Intensive outpatient
services. A CMHC providing intensive
outpatient services must—
(1) Provide services as defined in
§ 410.2 of this chapter.
(2) Provide the services and meet the
requirements specified in § 410.44 of
this chapter.
(3) Meet the requirements for coverage
as described in § 410.111 of this chapter.
(4) Meet the content of certification
and plan of treatment requirements as
described in § 424.24(d) of this chapter.
*
*
*
*
*
PART 488—SURVEY, CERTIFICATION,
AND ENFORCEMENT PROCEDURES
48. The authority citation for part 488
continues to read as follows:
■
Authority: 42 U.S.C. 1302; and 1395hh.
49. Section 488.2 is amended by
revising provision ‘‘1832(a)(2)(J)’’ to
read as follows:
■
§ 488.2
Statutory basis.
*
*
*
*
1832(a)(2)(J)—Requirements for
partial hospitalization services and
intensive outpatient services provided
by CMHCs.
*
*
*
*
*
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*
PART 489—PROVIDER AGREEMENTS
AND SUPPLIER APPROVAL
50. The authority citation for part 489
continues to read as follows:
■
Authority: 42 U.S.C. 1302, 1395i–3, 1395x,
1395aa(m), 1395cc, 1395ff, and 1395(hh).
48. Section 489.2 is amended by
revising paragraph (c)(2) to read as
follows:
■
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*
*
*
*
*
(c) * * *
(2) CMHCs may enter into provider
agreements only to furnish partial
hospitalization services and intensive
outpatient services.
*
*
*
*
*
For the reasons set forth in the
preamble, the Department of Health and
Human Services proposes to amend 45
CFR part 180 as set forth below:
PART 180—HOSPITAL PRICE
TRANSPARENCY
51. The authority citation for part 180
continues to read as follows:
■
Authority: 42 U.S.C. 300gg–18, 42 U.S.C.
1302.
52. Section 180.20 is amended by—
a. Adding definitions for ‘‘CMS
template’’, ‘‘Consumer-friendly
expected allowed charges’’, ‘‘Encode’’,
and ‘‘Machine-readable file’’.
■ b. In the definition ‘‘Machine-readable
format’’ removing the sentence
‘‘Examples of machine-readable formats
include, but are not limited to, XML,
JSON and .CSV formats.’’
The additions read as follows:
■
■
§ 180.20
Definitions.
*
*
*
*
*
CMS template means a CSV format or
JSON schema that CMS makes available
for purposes of compliance with
180.40(a).
Consumer-friendly expected allowed
amount means the average dollar
amount that the hospital estimates it
will be paid by a third party payer for
an item or service.
*
*
*
*
*
Encode means to enter data items into
the fields of the CMS template.
*
*
*
*
*
Machine-readable file means a single
digital file that is in a machine-readable
format.
*
*
*
*
*
■ 53. Section 180.50 is amended by—
■ a. Adding paragraph (a)(3);
■ b. Revising paragraphs (b) and (c);
■ c. Amending paragraph (d)(4) by
removing the phrase ‘‘The digital file
and standard charge information
contained in that file must be’’ and
adding in its place the phrase ‘‘The
machine-readable file and standard
charge information contained in that
machine-readable file must be’’.
■ d. Amending paragraph (d)(5) by:
■ i. Removing the phrase ‘‘The file
must’’ and adding in its place the phrase
‘‘The machine-readable file must’’; and
■ ii. Removing the phrase
‘‘[json|xml|csv]’’ and adding in its place
the phrase ‘‘[json|csv]’’.
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e. Adding paragraph (d)(6).
f. Amending paragraph (e) by
removing the second sentence.
The additions and revisions read as
follows:
■
■
§ 180.50 Requirements for making public
hospital standard charges for all items and
services.
*
*
*
*
*
(a) * * *
(3) The hospital must include a
statement in its machine-readable file
affirming that the hospital, to the best of
its knowledge and belief, has included
all applicable standard charge
information in accordance with the
requirements of this section, and that
the information displayed is true,
accurate, and complete as of the date
indicated in the file.
(b) Required data elements. Each
hospital must encode in its machinereadable file all standard charge
information, as applicable, for each of
the following required data elements:
(1) General data elements:
(i) Hospital name, license number,
and location name(s) and address(es) at
which the public may obtain the items
and service at the standard charge
amount indicated in the machinereadable file; and
(ii) The version number of the CMS
template and the date of most recent
update of the standard charge
information in the machine-readable
file.
(2) Each type of standard charge as
defined at § 180.20 (for example, gross
charge, discounted cash price, payerspecific negotiated charge, de-identified
minimum negotiated charge, and deidentified maximum negotiated charge)
and, for payer-specific negotiated
charges, the following additional data
elements:
(i) Payer and plan names; plan(s) may
be indicated as categories (such as ‘‘all
PPO plans’’) when the established
payer-specific negotiated charges are
applicable to each plan in the indicated
category.
(ii) Type of contracting method used
to establish the standard charge; and
(iii) Whether the standard charge
indicated should be interpreted by the
user as a dollar amount, or if the
standard charge is based on a percentage
or algorithm. If the standard charge is
based on a percentage or algorithm, the
MRF must also specify what percentage
or algorithm determines the dollar
amount for the item or service, and the
consumer-friendly expected allowed
amount for that item or service.
(3) A description of the item or
service that corresponds to the standard
charge established by hospital,
including:
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(i) A general description of the item
or service;
(ii) Whether the item or service is
provided in connection with an
inpatient admission or an outpatient
department visit; and
(iii) For drugs, the drug unit and type
of measurement.
(4) Any codes used by the hospital for
purposes of accounting or billing for the
item or service, modifier(s), and the
code type(s).
(c) Format. The hospital’s machinereadable file must conform to the CMS
template layout, data specifications, and
data dictionary for purposes of making
public the standard charge information
required under paragraph (b) of this
section.
(d) * * *
(6) The hospital must ensure that the
public website it selects to host its
machine-readable file establishes and
maintains, in the form and manner
specified by CMS:
(i) A .txt file in the root folder that
includes:
(A) The hospital location name that
corresponds to the machine-readable
file;
(B) The source page URL that hosts
the machine-readable file;
(C) A direct link to the machinereadable file (the machine-readable file
URL); and
(D) Hospital point of contact
information.
(ii) A link in the footer on its website,
including but not limited to the
homepage, that is labeled ‘‘Hospital
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Price Transparency’’ and links directly
to the publicly available web page that
hosts the link to the machine-readable
file.
■ 54. Section 180.70 is amended by:
■ a. Revising paragraph (a) introductory
text.
■ b. Revising paragraph (a)(2)(iii).
■ c. By adding paragraphs (a)(2)(iv) and
(v).
■ d. By revising paragraph (b)(1); and
■ e. By adding paragraphs (c) and (d).
The additions and revisions read as
follows:
§ 180.70
Monitoring and enforcement.
(a) Monitoring and assessment.
(1) * * *
(2) * * *
*
*
*
*
*
(iii) CMS audit and comprehensive
review.
(iv) Requiring submission of
certification by an authorized hospital
official as to the accuracy and
completeness of the data in the
machine-readable file.
(v) Requiring submission of additional
documentation as may be necessary to
make a determination of hospital
compliance.
(b) * * *
(1) Provide a written warning notice
to the hospital of the specific
violation(s). CMS will require that a
hospital submit an acknowledgement of
receipt of the warning notice in the form
and manner, and by the deadline,
specified in the notice of violation
issued by CMS to the hospital.
*
*
*
*
*
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(c) Actions to address noncompliance
of hospitals in health systems. In the
event CMS takes an action to address
hospital noncompliance (as specified in
paragraph (b) of this section) and the
hospital is determined by CMS to be
part of a health system, CMS may notify
health system leadership of the action
and may work with health system
leadership to address similar
deficiencies for hospitals across the
health system.
(d) Publicizing assessments,
compliance actions, and outcomes.
CMS may publicize on its website
information related to the following:
(1) CMS’ assessment of a hospital’s
compliance.
(2) Any compliance action taken
against a hospital, the status of such
compliance action, or the outcome of
such compliance action.
(3) Notifications sent to health system
leadership.
§ 180.90
[Amended]
55. In § 180.90, amend paragraph
(b)(2)(ii)(C) by removing the phrase
‘‘resulting from monitoring activities’’
and adding in its place the phrase
‘‘resulting from monitoring and
assessment activities’’.
■
Dated: July 7, 2023.
Xavier Becerra,
Secretary, Department of Health and Human
Services.
[FR Doc. 2023–14768 Filed 7–13–23; 4:15 pm]
BILLING CODE 4120–01–P
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Agencies
[Federal Register Volume 88, Number 145 (Monday, July 31, 2023)]
[Proposed Rules]
[Pages 49552-49921]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-14768]
[[Page 49551]]
Vol. 88
Monday,
No. 145
July 31, 2023
Part II
Department of Health and Human Services
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Centers for Medicare & Medicaid Services
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42 CFR Parts 405, 410, 416, et al.
45 CFR Part 180
Medicare Program: Hospital Outpatient Prospective Payment and
Ambulatory Surgical Center Payment Systems; Quality Reporting Programs;
Payment for Intensive Outpatient Services in Rural Health Clinics,
Federally Qualified Health Centers, and Opioid Treatment Programs;
Hospital Price Transparency; Changes to Community Mental Health Centers
Conditions of Participation, Proposed Changes to the Inpatient
Prospective Payment System Medicare Code Editor; Rural Emergency
Hospital Conditions of Participation Technical Correction; Proposed
Rule
Federal Register / Vol. 88 , No. 145 / Monday, July 31, 2023 /
Proposed Rules
[[Page 49552]]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Medicare & Medicaid Services
42 CFR Parts 405, 410, 416, 419, 424, 485, 488, 489
Office of the Secretary
45 CFR Part 180
[CMS-1786-P]
RIN 0938-AV09
Medicare Program: Hospital Outpatient Prospective Payment and
Ambulatory Surgical Center Payment Systems; Quality Reporting Programs;
Payment for Intensive Outpatient Services in Rural Health Clinics,
Federally Qualified Health Centers, and Opioid Treatment Programs;
Hospital Price Transparency; Changes to Community Mental Health Centers
Conditions of Participation, Proposed Changes to the Inpatient
Prospective Payment System Medicare Code Editor; Rural Emergency
Hospital Conditions of Participation Technical Correction
AGENCY: Centers for Medicare & Medicaid Services (CMS), Department of
Health and Human Services (HHS).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This proposed rule would revise the Medicare hospital
outpatient prospective payment system (OPPS) and the Medicare
ambulatory surgical center (ASC) payment system for calendar year 2024
based on our continuing experience with these systems. In this proposed
rule, we describe the changes to the amounts and factors used to
determine the payment rates for Medicare services paid under the OPPS
and those paid under the ASC payment system. This proposed rule also
would update and refine the requirements for the Hospital Outpatient
Quality Reporting (OQR) Program, the ASC Quality Reporting (ASCQR)
Program, and the Rural Emergency Hospital Quality Reporting (REHQR)
Program. This proposed rule would also establish payment for certain
intensive outpatient services under Medicare, beginning January 1,
2024. In addition, this proposed rule would update and refine
requirements for hospitals to make public their standard charge
information and enforcement of hospital price transparency. We also
propose to codify provisions of the Consolidated Appropriations Act,
2023, in Community Mental Health Centers Conditions of Participation
(CoPs). We propose to revise the personnel qualifications of Mental
Health Counselors and add personnel qualifications for Marriage and
Family Therapists in the CMHC CoPs. We also seek comment on separate
payment under the Inpatient Prospective Payment System (IPPS) for
establishing and maintaining access to a buffer stock of essential
medicines to foster a more reliable, resilient supply of these
medicines. Finally, we propose to address any future revisions to the
IPPS Medicare Code Editor (MCE), including any additions or deletions
of claims edits, as well as the addition or deletion of ICD-10
diagnosis and procedure codes to the applicable MCE edit code lists,
outside of the annual IPPS rulemakings. Additionally, we propose a
technical correction to the Rural Emergency Hospital Conditions of
Participation.
DATES: To be assured consideration, comments must be received at one of
the addresses provided below, by September 11, 2023.
ADDRESSES: In commenting, please refer to file code CMS-1786-P.
Comments, including mass comment submissions, must be submitted in
one of the following three ways (please choose only one of the ways
listed):
1. Electronically. You may submit electronic comments on this
regulation to https://www.regulations.gov. Follow the ``Submit a
comment'' instructions.
2. By regular mail. You may mail written comments to the following
address ONLY: Centers for Medicare & Medicaid Services, Department of
Health and Human Services, Attention: CMS-1786-P, P.O. Box 8010,
Baltimore, MD 21244-1810.
Please allow sufficient time for mailed comments to be received
before the close of the comment period.
3. By express or overnight mail. You may send written comments to
the following address ONLY: Centers for Medicare & Medicaid Services,
Department of Health and Human Services, Attention: CMS-1786-P, Mail
Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850.
For information on viewing public comments, see the beginning of
the SUPPLEMENTARY INFORMATION section.
FOR FURTHER INFORMATION CONTACT:
Elise Barringer, [email protected] or 410-786-9222.
Advisory Panel on Hospital Outpatient Payment (HOP Panel), contact
the HOP Panel mailbox at [email protected].
Ambulatory Surgical Center (ASC) Payment System, contact Scott
Talaga via email at [email protected] or Mitali Dayal via email
at [email protected].
Ambulatory Surgical Center Quality Reporting (ASCQR) Program
policies, contact Anita Bhatia via email at [email protected].
Ambulatory Surgical Center Quality Reporting (ASCQR) Program
measures, contact Marsha Hertzberg via email at
[email protected].
Biosimilars Packaging Exception, contact Gil Ngan via email at
[email protected].
Blood and Blood Products, contact Josh McFeeters via email at
[email protected].
Cancer Hospital Payments, contact Scott Talaga via email at
[email protected].
Cardiac Rehabilitation, Intensive Cardiac Rehabilitation and
Pulmonary Rehabilitation Services, contact Nate Vercauteren via email
at [email protected].
CMS Web Posting of the OPPS and ASC Payment Files, contact Chuck
Braver via email at [email protected].
Community Mental Health Centers (CMHC) Conditions of Participation,
contact Mary Rossi-Coajou via email at [email protected] or
Cara Meyer via email at [email protected].
Composite APCs (Multiple Imaging and Mental Health), via email at
Mitali Dayal via email at [email protected].
Comprehensive APCs (C-APCs), contact Mitali Dayal via email at
[email protected].
COVID-19 Final Rules, contact Elise Barringer via email at
[email protected].
Hospital Outpatient Quality Reporting (OQR) Program policies,
contact Kimberly Go via email [email protected].
Hospital Outpatient Quality Reporting (OQR) Program measures,
contact Janis Grady via email [email protected].
Hospital Outpatient Visits (Emergency Department Visits and
Critical Care Visits), contact Elise Barringer via email at
[email protected].
Hospital Price Transparency (HPT), contact Terri Postma via email
at [email protected].
Inpatient Only (IPO) Procedures List, contact Abigail Cesnik via
email at [email protected].
Inpatient Prospective Payment System (IPPS) Medicare Code Editor,
contact Mady Hue via email at [email protected].
Mental Health Services Furnished Remotely by Hospital Staff to
[[Page 49553]]
Beneficiaries in Their Homes, contact Emily Yoder via email at
[email protected].
Method to Control Unnecessary Increases in the Volume of Clinic
Visit Services Furnished in Excepted Off-Campus Provider-Based
Departments (PBDs), contact Elise Barringer via email at
[email protected].
New Technology Intraocular Lenses (NTIOLs), contact Scott Talaga
via email at [email protected].
No Cost/Full Credit and Partial Credit Devices, contact Scott
Talaga via email at [email protected].
Opioid Treatment Program (OTP) Intensive Outpatient Services (IOP)
contact Lindsey Baldwin via email at [email protected] and
Ariana Pitcher at [email protected].
OPPS Brachytherapy, contact Scott Talaga via email at
[email protected].
OPPS Data (APC Weights, Conversion Factor, Copayments, Cost-to-
Charge Ratios (CCRs), Data Claims, Geometric Mean Calculation, Outlier
Payments, and Wage Index), contact Erick Chuang via email at
[email protected], or Scott Talaga via email at
[email protected], or Josh McFeeters via email at
[email protected].
OPPS Dental Policy, contact Nicole Marcos via email at
[email protected].
OPPS Drugs, Radiopharmaceuticals, Biologicals, and Biosimilar
Products, contact Josh McFeeters via email at
[email protected], or Gil Ngan via email at
[email protected], or Cory Duke via email at [email protected],
or Au'Sha Washington via email at [email protected].
OPPS New Technology Procedures/Services, contact the New Technology
APC mailbox at [email protected].
OPPS Packaged Items/Services, contact Mitali Dayal via email at
[email protected] or Cory Duke via email at
[email protected].
OPPS Pass-Through Devices, contact the Device Pass-Through mailbox
at [email protected].
OPPS Status Indicators (SI) and Comment Indicators (CI), contact
Marina Kushnirova via email at [email protected].
Partial Hospitalization Program (PHP), Intensive Outpatient (IOP),
and Community Mental Health Center (CMHC) Issues, contact the PHP
Payment Policy Mailbox at [email protected].
Request for Public Comments on Potential Payment under the IPPS for
Establishing and Maintaining Access to Essential Medicines, contact
[email protected].
Rural Emergency Hospital Conditions of Participation, contact
Kianna Banks via email [email protected].
Rural Emergency Hospital Quality Reporting (REHQR) Program
policies, contact Anita Bhatia via email at [email protected].
Rural Emergency Hospital Quality Reporting (REHQR) Program
measures, contact Melissa Hager via email [email protected].
Rural Health Clinic (RHC) and Federally Qualified Health Center
(FQHC) Intensive Outpatient Services (IOP), contact Michele Franklin
via email at [email protected].
Separate Payment for High-Cost Drugs Provided by Indian Health
Service and Tribally-Owned Facilities, contact Elise Barringer via
email at [email protected].
Skin Substitutes, contact Josh McFeeters via email at
[email protected].
All Other Issues Related to Hospital Outpatient Payments Not
Previously Identified, contact the OPPS mailbox at
[email protected].
All Other Issues Related to the Ambulatory Surgical Center Payments
Not Previously Identified, contact the ASC mailbox at
[email protected].
SUPPLEMENTARY INFORMATION:
Inspection of Public Comments: All comments received before the
close of the comment period are available for viewing by the public,
including any personally identifiable or confidential business
information that is included in a comment. We post all comments
received before the close of the comment period on the following
website as soon as possible after they have been received: https://www.regulations.gov. Follow the search instructions on that website to
view public comments. CMS will not post on Regulations.gov public
comments that make threats to individuals or institutions or suggest
that the individual will take actions to harm the individual. CMS
continues to encourage individuals not to submit duplicative comments.
We will post acceptable comments from multiple unique commenters even
if the content is identical or nearly identical to other comments.
Addenda Available Only Through the Internet on the CMS Website
In the past, a majority of the Addenda referred to in our OPPS/ASC
proposed and final rules were published in the Federal Register as part
of the annual rulemakings. However, beginning with the CY 2012 OPPS/ASC
proposed rule, all of the Addenda no longer appear in the Federal
Register as part of the annual OPPS/ASC proposed and final rules to
decrease administrative burden and reduce costs associated with
publishing lengthy tables. Instead, these Addenda are published and
available only on the CMS website. The Addenda relating to the OPPS are
available at: https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/HospitalOutpatientPPS/Hospital-Outpatient-Regulations-and-Notices.
The Addenda relating to the ASC payment system are available at:
https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/ASCPayment/ASC-Regulations-and-Notices.
Current Procedural Terminology (CPT) Copyright Notice
Throughout this proposed rule, we use CPT codes and descriptions to
refer to a variety of services. We note that CPT codes and descriptions
are copyright 2021 American Medical Association (AMA). All Rights
Reserved. CPT is a registered trademark of the AMA. Applicable Federal
Acquisition Regulations and Defense Federal Acquisition Regulations
apply.
Table of Contents
I. Executive Summary of This Document
II. Proposed Updates Affecting OPPS Payments
A. Recalibration of APC Relative Payment Weights
B. Conversion Factor Update
C. Proposed Wage Index Changes
D. Proposed Statewide Average Default Cost-to-Charge Ratios
(CCRs)
E. Proposed Adjustment for Rural Sole Community Hospitals (SCHs)
and Essential Access Community Hospitals (EACHs) Under Section
1833(t)(13)(B) of the Act for CY 2024
F. Proposed Payment Adjustment for Certain Cancer Hospitals for
CY 2024
G. Proposed Hospital Outpatient Outlier Payments
H. Proposed Calculation of an Adjusted Medicare Payment From the
National Unadjusted Medicare Payment
I. Proposed Beneficiary Copayments
III. Proposed OPPS Ambulatory Payment Classification (APC) Group
Policies
A. Proposed OPPS Treatment of New and Revised HCPCS Codes
B. Proposed OPPS Changes--Variations Within APCs
C. Proposed New Technology APCs
D. Universal Low Volume APC Policy for Clinical and
Brachytherapy APCs
E. Proposed APC-Specific Policies
IV. Proposed OPPS Payment for Devices
A. Proposed Pass-Through Payment for Devices
B. Proposed Device-Intensive Procedures
[[Page 49554]]
V. Proposed OPPS Payment for Drugs, Biologicals, and
Radiopharmaceuticals
A. Proposed OPPS Transitional Pass-Through Payment for
Additional Costs of Drugs, Biologicals, and Radiopharmaceuticals
B. Proposed OPPS Payment for Drugs, Biologicals, and
Radiopharmaceuticals Without Pass-Through Payment Status
C. Requirement in the Physician Fee Schedule CY 2024 Proposed
Rule for HOPDs and ASCs To Report Discarded Amounts of Certain
Single-Dose or Single-Use Package Drugs
VI. Proposed Estimate of OPPS Transitional Pass-Through Spending for
Drugs, Biologicals, Radiopharmaceuticals, and Devices
A. Amount of Additional Payment and Limit on Aggregate Annual
Adjustment
B. Proposed Estimate of Pass-Through Spending for CY 2024
VII. Proposed OPPS Payment for Hospital Outpatient Visits and
Critical Care Services
VIII. Payment for Partial Hospitalization and Intensive Outpatient
Services
A. Partial Hospitalization
B. Intensive Outpatient Program Services
C. Coding and Billing for PHP and IOP Services Under the OPPS
D. Proposed Payment Rate Methodology for PHP and IOP
E. Proposed Outlier Policy for CMHCs
F. Rural Health Clinics (RHCs) and Federally Qualified Health
Centers (FQHCs)
G. Modifications Related to Medicare Coverage for Opioid Use
Disorder (OUD) Treatment Services Furnished by Opioid Treatment
Programs (OTPs)
H. Payment Rates Under the Medicare Physician Fee Schedule for
Nonexcepted Items and Services Furnished by Nonexcepted Off-Campus
Provider-Based Departments of a Hospital
IX. Services That Will Be Paid Only as Inpatient Services
A. Background
B. Changes to the Inpatient Only (IPO) List
C. Solicitation of Public Comments on the Services Described by
CPT Codes 43775, 43644, 43645, and 44204
X. Proposed Nonrecurring Policy Changes
A. Supervision by Nurse Practitioners, Physician Assistants and
Clinical Nurse Specialists of Cardiac Rehabilitation, Intensive
Cardiac Rehabilitation and Pulmonary Rehabilitation Services
Furnished to Outpatients
B. Payment for Intensive Cardiac Rehabilitation Services (ICR)
Provided by an Off-Campus, Non-Excepted Provider Based Department
(PBD) of a Hospital
C. OPPS Payment for Specimen Collection for COVID-19 Tests
D. Remote Services
E. OPPS Payment for Dental Services
F. Use of Claims and Cost Report Data for CY 2024 OPPS and ASC
Payment System Ratesetting Due to the PHE
G. Comment Solicitation on Payment for High-Cost Drugs Provided
by Indian Health Service and Tribally-Owned Facilities
XI. Proposed CY 2024 OPPS Payment Status and Comment Indicators
A. Proposed CY 2024 OPPS Payment Status Indicator Definitions
B. Proposed CY 2024 Comment Indicator Definitions
XII. MedPAC Recommendations
A. OPPS Payment Rates Update
B. Medicare Safety Net Index
C. ASC Cost Data
XIII. Proposed Updates to the Ambulatory Surgical Center (ASC)
Payment System
A. Background, Legislative History, Statutory Authority, and
Prior Rulemaking for the ASC Payment System
B. Proposed ASC Treatment of New and Revised Codes
C. Payment Policies Under the ASC Payment System
D. Proposed Additions to ASC Covered Surgical Procedures and
Covered Ancillary Services Lists
E. ASC Payment Policy for Non-Opioid Post-Surgery Pain
Management Drugs, Biologicals, and Devices
F. Comment Solicitation on Access to Non-Opioid Treatments for
Pain Relief Under the OPPS and ASC Payment System
G. Proposed New Technology Intraocular Lenses (NTIOLs)
H. Proposed Calculation of the ASC Payment Rates and the ASC
Conversion Factor
XIV. Hospital Outpatient Quality Reporting (OQR) Program
Requirements, Proposals, and Requests for Comment
A. Background
B. Hospital OQR Program Quality Measures
C. Hospital OQR Program Quality Measure Topics for Potential
Future Consideration
D. Administrative Requirements
E. Form, Manner, and Timing of Data Submitted for the Hospital
OQR Program
F. Payment Reduction for Hospitals That Fail To Meet the
Hospital OQR Program Requirements for the CY 2024 Payment
Determination
XV. Requirements for the Ambulatory Surgical Center Quality
Reporting (ASCQR) Program
A. Background
B. ASCQR Program Quality Measure
C. Administrative Requirements
D. Form, Manner, and Timing of Data Submitted for the ASCQR
Program
E. Payment Reduction for ASCs That Fail To Meet the ASCQR
Program Requirements
XVI. Proposed Requirements for the Rural Emergency Hospital Quality
Reporting (REHQR) Program
A. Background
B. REHQR Program Quality Measures
C. Administrative Requirements
D. Form, Manner, and Timing of Data Submitted for the REHQR
Program
XVII. Changes to Community Mental Health Center (CMHC) Conditions of
Participation (CoPs)
A. Background and Statutory Authority
B. Provisions of the Proposed Rule
XVIII. Proposed Updates to Requirements for Hospitals To Make Public
a List of Their Standard Charges
A. Introduction and Overview
B. Proposal To Modify the Requirements for Making Public
Hospital Standard Charges at 45 CFR 180.50
C. Proposals To Improve and Enhance Enforcement
D. Seeking Comment on Consumer-Friendly Displays and Alignment
With Transparency in Coverage and No Surprises Act
XIX. Proposed Changes to the Inpatient Prospective Payment System
Medicare Code Editor
XX. Proposed Technical Edits for REH Conditions of Participation
XXI. Rural Emergency Hospitals (REHs): Proposal Regarding Payment
For Rural Emergency Hospitals (REHs)
A. Background on Rural Emergency Hospitals
B. REH Payment Methodology
C. Background on the IHS Outpatient All-Inclusive Rate (AIR) for
Tribal and IHS Hospitals
D. Proposal To Pay IHS and Tribal Hospitals That Convert to an
REH Under the AIR
E. Exclusion of REHs From the OPPS
XXII. Request for Public Comments on Potential Payment Under the
IPPS and OPPS for Establishing and Maintaining Access to Essential
Medicines
A. Overview
B. Establishing and Maintaining a Buffer Stock of Essential
Medicines
C. Potential Separate Payment Under IPPS and OPPS for
Establishing and Maintaining Access to a Buffer Stock Essential
Medicines
D. Comment Solicitation on Additional Considerations
XXIII. Files Available to the Public via the internet
XXIV. Collection of Information Requirements
A. ICRs Related to Proposed Intensive Outpatient Physician
Certification Requirements
B. ICRs Related to the Hospital OQR Program
C. ICRs Related to the ASCQR Program
D. ICRs Related to the REHQR Program
E. ICRs Related to Conditions of Participation (CoPs):
Admission, Initial Evaluation, Comprehensive Assessment, and
Discharge or Transfer of the Client (Sec. 485.914)
F. ICR's Related to Conditions of Participation (CoPs):
Treatment Team, Person-Centered Active Treatment Plan, and
Coordination of Services (Sec. 485.916)
G. ICR's Related to Conditions of Participation (CoPs):
Organization, Governance, Administration of Services, Partial
Hospitalization Services (Sec. 485.918)
H. ICRs Related to Hospital Price Transparency
XXV. Response to Comments
XXVI. Economic Analyses
A. Statement of Need
B. Overall Impact of Provisions of This Proposed Rule
C. Detailed Economic Analyses
D. Regulatory Review Cost Estimation
E. Regulatory Flexibility Act (RFA) Analysis
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F. Unfunded Mandates Reform Act Analysis
G. Federalism
H. Conclusion
I. Summary and Background
A. Executive Summary of This Document
1. Purpose
In this proposed rule, we propose to update the payment policies
and payment rates for services furnished to Medicare beneficiaries in
hospital outpatient departments (HOPDs) and ambulatory surgical centers
(ASCs), beginning January 1, 2024. Section 1833(t) of the Social
Security Act (the Act) requires us to annually review and update the
payment rates for services payable under the Hospital Outpatient
Prospective Payment System (OPPS). Specifically, section 1833(t)(9)(A)
of the Act requires the Secretary of the Department of Health and Human
Services (the Secretary) to review certain components of the OPPS not
less often than annually, and to revise the groups, the relative
payment weights, and the wage and other adjustments that take into
account changes in medical practice, changes in technology, and the
addition of new services, new cost data, and other relevant information
and factors. In addition, under section 1833(i)(D)(v) of the Act, we
annually review and update the ASC payment rates. This proposed rule
also includes additional policy changes made in accordance with our
experience with the OPPS and the ASC payment system and recent changes
in our statutory authority. We describe these and various other
statutory authorities in the relevant sections of this proposed rule.
In addition, this proposed rule would update and refine the
requirements for the Hospital Outpatient Quality Reporting (OQR)
Program, the ASC Quality Reporting (ASCQR) Program, and Rural Emergency
Hospital Quality Reporting (REHQR) Program. In addition, this proposed
rule would establish payment for intensive outpatient services under
Medicare, beginning January 1, 2024. This proposed rule would also
update and refine the requirements for hospitals to make public their
standard charges and CMS enforcement of hospital price transparency
regulations. In addition, this proposed rulemaking would also update
the Community Mental Health Center (CMHC) Conditions of Participation
(CoPs). We propose to revise the personnel qualifications of Mental
Health Counselor's (MHCs) and add personnel qualifications for Marriage
and Family Therapists (MFTs) in the CMHC CoP. Finally, we propose to
remove discussion of the IPPS Medicare Code Editor (MCE) from the
annual IPPS rulemakings, beginning with the FY 2025 rulemaking.
Additionally, we propose a technical correction to the Rural Emergency
Hospital (REH) CoPs under the standard for the designation and
certification of REHs.
2. Summary of the Major Provisions
OPPS Update: For 2024, we propose to increase the payment
rates under the OPPS by an Outpatient Department (OPD) fee schedule
increase factor of 2.8 percent. This proposed increase factor is based
on the proposed inpatient hospital market basket percentage increase of
3.0 percent for inpatient services paid under the hospital inpatient
prospective payment system (IPPS) reduced by a proposed productivity
adjustment of 0.2 percentage point. Based on this update, we estimate
that total payments to OPPS providers (including beneficiary cost
sharing and estimated changes in enrollment, utilization, and case mix)
for calendar year (CY) 2024 would be approximately $88.6 billion, an
increase of approximately $6.0 billion compared to estimated CY 2023
OPPS payments.
We propose to continue to implement the statutory 2.0 percentage
point reduction in payments for hospitals that fail to meet the
hospital outpatient quality reporting requirements by applying a
reporting factor of 0.9805 to the OPPS payments and copayments for all
applicable services.
Data used in Proposed CY 2024 OPPS/ASC Ratesetting: To set
proposed OPPS and ASC payment rates, we normally use the most updated
claims and cost report data available. The best available claims data
is the most recent set of data which would be from 2 years prior to the
calendar year that is the subject of rulemaking. Cost report data
usually lags the claims data by a year and we believe that using the
most updated cost report extract available from the Healthcare Cost
Report Information System (HCRIS) is appropriate for CY 2024 OPPS
ratesetting. Therefore, we propose to resume our typical data process
of using the most updated cost reports and claims data available for CY
2024 OPPS ratesetting.
Partial Hospitalization Update: For CY 2024, we propose
changes to our methodology used to calculate the Community Mental
Health Center (CMHC) and hospital-based PHP (HB PHP) geometric mean per
diem costs, as well as proposing changes to expand PHP payment from two
APCs to four APCs.
Proposed Medicare Payment for Intensive Outpatient
Programs: Beginning in CY 2024, we propose to establish payment for
intensive outpatient programs (IOPs) under Medicare. We propose the
scope of benefits, physician certification requirements, coding and
billing, and payment rates under the IOP benefit. IOP services may be
furnished in hospital outpatient departments, community mental health
centers (CMHCs), federally qualified health centers (FQHC), and rural
health clinics (RHC). We also propose to establish payment for
intensive outpatient services provided by opioid treatment programs
(OTPs) under the existing OTP benefit.
Changes to the Inpatient Only (IPO) List: For 2024, we are
not proposing to remove any services from the IPO list.
340B-Acquired Drugs: For CY 2024, we propose to continue
to apply the default rate, generally average sales price (ASP) plus 6
percent, to 340B acquired drugs and biologicals. Therefore, drugs and
biologicals acquired under the 340B program would be paid at the same
payment rate as those drugs and biologicals not acquired under the 340B
program.
Biosimilar Packaging Exception: For CY 2024, we propose to
except biosimilars from the OPPS threshold packaging policy when their
reference biologicals are separately paid. In addition, if a reference
product's per-day cost falls below the threshold packaging policy, we
propose that all the biosimilars related to the reference product would
be similarly packaged.
Proposal to Pay IHS and Tribal Hospitals that Convert to a
Rural Emergency Hospital (REH) Under the IHS All-Inclusive Rate (AIR):
For CY 2024, we propose that IHS and tribal hospitals that convert to
an REH be paid for hospital outpatient services under the same all-
inclusive rate that would otherwise apply if these services were
performed by an IHS or tribal hospital that is not an REH. We also
propose that IHS and tribal hospitals that convert to an REH would
receive the REH monthly facility payment consistent with how this
payment is applied to REHs that are not tribally or IHS operated.
Device Pass-Through Payment Applications: For CY 2024, we
received 6 applications for device pass-through payments. We solicit
public comment on these applications and will make final determinations
on these applications in the CY 2024 OPPS/ASC final rule with comment
period.
[[Page 49556]]
Cancer Hospital Payment Adjustment: For CY 2024, we
propose to continue providing additional payments to cancer hospitals
so that a cancer hospital's payment-to-cost ratio (PCR) after the
additional payments is equal to the weighted average PCR for the other
OPPS hospitals using the most recently submitted or settled cost report
data. Section 16002(b) of the 21st Century Cures Act requires that this
weighted average PCR be reduced by 1.0 percentage point. In light of
the PHE impact on claims and cost data used to calculate the target
PCR, we have maintained the CY 2021 target PCR of 0.89 through CYs 2022
and 2023. In this proposed rule, we propose to reduce the target PCR by
1.0 percentage point each calendar year until the target PCR equals the
PCR of non-cancer hospitals using the most recently submitted or
settled cost report data. For CY 2024, we propose to use a target PCR
of 0.88 to determine the CY 2024 cancer hospital payment adjustment to
be paid at cost report settlement. That is, the payment adjustments
will be the additional payments needed to result in a PCR equal to 0.88
for each cancer hospital.
ASC Payment Update: For CYs 2019 through 2023, we adopted
a policy to update the ASC payment system using the hospital market
basket update. In light of the impact of the COVID-19 PHE on healthcare
utilization, we propose to extend our policy to update the ASC payment
system using the hospital market basket update an additional two
years--through CYs 2024 and 2025. Using the hospital market basket
methodology, for CY 2024, we propose to increase payment rates under
the ASC payment system by 2.8 percent for ASCs that meet the quality
reporting requirements under the ASCQR Program. This increase is based
on a hospital market basket percentage increase of 3.0 percent reduced
by a productivity adjustment of 0.2 percentage point. Based on this
proposed update, we estimate that total payments to ASCs (including
beneficiary cost sharing and estimated changes in enrollment,
utilization, and case-mix) for CY 2024 will be approximately $6.0
billion, an increase of approximately $170 million compared to
estimated CY 2023 Medicare payments.
Changes to the List of ASC Covered Surgical Procedures:
For CY 2024, we propose to add 26 dental surgical procedures to the ASC
covered procedures list (CPL) based upon existing criteria at Sec.
416.166.
Hospital Outpatient Quality Reporting (OQR) Program: For
the Hospital OQR Program measure set, we propose to: (1) remove the
Left Without Being Seen measure beginning with the CY 2024 reporting
period/2026 payment determination; (2) modify the COVID-19 Vaccination
Coverage Among Healthcare Personnel (HCP) measure beginning with the CY
2024 reporting period/CY 2026 payment determination; (3) modify the
Cataracts: Improvement in Patient's Visual Function Within 90 Days
Following Cataract Surgery measure beginning with the voluntary CY 2024
reporting period; (4) modify the Appropriate Follow-Up Interval for
Normal Colonoscopy in Average Risk Patients measure beginning with the
CY 2024 reporting period/CY 2026 payment determination; (5) re-adopt
with modification the Hospital Outpatient Volume Data on Selected
Outpatient Procedures measure beginning with the voluntary CY 2025
reporting period and mandatory reporting beginning with the CY 2026
reporting period/CY 2028 payment determination; (6) adopt the Risk-
Standardized Patient-Reported Outcome-Based Performance Measure (PRO-
PM) Following Elective Primary Total Hip Arthroplasty (THA) and/or
Total Knee Arthroplasty (TKA) in the HOPD Setting (THA/TKA PRO-PM)
beginning with the voluntary CYs 2025 and 2026 reporting periods, and
mandatory reporting beginning with the CY 2027 reporting period/CY 2030
payment determination; (7) adopt the Excessive Radiation Dose or
Inadequate Image Quality for Diagnostic Computed Tomography (CT) in
Adults (Hospital Level--Outpatient) measure, beginning with the
voluntary CY 2025 reporting period and mandatory reporting beginning
with the CY 2026 reporting period/CY 2028 payment determination; and
(8) amend multiple codified regulations to replace references to
``QualityNet'' with ``CMS-designated information system'' or ``CMS
website,'' and to make other conforming technical edits, to accommodate
recent and future systems requirements and mitigate confusion for
program participants. We are also requesting public comment on: (1)
patient and workforce safety (including sepsis); (2) behavioral health
(including suicide prevention); and (3) telehealth as potential future
measurement topic areas in the Hospital OQR Program.
Ambulatory Surgical Center Quality Reporting (ASCQR)
Program: For the ASCQR Program measure set, we propose to: (1) modify
the COVID-19 Vaccination Coverage Among Health Care Personnel (HCP)
measure beginning with the CY 2024 Reporting Period/CY 2026 payment
determination; (2) modify the Cataracts: Improvement in Patient's
Visual Function Within 90 Days Following Cataract Surgery measure
beginning with the voluntary CY 2024 reporting period; (3) modify the
Endoscopy/Polyp Surveillance: Appropriate Follow-Up Interval for Normal
Colonoscopy in Average Risk Patients measure beginning with the CY 2024
reporting period/CY 2026 payment determination; (4) re-adopt with
modification the ASC Facility Volume Data on Selected ASC Surgical
Procedures measure beginning with the voluntary CY 2025 reporting
period and mandatory reporting beginning with the CY 2026 reporting
period/CY 2028 payment determination; (5) adopt the Risk Standardized
Patient-Reported Outcome-Based Performance Measure (PRO-PM) Following
Elective Primary Total Hip Arthroplasty (THA) and/or Total Knee
Arthroplasty (TKA) in the ASC Setting (THA/TKA PRO-PM) beginning with
the voluntary CYs 2025 and 2026 reporting periods, and mandatory
reporting beginning with the CY 2027 reporting period/CY 2030 payment
determination; and (6) amend multiple codified regulations to replace
references to ``QualityNet'' with ``CMS-designated information system''
or ``CMS website,'' and to make other conforming technical edits, to
accommodate recent and future systems requirements and mitigate
confusion for program participants.
Rural Emergency Hospital Quality Reporting (REHQR)
Program: For the REHQR Program, we propose to: (1) codify the statutory
authority for the REHQR Program; (2) adopt and codify policies related
to measure retention, measure removal, and measure modification; (3)
adopt one chart-abstracted measure and three claims-based measures for
the REHQR Program measure set and establish related reporting
requirements beginning with the CY 2024 reporting period; (4) adopt and
codify policies related to public reporting of data; (5) codify
foundational requirements related to REHQR Program participation; (6)
adopt and codify policies related to the form, manner, and timing of
data submission under the REHQR Program; (7) adopt and codify a review
and corrections period for submitted data; and (8) adopt and codify an
Extraordinary Circumstances Exception (ECE) process for data submission
requirements. We are also requesting comment on the following potential
measures and approaches for implementing quality reporting under the
REHQR Program: (1) electronic clinical quality measures (eCQMs); (2)
care coordination
[[Page 49557]]
measures; and (3) a tiered quality measure approach.
Mental Health Services Furnished Remotely by Hospital
Staff to Beneficiaries in Their Homes: For CY 2024, we propose
technical refinements to the existing coding for remote mental health
services to allow for multiple units to be billed daily. We also
propose to create a new, untimed code to describe group psychotherapy.
Finally, we propose to delay any in-person visit requirements until the
end of CY 2024.
Proposed OPPS Payment for Dental Services: For CY 2024, we propose
to assign 229 HCPCS codes describing dental services to various
clinical APCs to align with Medicare payment provisions regarding
dental services in the CY 2023 PFS final rule.
Comment Solicitation on Payment for High-Cost Drugs Provided by
Indian Health Service and Tribally-Owned Facilities: We are seeking
comment on whether Medicare should pay separately for high-cost drugs
provided by IHS and tribally-owned facilities.
Supervision by Nurse Practitioners, Physician Assistants
and Clinical Nurse Specialists of Cardiac, Intensive Cardiac and
Pulmonary Rehabilitation Services Furnished to Outpatients: For CY
2024, to comply with section 51008 of the Bipartisan Budget Act of 2018
and to ensure consistency with proposed revisions to Sec. 410.47 and
Sec. 410.49 in the CY 2024 PFS proposed rule, we propose to revise
Sec. 410.27(a)(1)(iv)(B)(1) to expand the practitioners who may
supervise cardiac rehabilitation (CR), intensive cardiac rehabilitation
(ICR), and pulmonary rehabilitation (PR) services to include nurse
practitioners (NPs), physician assistants (PAs), and clinical nurse
specialists (CNSs). We also propose to allow for the direct supervision
requirement for CR, ICR, and PR to include virtual presence of the
physician through audio-video real-time communications technology
(excluding audio-only) through December 31, 2024 and extend this policy
to the nonphysician practitioners, that is NPs, PAs, and CNSs, who are
eligible to supervise these services in CY 2024. Payment for Intensive
Cardiac Rehabilitation Services (ICR) Provided by an Off-Campus, Non-
Excepted Provider Based Department (PBD) of a Hospital: For CY 2024, to
address an unintended reimbursement disparity created by application of
the off-campus, non-excepted payment rate to intensive cardiac
rehabilitation services (ICR), we propose to pay for ICR services
furnished by an off-campus, non-excepted PBD of a hospital at 100
percent of the OPPS rate, which is the amount paid for these services
under the PFS.
Proposed Updates to Requirements for Hospitals to Make
Public a List of Their Standard Charges: We propose to amend several of
our hospital price transparency (HPT) requirements in order to improve
our monitoring and enforcement capabilities by way of improving access
to, and the usability of, hospital standard charge information; reduce
the compliance burden on hospitals by providing CMS templates and
technical guidance for display of hospital standard charge information;
align, where feasible, certain hospital price transparency requirements
and processes with requirements and processes we have implemented in
the Transparency in Coverage (TIC) initiative; and make other
modifications to our monitoring and enforcement capabilities that will,
among other things, increase its transparency to the public.
Specifically, we propose to: (1) add definitions for ``CMS template'',
``consumer-friendly expected allowed charges'', ``encode'', and
``machine-readable file'' (MRF); (2) require hospitals to affirm the
accuracy and completeness of data in their MRF; (3) revise and expand
the data elements hospitals must include in the MRF; (4) require
hospitals to conform to a CMS template layout and other technical
specifications for encoding standard charge information in the MRF; (5)
require hospitals to establish and maintain a txt file and footer as
specified by CMS; and (6) revise our enforcement process by updating
our methods to assess hospital compliance, requiring hospitals to
acknowledge receipt of warning notices, working with health system
officials to address noncompliance issues in one or more hospitals that
are part of a health system, and publicizing more information about CMS
enforcement activities related to individual hospital compliance.
Additionally, we are seeking comment on additional considerations for
improving compliance and aligning consumer-friendly policies and
requirements with other federal price transparency initiatives.
Community Mental Health Center (CMHC) Conditions of
Participation (CoPs): We propose to update the CMHC CoPs to implement
the provisions of the Consolidated Appropriations Act (CAA), 2023 (Pub.
L. 117-238) by establishing coverage of intensive outpatient services
(IOP) in CMHCs. The CAA, 2023 also established a new Medicare benefit
category for services furnished and directly billed by Mental Health
Counselors (MHCs) and Marriage and Family Therapists (MFTs). We propose
to revise the personnel qualifications of MHCs and add personnel
qualifications for MFTs in the CMHC CoPs.
Proposed Changes to the Inpatient Prospective Payment
System Medicare Code Editor: Consistent with the process that is used
for updates to the Integrated Outpatient Code Editor (I/OCE) and other
Medicare claims editing systems, we propose to remove discussion of the
IPPS Medicare Code Editor (MCE) from the annual IPPS rulemakings,
beginning with the FY 2025 rulemaking, and to generally address future
changes or updates to the MCE through instruction to the MACs.
Request for Public Comments on Potential Payment under the
IPPS and OPPS for Establishing and Maintaining Access to Essential
Medicines: We are seeking comment on, and may consider finalizing based
on the review of comments received, as early as for cost reporting
periods beginning on or after January 1, 2024, separate payment under
IPPS, for establishing and maintaining access to a buffer stock of
essential medicines to foster a more reliable, resilient supply of
these medicines. An adjustment under OPPS could be considered for
future years.
Rural Emergency Hospital (REH) Conditions of Participation
(CoPs): We propose a technical correction to the REH CoPs under the
standard for the ``Designation and certification of REHs.
3. Summary of Costs and Benefits
In section XXVI of this proposed rule, we set forth a detailed
analysis of the regulatory and federalism impacts that the changes
would have on affected entities and beneficiaries. Key estimated
impacts are described below.
a. Impacts of all OPPS Changes
Table 100 in section XXVI.C of this proposed rule displays the
distributional impact of all the OPPS changes on various groups of
hospitals and CMHCs for CY 2024 compared to all estimated OPPS payments
in CY 2023. We estimate that the proposed policies in this proposed
rule would result in a 2.9 percent overall increase in OPPS payments to
providers. We estimate that total OPPS payments for CY 2024, including
beneficiary cost-sharing, to the approximately 3,600 facilities paid
under the OPPS (including general acute care hospitals, children's
hospitals, cancer hospitals, and CMHCs) would increase by approximately
$1.9 billion compared to CY 2023 payments, excluding our estimated
changes in enrollment, utilization, and case-mix. We estimated the
isolated impact of our
[[Page 49558]]
OPPS policies on CMHCs because CMHCs have historically only been paid
for partial hospitalization services under the OPPS. Beginning in CY
2024, they will also be paid for new intensive outpatient program (IOP)
services under the OPPS. Continuing the provider-specific structure we
adopted beginning in CY 2011, and basing payment fully on the type of
provider furnishing the service, we estimate a 5.8 percent increase in
CY 2024 payments to CMHCs relative to their CY 2023 payments.
b. Impacts of the Updated Wage Indexes
We estimate that our update of the wage indexes based on the fiscal
year (FY) 2024 IPPS proposed rule wage indexes would result in no
change for urban hospitals under the OPPS and a 1.4 percent increase
for rural hospitals. These wage indexes include the continued
implementation of the Office of Management and Budget (OMB) labor
market area delineations based on 2010 Decennial Census data, with
updates, as discussed in section II.C of this proposed rule.
c. Impacts of the Rural Adjustment and the Cancer Hospital Payment
Adjustment
We are implementing the reduction to the cancer hospital payment
adjustment for CY 2024 required by section 1833(t)(18)(C) of the Act,
as added by section 16002(b) of the 21st Century Cures Act, and the
proposed target payment-to-cost ratio (PCR) for CY 2024 cancer hospital
adjustment of 0.89. However, as Section 16002 requires that we reduce
the target PCR by 0.01, that brings the proposed target PCR to 0.88
instead. This is 0.01 less than the target PCR of 0.89 from CY 2021
through CY 2023, which was previously held at the pre-PHE target.
d. Impacts of the OPD Fee Schedule Increase Factor
For the CY 2024 OPPS/ASC, we propose an OPD fee schedule increase
factor of 2.8 percent and applying that proposed increase factor to the
conversion factor for CY 2024. As a result of the OPD fee schedule
increase factor and other budget neutrality adjustments, we estimate
that urban hospitals would experience an increase in payments of
approximately 2.8 percent and that rural hospitals would experience an
increase in payments of 4.4 percent. Classifying hospitals by teaching
status, we estimate non-teaching hospitals would experience an increase
in payments of 3.5 percent, minor teaching hospitals would experience
an increase in payments of 3.0 percent, and major teaching hospitals
would experience an increase in payments of 2.4 percent. We also
classified hospitals by the type of ownership. We estimate that
hospitals with voluntary ownership would experience an increase of 3.0
percent in payments, while hospitals with government ownership would
experience an increase of 2.8 percent in payments. We estimate that
hospitals with proprietary ownership would experience an increase of
3.4 percent in payments.
e. Impacts of the Proposed ASC Payment Update
For impact purposes, the surgical procedures on the ASC covered
surgical procedure list are aggregated into surgical specialty groups
using CPT and HCPCS code range definitions. The percentage change in
estimated total payments by specialty groups under the CY 2024 payment
rates, compared to estimated CY 2023 payment rates, generally ranges
between a decrease of 6 percent and an increase of 7 percent, depending
on the service, with some exceptions. We estimate the impact of
applying the proposed inpatient hospital market basket update to ASC
payment rates would increase payments by $170 million under the ASC
payment system in CY 2024.
f. Impacts of Hospital Price Transparency
We propose to enhance automated access to hospital MRFs and
aggregation and use of MRF data are estimated to increase burden on
hospitals, including a one-time mean of $2,787 per hospital, and a
total national cost of $19,784,539 ($2,787 x 7,098 hospitals). The cost
estimate reflects estimated costs ranging from $1,274 and $4,181 per
hospital, and a total national cost ranging from $9,040,620 to
$29,676,809. As discussed in detail in section XXVI of this proposed
rule, we believe that the benefits to the public (and to hospitals
themselves) outweigh the burden imposed on hospitals.
B. Legislative and Regulatory Authority for the Hospital OPPS
When Title XVIII of the Act was enacted, Medicare payment for
hospital outpatient services was based on hospital-specific costs. In
an effort to ensure that Medicare and its beneficiaries pay
appropriately for services and to encourage more efficient delivery of
care, the Congress mandated replacement of the reasonable cost-based
payment methodology with a prospective payment system (PPS). The
Balanced Budget Act of 1997 (BBA) (Pub. L. 105-33) added section
1833(t) to the Act, authorizing implementation of a PPS for hospital
outpatient services. The OPPS was first implemented for services
furnished on or after August 1, 2000. Implementing regulations for the
OPPS are located at 42 CFR parts 410 and 419.
The Medicare, Medicaid, and SCHIP Balanced Budget Refinement Act of
1999 (BBRA) (Pub. L. 106-113) made major changes in the hospital OPPS.
The following Acts made additional changes to the OPPS: the Medicare,
Medicaid, and SCHIP Benefits Improvement and Protection Act of 2000
(BIPA) (Pub. L. 106-554); the Medicare Prescription Drug, Improvement,
and Modernization Act of 2003 (MMA) (Pub. L. 108-173); the Deficit
Reduction Act of 2005 (DRA) (Pub. L. 109-171), enacted on February 8,
2006; the Medicare Improvements and Extension Act under Division B of
Title I of the Tax Relief and Health Care Act of 2006 (MIEA-TRHCA)
(Pub. L. 109-432), enacted on December 20, 2006; the Medicare,
Medicaid, and SCHIP Extension Act of 2007 (MMSEA) (Pub. L. 110-173),
enacted on December 29, 2007; the Medicare Improvements for Patients
and Providers Act of 2008 (MIPPA) (Pub. L. 110-275), enacted on July
15, 2008; the Patient Protection and Affordable Care Act (Pub. L. 111-
148), enacted on March 23, 2010, as amended by the Health Care and
Education Reconciliation Act of 2010 (Pub. L. 111-152), enacted on
March 30, 2010 (these two public laws are collectively known as the
Affordable Care Act); the Medicare and Medicaid Extenders Act of 2010
(MMEA, Pub. L. 111-309); the Temporary Payroll Tax Cut Continuation Act
of 2011 (TPTCCA, Pub. L. 112-78), enacted on December 23, 2011; the
Middle Class Tax Relief and Job Creation Act of 2012 (MCTRJCA, Pub. L.
112-96), enacted on February 22, 2012; the American Taxpayer Relief Act
of 2012 (Pub. L. 112-240), enacted January 2, 2013; the Pathway for SGR
Reform Act of 2013 (Pub. L. 113-67) enacted on December 26, 2013; the
Protecting Access to Medicare Act of 2014 (PAMA, Pub. L. 113-93),
enacted on March 27, 2014; the Medicare Access and CHIP Reauthorization
Act (MACRA) of 2015 (Pub. L. 114-10), enacted April 16, 2015; the
Bipartisan Budget Act of 2015 (Pub. L. 114-74), enacted November 2,
2015; the Consolidated Appropriations Act, 2016 (Pub. L. 114-113),
enacted on December 18, 2015, the 21st Century Cures Act (Pub. L. 114-
255), enacted on December 13, 2016; the Consolidated Appropriations
Act, 2018 (Pub. L. 115-
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141), enacted on March 23, 2018; the Substance Use Disorder- Prevention
that Promotes Opioid Recovery and Treatment for Patients and
Communities Act (Pub. L. 115-271), enacted on October 24, 2018; the
Further Consolidated Appropriations Act, 2020 (Pub. L. 116-94), enacted
on December 20, 2019; the Coronavirus Aid, Relief, and Economic
Security Act (Pub. L. 116-136), enacted on March 27, 2020; the
Consolidated Appropriations Act, 2021 (Pub. L. 116-260), enacted on
December 27, 2020; the Inflation Reduction Act, 2022 (Pub. L. 117-169),
enacted on August 16, 2022; and Consolidated Appropriations Act (CAA),
2023 (Pub. L. 117-238), enacted December 29, 2022.
Under the OPPS, we generally pay for hospital Part B services on a
rate-per-service basis that varies according to the APC group to which
the service is assigned. We use the Healthcare Common Procedure Coding
System (HCPCS) (which includes certain Current Procedural Terminology
(CPT) codes) to identify and group the services within each APC. The
OPPS includes payment for most hospital outpatient services, except
those identified in section I.C of this proposed rule. Section
1833(t)(1)(B) of the Act provides for payment under the OPPS for
hospital outpatient services designated by the Secretary (which
includes partial hospitalization services furnished by CMHCs), and
certain inpatient hospital services that are paid under Medicare Part
B.
The OPPS rate is an unadjusted national payment amount that
includes the Medicare payment and the beneficiary copayment. This rate
is divided into a labor-related amount and a nonlabor-related amount.
The labor-related amount is adjusted for area wage differences using
the hospital inpatient wage index value for the locality in which the
hospital or CMHC is located.
All services and items within an APC group are comparable
clinically and with respect to resource use, as required by section
1833(t)(2)(B) of the Act. In accordance with section 1833(t)(2)(B) of
the Act, subject to certain exceptions, items and services within an
APC group cannot be considered comparable with respect to the use of
resources if the highest median cost (or mean cost, if elected by the
Secretary) for an item or service in the APC group is more than 2 times
greater than the lowest median cost (or mean cost, if elected by the
Secretary) for an item or service within the same APC group (referred
to as the ``2 times rule''). In implementing this provision, we
generally use the cost of the item or service assigned to an APC group.
For new technology items and services, special payments under the
OPPS may be made in one of two ways. Section 1833(t)(6) of the Act
provides for temporary additional payments, which we refer to as
``transitional pass-through payments,'' for at least 2 but not more
than 3 years for certain drugs, biological agents, brachytherapy
devices used for the treatment of cancer, and categories of other
medical devices. For new technology services that are not eligible for
transitional pass-through payments, and for which we lack sufficient
clinical information and cost data to appropriately assign them to a
clinical APC group, we have established special APC groups based on
costs, which we refer to as New Technology APCs. These New Technology
APCs are designated by cost bands which allow us to provide appropriate
and consistent payment for designated new procedures that are not yet
reflected in our claims data. Similar to pass-through payments, an
assignment to a New Technology APC is temporary; that is, we retain a
service within a New Technology APC until we acquire sufficient data to
assign it to a clinically appropriate APC group.
C. Excluded OPPS Services and Hospitals
Section 1833(t)(1)(B)(i) of the Act authorizes the Secretary to
designate the hospital outpatient services that are paid under the
OPPS. While most hospital outpatient services are payable under the
OPPS, section 1833(t)(1)(B)(iv) of the Act excludes payment for
ambulance, physical and occupational therapy, and speech-language
pathology services, for which payment is made under a fee schedule. It
also excludes screening mammography, diagnostic mammography, and
effective January 1, 2011, an annual wellness visit providing
personalized prevention plan services. The Secretary exercises the
authority granted under the statute to also exclude from the OPPS
certain services that are paid under fee schedules or other payment
systems. Such excluded services include, for example, the professional
services of physicians and nonphysician practitioners paid under the
Medicare Physician Fee Schedule (MPFS); certain laboratory services
paid under the Clinical Laboratory Fee Schedule (CLFS); services for
beneficiaries with end-stage renal disease (ESRD) that are paid under
the ESRD prospective payment system; and services and procedures that
require an inpatient stay that are paid under the hospital IPPS. In
addition, section 1833(t)(1)(B)(v) of the Act does not include
applicable items and services (as defined in subparagraph (A) of
paragraph (21)) that are furnished on or after January 1, 2017, by an
off-campus outpatient department of a provider (as defined in
subparagraph (B) of paragraph (21)). We set forth the services that are
excluded from payment under the OPPS in regulations at 42 CFR 419.22.
Under Sec. 419.20(b) of the regulations, we specify the types of
hospitals that are excluded from payment under the OPPS. These excluded
hospitals are:
Critical access hospitals (CAHs);
Hospitals located in Maryland and paid under Maryland's
All-Payer or Total Cost of Care Model;
Hospitals located outside of the 50 States, the District
of Columbia, and Puerto Rico; and
Indian Health Service (IHS) hospitals.
D. Prior Rulemaking
On April 7, 2000, we published in the Federal Register a final rule
with comment period (65 FR 18434) to implement a prospective payment
system for hospital outpatient services. The hospital OPPS was first
implemented for services furnished on or after August 1, 2000. Section
1833(t)(9)(A) of the Act requires the Secretary to review certain
components of the OPPS, not less often than annually, and to revise the
groups, the relative payment weights, and the wage and other
adjustments to take into account changes in medical practices, changes
in technology, the addition of new services, new cost data, and other
relevant information and factors.Since initially implementing the OPPS,
we have published final rules in the Federal Register annually to
implement statutory requirements and changes arising from our
continuing experience with this system. These rules can be viewed on
the CMS website at: https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/HospitalOutpatientPPS/Hospital-Outpatient-Regulations-and-Notices.html.
E. Advisory Panel on Hospital Outpatient Payment (the HOP Panel or the
Panel)
1. Authority of the Panel
Section 1833(t)(9)(A) of the Act, as amended by section 201(h) of
Public Law 106-113, and redesignated by section 202(a)(2) of Public Law
106-113, requires that we consult with an expert outside advisory panel
composed of an appropriate selection of representatives of providers to
annually review (and
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advise the Secretary concerning) the clinical integrity of the payment
groups and their weights under the OPPS. In CY 2000, based on section
1833(t)(9)(A) of the Act, the Secretary established the Advisory Panel
on Ambulatory Payment Classification Groups (APC Panel) to fulfill this
requirement. In CY 2011, based on section 222 of the Public Health
Service Act (the PHS Act), which gives discretionary authority to the
Secretary to convene advisory councils and committees, the Secretary
expanded the panel's scope to include the supervision of hospital
outpatient therapeutic services in addition to the APC groups and
weights. To reflect this new role of the panel, the Secretary changed
the panel's name to the Advisory Panel on Hospital Outpatient Payment
(the HOP Panel). The HOP Panel is not restricted to using data compiled
by CMS, and in conducting its review, it may use data collected or
developed by organizations outside the Department.
2. Establishment of the Panel
On November 21, 2000, the Secretary signed the initial charter
establishing the Panel, and, at that time, named the APC Panel. This
expert panel is composed of appropriate representatives of providers
(currently employed full-time, not as consultants, in their respective
areas of expertise) who review clinical data and advise CMS about the
clinical integrity of the APC groups and their payment weights. Since
CY 2012, the Panel also is charged with advising the Secretary on the
appropriate level of supervision for individual hospital outpatient
therapeutic services. The Panel is technical in nature, and it is
governed by the provisions of the Federal Advisory Committee Act
(FACA). The current charter specifies, among other requirements, that
the Panel--
May advise on the clinical integrity of Ambulatory Payment
Classification (APC) groups and their associated weights;
May advise on the appropriate supervision level for
hospital outpatient services;
May advise on OPPS APC rates for ASC covered surgical
procedures;
Continues to be technical in nature;
Is governed by the provisions of the FACA;
Has a Designated Federal Official (DFO); and
Is chaired by a Federal Official designated by the
Secretary.
The Panel's charter was amended on November 15, 2011, renaming the
Panel and expanding the Panel's authority to include supervision of
hospital outpatient therapeutic services and to add critical access
hospital (CAH) representation to its membership. The Panel's charter
was also amended on November 6, 2014 (80 FR 23009), and the number of
members was revised from up to 19 to up to 15 members. The Panel's
current charter was approved on November 21, 2022, for a 2-year period.
The current Panel membership and other information pertaining to
the Panel, including its charter, Federal Register notices, membership,
meeting dates, agenda topics, and meeting reports, can be viewed on the
CMS website at: https://www.cms.gov/Regulations-and-Guidance/Guidance/FACA/AdvisoryPanelonAmbulatoryPaymentClassificationGroups.html.
3. Panel Meetings and Organizational Structure
The Panel has held many meetings, with the last meeting taking
place on August 22, 2022. Prior to each meeting, we publish a notice in
the Federal Register to announce the meeting, new members, and any
other changes of which the public should be aware. Beginning in CY
2017, we have transitioned to one meeting per year (81 FR 31941). In CY
2018, we published a Federal Register notice requesting nominations to
fill vacancies on the Panel (83 FR 3715). CMS is currently accepting
nominations at: https://mearis.cms.gov.
In addition, the Panel has established an administrative structure
that, in part, currently includes the use of three subcommittee
workgroups to provide preparatory meeting and subject support to the
larger panel. The three current subcommittees include the following:
APC Groups and Status Indicator Assignments Subcommittee,
which advises and provides recommendations to the Panel on the
appropriate status indicators to be assigned to HCPCS codes, including
but not limited to whether a HCPCS code or a category of codes should
be packaged or separately paid, as well as the appropriate APC
assignment of HCPCS codes regarding services for which separate payment
is made;
Data Subcommittee, which is responsible for studying the
data issues confronting the Panel and for recommending options for
resolving them; and
Visits and Observation Subcommittee, which reviews and
makes recommendations to the Panel on all technical issues pertaining
to observation services and hospital outpatient visits paid under the
OPPS.
Each of these workgroup subcommittees was established by a majority
vote from the full Panel during a scheduled Panel meeting, and the
Panel recommended at the August 22, 2022, meeting that the
subcommittees continue. We accepted this recommendation.
For discussions of earlier Panel meetings and recommendations, we
refer readers to previously published OPPS/ASC proposed and final
rules, the CMS website mentioned earlier in this section, and the FACA
database at https://facadatabase.gov.
F. Public Comments Received on the CY 2023 OPPS/ASC Final Rule With
Comment Period
We received approximately 12 timely pieces of correspondence on the
CY 2023 OPPS/ASC final rule with comment period that appeared in the
Federal Register on November 4, 2022 (87 FR 71748). In-scope comments
related to the interim APC assignments and/or status indicators of new
or replacement Level II HCPCS codes (identified with comment indicator
``NI'' in OPPS Addendum B, ASC Addendum AA, and ASC Addendum BB to that
final rule).
II. Proposed Updates Affecting OPPS Payments
A. Recalibration of APC Relative Payment Weights
1. Database Construction
a. Database Source and Methodology
Section 1833(t)(9)(A) of the Act requires that the Secretary review
not less often than annually and revise the relative payment weights
for Ambulatory Payment Classifications (APCs). In the April 7, 2000
OPPS final rule with comment period (65 FR 18482), we explained in
detail how we calculated the relative payment weights that were
implemented on August 1, 2000 for each APC group.
For the CY 2024 OPPS, we propose to recalibrate the APC relative
payment weights for services furnished on or after January 1, 2024, and
before January 1, 2025 (CY 2024), using the same basic methodology that
we described in the CY 2023 OPPS/ASC final rule with comment period (86
FR 63466), using CY 2022 claims data. That is, we propose to
recalibrate the relative payment weights for each APC based on claims
and cost report data for hospital outpatient department (HOPD) services
to construct a database for calculating APC group weights. For the
purpose of recalibrating the proposed APC relative payment weights for
CY 2024, we began with approximately 180 million final action claims
(claims for which all
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disputes and adjustments have been resolved and payment has been made)
for HOPD services furnished on or after January 1, 2022, and before
January 1, 2023, before applying our exclusionary criteria and other
methodological adjustments. After the application of those data
processing changes, we used approximately 93 million final action
claims to develop the proposed CY 2024 OPPS payment weights. For exact
numbers of claims used and additional details on the claims accounting
process, we refer readers to the claims accounting narrative under
supporting documentation for this proposed rule on the CMS website at:
https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/HospitalOutpatientPPS/.
Addendum N to this proposed rule (which is available via the
internet on the CMS website at: https://www.cms.gov/Medicare/Medicare-Feefor-Service-Payment/HospitalOutpatientPPS/Hospital-Outpatient-Regulations-and-Notices.html) includes the proposed list of bypass
codes for CY 2024. The proposed list of bypass codes contains codes
that are reported on claims for services in CY 2022 and, therefore,
includes codes that were in effect in CY 2022 and used for billing. We
propose to retain deleted bypass codes on the proposed CY 2024 bypass
list because these codes existed in CY 2022 and were covered OPD
services in that period, and CY 2022 claims data were used to calculate
proposed CY 2024 payment rates. Keeping these deleted bypass codes on
the bypass list potentially allows us to create more ``pseudo'' single
procedure claims for ratesetting purposes. ``Overlap bypass codes''
that are members of the proposed multiple imaging composite APCs are
identified by asterisks (*) in the third column of Addendum N to the
proposed rule. HCPCS codes that we propose to add for CY 2024 are
identified by asterisks (*) in the fourth column of Addendum N.
b. Proposed Calculation and Use of Cost-to-Charge Ratios (CCRs)
For CY 2024, we propose to continue to use the hospital-specific
overall ancillary and departmental cost-to-charge ratios (CCRs) to
convert charges to estimated costs through application of a revenue
code-to-cost center crosswalk. To calculate the APC costs on which the
proposed CY 2024 APC payment rates are based, we calculated hospital-
specific departmental CCRs for each hospital for which we had CY 2022
claims data by comparing these claims data to the most recently
available hospital cost reports, which, in most cases, are from CY
2021. For the proposed CY 2024 OPPS payment rates, we used the set of
claims processed during CY 2022. We applied the hospital-specific CCR
to the hospital's charges at the most detailed level possible, based on
a revenue code-to-cost center crosswalk that contains a hierarchy of
CCRs used to estimate costs from charges for each revenue code. To
ensure the completeness of the revenue code-to-cost center crosswalk,
we reviewed changes to the list of revenue codes for CY 2022 (the year
of claims data we used to calculate the proposed CY 2024 OPPS payment
rates) and updates to the National Uniform Billing Committee (NUBC)
2022 Data specifications Manual. That crosswalk is available for review
and continuous comment on the CMS website at https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/HospitalOutpatientPPS/index.html.
In the CY 2023 OPPS/ASC final rule with comment period, a few
commenters recommended that we revise our revenue code-to-cost center
crosswalk to provide consistency with the NUBC definitions and to
improve the accuracy of cost data for OPPS ratesetting with respect to
chimeric antigen receptor therapy (CAR-T) administration services (87
FR 71758). In that final rule with comment period, we stated that we
intend to explore the implications of this recommendation further and
may consider such changes in future rulemaking. For this CY 2024 OPPS/
ASC proposed rule, we explored the impacts of the commenters'
recommendation from the CY 2023 OPPS/ASC final rule with comment period
that we assign primary cost centers to certain CAR-T-related revenue
codes that were not previously assigned cost centers. Specifically, for
this CY 2024 OPPS/ASC proposed rule, we explored the commenter's
recommendations regarding changes to the revenue code-to-cost center
crosswalk, which included:
Revising revenue codes 0870 (Cell/Gene Therapy General
Classification) and 0871 (Cell Collection) to be mapped to a primary
cost center of 9000 (Clinic);
Revising revenue codes 0872 (Specialized Biologic
Processing and Storage--Prior to Transport) and 0873 (Storage and
Processing After Receipt of Cells from Manufacturer) to be mapped to a
primary cost center of 3350 (Hematology);
Revising revenue codes 0874 (Infusion of Modified Cells)
and 0875 (Injection of Modified Cells) to be mapped to a primary cost
center of 6400 (Intravenous Therapy), and;
Revising revenue codes 0891 (Special Processed Drugs--FDA
Approved Cell Therapy) and 0892 (Special Processed Drugs--FDA Approved
Gene Therapy) to be mapped to a primary cost center of 7300 (Drugs
Charged to Patients).
After reviewing the impact of these crosswalk revisions on our
proposed CY 2024 OPPS APC geometric mean costs, we only observed an
increase in the geometric mean cost of CPT code 0540T (Chimeric antigen
receptor t-cell (car-t) therapy; car-t cell administration,
autologous)--from $148.31 to $294.17 for this proposed rule--as a
result of the revenue code for CPT code 0540T being assigned to a new
cost center and the new corresponding cost-to-charge ratio. We did not
observe any significant impact on APC geometric mean costs or payment
as a result of these revisions. We believe these revisions would
provide greater consistency with the NUBC definitions (which already
adopted these revenue code revisions) and more accurately account for
the costs of CAR-T administration services under the OPPS. Therefore,
for CY 2024 and subsequent years, we propose to adopt the
aforementioned revisions to revenue codes 0870, 0871 0872, 0873, 0874,
0875, 0891, and 0892 in our revenue code-to-cost center crosswalk.
We solicit comment on our proposed changes to the revenue code-to-
cost center crosswalk for CY 2024. In accordance with our longstanding
policy, similar to our finalized policy for CY 2023 OPPS ratesetting,
we propose to calculate CCRs for the standard cost centers--cost
centers with a predefined label--and nonstandard cost centers--cost
centers defined by a hospital--accepted by the electronic cost report
database. In general, the most detailed level at which we calculate
CCRs is the hospital-specific departmental level.
While we generally view the use of additional cost data as
improving our OPPS ratesetting process, we have historically not
included cost report lines for certain nonstandard cost centers in the
OPPS ratesetting database construction when hospitals have reported
these nonstandard cost centers on cost report lines that do not
correspond to the cost center number. We believe it is important to
further investigate the accuracy of these cost report data before
including such data in the ratesetting process. Further, we believe it
is appropriate to gather additional information from the public as well
before including them in OPPS ratesetting. For CY 2024, we propose not
to include the nonstandard cost centers
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reported in this way in the OPPS ratesetting database construction.
2. Proposed Data Development and Calculation of Costs Used for
Ratesetting
In this section of this proposed rule, we discuss the use of claims
to calculate the OPPS payment rates for CY 2024. The Hospital OPPS page
on the CMS website on which this proposed rule is posted (https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/HospitalOutpatientPPS/index.html) provides an accounting of claims used
in the development of the proposed payment rates. That accounting
provides additional detail regarding the number of claims derived at
each stage of the process. In addition, later in this section we
discuss the file of claims that comprises the data set that is
available upon payment of an administrative fee under a CMS data use
agreement. The CMS website, https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/HospitalOutpatientPPS/index.html, includes
information about obtaining the ``OPPS Limited Data Set,'' which now
includes the additional variables previously available only in the OPPS
Identifiable Data Set, including ICD-10-CM diagnosis codes and revenue
code payment amounts. This file is derived from the CY 2022 claims that
are used to calculate the proposed payment rates for this proposed
rule.
Previously, the OPPS established the scaled relative weights on
which payments are based using APC median costs, a process described in
the CY 2012 OPPS/ASC final rule with comment period (76 FR 74188).
However, as discussed in more detail in section II.A.2.f of the CY 2013
OPPS/ASC final rule with comment period (77 FR 68259 through 68271), we
finalized the use of geometric mean costs to calculate the relative
weights on which the CY 2013 OPPS payment rates were based. While this
policy changed the cost metric on which the relative payments are
based, the data process in general remained the same under the
methodologies that we used to obtain appropriate claims data and
accurate cost information in determining estimated service cost.
We used the methodology described in sections II.A.2.a through
II.A.2.c of this proposed rule to calculate the costs we used to
establish the proposed relative payment weights used in calculating the
OPPS payment rates for CY 2024 shown in Addenda A and B to this
proposed rule (which are available via the internet on the CMS website
at: https://www.cms.gov/Medicare/Medicare-Feefor-Service-Payment/HospitalOutpatientPPS/Hospital-Outpatient-Regulations-and-Notices.html). We refer readers to section II.A.4 of this proposed rule
for a discussion of the conversion of APC costs to scaled payment
weights.
We note that under the OPPS, CY 2019 was the first year in which
the claims data used for setting payment rates (CY 2017 data) contained
lines with the modifier ``PN,'' which indicates nonexcepted items and
services furnished and billed by off-campus provider-based departments
(PBDs) of hospitals. Because nonexcepted items and services are not
paid under the OPPS, in the CY 2019 OPPS/ASC final rule with comment
period (83 FR 58832), we finalized a policy to remove those claim lines
reported with modifier ``PN'' from the claims data used in ratesetting
for the CY 2019 OPPS and subsequent years. For the CY 2024 OPPS, we
propose to continue to remove claim lines with modifier ``PN'' from the
ratesetting process.
For details of the claims accounting process used in this CY 2024
OPPS/ASC proposed rule, we refer readers to the claims accounting
narrative under supporting documentation for this proposed rule on the
CMS website at: https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/HospitalOutpatientPPS/index.html.
a. Proposed Calculation of Single Procedure APC Criteria-Based Costs
(1) Blood and Blood Products
Since the implementation of the OPPS in August 2000, we have made
separate payments for blood and blood products through APCs rather than
packaging payment for them into payments for the procedures with which
they are administered. Hospital payments for the costs of blood and
blood products, as well as for the costs of collecting, processing, and
storing blood and blood products, are made through the OPPS payments
for specific blood product APCs.
We propose to continue to establish payment rates for blood and
blood products using our blood-specific CCR methodology, which utilizes
actual or simulated CCRs from the most recently available hospital cost
reports to convert hospital charges for blood and blood products to
costs. This methodology has been our standard ratesetting methodology
for blood and blood products since CY 2005. It was developed in
response to data analysis indicating that there was a significant
difference in CCRs for those hospitals with and without blood-specific
cost centers and past public comments indicating that the former OPPS
policy of defaulting to the overall hospital CCR for hospitals not
reporting a blood-specific cost center often resulted in an
underestimation of the true hospital costs for blood and blood
products. To address the differences in CCRs and to better reflect
hospitals' costs, our methodology simulates blood CCRs for each
hospital that does not report a blood cost center by calculating the
ratio of the blood-specific CCRs to hospitals' overall CCRs for those
hospitals that do report costs and charges for blood cost centers and
applies this mean ratio to the overall CCRs of hospitals not reporting
costs and charges for blood cost centers on their cost reports. We
propose to calculate the costs upon which the proposed payment rates
for blood and blood products are based using the actual blood-specific
CCR for hospitals that reported costs and charges for a blood cost
center and a hospital-specific, simulated, blood-specific CCR for
hospitals that did not report costs and charges for a blood cost
center.
Because this proposed hospital-specific, simulated, blood-specific
CCR methodology takes into account the unique charging and cost
accounting structure of each hospital, it better responds to the
absence of a blood-specific CCR for a hospital than alternative
methodologies, such as defaulting to the overall hospital CCR or
applying an average blood-specific CCR across hospitals. This
methodology also yields more accurate estimated costs for these
products and results in payment rates for blood and blood products that
appropriately reflect the relative estimated costs of these products
for hospitals without blood cost centers and for these blood products
in general.
We refer readers to Addendum B to this proposed rule (which is
available via the internet on the CMS website at https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/HospitalOutpatientPPS/Hospital-Outpatient-Regulations-and-Notices) for the proposed CY 2024
payment rates for blood and blood products (which are generally
identified with status indicator ``R'').
For a more detailed discussion of payments for blood and blood
products through APCs, we refer readers to:
the CY 2005 OPPS proposed rule (69 FR 50524 through 50525)
for a more comprehensive discussion of the blood-specific CCR
methodology;
the CY 2008 OPPS/ASC final rule with comment period (72 FR
66807 through 66810) for a detailed history of the OPPS payment for
blood and blood products; and
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the CY 2015 OPPS/ASC final rule with comment period (79 FR
66795 through 66796) for additional discussion of our policy not to
make separate payments for blood and blood products when they appear on
the same claims as services assigned to a C-APC. We propose to continue
to establish payment rates for blood and blood products using our
blood-specific CCR methodology.
(2) Brachytherapy Sources
Section 1833(t)(2)(H) of the Act mandates the creation of
additional groups of covered OPD services that classify devices of
brachytherapy--cancer treatment through solid source radioactive
implants--consisting of a seed or seeds (or radioactive source)
(``brachytherapy sources'') separately from other services or groups of
services. The statute provides certain criteria for the additional
groups. For the history of OPPS payment for brachytherapy sources, we
refer readers to prior OPPS final rules, such as the CY 2012 OPPS/ASC
final rule with comment period (77 FR 68240 through 68241). As we have
stated in prior OPPS updates, we believe that adopting the general OPPS
prospective payment methodology for brachytherapy sources is
appropriate for a number of reasons (77 FR 68240). The general OPPS
methodology uses costs based on claims data to set the relative payment
weights for hospital outpatient services. This payment methodology
results in more consistent, predictable, and equitable payment amounts
per source across hospitals by averaging the extremely high and low
values, in contrast to payment based on hospitals' charges adjusted to
costs. We believe that the OPPS methodology, as opposed to payment
based on hospitals' charges adjusted to cost, also would provide
hospitals with incentives for efficiency in the provision of
brachytherapy services to Medicare beneficiaries. Moreover, this
approach is consistent with our payment methodology for the vast
majority of items and services paid under the OPPS. We refer readers to
the CY 2016 OPPS/ASC final rule with comment period (80 FR 70323
through 70325) for further discussion of the history of OPPS payment
for brachytherapy sources.
For CY 2024, except where otherwise indicated, we propose to use
the costs derived from CY 2022 claims data to set the proposed CY 2024
payment rates for brachytherapy sources because CY 2022 is the year of
data we propose to use to set the proposed payment rates for most other
items and services that would be paid under the CY 2024 OPPS. We
proposed this methodology for CY 2024 and subsequent years. With the
exception of the proposed payment rate for brachytherapy source C2645
(Brachytherapy planar source, palladium-103, per square millimeter) and
the proposed payment rates for low-volume brachytherapy APCs discussed
in section III.D of this proposed rule, we propose to base the payment
rates for brachytherapy sources on the geometric mean unit costs for
each source, consistent with the methodology that we propose for other
items and services paid under the OPPS, as discussed in section II.A.2
of this proposed rule. We also propose for CY 2024 and subsequent
years, to continue the other payment policies for brachytherapy sources
that we finalized and first implemented in the CY 2010 OPPS/ASC final
rule with comment period (74 FR 60537). For CY 2024 and subsequent
years, we propose to pay for the stranded and nonstranded not otherwise
specified (NOS) codes, HCPCS codes C2698 (Brachytherapy source,
stranded, not otherwise specified, per source) and C2699 (Brachytherapy
source, non-stranded, not otherwise specified, per source), at a rate
equal to the lowest stranded or nonstranded prospective payment rate
for such sources, respectively, on a per-source basis (as opposed to,
for example, per mCi), which is based on the policy we established in
the CY 2008 OPPS/ASC final rule with comment period (72 FR 66785). For
CY 2024 and subsequent years, we also propose to continue the policy we
first implemented in the CY 2010 OPPS/ASC final rule with comment
period (74 FR 60537) regarding payment for new brachytherapy sources
for which we have no claims data, based on the same reasons we
discussed in the CY 2008 OPPS/ASC final rule with comment period (72 FR
66786; which was delayed until January 1, 2010, by section 142 of Pub.
L. 110-275). Specifically, this policy is intended to enable us to
assign new HCPCS codes for new brachytherapy sources to their own APCs,
with prospective payment rates set based on our consideration of
external data and other relevant information regarding the expected
costs of the sources to hospitals. The proposed CY 2024 payment rates
for brachytherapy sources are included on Addendum B to this proposed
rule (which is available via the internet on the CMS website) and
identified with status indicator ``U.''
For CY 2018, we assigned status indicator ``U'' (Brachytherapy
Sources, Paid under OPPS; separate APC payment) to HCPCS code C2645
(Brachytherapy planar source, palladium-103, per square millimeter) in
the absence of claims data and established a payment rate using
external data (invoice price) at $4.69 per mm\2\ for the brachytherapy
source's APC--APC 2648 (Brachytx planar, p-103). For CY 2019, in the
absence of sufficient claims data, we continued to establish a payment
rate for C2645 at $4.69 per mm\2\ for APC 2648 (Brachytx planar, p-
103). Our CY 2018 claims data available for the CY 2020 OPPS/ASC final
rule with comment period included two claims with a geometric mean cost
for HCPCS code C2645 of $1.02 per mm\2\. In response to comments from
interested parties, we agreed that, given the limited claims data
available and a new outpatient indication for C2645, a payment rate for
HCPCS code C2645 based on the geometric mean cost of $1.02 per mm\2\
may not adequately reflect the cost of HCPCS code C2645. In the CY 2020
OPPS/ASC final rule with comment period, we finalized our policy to use
our equitable adjustment authority under section 1833(t)(2)(E) of the
Act, which states that the Secretary shall establish, in a budget
neutral manner, other adjustments as determined to be necessary to
ensure equitable payments, to maintain the CY 2019 payment rate of
$4.69 per mm\2\ for HCPCS code C2645 for CY 2020. Similarly, in the
absence of sufficient claims data to establish an APC payment rate, in
the CY 2021, CY 2022, and CY 2023 OPPS/ASC final rules with comment
period (85 FR 85879 through 85880, 86 FR 63469, and 87 FR 71760 through
71761), we finalized our policy to use our equitable adjustment
authority under section 1833(t)(2)(E) of the Act to maintain the CY
2019 payment rate of $4.69 per mm\2\ for HCPCS code C2645 for CY 2021,
for CY 2022, and for CY 2023.
After reviewing CY 2022 claims data available for this proposed
rule, we observed three claims that reported HCPCS code C2645. Each
claim reported one unit of HCPCS code C2645 and the geometric mean unit
cost from these three claims yielded $168.67. We are unable to use
these claims for ratesetting purposes given the reporting of only one
unit per claim and the high geometric mean cost. Therefore, we propose
to use our equitable adjustment authority under section 1833(t)(2)(E)
of the Act to maintain the CY 2023 payment rate of $4.69 per mm\2\ for
HCPCS code C2645, which is assigned to APC 2648 (Brachytx planar, p-
103), for CY 2024.
[[Page 49564]]
Additionally, for CY 2022 and subsequent calendar years, we adopted
a Universal Low Volume APC policy for clinical and brachytherapy APCs.
As discussed in further detail in section X.C of the CY 2022 OPPS/ASC
final rule with comment period (86 FR 63743 through 63747), we adopted
this policy to mitigate wide variation in payment rates that occur from
year to year for APCs with low utilization. Such volatility in payment
rates from year to year can result in even lower utilization and
potential barriers to access. Brachytherapy APCs that have fewer than
100 single claims used for ratesetting purposes are designated as Low
Volume APCs unless an alternative payment rate is applied, such as the
use of our equitable adjustment authority under Section 1833(t)(2)(E)
of the Act in the case of APC 2648 (Brachytx planar, p-103), for which
HCPCS code C2645 (Brachytherapy planar source, palladium-103, per
square millimeter) is the only code assigned as discussed previously in
this section.
For CY 2024, we propose to designate five brachytherapy APCs as Low
Volume APCs as these APCs meet our criteria to be designated as a Low
Volume APC. For more information on the brachytherapy APCs we propose
to designate as Low Volume APCs, see section III.D of this proposed
rule.
We invite interested parties to submit recommendations for new
codes to describe new brachytherapy sources. Such recommendations
should be directed via email to [email protected] or by mail to
the Division of Outpatient Care, Mail Stop C4-01-26, Centers for
Medicare and Medicaid Services, 7500 Security Boulevard, Baltimore, MD
21244. We will continue to add new brachytherapy source codes and
descriptors to our systems for payment on a quarterly basis.
b. Comprehensive APCs (C-APCs) for CY 2024
(1) Background
In the CY 2014 OPPS/ASC final rule with comment period (78 FR 74861
through 74910), we finalized a comprehensive payment policy that
packages payment for adjunctive and secondary items, services, and
procedures into the most costly primary procedure under the OPPS at the
claim level. The policy was finalized in CY 2014 but the effective date
was delayed until January 1, 2015, to allow additional time for further
analysis, opportunity for public comment, and systems preparation. The
comprehensive APC (C-APC) policy was implemented effective January 1,
2015, with modifications and clarifications in response to public
comments received regarding specific provisions of the C-APC policy (79
FR 66798 through 66810).
A C-APC is defined as a classification for the provision of a
primary service and all adjunctive services provided to support the
delivery of the primary service. We established C-APCs as a category
broadly for OPPS payment and implemented 25 C-APCs beginning in CY 2015
(79 FR 66809 through 66810). We have gradually added new C-APCs since
the policy was implemented beginning in CY 2015, with the number of C-
APCs now totaling 70 (80 FR 70332; 81 FR 79584 through 79585; 83 FR
58844 through 58846; 84 FR 61158 through 61166; 85 FR 85885; 86 FR
63474; and 87 FR 71769).
Under our C-APC policy, we designate a service described by a HCPCS
code assigned to a C-APC as the primary service when the service is
identified by OPPS status indicator ``J1''. When such a primary service
is reported on a hospital outpatient claim, taking into consideration
the few exceptions that are discussed below, we make payment for all
other items and services reported on the hospital outpatient claim as
being integral, ancillary, supportive, dependent, and adjunctive to the
primary service (hereinafter collectively referred to as ``adjunctive
services'') and representing components of a complete comprehensive
service (78 FR 74865 and 79 FR 66799). Payments for adjunctive services
are packaged into the payments for the primary services. This results
in a single prospective payment for each of the primary, comprehensive
services based on the costs of all reported services at the claim
level. One example of a primary service would be a partial mastectomy
and an example of a secondary service packaged into that primary
service would be a radiation therapy procedure.
Services excluded from the C-APC policy under the OPPS include
services that are not covered OPD services, services that cannot by
statute be paid for under the OPPS, and services that are required by
statute to be separately paid. This includes certain mammography and
ambulance services that are not covered OPD services in accordance with
section 1833(t)(1)(B)(iv) of the Act; brachytherapy seeds, which also
are required by statute to receive separate payment under section
1833(t)(2)(H) of the Act; pass-through payment drugs and devices, which
also require separate payment under section 1833(t)(6) of the Act;
self-administered drugs (SADs) that are not otherwise packaged as
supplies because they are not covered under Medicare Part B under
section 1861(s)(2)(B) of the Act; and certain preventive services (78
FR 74865 and 79 FR 66800 through 66801). A list of services excluded
from the C-APC policy is included in Addendum J to this proposed rule
(which is available via the internet on the CMS website at https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/HospitalOutpatientPPS/Hospital-Outpatient-Regulations-and-Notices). If
a service does not appear on this list of excluded services, payment
for it will be packaged into the payment for the primary C-APC service
when it appears on an outpatient claim with a primary C-APC service.
The C-APC policy payment methodology set forth in the CY 2014 OPPS/
ASC final rule with comment period and modified and implemented
beginning in CY 2015 is summarized as follows (78 FR 74887 and 79 FR
66800):
Basic Methodology. As stated in the CY 2015 OPPS/ASC final rule
with comment period, we define the C-APC payment policy as including
all covered OPD services on a hospital outpatient claim reporting a
primary service that is assigned to status indicator ``J1,'' \1\
excluding services that are not covered OPD services or that cannot by
statute be paid for under the OPPS. Services and procedures described
by HCPCS codes assigned to status indicator ``J1'' are assigned to C-
APCs based on our usual APC assignment methodology by evaluating the
geometric mean costs of the primary service claims to establish
resource similarity and the clinical characteristics of each procedure
to establish clinical similarity within each APC.
---------------------------------------------------------------------------
\1\ Status indicator ``J1'' denotes Hospital Part B Services
Paid Through a Comprehensive APC. Further information can be found
in CY 2024 Addendum D1.
---------------------------------------------------------------------------
In the CY 2016 OPPS/ASC final rule with comment period, we expanded
the C-APC payment methodology to qualifying extended assessment and
management encounters through the ``Comprehensive Observation
Services'' C-APC (C-APC 8011). Services within this APC are assigned
status indicator ``J2.'' \2\ Specifically, we make a payment through C-
APC 8011 for a claim that:
---------------------------------------------------------------------------
\2\ Status indicator ``J2'' denotes Hospital Part B Services
That May Be Paid Through a Comprehensive APC. Further information
can be found in CY 2024 Addendum D1.
---------------------------------------------------------------------------
Does not contain a procedure described by a HCPCS code to
which we have assigned status indicator ``T'';
Contains 8 or more units of services described by HCPCS
code G0378
[[Page 49565]]
(Hospital observation services, per hour);
Contains services provided on the same date of service or
one day before the date of service for HCPCS code G0378 that are
described by one of the following codes: HCPCS code G0379 (Direct
admission of patient for hospital observation care) on the same date of
service as HCPCS code G0378; CPT code 99281 (Emergency department visit
for the evaluation and management of a patient (Level 1)); CPT code
99282 (Emergency department visit for the evaluation and management of
a patient (Level 2)); CPT code 99283 (Emergency department visit for
the evaluation and management of a patient (Level 3)); CPT code 99284
(Emergency department visit for the evaluation and management of a
patient (Level 4)); CPT code 99285 (Emergency department visit for the
evaluation and management of a patient (Level 5)) or HCPCS code G0380
(Type B emergency department visit (Level 1)); HCPCS code G0381 (Type B
emergency department visit (Level 2)); HCPCS code G0382 (Type B
emergency department visit (Level 3)); HCPCS code G0383 (Type B
emergency department visit (Level 4)); HCPCS code G0384 (Type B
emergency department visit (Level 5)); CPT code 99291 (Critical care,
evaluation and management of the critically ill or critically injured
patient; first 30-74 minutes); or HCPCS code G0463 (Hospital outpatient
clinic visit for assessment and management of a patient); and
Does not contain services described by a HCPCS code to
which we have assigned status indicator ``J1.''
The assignment of status indicator ``J2'' to a specific set of
services performed in combination with each other allows for all other
OPPS payable services and items reported on the claim (excluding
services that are not covered OPD services or that cannot by statute be
paid for under the OPPS) to be deemed adjunctive services representing
components of a comprehensive service and resulting in a single
prospective payment for the comprehensive service based on the costs of
all reported services on the claim (80 FR 70333 through 70336).
Services included under the C-APC payment packaging policy, that
is, services that are typically adjunctive to the primary service and
provided during the delivery of the comprehensive service, include
diagnostic procedures, laboratory tests, and other diagnostic tests and
treatments that assist in the delivery of the primary procedure; visits
and evaluations performed in association with the procedure; uncoded
services and supplies used during the service; durable medical
equipment as well as prosthetic and orthotic items and supplies when
provided as part of the outpatient service; and any other components
reported by HCPCS codes that represent services that are provided
during the complete comprehensive service (78 FR 74865 and 79 FR
66800).
In addition, payment for hospital outpatient department services
that are similar to therapy services, such as speech language
pathology, and delivered either by therapists or nontherapists is
included as part of the payment for the packaged complete comprehensive
service. These services that are provided during the perioperative
period are adjunctive services and are deemed not to be therapy
services as described in section 1834(k) of the Act, regardless of
whether the services are delivered by therapists or other nontherapist
health care workers. We have previously noted that therapy services are
those provided by therapists under a plan of care in accordance with
section 1835(a)(2)(C) and section 1835(a)(2)(D) of the Act and are paid
for under section 1834(k) of the Act, subject to annual therapy caps as
applicable (78 FR 74867 and 79 FR 66800). However, certain other
services similar to therapy services are considered and paid for as
hospital outpatient department services. Payment for these nontherapy
outpatient department services that are reported with therapy codes and
provided with a comprehensive service is included in the payment for
the packaged complete comprehensive service. We note that these
services, even though they are reported with therapy codes, are
hospital outpatient department services and not therapy services. We
refer readers to the July 2016 OPPS Change Request 9658 (Transmittal
3523) for further instructions on reporting these services in the
context of a C-APC service.
Items included in the packaged payment provided in conjunction with
the primary service also include all drugs, biologicals, and
radiopharmaceuticals, regardless of cost, except those drugs with pass-
through payment status and SADs, unless they function as packaged
supplies (78 FR 74868 through 74869, and 74909, and 79 FR 66800). We
refer readers to Section 50.2M, Chapter 15, of the Medicare Benefit
Policy Manual for a description of our policy on SADs treated as
hospital outpatient supplies, including lists of SADs that function as
supplies and those that do not function as supplies.\3\
---------------------------------------------------------------------------
\3\ https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/bp102c15.pdf.
---------------------------------------------------------------------------
We define each hospital outpatient claim reporting a single unit of
a single primary service assigned to status indicator ``J1'' as a
single ``J1'' unit procedure claim (78 FR 74871 and 79 FR 66801). Line
item charges for services included on the C-APC claim are converted to
line item costs, which are then summed to develop the estimated APC
costs. These claims are then assigned one unit of the service with
status indicator ``J1'' and later used to develop the geometric mean
costs for the C-APC relative payment weights. (We note that we use the
term ``comprehensive'' to describe the geometric mean cost of a claim
reporting ``J1'' service(s) or the geometric mean cost of a C-APC,
inclusive of all of the items and services included in the C-APC
service payment bundle.) Charges for services that would otherwise be
separately payable are added to the charges for the primary service.
This process differs from our traditional cost accounting methodology
only in that all such services on the claim are packaged (except
certain services as described above). We apply our standard data trims,
which exclude claims with extremely high primary units or extreme
costs.
The comprehensive geometric mean costs are used to establish
resource similarity and, along with clinical similarity, dictate the
assignment of the primary services to the C-APCs. We establish a
ranking of each primary service (single unit only) to be assigned to
status indicator ``J1'' according to its comprehensive geometric mean
costs. For the minority of claims reporting more than one primary
service assigned to status indicator ``J1'' or units thereof, we
identify one ``J1'' service as the primary service for the claim based
on our cost-based ranking of primary services. We then assign these
multiple ``J1'' procedure claims to the C-APC to which the service
designated as the primary service is assigned. If the reported ``J1''
services on a claim map to different C-APCs, we designate the ``J1''
service assigned to the C-APC with the highest comprehensive geometric
mean cost as the primary service for that claim. If the reported
multiple ``J1'' services on a claim map to the same C-APC, we designate
the most costly service (at the HCPCS code level) as the primary
service for that claim. This process results in initial assignments of
claims for the primary services assigned
[[Page 49566]]
to status indicator ``J1'' to the most appropriate C-APCs based on both
single and multiple procedure claims reporting these services and
clinical and resource homogeneity.
Complexity Adjustments. We use complexity adjustments to provide
increased payment for certain comprehensive services. We apply a
complexity adjustment by promoting qualifying paired ``J1'' service
code combinations or paired code combinations of ``J1'' services and
certain add-on codes (as described further below) from the originating
C-APC (the C-APC to which the designated primary service is first
assigned) to the next higher paying C-APC in the same clinical family
of C-APCs. We apply this type of complexity adjustment when the paired
code combination represents a complex, costly form or version of the
primary service according to the following criteria:
Frequency of 25 or more claims reporting the code
combination (frequency threshold); and
Violation of the 2 times rule, as stated in section
1833(t)(2) of the Act and section III.B.2 of this proposed rule, in the
originating C-APC (cost threshold).
These criteria identify paired code combinations that occur
commonly and exhibit materially greater resource requirements than the
primary service. The CY 2017 OPPS/ASC final rule with comment period
(81 FR 79582) included a revision to the complexity adjustment
eligibility criteria. Specifically, we finalized a policy to
discontinue the requirement that a code combination (that qualifies for
a complexity adjustment by satisfying the frequency and cost criteria
thresholds described above) also not create a 2 times rule violation in
the higher level or receiving APC.
After designating a single primary service for a claim, we evaluate
that service in combination with each of the other procedure codes
reported on the claim assigned to status indicator ``J1'' (or certain
add-on codes) to determine if there are paired code combinations that
meet the complexity adjustment criteria. For a new HCPCS code, we
determine initial C-APC assignment and qualification for a complexity
adjustment using the best available information, crosswalking the new
HCPCS code to a predecessor code(s) when appropriate.
Once we have determined that a particular code combination of
``J1'' services (or combinations of ``J1'' services reported in
conjunction with certain add-on codes) represents a complex version of
the primary service because it is sufficiently costly, frequent, and a
subset of the primary comprehensive service overall according to the
criteria described above, we promote the claim including the complex
version of the primary service as described by the code combination to
the next higher cost C-APC within the clinical family, unless the
primary service is already assigned to the highest cost APC within the
C-APC clinical family or assigned to the only C-APC in a clinical
family. We do not create new APCs with a comprehensive geometric mean
cost that is higher than the highest geometric mean cost (or only) C-
APC in a clinical family just to accommodate potential complexity
adjustments. Therefore, the highest payment for any claim including a
code combination for services assigned to a C-APC would be the highest
paying C-APC in the clinical family (79 FR 66802).
We package payment for all add-on codes into the payment for the C-
APC. However, certain primary service add-on combinations may qualify
for a complexity adjustment. As noted in the CY 2016 OPPS/ASC final
rule with comment period (80 FR 70331), all add-on codes that can be
appropriately reported in combination with a base code that describes a
primary ``J1'' service are evaluated for a complexity adjustment.
To determine which combinations of primary service codes reported
in conjunction with an add-on code may qualify for a complexity
adjustment for CY 2024, we apply the frequency and cost criteria
thresholds discussed above, testing claims reporting one unit of a
single primary service assigned to status indicator ``J1'' and any
number of units of a single add-on code for the primary ``J1'' service.
If the frequency and cost criteria thresholds for a complexity
adjustment are met and reassignment to the next higher cost APC in the
clinical family is appropriate (based on meeting the criteria outlined
above), we make a complexity adjustment for the code combination; that
is, we reassign the primary service code reported in conjunction with
the add-on code to the next higher cost C-APC within the same clinical
family of C-APCs. As previously stated, we package payment for add-on
codes into the C-APC payment rate. If any add-on code reported in
conjunction with the ``J1'' primary service code does not qualify for a
complexity adjustment, payment for the add-on service continues to be
packaged into the payment for the primary service and is not reassigned
to the next higher cost C-APC. We list the complexity adjustments for
``J1'' and add-on code combinations for CY 2024, along with all of the
other proposed complexity adjustments, in Addendum J to this proposed
rule (which is available via the internet on the CMS website at https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/HospitalOutpatientPPS/Hospital-Outpatient-Regulations-and-Notices).
Addendum J to this proposed rule includes the cost statistics for
each code combination that would qualify for a complexity adjustment
(including primary code and add-on code combinations). Addendum J to
this proposed rule also contains summary cost statistics for each of
the paired code combinations that describe a complex code combination
that would qualify for a complexity adjustment and be reassigned to the
next higher cost C-APC within the clinical family. The combined
statistics for all proposed reassigned complex code combinations are
represented by an alphanumeric code with the first four digits of the
designated primary service followed by a letter. For example, the
proposed geometric mean cost listed in Addendum J for the code
combination described by complexity adjustment assignment 3320R, which
is assigned to C-APC 5224 (Level 4 Pacemaker and Similar Procedures),
includes all paired code combinations that will be reassigned to C-APC
5224 when CPT code 33208 is the primary code. Providing the information
contained in Addendum J to this proposed rule allows interested parties
the opportunity to better assess the impact associated with the
assignment of claims with each of the paired code combinations eligible
for a complexity adjustment.
(2) Exclusion of Procedures Assigned to New Technology APCs From the C-
APC Policy
Services that are assigned to New Technology APCs are typically new
procedures that do not have sufficient claims history to establish an
accurate payment for them. Beginning in CY 2002, we retain services
within New Technology APC groups until we gather sufficient claims data
to enable us to assign the service to an appropriate clinical APC. This
policy allows us to move a service from a New Technology APC in less
than 2 years if sufficient data are available. It also allows us to
retain a service in a New Technology APC for more than 2 years if
sufficient data upon which to base a decision for reassignment have not
been collected (82 FR 59277).
[[Page 49567]]
The C-APC payment policy packages payment for adjunctive and
secondary items, services, and procedures into the most costly primary
procedure under the OPPS at the claim level. Prior to CY 2019, when a
procedure assigned to a New Technology APC was included on the claim
with a primary procedure, identified by OPPS status indicator ``J1,''
payment for the new technology service was typically packaged into the
payment for the primary procedure. Because the new technology service
was not separately paid in this scenario, the overall number of single
claims available to determine an appropriate clinical APC for the new
service was reduced. This was contrary to the objective of the New
Technology APC payment policy, which is to gather sufficient claims
data to enable us to assign the service to an appropriate clinical APC.
To address this issue and ensure that there are sufficient claims
data for services assigned to New Technology APCs, in the CY 2019 OPPS/
ASC final rule with comment period (83 FR 58847), we finalized
excluding payment for any procedure that is assigned to a New
Technology APC (APCs 1491 through 1599 and APCs 1901 through 1908) from
being packaged when included on a claim with a ``J1'' service assigned
to a C-APC. In the CY 2020 OPPS/ASC final rule with comment period, we
finalized that beginning in CY 2020, payment for services assigned to a
New Technology APC would be excluded from being packaged into the
payment for comprehensive observation services assigned status
indicator ``J2'' when they are included on a claim with a ``J2''
service (84 FR 61167).
(3) Exclusion of Drugs and Biologicals Described by HCPCS Code C9399
(Unclassified Drugs or Biologicals) From the C-APC Policy
Section 1833(t)(15) of the Act, as added by section 621(a)(1) of
the Medicare Prescription Drug, Improvement, and Modernization Act of
2003 (Pub. L. 108-173), provides for payment under the OPPS for new
drugs and biologicals until HCPCS codes are assigned. Under this
provision, we are required to make payment for a covered outpatient
drug or biological that is furnished as part of covered outpatient
department services but for which a HCPCS code has not yet been
assigned in an amount equal to 95 percent of average wholesale price
(AWP) for the drug or biological.
In the CY 2005 OPPS/ASC final rule with comment period (69 FR
65805), we implemented section 1833(t)(15) of the Act by instructing
hospitals to bill for a drug or biological that is newly approved by
the FDA and that does not yet have a HCPCS code by reporting the
National Drug Code (NDC) for the product along with the newly created
HCPCS code C9399 (Unclassified drugs or biologicals). We explained that
when HCPCS code C9399 appears on a claim, the Outpatient Code Editor
(OCE) suspends the claim for manual pricing by the Medicare
Administrative Contractor (MAC). The MAC prices the claim at 95 percent
of the drug or biological's AWP, using Red Book or an equivalent
recognized compendium, and processes the claim for payment. We
emphasized that this approach enables hospitals to bill and receive
payment for a new drug or biological concurrent with its approval by
the FDA. The hospital does not have to wait for the next quarterly
release or for approval of a product specific HCPCS code to receive
payment for a newly approved drug or biological or to resubmit claims
for adjustment. We instructed that hospitals would discontinue billing
HCPCS code C9399 and the NDC upon implementation of a product specific
HCPCS code, status indicator, and appropriate payment amount with the
next quarterly update. We also note that HCPCS code C9399 is paid in a
similar manner in the ASC setting, as 42 CFR 416.171(b) outlines that
certain drugs and biologicals for which separate payment is allowed
under the OPPS are considered covered ancillary services for which the
OPPS payment rate, which is 95 percent of AWP for HCPCS code C9399,
applies. Since the implementation of the C-APC policy in 2015, payment
for drugs and biologicals described by HCPCS code C9399 has been
included in the C-APC payment when these products appear on a claim
with a primary C-APC service. Packaging payment for these drugs and
biologicals that appear on a hospital outpatient claim with a primary
C-APC service is consistent with our C-APC packaging policy under which
we make payment for all items and services, including all non-pass-
through drugs, reported on the hospital outpatient claim as being
integral, ancillary, supportive, dependent, and adjunctive to the
primary service and representing components of a complete comprehensive
service, with certain limited exceptions (78 FR 74869). It has been our
position that the total payment for the C-APC with which payment for a
drug or biological described by HCPCS code C9399 is packaged includes
payment for the drug or biological at 95 percent of its AWP.
However, we have determined that in certain instances, drugs and
biologicals described by HCPCS code C9399 are not being paid at 95
percent of their AWPs when payment for them is packaged with payment
for a primary C-APC service. In order to ensure payment for new drugs,
biologicals, and radiopharmaceuticals described by HCPCS code C9399 at
95 percent of their AWP, for CY 2023 and subsequent years, we finalized
our proposal to exclude any drug, biological, or radiopharmaceutical
described by HCPCS code C9399 from packaging when the drug, biological,
or radiopharmaceutical is included on a claim with a ``J1'' service,
which is the status indicator assigned to a C-APC, and a claim with a
``J2'' service, which is the status indicator assigned to comprehensive
observation services. Please see Addendum J for the CY 2024
comprehensive APC payment policy exclusions.
In the CY 2023 OPPS/ASC final rule with comment period, we
finalized the proposal in section XI ``CY 2023 OPPS Payment Status and
Comment Indicators'' to add a new definition to status indicator ``A''
to include unclassified drugs and biologicals that are reportable with
HCPCS code C9399 (87 FR 72051). The definition, found in Addendum D1,
would ensure the MAC prices claims for drugs, biologicals or
radiopharmaceuticals billed with HCPCS code C9399 at 95 percent of the
drug or biological's AWP and pays separately for the drug, biological,
or radiopharmaceutical under the OPPS when it appears on the same claim
as a primary C-APC service.
(4) Additional C-APCs for CY 2024
For CY 2024 and subsequent years, we propose to continue to apply
the C-APC payment policy methodology. We refer readers to the CY 2017
OPPS/ASC final rule with comment period (81 FR 79583) for a discussion
of the C-APC payment policy methodology and revisions. Each year, in
accordance with section 1833(t)(9)(A) of the Act, we review and revise
the services within each APC group and the APC assignments under the
OPPS. As a result of our annual review of the services and the APC
assignments under the OPPS, we are not proposing to convert any
standard APCs to C-APCs in CY 2024, but we are creating two new APCs
that will both be C-APCs. Thus, we propose that the number of C-APCs
for CY 2024 would be 72 C-APCs.
For this proposed rule, we propose to split the Level 2 Intraocular
APC (APC 5492) into two and assign the higher cost procedures
previously within this
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APC to a new Level 3 Intraocular APC (APC 5493). The previous Level 3,
Level 4, and Level 5 Intraocular APCs (APCs 5493, 5494, and 5495) will
be renamed the Level 4, Level 5, and Level 6 Intraocular APC (APCs
5494, 5495, and 5496), respectively. We refer readers to section III.E
of this proposed rule for more information regarding this proposal.
We also propose to add a new Level 2 Abdominal/Peritoneal/Biliary
and Related Procedures APC (APC 5342) to improve clinical and resource
homogeneity in the Level 1 Abdominal/Peritoneal/Biliary and Related
Procedures APC (APC 5341).
Table 1 lists the proposed C-APCs for CY 2024. All C-APCs are
displayed in Addendum J to this proposed rule (which is available via
the internet on the CMS website). Addendum J to this proposed rule also
contains all the data related to the C-APC payment policy methodology,
including the list of complexity adjustments and other information for
CY 2024.
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c. Calculation of Composite APC Criteria-Based Costs
As discussed in the CY 2008 OPPS/ASC final rule with comment period
(72 FR 66613), we believe it is important that the OPPS enhance
incentives for hospitals to provide necessary, high quality care as
efficiently as possible. For CY 2008, we developed composite APCs to
provide a single payment for groups of services that are typically
performed together during a single clinical encounter and that result
in the provision of a complete service. Combining payment for multiple,
independent services into a single OPPS payment in this way enables
hospitals to manage their resources with maximum flexibility by
monitoring and adjusting the volume and efficiency of services
themselves. An additional advantage to the composite APC model is that
we can use data from correctly coded multiple procedure claims to
calculate payment rates for the specified combinations of services,
rather than relying upon single procedure claims which may be low in
volume and/or incorrectly coded. Under the OPPS, we currently have
composite policies for mental health services and multiple imaging
services. We refer readers to the CY 2008 OPPS/ASC final rule with
comment period (72 FR 66611 through 66614 and 66650 through 66652) for
a full discussion of the development of the composite APC methodology,
and the CY 2012 OPPS/ASC final rule with comment period (76 FR 74163)
and the CY 2018 OPPS/ASC final rule with comment period (82 FR 59241
through 59242 and 59246 through 52950) for more recent background.
(1) Mental Health Services Composite APC
We propose to continue our longstanding policy of limiting the
aggregate payment for specified less resource-intensive mental health
services furnished on the same date to the payment for a day of partial
hospitalization services provided by a hospital, which we consider to
be the most resource-intensive of all outpatient mental health
services. We refer readers to the April 7, 2000 OPPS final rule with
comment period (65 FR 18452 through 18455) for the initial discussion
of this longstanding policy and the CY 2012 OPPS/ASC final rule with
comment period (76 FR 74168) for more recent background.
In the CY 2018 OPPS/ASC proposed rule and final rule with comment
period (82 FR 33580 through 33581 and 59246 through 59247,
respectively), we proposed and finalized the policy for CY 2018 and
subsequent years that, when the aggregate payment for specified mental
health services provided by one hospital to a single beneficiary on a
single date of service, based on the payment rates associated with the
APCs for the individual services, exceeds the maximum per diem payment
rate for partial hospitalization services provided by a hospital, those
specified mental health services will be paid through composite APC
8010 (Mental Health Services Composite). In addition, we set the
payment rate for composite APC 8010 for CY 2018 at the same payment
rate that will be paid for APC 5863, which is the maximum partial
hospitalization per diem payment rate for a hospital, and finalized a
policy that the hospital will continue to be paid the payment rate for
composite APC 8010. Under this policy, the Integrated OCE (I/OCE) will
continue to determine whether to pay for these specified mental health
services individually, or to make a single payment at the same payment
rate established for APC 5863 for all of the specified mental health
services furnished by the hospital on that single date of service. We
continue to believe that the costs associated with administering a
partial hospitalization program at a hospital represent the most
resource intensive of all outpatient mental health services.
We propose that when the aggregate payment for specified mental
health services provided by one hospital to a single beneficiary on a
single date of service, based on the payment rates associated with the
APCs for the individual services, exceeds the per diem payment rate for
3 partial hospitalization services provided in a day by a hospital,
those specified mental health services would be paid
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through composite APC 8010 for CY 2024. In addition, we propose to set
the payment rate for composite APC 8010 at the same payment rate that
we propose for APC 5863, which is a partial hospitalization per diem
payment rate for 3 partial hospitalization services furnished in a day
by a hospital, and that the hospital continue to be paid the proposed
payment rate for composite APC 8010. While APC 5863 is no longer the
maximum partial hospitalization per diem payment rate for a hospital,
due to proposed APC 5864, which is 4 or more hospital-based PHP
services per day, discussed in section VIII.B of this proposed rule, we
believe it is still appropriate to apply the APC 5863 per diem payment
amount as the upper limit on payment per day for individual OPPS mental
health services. This is because the daily mental health cap would not
be expected to reach a level of intensity beyond 3 services per day, as
described by APC 5863. The PHP is meant to be the most intensive mental
health services program, requiring inpatient care if PHP is not
received. We would not anticipate more than three services per patient
on a given day, as patients needing additional services in one day
would potentially require an inpatient admission., as described by APC
5863. Thus, setting the mental health cap at APC 5863, rather than the
4 service per day APC 5864, is more consistent with our longstanding
policy, which has been for the 3 service per day APC. We note that the
proposed CY 2024 payment amount for APC 5863 would be comparable to the
CY 2023 payment amount for APC 5863, which is the PHP APC used to set
the daily mental health cap for CY 2023.
However, as we have historically set the daily mental health cap
for composite APC 8010 at the maximum partial hospitalization per diem
payment rate for a hospital, we are also soliciting comment on whether
the next higher level APC, proposed APC 5864, which is for four
hospital-based PHP services per day, would be appropriate to use as the
daily mental health cap.
(2) Multiple Imaging Composite APCs (APCs 8004, 8005, 8006, 8007, and
8008)
Effective January 1, 2009, we provide a single payment each time a
hospital submits a claim for more than one imaging procedure within an
imaging family on the same date of service, to reflect and promote the
efficiencies hospitals can achieve when performing multiple imaging
procedures during a single session (73 FR 41448 through 41450). We
utilize three imaging families based on imaging modality for purposes
of this methodology: (1) ultrasound; (2) computed tomography (CT) and
computed tomographic angiography (CTA); and (3) magnetic resonance
imaging (MRI) and magnetic resonance angiography (MRA). The HCPCS codes
subject to the multiple imaging composite policy and their respective
families are listed in Table 2 below.
While there are three imaging families, there are five multiple
imaging composite APCs due to the statutory requirement under section
1833(t)(2)(G) of the Act that we differentiate payment for OPPS imaging
services provided with and without contrast. While the ultrasound
procedures included under the policy do not involve contrast, both CT/
CTA and MRI/MRA scans can be provided either with or without contrast.
The five multiple imaging composite APCs established in CY 2009 are:
APC 8004 (Ultrasound Composite);
APC 8005 (CT and CTA without Contrast Composite);
APC 8006 (CT and CTA with Contrast Composite);
APC 8007 (MRI and MRA without Contrast Composite); and
APC 8008 (MRI and MRA with Contrast Composite).
We define the single imaging session for the ``with contrast''
composite APCs as having at least one or more imaging procedures from
the same family performed with contrast on the same date of service.
For example, if the hospital performs an MRI without contrast during
the same session as at least one other MRI with contrast, the hospital
will receive payment based on the payment rate for APC 8008, the ``with
contrast'' composite APC.
We make a single payment for those imaging procedures that qualify
for payment based on the composite APC payment rate, which includes any
packaged services furnished on the same date of service. The standard
(noncomposite) APC assignments continue to apply for single imaging
procedures and multiple imaging procedures performed across families.
For a full discussion of the development of the multiple imaging
composite APC methodology, we refer readers to the CY 2009 OPPS/ASC
final rule with comment period (73 FR 68559 through 68569).
For CY 2024, we propose to continue to pay for all multiple imaging
procedures within an imaging family performed on the same date of
service using the multiple imaging composite APC payment methodology.
We continue to believe that this policy would reflect and promote the
efficiencies hospitals can achieve when performing multiple imaging
procedures during a single session.
For CY 2024, except where otherwise indicated, we propose to use
the costs derived from CY 2022 claims data to set the proposed CY 2024
payment rates. Therefore, for CY 2024, the payment rates for the five
multiple imaging composite APCs (APCs 8004, 8005, 8006, 8007, and 8008)
are based on proposed geometric mean costs calculated from CY 2022
claims available for this proposed rule that qualify for composite
payment under the current policy (that is, those claims reporting more
than one procedure within the same family on a single date of service).
To calculate the proposed geometric mean costs, we have used the same
methodology that we use to calculate the geometric mean costs for these
composite APCs since CY 2014, as described in the CY 2014 OPPS/ASC
final rule with comment period (78 FR 74918). The imaging HCPCS codes
referred to as ``overlap bypass codes'' that we removed from the bypass
list for purposes of calculating the proposed multiple imaging
composite APC geometric mean costs, in accordance with our established
methodology as stated in the CY 2014 OPPS/ASC final rule with comment
period (78 FR 74918), are identified by asterisks in Addendum N to this
proposed rule (which is available via the internet on the CMS website)
and are discussed in more detail in section II.A.1.b of this proposed
rule.
For CY 2024, we were able to identify approximately 0.95 million
``single session'' claims out of an estimated 2.0 million potential
claims for payment through composite APCs from our ratesetting claims
data, which represents approximately 47.5 percent of all eligible
claims, to calculate the proposed CY 2024 geometric mean costs for the
multiple imaging composite APCs. Table 2 of this proposed rule lists
the proposed HCPCS codes that would be subject to the multiple imaging
composite APC policy and their respective families and approximate
composite APC proposed geometric mean costs for CY 2024.
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3. Proposed Changes to Packaged Items and Services
a. Background and Rationale for Packaging in the OPPS
Like other prospective payment systems, the OPPS relies on the
concept of averaging to establish a payment rate for services. The
payment may be more or less than the estimated cost of providing a
specific service or a bundle of specific services for a particular
beneficiary. The OPPS packages payments for multiple interrelated items
and services into a single payment to create incentives for hospitals
to furnish services most efficiently and to manage their resources with
maximum flexibility. Our packaging policies support our strategic goal
of using larger payment bundles in the OPPS to maximize hospitals'
incentives to provide care in the most efficient manner. For example,
where there are a variety of devices, drugs, items, and supplies that
could be used to furnish a service, some of which are more costly than
others, packaging encourages hospitals to use the most cost-efficient
item that meets the patient's needs, rather than to routinely use a
more expensive item, which may occur if separate payment is provided
for the item.
Packaging also encourages hospitals to effectively negotiate with
manufacturers and suppliers to reduce the purchase price of items and
services or to explore alternative group purchasing arrangements,
thereby encouraging the most economical health care delivery.
Similarly, packaging encourages hospitals to establish protocols that
ensure that necessary services are furnished, while scrutinizing the
services ordered by practitioners to maximize the efficient use of
hospital resources. Packaging payments into larger payment bundles
promotes the predictability and accuracy of payment for services over
time. Finally, packaging may reduce the importance of refining service-
specific payment because packaged payments include costs associated
with higher cost cases requiring many ancillary items and services and
lower cost cases requiring fewer ancillary items and services. Because
packaging encourages efficiency and is an essential component of a
prospective payment system, packaging payments for items and services
that are typically integral, ancillary, supportive, dependent, or
adjunctive to a primary service has been a fundamental part of the OPPS
since its implementation in August 2000. As we continue to develop
larger payment groups that more broadly reflect services provided in an
encounter or episode of care, we have expanded the OPPS packaging
policies. Most, but not necessarily all, categories of items and
services currently packaged in the OPPS are listed in 42 CFR 419.2(b).
Our overarching goal is to make payments for all services under the
OPPS more consistent with those of a prospective payment system and
less like those of a per-service fee schedule, which pays separately
for each coded item. As a part of this effort, we have continued to
examine the payment for items and services provided under the OPPS to
determine which OPPS services can be packaged to further achieve the
objective of advancing the OPPS toward a more prospective payment
system.
b. Proposal and Comment Solicitation on Packaged Items and Services
For CY 2024, we examined the items and services currently provided
under the OPPS, reviewing categories of integral, ancillary,
supportive, dependent, or adjunctive items and services for which we
believe payment would be appropriately packaged into payment for the
primary service that they support. Specifically, we examined the HCPCS
code definitions (including CPT code descriptors) and hospital
outpatient department billing patterns to determine whether there were
categories of codes for which packaging would be appropriate according
to existing OPPS packaging policies or a logical expansion of those
existing OPPS packaging policies.
For CY 2024, we do not propose any changes to the overall packaging
policy previously discussed. We propose to continue to conditionally
package the costs of selected newly identified ancillary services into
payment for a primary service where we believe that the packaged item
or service is integral, ancillary, supportive, dependent, or adjunctive
to the provision of care that was reported by the primary service HCPCS
code.
While we do not propose any changes to the overall packaging policy
above, we solicit comments on potential modifications to our packaging
policy as described in the following sections.
c. Comment Solicitation on Access to Non-Opioid Treatments for Pain
Relief
The Consolidated Appropriations Act (CAA), 2023 (Pub. L. 117-328),
was signed into law on December 29, 2022. Section 4135(a) and (b) of
the CAA, 2023, titled Access to Non-Opioid Treatments for Pain Relief,
amended sections 1833(t)(16) and 1833(i) of the Social Security Act,
respectively, to provide for temporary additional payments for non-
opioid treatments for pain relief (as that term is defined in section
1833(t)(16)(G)(i) of the Act). In particular, section 1833(t)(16)(G) of
the Act provides that with respect to a non-opioid treatment for pain
relief furnished on or after January 1, 2025, and before January 1,
2028, the Secretary shall not package payment for the non-opioid
treatment for pain relief into payment for a covered OPD service (or
group of services) and shall make an additional payment for the non-
opioid treatment for pain relief as specified in clause (ii) of that
section. Clauses (ii) and (iii) of section 1833(t)(16)(G) of the Act
provide for the amount of additional payment and set a limitation on
that amount, respectively. Because the additional payments are required
to begin on January 1, 2025, we will include our proposals to implement
the CAA, 2023 section 4135 amendments in the CY 2025 OPPS/ASC proposed
rule. We discuss section 4135 of CAA, 2023 at length in section XIII.F
of this proposed rule, where we solicit comment on numerous aspects of
this future policy. While we expect this policy to operate similarly in
the ASC and HOPD settings, we welcome comment on whether there are any
HOPD specific payment issues we should take into consideration as we
plan to implement section 1833(t)(16)(G) of the Act for CY 2025.
d. Comment Solicitation on OPPS Packaging Policy for Diagnostic
Radiopharmaceuticals
(i) Background on OPPS Packaging Policy for Diagnostic
Radiopharmaceuticals
Under the OPPS, we package several categories of nonpass-through
drugs, biologicals, and radiopharmaceuticals, regardless of the cost of
the products. As the products are packaged according to the policies in
Sec. 419.2(b), we refer to these packaged drugs, biologicals, and
radiopharmaceuticals as ``policy-packaged'' drugs, biologicals, and
radiopharmaceuticals. In particular, under Sec. 419.2(b)(15), payment
for drugs, biologicals, and radiopharmaceuticals that function as
supplies when used in a diagnostic test or procedure is packaged with
the payment for the related procedure or service. Packaging costs into
a single aggregate payment for a service, encounter, or episode of care
is a fundamental principle that distinguishes a prospective payment
system from a fee schedule. In general, packaging the costs of
supportive items and services into the payment for the primary
procedure or service with which they are associated encourages
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hospital efficiencies and enables hospitals to manage their resources
with maximum flexibility.
Diagnostic radiopharmaceuticals, which include contrast agents,
stress agents, and other products, are one specific type of product
that is policy packaged under the category described by Sec.
419.2(b)(15). Since we implemented this policy in CY 2008, interested
parties have raised concerns regarding policy packaging of diagnostic
radiopharmaceuticals. In previous rulemaking (87 FR 71962 through
71963), commenters recommended that CMS always pay separately for
diagnostic radiopharmaceuticals paid under the OPPS, not just when the
products have pass-through payment status. Many of these commenters
mentioned that pass-through payment status helps the diffusion of new
diagnostic radiopharmaceuticals into the market. However, commenters
believe the packaged payment rate is often inadequate after pass-
through status expires, especially in cases where the diagnostic
radiopharmaceutical is high-cost and has low utilization.
CMS has previously heard from interested parties regarding
alternative payment methodologies, such as subjecting diagnostic
radiopharmaceuticals to the drug packaging threshold and creating
separate APC payments for diagnostic radiopharmaceuticals with a per-
day cost greater than $500. Interested parties have also recommended
that we analyze our nuclear medicine APC structure and consider
establishing additional nuclear medicine APCs to more accurately
reflect the costs of diagnostic radiopharmaceuticals. Historically,
commenters opposed incorporating the cost of diagnostic
radiopharmaceuticals into the associated nuclear medicine APC as the
nuclear medicine APCs are sometimes paid at a lower rate than the
payment rate for the diagnostic radiopharmaceutical itself when it has
pass-through payment status (87 FR 71962 through 71963).
Importantly, commenters historically have also been concerned that
packaging payment for precision diagnostic radiopharmaceuticals in the
outpatient setting creates barriers to beneficiary access for safety
net hospitals serving a high proportion of Medicare beneficiaries and
hospitals serving underserved communities (87 FR 71962 through 71963).
Commenters specified that certain populations, such as those with
Alzheimer's disease, depend on the use of certain high-cost diagnostic
radiopharmaceuticals. Commenters discussed difficulties enrolling
hospitals in clinical studies due to OPPS packaging policies.
Commenters also suggested that CMS pay separately under the OPPS
specifically for radiopharmaceuticals that are used for Alzheimer's
disease. Additionally, commenters have recommended that CMS continue to
apply radiolabeled product edits to the nuclear medicine procedures to
ensure that all packaged costs are included on nuclear medicine claims
in order to establish appropriate payment rates in the future. Many of
these comments and our responses have been discussed in rulemaking
since the policy to package diagnostic radiopharmaceuticals was
adopted. We refer readers to the CY 2023 OPPS/ASC final rule with
comment period (87 FR 71962 through 71963) for the most recent
discussion of this subject.
We continue to believe that diagnostic radiopharmaceuticals are an
integral component of many nuclear medicine and imaging procedures and
charges associated with them should be reported on hospital claims to
the extent they are used. Accordingly, the payment for the
radiopharmaceuticals should be reflected within the payment for the
primary procedure. We note that ratesetting uses the geometric mean of
reported procedure costs based on data submitted to CMS from all
hospitals paid under the OPPS to set the payment rate for the service.
The costs that are calculated by Medicare reflect the average costs of
items and services that are packaged into a primary procedure and will
not necessarily equal the sum of the cost of the primary procedure and
the average sales price of the specific items and services used in the
procedure in each case. Furthermore, the costs are based on the
reported costs submitted to Medicare by the hospitals and not the list
price established by the manufacturer. Claims data that include the
radiopharmaceutical packaged with the associated procedure reflect the
combined cost of the procedure and the radiopharmaceutical used in the
procedure.
As CMS has reiterated over the years, we believe these packaging
policies are inherent principles of the OPPS and are essential to a
prospective payment system. We are also committed to ensuring
beneficiary access to diagnostic radiopharmaceuticals while also
ensuring the availability of new and innovative diagnostic tools for
Medicare beneficiaries. Therefore, we are seeking public comments on
potential modifications to our packaging policy for diagnostic
radiopharmaceuticals in order to ensure equitable payment and continued
beneficiary access.
Depending on the comments we receive in response to this comment
solicitation, we may adopt as final alternative payment mechanisms for
radiopharmaceuticals for CY 2024 in the CY 2024 OPPS/ASC final rule
with comment period.
(ii) Comment Solicitation on Potential Issues Caused by Current Payment
of Diagnostic Radiopharmaceuticals Under the OPPS
We are soliciting comment on how the OPPS packaging policy for
diagnostic radiopharmaceuticals has impacted beneficiary access,
including whether there are specific patient populations or clinical
disease states for whom this issue is especially critical. We seek
information on specific cost-prohibitive diagnostic
radiopharmaceuticals that commenters believe are superior to
alternative diagnostic modalities. We are interested to learn the
specific clinical scenarios that exist for which it is only clinically
appropriate to use the more expensive diagnostic radiopharmaceutical,
rather than a lower cost alternative, as well as what clinical
scenarios exist in which the only diagnostic modality is a high-cost
radiopharmaceutical. We are seeking information or evidence that these
high-cost diagnostic radiopharmaceuticals have unique clinical value,
and access has been negatively impacted by our packaging policy. We are
also seeking information about whether commenters believe these high-
cost and low-utilization diagnostic radiopharmaceuticals are being
appropriately utilized according to their clinical treatment algorithm,
meaning the stepwise procedures generally accepted by the medical
community for diagnosis, or clinical practice guidelines.
We are also interested in learning more about whether there is a
difference in outcomes for patients, or patient quality of care, based
on the radiopharmaceutical used as well as whether there is a
difference for hospitals, such as in terms of financial outcomes, based
on the radiopharmaceutical that used.
(iii) Comment Solicitation on New Approaches to Payment of Diagnostic
Radiopharmaceuticals Under the OPPS
In addition, we are soliciting comment on the following potential
approaches that would enhance beneficiary access, while also
maintaining the principles of the outpatient prospective payment
system. These approaches include: (1) paying separately for diagnostic
radiopharmaceuticals with per-day costs
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above the OPPS drug packaging threshold of $140; (2) establishing a
specific per-day cost threshold that may be greater or less than the
OPPS drug packaging threshold; (3) restructuring APCs, including by
adding nuclear medicine APCs for services that utilize high-cost
diagnostic radiopharmaceuticals; (4) creating specific payment policies
for diagnostic radiopharmaceuticals used in clinical trials; and (5)
adopting codes that incorporate the disease state being diagnosed or a
diagnostic indication of a particular class of diagnostic
radiopharmaceuticals.
To expand upon the first listed option on which we solicit
comments, we are specifically seeking comments about whether we should
use our statutory authority for separately payable drugs, biologicals,
and radiopharmaceuticals under 1833(t)(14)(A)(iii)(II) of the Act in
order to pay separately for diagnostic radiopharmaceuticals and subject
those diagnostic radiopharmaceuticals to the longstanding OPPS drug
packaging threshold policy, proposed to be $140 for CY 2023. Or said
another way, payment for diagnostic radiopharmaceuticals with per-day
costs greater than $140 would not be packaged and would be paid
separately based on available average sales price (ASP), wholesale
acquisition cost (WAC), or average wholesale price (AWP) data with the
applicable add-on. This would be similar to payment for therapeutic
radiopharmaceuticals and other drugs and biologicals as discussed in
section V.B. of this proposed rule. We believe this could be a
reasonable first step as this threshold is well understood and known to
commenters as therapeutic drugs, biologicals, and radiopharmaceuticals
are currently paid separately if they have a calculated per-day cost
above this threshold and are not policy-packaged. However, it is also
our longstanding belief that diagnostic radiopharmaceuticals should
have their payment packaged as they function as supplies during a
diagnostic test or procedure and enable the provision of an independent
service and are not themselves the primary therapeutic modality. We
seek additional information from interested parties on this approach.
Regarding the second listed option, we seek comment on whether to
pay separately for a diagnostic radiopharmaceutical with a specific
per-day cost threshold that may be greater or less than the OPPS drug
packaging threshold. Specifically, we are interested to learn why
interested parties believe a threshold-based policy is important as
well as interested parties' rationale for creating a threshold that
would be different from the OPPS drug packaging threshold.
Regarding the third listed option, we have heard from some
interested parties that they believe APC restructuring, including
adding additional nuclear medicine APCs for services utilizing high-
cost diagnostic radiopharmaceuticals, would be appropriate. We seek
comment as to how these interested parties specifically envision
operationalizing this approach and what advantage this approach would
have for beneficiaries, hospitals, and CMS over other options.
For the fourth listed option, we recently became aware that some
interested parties believe that CMS packaging policies could influence
participation of beneficiaries and testing sites in clinical trials,
particularly those studying Alzheimer's disease, and are interested to
learn more about these concerns. While we believe there could be a
multitude of reasons for difficulty in recruiting study sites and
beneficiaries for clinical trials, including the COVID-19 PHE, we are
requesting comment as to whether CMS should consider creating payment
policies for diagnostic radiopharmaceuticals used in clinical trials.
Specifically, we are interested to learn what commenters believe an
appropriate payment mechanism would be for these diagnostic
radiopharmaceuticals, whether there are certain disease states or
categories of trials for which we should target our payment policies,
ways in which this policy could help promote equitable recruitment and
diverse participation, and the method by which CMS should determine
which clinical trial diagnostic radiopharmaceuticals should be subject
to this policy.
Finally, for approach five, we are seeking comment on new codes
that CMS could adopt that may incorporate the disease state being
diagnosed or a diagnostic indication of a particular class of
diagnostic radiopharmaceuticals. CMS could create indication-specific
coding to reflect the imaging procedure and the target of the imaging
procedure. For example, CMS could create a code to represent a PET scan
that detects a specific protein. If multiple diagnostic
radiopharmaceuticals are available to use during this PET scan to
detect this specific protein, then their payment would be packaged into
the payment for this newly created code and reflected in the payment
for this code. Therefore, if there is a specific clinical indication
for which only very costly diagnostic radiopharmaceuticals are
available, our data would appropriately reflect their utilization.
Alternatively, if there is a specific clinical indication in which a
wide variety of diagnostic radiopharmaceuticals can be used, all with
varying costs, then our data would reflect this and our payment rates
would not incentivize a higher-cost diagnostic radiopharmaceutical when
there is a lower-cost, but clinically similar, diagnostic
radiopharmaceutical alternative. This coding approach could be coupled
with the restructuring of the nuclear medicine APC family. We believe
this approach of more granular coding could allow for more specific
data to be reported and thus more targeted and appropriate payment
rates to be developed. This approach would also help to maintain the
principles of a prospective payment system by maintaining current
packaging policies as payment for the diagnostic radiopharmaceutical
would continue to be packaged into the payment for the procedure in
which the diagnostic radiopharmaceutical is used.
We also seek additional explanation from interested parties as to
why they believe their suggested approach is the best policy approach
to ensure beneficiary access to diagnostic radiopharmaceuticals and
equitable payment for innovative and effective technologies. We welcome
comment regarding ideas discussed in this section, discussed in prior
rulemaking, or new ideas for payment for diagnostic
radiopharmaceuticals in OPPS.
Finally, we are interested in hearing from stakeholders how the
discussed policy modifications might impact our overarching goal of
utilizing packaging policies to better align OPPS policies with that of
a prospective payment system rather than a fee schedule. We would also
like to know if making any of the policy changes discussed previously
could have negative consequences for beneficiaries, such as
unintentionally influencing clinical practice decisions, increasing
beneficiary cost-sharing obligations, or inadvertently encouraging the
use of higher-cost diagnostic radiopharmaceuticals over lower cost, but
equally effective, diagnostic options.
We note that depending on the comments received, we may adopt as
final one or more alternative payment mechanisms for
radiopharmaceuticals for CY 2024.
4. Calculation of OPPS Scaled Payment Weights
We established a policy in the CY 2013 OPPS/ASC final rule with
comment period (77 FR 68283) of using geometric mean-based APC costs to
[[Page 49580]]
calculate relative payment weights under the OPPS. In the CY 2023 OPPS/
ASC final rule with comment period (87 FR 71778 through 71780), we
applied this policy and calculated the relative payment weights for
each APC for CY 2023 that were shown in Addenda A and B of the CY 2023
OPPS/ASC final rule with comment period (which were made available via
the internet on the CMS website) using the APC costs discussed in
sections II.A.1 and II.A.2 of the CY 2023 OPPS/ASC final rule with
comment period (87 FR 71757 through 71777). For CY 2024, as we did for
CY 2023, we propose to continue to apply the policy established in CY
2013 and calculate relative payment weights for each APC for CY 2024
using geometric mean-based APC costs.
For CY 2012 and CY 2013, outpatient clinic visits were assigned to
one of five levels of clinic visit APCs, with APC 0606 representing a
mid-level clinic visit. In the CY 2014 OPPS/ASC final rule with comment
period (78 FR 75036 through 75043), we finalized a policy that created
alphanumeric HCPCS code G0463 (Hospital outpatient clinic visit for
assessment and management of a patient), representing any and all
clinic visits under the OPPS. HCPCS code G0463 was assigned to APC 0634
(Hospital Clinic Visits). We also finalized a policy to use CY 2012
claims data to develop the CY 2014 OPPS payment rates for HCPCS code
G0463 based on the total geometric mean cost of the levels one through
five CPT Evaluation or Assessment and Management (E/M) codes for clinic
visits previously recognized under the OPPS (CPT codes 99201 through
99205 and 99211 through 99215). In addition, we finalized a policy to
no longer recognize a distinction between new and established patient
clinic visits.
For CY 2016, we deleted APC 0634 and reassigned the outpatient
clinic visit HCPCS code G0463 to APC 5012 (Level 2 Examinations and
Related Services) (80 FR 70372). For CY 2024, as we did for CY 2023, we
propose to continue to standardize all of the relative payment weights
to APC 5012. We believe that standardizing relative payment weights to
the geometric mean of the APC to which HCPCS code G0463 is assigned
maintains consistency in calculating unscaled weights that represent
the cost of some of the most frequently provided OPPS services. For CY
2024, as we did for CY 2023, we propose to assign APC 5012 a relative
payment weight of 1.00 and to divide the geometric mean cost of each
APC by the geometric mean cost for APC 5012 to derive the unscaled
relative payment weight for each APC. The choice of the APC on which to
standardize the relative payment weights does not affect payments made
under the OPPS because we scale the weights for budget neutrality.
Section 1833(t)(9)(B) of the Act requires that APC reclassification
and recalibration changes, wage index changes, and other adjustments be
made in a budget neutral manner. Budget neutrality ensures that the
estimated aggregate weight under the OPPS for CY 2024 is neither
greater than nor less than the estimated aggregate weight that would
have been calculated without the changes. To comply with this
requirement concerning the APC changes, we propose to compare the
estimated aggregate weight using the CY 2023 scaled relative payment
weights to the estimated aggregate weight using the proposed CY 2024
unscaled relative payment weights.
For CY 2023, we multiplied the CY 2023 scaled APC relative payment
weight applicable to a service paid under the OPPS by the volume of
that service from CY 2022 claims to calculate the total relative
payment weight for each service. We then added together the total
relative payment weight for each of these services in order to
calculate an estimated aggregate weight for the year. For CY 2024, we
propose to apply the same process using the estimated CY 2024 unscaled
relative payment weights rather than scaled relative payment weights.
We propose to calculate the weight scalar by dividing the CY 2023
estimated aggregate weight by the unscaled CY 2024 estimated aggregate
weight.
For a detailed discussion of the weight scalar calculation, we
refer readers to the OPPS claims accounting document available on the
CMS website at: https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/HospitalOutpatientPPS/index.html. Click on the link labeled
``CY 2024 OPPS/ASC Notice of Proposed Rulemaking'', which can be found
under the heading ``Hospital Outpatient Prospective Payment System
Rulemaking'' and open the claims accounting document link at the bottom
of the page, which is labeled ``2024 NPRM OPPS Claims Accounting
(PDF)''.
We propose to compare the estimated unscaled relative payment
weights in CY 2024 to the estimated total relative payment weights in
CY 2023 using CY 2022 claims data, holding all other components of the
payment system constant to isolate changes in total weight. Based on
this comparison, we propose to adjust the calculated CY 2024 unscaled
relative payment weights for purposes of budget neutrality. We propose
to adjust the estimated CY 2024 unscaled relative payment weights by
multiplying them by a proposed weight scalar of 1.4529 to ensure that
the proposed CY 2024 relative payment weights are scaled to be budget
neutral. The proposed CY 2024 relative payment weights listed in
Addenda A and B to this proposed rule (which are available via the
internet on the CMS website) are scaled and incorporate the
recalibration adjustments discussed in sections II.A.1 and II.A.2 of
this proposed rule.
Section 1833(t)(14) of the Act provides the payment rates for
certain specified covered outpatient drugs (SCODs). Section
1833(t)(14)(H) of the Act provides that additional expenditures
resulting from this paragraph shall not be taken into account in
establishing the conversion factor, weighting, and other adjustment
factors for 2004 and 2005 under paragraph (9) but shall be taken into
account for subsequent years. Therefore, the cost of those SCODs (as
discussed in section V.B.2 of this proposed rule) is included in the
budget neutrality calculations for the CY 2024 OPPS.
B. Proposed Conversion Factor Update
Section 1833(t)(3)(C)(ii) of the Act requires the Secretary to
update the conversion factor used to determine the payment rates under
the OPPS on an annual basis by applying the OPD rate increase factor.
For purposes of section 1833(t)(3)(C)(iv) of the Act, subject to
sections 1833(t)(17) and 1833(t)(3)(F) of the Act, the OPD rate
increase factor is equal to the hospital inpatient market basket
percentage increase applicable to hospital discharges under section
1886(b)(3)(B)(iii) of the Act. In the FY 2024 IPPS/Long Term Care
Hospital (LTCH) PPS proposed rule (88 FR 27004 through 27005),
consistent with current law, based on IHS Global, Inc.'s fourth quarter
2022 forecast, the proposed FY 2024 IPPS market basket percentage
increase was 3.0 percent. We note that under our regular process for
the CY 2024 OPPS/ASC final rule, we would use the market basket update
for the FY 2024 IPPS/LTCH PPS final rule, which would be based on IHS
Global, Inc.'s second quarter 2023 forecast of the FY 2024 IPPS market
basket percentage increase. If that forecast is different than the IPPS
market basket percentage increase used for this proposed rule, the CY
2024 OPPS/ASC final rule OPD rate increase factor would reflect that
updated forecast of the market basket percentage increase.
Section 1833(t)(3)(F)(i) of the Act requires that, for 2012 and
subsequent years, the OPD fee schedule increase factor under
subparagraph (C)(iv) be
[[Page 49581]]
reduced by the productivity adjustment described in section
1886(b)(3)(B)(xi)(II) of the Act. Section 1886(b)(3)(B)(xi)(II) of the
Act defines the productivity adjustment as equal to the 10-year moving
average of changes in annual economy-wide, private nonfarm business
multifactor productivity (MFP) (as projected by the Secretary for the
10-year period ending with the applicable fiscal year, year, cost
reporting period, or other annual period) (the ``productivity
adjustment''). In the FY 2012 IPPS/LTCH PPS final rule (76 FR 51689
through 51692), we finalized our methodology for calculating and
applying the productivity adjustment, and then revised this
methodology, as discussed in the FY 2016 IPPS/LTCH PPS final rule (80
FR 49509). The U.S. Department of Labor's Bureau of Labor Statistics
(BLS) publishes the official measures of private nonfarm business
productivity for the U.S. economy. We note that previously the
productivity measure referenced in section 1886(b)(3)(B)(xi)(II) of the
Act was published by BLS as private nonfarm business multifactor
productivity. Beginning with the November 18, 2021 release of
productivity data, BLS replaced the term multifactor productivity (MFP)
with total factor productivity (TFP). BLS noted that this is a change
in terminology only and will not affect the data or methodology. As a
result of the BLS name change, the productivity measure referenced in
section 1886(b)(3)(B)(xi)(II) of the Act is now published by BLS as
private nonfarm business total factor productivity. However, as
mentioned, the data and methods are unchanged. Please see www.bls.gov
for the BLS historical published TFP data. A complete description of
IGI's TFP projection methodology is available on the CMS website at
https://www.cms.gov/Research-Statistics-Dataand-Systems/Statistics-Trends-andReports/MedicareProgramRatesStats/ MarketBasketResearch. In
addition, we note that beginning with the FY 2022 IPPS/LTCH PPS final
rule, we refer to this adjustment as the productivity adjustment rather
than the MFP adjustment to more closely track the statutory language in
section 1886(b)(3)(B)(xi)(II) of the Act. We note that the adjustment
continues to rely on the same underlying data and methodology. In the
FY 2024 IPPS/LTCH PPS proposed rule (88 FR 27005), the proposed
productivity adjustment for FY 2024 was 0.2 percentage point.
Therefore, we propose that the productivity adjustment for the CY
2024 OPPS would be 0.2 percentage point. We also propose that if more
recent data subsequently become available after the publication of this
proposed rule (for example, a more recent estimate of the market basket
percentage increase and/or the productivity adjustment), we would use
such updated data, if appropriate, to determine the CY 2024 market
basket update and the productivity adjustment, which are components in
calculating the OPD fee schedule increase factor under sections
1833(t)(3)(C)(iv) and 1833(t)(3)(F) of the Act.
We note that section 1833(t)(3)(F) of the Act provides that
application of this subparagraph may result in the OPD fee schedule
increase factor under section 1833(t)(3)(C)(iv) of the Act being less
than 0.0 percent for a year, and may result in OPPS payment rates being
less than rates for the preceding year. As described in further detail
below, we propose for CY 2024 an OPD fee schedule increase factor of
2.8 percent for the CY 2024 OPPS (which is the proposed estimate of the
hospital inpatient market basket percentage increase of 3.0 percent,
less the proposed 0.2 percentage point productivity adjustment).
We propose that hospitals that fail to meet the Hospital OQR
Program reporting requirements would be subject to an additional
reduction of 2.0 percentage points from the OPD fee schedule increase
factor adjustment to the conversion factor that would be used to
calculate the OPPS payment rates for their services, as required by
section 1833(t)(17) of the Act. For further discussion of the Hospital
OQR Program, we refer readers to section XIV of this proposed rule.
To set the OPPS conversion factor for 2024, we propose to increase
the CY 2023 conversion factor of $85.585 by 2.8 percent reflecting the
proposed IPPS hospital market basket update. In accordance with section
1833(t)(9)(B) of the Act, we propose further to adjust the conversion
factor for CY 2024 to ensure that any revisions made to the wage index
and rural adjustment are made on a budget neutral basis. We propose to
calculate an overall budget neutrality factor of 0.9974 for wage index
changes by comparing proposed total estimated payments from our
simulation model using the proposed FY 2024 IPPS wage indexes to those
payments using the FY 2023 IPPS wage indexes, as adopted on a calendar
year basis for the OPPS. We further propose to calculate an additional
budget neutrality factor of 0.9975 to account for our proposed policy
to cap wage index reductions for hospitals at 5 percent on an annual
basis.
For the CY 2024 OPPS, we propose to maintain the current rural
adjustment policy, as discussed in section II.E of this proposed rule.
Therefore, the proposed budget neutrality factor for the rural
adjustment is 1.0000.
We propose to calculate a CY 2024 budget neutrality adjustment
factor for the cancer hospital payment adjustment by transitioning from
the target PCR of 0.89 we finalized for CYs 2020 through 2023 (which
included the 1.0 percentage point reduction as required by section
16002(b) of the 21st Century Cures Act) and incrementally reducing the
target PCR by an additional 1.0 percentage point for each calendar
year, beginning with CY 2024, until the target PCR equals the PCR of
non-cancer hospitals calculated using the most recent data minus 1.0
percentage point as required by section 16002(b) of the 21st Century
Cures Act. Therefore, we propose to apply a budget neutrality
adjustment factor of 1.0005 to the conversion factor for the cancer
hospital payment adjustment. In accordance with section 1833(t)(18)(C)
of the Act, as added by section 16002(b) of the 21st Century Cures Act
(Pub. L. 114-255), requires that we reduce the target PCR by 0.01,
which brings the proposed target PCR to 0.88. This is 0.01 less than
the target PCR of 0.89 from CY 2021 through CY 2023, which was held at
the pre-PHE target.
For this proposed rule, we estimated that proposed pass-through
spending for drugs, biologicals, and devices for CY 2024 would equal
approximately $234.1 million, which represents 0.26 percent of total
projected CY 2024 OPPS spending. Therefore, the proposed conversion
factor would be adjusted by the difference between the 0.16 percent
estimate of pass-through spending for CY 2023 and the 0.26 percent
estimate of proposed pass-through spending for CY 2024, resulting in a
proposed decrease to the conversion factor for CY 2024 of 0.1 percent.
Proposed estimated payments for outliers would remain at 1.0
percent of total OPPS payments for CY 2024. We estimated for this
proposed rule that outlier payments would be approximately 0.78 percent
of total OPPS payments in CY 2023; the 1.00 percent for proposed
outlier payments in CY 2024 would constitute a 0.22 percent increase in
payment in CY 2024 relative to CY 2023.
For CY 2024, we also propose that hospitals that fail to meet the
reporting requirements of the Hospital OQR Program would continue to be
subject to a further reduction of 2.0 percentage points to the OPD fee
schedule increase factor. For hospitals that fail to meet the
[[Page 49582]]
requirements of the Hospital OQR Program, we propose to make all other
adjustments discussed above, but use a reduced OPD fee schedule update
factor of 0.8 percent (that is, the proposed OPD fee schedule increase
factor of 2.8 percent further reduced by 2.0 percentage points). This
would result in a proposed reduced conversion factor for CY 2024 of
$85.782 for hospitals that fail to meet the Hospital OQR Program
requirements (a difference of -1.706 in the conversion factor relative
to hospitals that met the requirements).
In summary, for 2024, we propose to use a reduced conversion factor
of $85.782 in the calculation of payments for hospitals that fail to
meet the Hospital OQR Program requirements (a difference of -1.706 in
the conversion factor relative to hospitals that met the requirements).
For 2024, we propose to use a conversion factor of $87.488 in the
calculation of the national unadjusted payment rates for those items
and services for which payment rates are calculated using geometric
mean costs; that is, the proposed OPD fee schedule increase factor of
2.8 percent for CY 2024, the required proposed wage index budget
neutrality adjustment of approximately 0.9974, the proposed 5 percent
annual cap for individual hospital wage index reductions adjustment of
approximately 0.9975, the proposed cancer hospital payment adjustment
of 1.0005, and the proposed adjustment of an decrease of 0.1 percentage
point of projected OPPS spending for the difference in pass-through
spending, which results in a proposed conversion factor for CY 2024 of
$87.488. The calculations we performed to determine the CY 2024
proposed conversion factor are shown in Table 3.
BILLING CODE 4120-01-P
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[GRAPHIC] [TIFF OMITTED] TP31JY23.007
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[GRAPHIC] [TIFF OMITTED] TP31JY23.008
BILLING CODE 4120-01-C
C. Proposed Wage Index Changes
Section 1833(t)(2)(D) of the Act requires the Secretary to
determine a wage adjustment factor to adjust the portion of payment and
coinsurance attributable to labor-related costs for relative
differences in labor and labor-related costs across geographic regions
in a budget neutral manner (codified at 42 CFR 419.43(a)). This portion
of the OPPS payment rate is called the OPPS labor-related share. Budget
neutrality is discussed in section II.B of this proposed rule.
The OPPS labor-related share is 60 percent of the national OPPS
payment. This labor-related share is based on a regression analysis
that determined that, for all hospitals, approximately 60 percent of
the costs of services paid under the OPPS were attributable to wage
costs. We confirmed that this labor-related share for outpatient
services is appropriate during our regression analysis for the payment
adjustment for rural hospitals in the CY 2006 OPPS final rule with
comment period (70 FR 68553). We propose to continue this policy for
the CY 2024 OPPS. We refer readers to section II.H of this proposed
rule for a description and an example of how the wage index for a
particular hospital is used to determine payment for the hospital.
As discussed in the claims accounting narrative included with the
supporting documentation for this proposed rule (which is available via
the internet on the CMS website (https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/HospitalOutpatientPPS/Hospital-Outpatient-Regulations-and-Notices)), for estimating APC costs, we would
standardize 60 percent of estimated claims costs for geographic area
wage variation using the same FY 2024 pre-reclassified wage index that
we use under the IPPS to standardize costs. This standardization
process removes the effects of differences in area wage levels from the
determination of a national unadjusted OPPS payment rate and copayment
amount.
Under 42 CFR 419.41(c)(1) and 419.43(c) (published in the OPPS
April 7, 2000 final rule with comment period (65 FR 18495 and 18545)),
the OPPS adopted the final fiscal year IPPS post-reclassified wage
index as the calendar year wage index for adjusting the OPPS standard
payment amounts for labor market differences. Therefore, the wage index
that applies to a particular acute care, short-stay hospital under the
IPPS also applies to that hospital under the OPPS. As initially
explained in the September 8, 1998 OPPS proposed rule (63 FR 47576), we
believe that using the IPPS wage index as the source of an adjustment
factor for the OPPS is reasonable and logical, given the inseparable,
subordinate status of the HOPD within the hospital overall. In
accordance with section 1886(d)(3)(E) of the Act, the IPPS wage index
is updated annually.
The Affordable Care Act contained several provisions affecting the
wage index. These provisions were discussed in the CY 2012 OPPS/ASC
final rule with comment period (76 FR 74191). Section 10324 of the
Affordable Care Act added section 1886(d)(3)(E)(iii)(II) to the Act,
which defines a frontier State and amended section 1833(t) of the Act
to add paragraph (19), which requires a frontier State wage index floor
of 1.00 in certain cases, and states that the frontier State floor
shall not be applied in a budget neutral manner. We codified these
requirements at Sec. 419.43(c)(2) and (3) of our regulations. For
2024, we propose to implement this provision in the same manner as we
have since CY 2011. Under this policy, the frontier State hospitals
would receive a wage index of 1.00 if the otherwise applicable wage
index (including reclassification, the rural floor, and rural floor
budget neutrality) is less than 1.00. Because the HOPD receives a wage
index based on the geographic location of the specific inpatient
hospital with which it is associated, the frontier State wage index
adjustment applicable for the inpatient hospital also would apply for
any
[[Page 49585]]
associated HOPD. We refer readers to the FY 2011 through FY 2023 IPPS/
LTCH PPS final rules for discussions regarding this provision,
including our methodology for identifying which areas meet the
definition of ``frontier States'' as provided for in section
1886(d)(3)(E)(iii)(II) of the Act: for FY 2011, 75 FR 50160 through
50161; for FY 2012, 76 FR 51793, 51795, and 51825; for FY 2013, 77 FR
53369 through 53370; for FY 2014, 78 FR 50590 through 50591; for FY
2015, 79 FR 49971; for FY 2016, 80 FR 49498; for FY 2017, 81 FR 56922;
for FY 2018, 82 FR 38142; for FY 2019, 83 FR 41380; for FY 2020, 84 FR
42312; for FY 2021, 85 FR 58765; for FY 2022, 86 FR 45178; and for FY
2023, 87 FR 49006.
In addition to the changes required by the Affordable Care Act, we
note that the proposed FY 2024 IPPS wage indexes continue to reflect a
number of adjustments implemented in past years, including, but not
limited to, reclassification of hospitals to different geographic
areas, the rural floor provisions, the imputed floor wage index
adjustment in all-urban states, an adjustment for occupational mix, an
adjustment to the wage index based on commuting patterns of employees
(the out-migration adjustment), and the permanent 5-percent cap on any
decrease to a hospital's wage index from its wage index in a prior FY.
Beginning with FY 2024, we proposed to include hospitals with Sec.
412.103 reclassification along with geographically rural hospitals in
all rural wage index calculations, and to exclude ``dual reclass''
hospitals (hospitals with simultaneous Sec. 412.103 and Medicare
Geographic Classification Review Board (MGCRB) reclassifications)
implicated by the hold harmless provision at section 1886(d)(8)(C)(ii)
of the Act (88 FR 26973 through 26974). We also propose to continue the
low wage index hospital policy, under which we increase the wage index
for hospitals with a wage index value below the 25th percentile wage
index value for a fiscal year by half the difference between the
otherwise applicable final wage index value for a year for that
hospital and the 25th percentile wage index value for that year across
all hospitals. We refer readers to the FY 2024 IPPS/LTCH PPS proposed
rule (88 FR 26963 through 26986) for a detailed discussion of all
proposed changes to the FY 2024 IPPS wage indexes.
We note that in the FY 2023 IPPS/LTCH PPS final rule (87 FR 49018
through 49021), we finalized a permanent approach to smooth year-to-
year decreases in hospitals' wage indexes. Specifically, for FY 2023
and subsequent years, we apply a 5-percent cap on any decrease to a
hospital's wage index from its wage index in the prior FY, regardless
of the circumstances causing the decline. That is, a hospital's wage
index for FY 2024 would not be less than 95 percent of its final wage
index for FY 2023, and that for subsequent years, a hospital's wage
index would not be less than 95 percent of its final wage index for the
prior FY. We stated that we believe this policy would increase the
predictability of IPPS payments for hospitals and mitigate instability
and significant negative impacts to hospitals resulting from changes to
the wage index. It would also eliminate the need for temporary and
potentially uncertain transition adjustments to the wage index in the
future due to specific policy changes or circumstances outside
hospitals' control. Except for newly opened hospitals, we will apply
the cap for a fiscal year using the final wage index applicable to the
hospital on the last day of the prior fiscal year. A newly opened
hospital would be paid the wage index for the area in which it is
geographically located for its first full or partial fiscal year, and
it would not receive a cap for that first year because it would not
have been assigned a wage index in the prior year (in accordance with
42 CFR 419.41(c)(1) and 419.43(c), as noted above).
Core Based Statistical Areas (CBSAs) are made up of one or more
constituent counties. Each CBSA and constituent county has its own
unique identifying codes. The FY 2018 IPPS/LTCH PPS final rule (82 FR
38130) discussed the two different lists of codes to identify counties:
Social Security Administration (SSA) codes and Federal Information
Processing Standard (FIPS) codes. Historically, CMS listed and used SSA
and FIPS county codes to identify and crosswalk counties to CBSA codes
for purposes of the IPPS and OPPS wage indexes. However, the SSA county
codes are no longer being maintained and updated, although the FIPS
codes continue to be maintained by the U.S. Census Bureau. The Census
Bureau's most current statistical area information is derived from
ongoing census data received since 2010; the most recent data are from
2015. The Census Bureau maintains a complete list of changes to
counties or county equivalent entities on the website at: https://www.census.gov/geo/reference/county-changes.html (which, as of May 6,
2019, migrated to: https://www.census.gov/programs-surveys/geography.html). In the FY 2018 IPPS/LTCH PPS final rule (82 FR 38130),
for purposes of crosswalking counties to CBSAs for the IPPS wage index,
we finalized our proposal to discontinue the use of the SSA county
codes and begin using only the FIPS county codes. Similarly, for the
purposes of crosswalking counties to CBSAs for the OPPS wage index, in
the CY 2018 OPPS/ASC final rule with comment period (82 FR 59260), we
finalized our proposal to discontinue the use of SSA county codes and
begin using only the FIPS county codes. For CY 2024, under the OPPS, we
are continuing to use only the FIPS county codes for purposes of
crosswalking counties to CBSAs.
We propose to use the FY 2024 IPPS post-reclassified wage index for
urban and rural areas as the wage index for the OPPS to determine the
wage adjustments for both the OPPS payment rate and the copayment rate
for CY 2024. Therefore, any policies and adjustments for the FY 2024
IPPS post-reclassified wage index would be reflected in the final CY
2024 OPPS wage index beginning on January 1, 2024. We refer readers to
the FY 2024 IPPS/LTCH PPS proposed rule (88 FR 26963 through 26986) and
the proposed FY 2024 hospital wage index files posted on the CMS
website at https://www.cms.gov/medicare/acute-inpatient-pps/fy-2024-ipps-proposed-rule-home-page. With regard to budget neutrality for the
CY 2024 OPPS wage index, we refer readers to section II.B of this
proposed rule. We continue to believe that using the IPPS post-
reclassified wage index as the source of an adjustment factor for the
OPPS is reasonable and logical, given the inseparable, subordinate
status of the HOPD within the hospital overall.
Hospitals that are paid under the OPPS, but not under the IPPS, do
not have an assigned hospital wage index under the IPPS. Therefore, for
non-IPPS hospitals paid under the OPPS, it is our longstanding policy
to assign the wage index that would be applicable if the hospital was
paid under the IPPS, based on its geographic location and any
applicable wage index policies and adjustments. We propose to continue
this policy for CY 2024. We refer readers to the FY 2024 IPPS/LTCH PPS
proposed rule (88 FR 26963 through 26986) for a detailed discussion of
the proposed changes to the FY 2024 IPPS wage indexes.
It has been our longstanding policy to allow non-IPPS hospitals
paid under the OPPS to qualify for the out-migration adjustment if they
are located in a section 505 out-migration county (section 505 of the
Medicare Prescription Drug, Improvement, and Modernization Act of 2003
(MMA)).
[[Page 49586]]
Applying this adjustment is consistent with our policy of adopting IPPS
wage index policies for hospitals paid under the OPPS. We note that,
because non-IPPS hospitals cannot reclassify, they are eligible for the
out-migration wage index adjustment if they are located in a section
505 out-migration county. This is the same out-migration adjustment
policy that would apply if the hospital were paid under the IPPS. For
CY 2024, we propose to continue our policy of allowing non-IPPS
hospitals paid under the OPPS to qualify for the outmigration
adjustment if they are located in a section 505 out-migration county
(section 505 of the MMA). Furthermore, we propose that the wage index
that would apply for CY 2024 to non-IPPS hospitals paid under the OPPS
would continue to include the rural floor adjustment and any policies
and adjustments applied to the IPPS wage index to address wage index
disparities. In addition, the wage index that would apply to non-IPPS
hospitals paid under the OPPS would include the 5-percent cap on wage
index decreases.
For CMHCs, for CY 2024, we propose to continue to calculate the
wage index by using the post-reclassification IPPS wage index based on
the CBSA where the CMHC is located. Furthermore, we propose that the
wage index that would apply to a CMHC for CY 2024 would continue to
include the rural floor adjustment and any policies and adjustments
applied to the IPPS wage index to address wage index disparities. In
addition, the wage index that would apply to CMHCs would include the 5-
percent cap on wage index decreases. Also, we propose that the wage
index that would apply to CMHCs would not include the outmigration
adjustment because that adjustment only applies to hospitals.
Table 4A associated with the FY 2024 IPPS/LTCH PPS proposed rule
(available via the internet on the CMS website at: https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/AcuteInpatientPPS/index)
identifies counties that would be eligible for the out-migration
adjustment. Table 2 associated with the FY 2024 IPPS/LTCH PPS proposed
rule (available for download via the website above) identifies IPPS
hospitals that would receive the out-migration adjustment for FY 2024.
We are including the outmigration adjustment information from Table 2
associated with the FY 2024 IPPS/LTCH PPS proposed rule as Addendum L
to this proposed rule, with the addition of non-IPPS hospitals that
would receive the section 505 outmigration adjustment under this
proposed rule. Addendum L is available via the internet on the CMS
website. We refer readers to the CMS website for the OPPS at: https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/HospitalOutpatientPPS/index. At this link, readers will find a link to
the proposed FY 2024 IPPS wage index tables and Addendum L.
D. Proposed Statewide Average Default Cost-to-Charge Ratios (CCRs)
In addition to using CCRs to estimate costs from charges on claims
for ratesetting, we use overall hospital-specific CCRs calculated from
the hospital's most recent cost report (OMB NO: 0938-0050 for Form CMS-
2552-10) to determine outlier payments, payments for pass-through
devices, and monthly interim transitional corridor payments under the
OPPS during the PPS year. For certain hospitals, under the regulations
at 42 CFR 419.43(d)(5)(iii), we use the statewide average default CCRs
to determine the payments mentioned earlier if it is not possible to
determine an accurate CCR for a hospital in certain circumstances. This
includes hospitals that are new, hospitals that have not accepted
assignment of an existing hospital's provider agreement, and hospitals
that have not yet submitted a cost report. We also use the statewide
average default CCRs to determine payments for hospitals whose CCR
falls outside the predetermined ceiling threshold for a valid CCR or
for hospitals in which the most recent cost report reflects an all-
inclusive rate status (Medicare Claims Processing Manual (Pub. 100-04),
Chapter 4, Section 10.11).
We discussed our policy for using default CCRs, including setting
the ceiling threshold for a valid CCR, in the CY 2009 OPPS/ASC final
rule with comment period (73 FR 68594 through 68599) in the context of
our adoption of an outlier reconciliation policy for cost reports
beginning on or after January 1, 2009. For details on our process for
calculating the statewide average CCRs, we refer readers to the CY 2024
OPPS proposed rule Claims Accounting Narrative that is posted on our
website. We propose to calculate the default ratios for CY 2024 using
the most recent cost report data. We will update these ratios in the
final rule with comment period if more recent cost report data are
available.
We no longer publish a table in the Federal Register containing the
statewide average CCRs in the annual OPPS proposed rule and final rule
with comment period. These CCRs with the upper limit will be available
for download with each OPPS CY proposed rule and final rule on the CMS
website. We refer readers to our website at: https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/HospitalOutpatientPPS/Hospital-Outpatient-Regulations-and-Notices.html; click on the link on
the left of the page titled ``Hospital Outpatient Regulations and
Notices'' and then select the relevant regulation to download the
statewide CCRs and upper limit in the downloads section of the web
page.
E. Proposed Adjustment for Rural Sole Community Hospitals (SCHs) and
Essential Access Community Hospitals (EACHs) Under Section
1833(t)(13)(B) of the Act for CY 2024
In the CY 2006 OPPS final rule with comment period (70 FR 68556),
we finalized a payment increase for rural sole community hospitals
(SCHs) of 7.1 percent for all services and procedures paid under the
OPPS, excluding drugs, biologicals, brachytherapy sources, and devices
paid under the pass-through payment policy, in accordance with section
1833(t)(13)(B) of the Act, as added by section 411 of the Medicare
Prescription Drug, Improvement, and Modernization Act of 2003 (MMA)
(Pub. L. 108-173). Section 1833(t)(13) of the Act provides the
Secretary the authority to make an adjustment to OPPS payments for
rural hospitals, effective January 1, 2006, if justified by a study of
the difference in costs by APC between hospitals in rural areas and
hospitals in urban areas. Our analysis showed a difference in costs for
rural SCHs. Therefore, for the CY 2006 OPPS, we finalized a payment
adjustment for rural SCHs of 7.1 percent for all services and
procedures paid under the OPPS, excluding separately payable drugs and
biologicals, brachytherapy sources, items paid at charges reduced to
costs, and devices paid under the pass-through payment policy, in
accordance with section 1833(t)(13)(B) of the Act.
In the CY 2007 OPPS/ASC final rule with comment period (71 FR 68010
and 68227), for purposes of receiving this rural adjustment, we revised
our regulations at Sec. 419.43(g) to clarify that essential access
community hospitals (EACHs) are also eligible to receive the rural SCH
adjustment, assuming these entities otherwise meet the rural adjustment
criteria. Currently, two hospitals are classified as EACHs, and as of
CY 1998, under section 4201(c) of the Balanced Budget Act of 1997 (BBA)
(Pub. L. 105-33), a hospital can no longer become newly classified as
an EACH.
This adjustment for rural SCHs is budget neutral and applied before
[[Page 49587]]
calculating outlier payments and copayments. We stated in the CY 2006
OPPS final rule with comment period (70 FR 68560) that we would not
reestablish the adjustment amount on an annual basis, but we may review
the adjustment in the future and, if appropriate, would revise the
adjustment. We provided the same 7.1 percent adjustment to rural SCHs,
including EACHs, again in CYs 2008 through 2023.
For CY 2024, we propose to continue the current policy of a 7.1
percent payment adjustment for rural SCHs, including EACHs, for all
services and procedures paid under the OPPS, excluding separately
payable drugs and biologicals, brachytherapy sources, items paid at
charges reduced to costs, and devices paid under the pass-through
payment policy, applied in a budget neutral manner.
F. Proposed Payment Adjustment for Certain Cancer Hospitals for CY 2024
1. Background
Since the inception of the OPPS, which was authorized by the
Balanced Budget Act of 1997 (BBA) (Pub. L. 105-33), Medicare has paid
the 11 hospitals that meet the criteria for cancer hospitals identified
in section 1886(d)(1)(B)(v) of the Act under the OPPS for covered
outpatient department services. These cancer hospitals are exempted
from payment under the IPPS. With the Medicare, Medicaid and SCHIP
Balanced Budget Refinement Act of 1999 (Pub. L. 106-113), the Congress
added section 1833(t)(7), ``Transitional Adjustment to Limit Decline in
Payment,'' to the Act, which requires the Secretary to determine OPPS
payments to cancer and children's hospitals based on their pre-BBA
payment amount (these hospitals are often referred to under this policy
as ``held harmless'' and their payments are often referred to as ``hold
harmless'' payments).
As required under section 1833(t)(7)(D)(ii) of the Act, a cancer
hospital receives the full amount of the difference between payments
for covered outpatient department services under the OPPS and a ``pre-
BBA amount.'' That is, cancer hospitals are permanently held harmless
to their ``pre-BBA amount,'' and they receive transitional outpatient
payments (TOPs) or hold harmless payments to ensure that they do not
receive a payment that is lower in amount under the OPPS than the
payment amount they would have received before implementation of the
OPPS, as set forth in section 1833(t)(7)(F) of the Act. The ``pre-BBA
amount'' is the product of the hospital's reasonable costs for covered
outpatient department services occurring in the current year and the
base payment-to-cost ratio (PCR) for the hospital defined in section
1833(t)(7)(F)(ii) of the Act. The ``pre-BBA amount'' and the
determination of the base PCR are defined at Sec. 419.70(f). TOPs are
calculated on Worksheet E, Part B, of the Hospital Cost Report or the
Hospital Health Care Complex Cost Report (Form CMS-2552-96 or Form CMS-
2552-10 (OMB NO: 0938-0050), respectively), as applicable each year.
Section 1833(t)(7)(I) of the Act exempts TOPs from budget neutrality
calculations.
Section 3138 of the Affordable Care Act (Pub. L. 111-148) amended
section 1833(t) of the Act by adding a new paragraph (18), which
instructs the Secretary to conduct a study to determine if, under the
OPPS, outpatient costs incurred by cancer hospitals described in
section 1886(d)(1)(B)(v) of the Act with respect to APC groups exceed
outpatient costs incurred by other hospitals furnishing services under
section 1833(t) of the Act, as determined appropriate by the Secretary.
Section 1833(t)(18)(A) of the Act requires the Secretary to take into
consideration the cost of drugs and biologicals incurred by cancer
hospitals and other hospitals. Section 1833(t)(18)(B) of the Act
provides that, if the Secretary determines that cancer hospitals' costs
are higher than those of other hospitals, the Secretary shall provide
an appropriate adjustment under section 1833(t)(2)(E) of the Act to
reflect these higher costs. In 2011, after conducting the study
required by section 1833(t)(18)(A) of the Act, we determined that
outpatient costs incurred by the 11 specified cancer hospitals were
greater than the costs incurred by other OPPS hospitals. For a complete
discussion regarding the cancer hospital cost study, we refer readers
to the CY 2012 OPPS/ASC final rule with comment period (76 FR 74200
through 74201).
Based on these findings, we finalized a policy to provide a payment
adjustment to the 11 specified cancer hospitals that reflects their
higher outpatient costs, as discussed in the CY 2012 OPPS/ASC final
rule with comment period (76 FR 74202 through 74206). Specifically, we
adopted a policy to provide additional payments to the cancer hospitals
so that each cancer hospital's final PCR for services provided in a
given calendar year is equal to the weighted average PCR (which we
refer to as the ``target PCR'') for other hospitals paid under the
OPPS. The target PCR is set in advance of the calendar year and is
calculated using the most recently submitted or settled cost report
data that are available at the time of final rulemaking for the
calendar year. The amount of the payment adjustment is made on an
aggregate basis at cost report settlement. We note that the changes
made by section 1833(t)(18) of the Act do not affect the existing
statutory provisions that provide for TOPs for cancer hospitals. The
TOPs are assessed, as usual, after all payments, including the cancer
hospital payment adjustment, have been made for a cost reporting
period. Table 4 displays the target PCR for purposes of the cancer
hospital adjustment for CY 2012 through CY 2023.
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2. Proposed Policy for CY 2024
Section 16002(b) of the 21st Century Cures Act (Pub. L. 114-255)
amended section 1833(t)(18) of the Act by adding subparagraph (C),
which requires that in applying Sec. 419.43(i) (that is, the payment
adjustment for certain cancer hospitals) for services furnished on or
after January 1, 2018, the target PCR adjustment be reduced by 1.0
percentage point less than what would otherwise apply. Section 16002(b)
also provides that, in addition to the percentage reduction, the
Secretary may consider making an additional percentage point reduction
to the target PCR that takes into account payment rates for applicable
items and services described under section 1833(t)(21)(C) of the Act
for hospitals that are not cancer hospitals described under section
1886(d)(1)(B)(v) of the Act. Further, in making any budget neutrality
adjustment under section 1833(t) of the Act, the Secretary shall not
take into account the reduced expenditures that result from application
of section 1833(t)(18)(C) of the Act.
We propose to provide additional payments to the 11 specified
cancer hospitals so that each cancer hospital's proposed PCR is equal
to the weighted average PCR (or ``target PCR'') for the other OPPS
hospitals, generally using the most recent submitted or settled cost
report data that are available, reduced by 1.0 percentage point, to
comply with section 16002(b) of the 21st Century Cures Act, and
adjusted by the proposed post-Public Health Emergency transition as
described later in this section. We are not proposing an additional
reduction beyond the 1.0 percentage point reduction required by section
16002(b) of the 21st Century Cures Act for CY 2024.
To calculate the proposed CY 2024 target PCR, we would use the same
extract of cost report data from HCRIS used to estimate costs for the
CY 2024 OPPS which, in most cases, would be the most recently available
hospital cost reports. Using these cost report data, we included data
from Worksheet E, Part B, for each hospital, using data from each
hospital's most recent cost report, whether as submitted or settled.
We then limited the dataset to the hospitals with CY 2022 claims
data that we used to model the impact of the proposed CY 2024 APC
relative payment weights (3,406 hospitals) because it is appropriate to
use the same set of hospitals that are being used to calibrate the
modeled CY 2024 OPPS. The cost report data for the hospitals in this
dataset were from cost report periods with fiscal year ends ranging
from 2017 to 2022; however, the cost reporting periods were
predominantly from fiscal years ending in 2021 and 2022. We then
removed the cost report data of the 47 hospitals located in Puerto Rico
from our dataset because we did not believe their cost structure
reflected the costs of most hospitals paid under the OPPS, and,
therefore, their inclusion may bias the calculation of hospital-
weighted statistics. We also removed the cost report data of 14
hospitals because these hospitals had cost report data that were not
complete (missing aggregate OPPS payments, missing aggregate cost data,
or missing both), so that all cost reports in the study would have both
the payment and cost data necessary to calculate a PCR for each
hospital, leading to a proposed analytic file of 3,345 hospitals with
cost report data.
Using this smaller dataset of cost report data, we estimate that,
on average, the OPPS payments to other hospitals furnishing services
under the OPPS were approximately 86 percent of reasonable cost
(weighted average PCR of .86). Therefore, after applying the 1.0
percentage point reduction, as required by section 16002(b) of the 21st
Century Cures Act, using our standard process the payment amount
associated with the cancer hospital payment adjustment to be determined
at cost report settlement would be the additional payment needed to
result in a target PCR equal to 0.85 for each cancer hospital.
However, we note that a proposed cancer hospital target PCR of 0.85
for CY 2024 is dramatically lower than the target PCR from previous
years. Historically, as shown in Table 4, the target PCR for cancer
hospitals has been between 0.88 and 0.92. In light of our concerns
about the impact of the COVID-19 PHE on CY 2020 claims and cost data,
we finalized a policy to continue the target PCR of 0.89 from CY 2021
for CY 2022 and for CY 2023 as an appropriate cancer hospital
adjustment under our authority described in section 1833(t)(2)(E) of
the Act. We believe the impact of the COVID-19 PHE claims and cost data
used to calculate the target PCR of 0.85 may continue to have some
limited influence on our target PCR calculations. However, we believe
we should begin to take into consideration the PCR of non-cancer
hospitals based on the most recently available data for calculating the
target PCR. We do not
[[Page 49589]]
know if the changes in the data that have yielded a significantly lower
PCR for non-cancer hospitals using the most recently available data are
likely to continue in future years or if, when data from after the PHE
is available, we will see the target PCR increase toward its historical
norm. We are concerned that using the 0.85 target PCR calculated from
the most recent data could lead to instability in cancer hospital
adjustment payments and volatility in the PCR as we transition to
utilizing post-PHE data. Therefore, in this CY 2024 OPPS/ASC proposed
rule, we propose to transition from the target PCR of 0.89 we finalized
for CYs 2020 through 2023 (which included the 1.0 percentage point
reduction as required by section 16002(b) of the 21st Century Cures
Act) and incrementally reduce the target PCR by an additional 1.0
percentage point for each calendar year, beginning with CY 2024, until
the target PCR equals the PCR of non-cancer hospitals calculated using
the most recent data minus 1.0 percentage point as required by section
16002(b) of the 21st Century Cures Act. Therefore, utilizing this
methodology for this CY 2024 OPPS/ASC proposed rule, we propose to
reduce the CY 2023 target PCR of 0.89 by 1 percentage point and propose
a cancer hospital target PCR of 0.88 for CY 2024.
Table 5 shows the estimated percentage increase in OPPS payments to
each cancer hospital for CY 2024, due to the cancer hospital payment
adjustment policy. The actual, final amount of the CY 2024 cancer
hospital payment adjustment for each cancer hospital would be
determined at cost report settlement and would depend on each
hospital's CY 2024 payments and costs from the settled CY 2024 cost
report. We note that the requirements contained in section 1833(t)(18)
of the Act do not affect the existing statutory provisions that provide
for TOPs for cancer hospitals. The TOPs will be assessed, as usual,
after all payments, including the cancer hospital payment adjustment,
have been made for a cost reporting period.
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G. Proposed Hospital Outpatient Outlier Payments
1. Background
The OPPS provides outlier payments to hospitals to help mitigate
the financial risk associated with high-cost and complex procedures,
where a very costly service could present a hospital with significant
financial loss. As explained in the CY 2015 OPPS/ASC final rule with
comment period (79 FR 66832 through 66834), we set our projected target
for aggregate outlier payments at 1.0 percent of the estimated
aggregate total payments under the OPPS for the prospective year.
Outlier payments are provided on a service-by-service basis when the
cost of a service exceeds the APC payment amount multiplier threshold
(the APC payment amount multiplied by a certain amount) as well as the
APC payment amount plus a fixed-dollar amount threshold (the APC
payment plus a certain dollar amount). In CY 2023, the outlier
threshold was met when the hospital's cost of furnishing a service
exceeded 1.75 times the APC payment amount (the multiplier threshold)
and exceeded the APC payment amount plus $8,625 (the fixed-dollar
amount threshold) (87 FR 71788 through 71790). If the hospital's cost
of furnishing a service exceeds both the multiplier threshold
[[Page 49590]]
and the fixed-dollar threshold, the outlier payment is calculated as 50
percent of the amount by which the hospital's cost of furnishing the
service exceeds 1.75 times the APC payment amount. Beginning with CY
2009 payments, outlier payments are subject to a reconciliation process
similar to the IPPS outlier reconciliation process for cost reports, as
discussed in the CY 2009 OPPS/ASC final rule with comment period (73 FR
68594 through 68599).
It has been our policy to report the actual amount of outlier
payments as a percent of total spending in the claims being used to
model the OPPS. Our estimate of total outlier payments as a percent of
total CY 2022 OPPS payments, using CY 2022 claims available for this CY
2024 OPPS proposed rule, is approximately 0.88 percent. Therefore, for
CY 2022, we estimate that we did not meet the outlier target by 0.12
percent of total aggregated OPPS payments.
For this proposed rule, using CY 2022 claims data and CY 2023
payment rates, we estimate that the aggregate outlier payments for CY
2023 would be approximately 0.78 percent of the total CY 2023 OPPS
payments. We provide estimated CY 2024 outlier payments for hospitals
and CMHCs with claims included in the claims data that we used to model
impacts in the Hospital-Specific Impacts--Provider-Specific Data file
on the CMS website at: https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/HospitalOutpatientPPS/index.html.
2. Outlier Calculation for CY 2024
For CY 2024, we propose to continue our policy of estimating
outlier payments to be 1.0 percent of the estimated aggregate total
payments under the OPPS. We propose that a portion of that 1.0 percent,
an amount equal to less than 0.01 percent of outlier payments (or
0.0001 percent of total OPPS payments), would be allocated to CMHCs for
PHP outlier payments. This is the amount of estimated outlier payments
that would result from the proposed CMHC outlier threshold as a
proportion of total estimated OPPS outlier payments. In this CY 2024
OPPS/ASC proposed rule, we propose to modify our outlier policy and
which APCs are eligible for an outlier payment if a CMHC's cost for
services exceeds 3.40 times the APC payment rate. The outlier payment
would be calculated as 50 percent of the amount by which the cost
exceeds 3.40 times the proposed APC payment rate.
For further discussion of CMHC outlier payments, we refer readers
to section VIII.C of this proposed rule.
To ensure that the estimated CY 2024 aggregate outlier payments
would equal 1.0 percent of estimated aggregate total payments under the
OPPS, we propose that the hospital outlier threshold be set so that
outlier payments would be triggered when a hospital's cost of
furnishing a service exceeds 1.75 times the APC payment amount and
exceeds the APC payment amount plus $8,350.
We calculated the proposed fixed-dollar threshold of $8,350 using
the standard methodology most recently used for CY 2023 (87 FR 71788
through 71790). For purposes of estimating outlier payments for CY
2024, we use the hospital-specific overall ancillary CCRs available in
the April 2023 update to the Outpatient Provider-Specific File (OPSF).
The OPSF contains provider-specific data, such as the most current
CCRs, which are maintained by the MACs and used by the OPPS Pricer to
pay claims. The claims that we generally use to model each OPPS update
lag by 2 years.
In order to estimate the CY 2024 hospital outlier payments, we
inflate the charges on the CY 2022 claims using the same proposed
charge inflation factor of 1.118412 that we used to estimate the IPPS
fixed-loss cost threshold for the FY 2024 IPPS/LTCH PPS proposed rule
(88 FR 27220). We used an inflation factor of 1.05755 to estimate CY
2023 charges from the CY 2022 charges reported on CY 2022 claims before
applying CY 2023 CCRs to estimate the percent of outliers paid in CY
2023. The proposed methodology for determining these charge inflation
factors is discussed in the FY 2024 IPPS/LTCH PPS proposed rule (88 FR
27219 through 27220). As we stated in the CY 2005 OPPS final rule with
comment period (69 FR 65844 through 65846), we believe that the use of
the same charge inflation factors is appropriate for the OPPS because,
with the exception of the inpatient routine service cost centers,
hospitals use the same ancillary and cost centers to capture costs and
charges for inpatient and outpatient services.
As noted in the CY 2007 OPPS/ASC final rule with comment period (71
FR 68011), we are concerned that we could systematically overestimate
the OPPS hospital outlier threshold if we did not apply a CCR inflation
adjustment factor. Therefore, we propose to apply the same CCR
adjustment factor that we proposed to apply for the FY 2024 IPPS
outlier calculation to the CCRs used to simulate the proposed CY 2024
OPPS outlier payments to determine the fixed-dollar threshold.
Specifically, for CY 2024, we propose to apply an adjustment factor of
0.977799 to the CCRs that were in the April 2023 OPSF to trend them
forward from CY 2023 to CY 2024. The methodology for calculating the
proposed CCR adjustment factor, as well as the solicitation of comments
on an alternative approach, is discussed in the FY 2024 IPPS/LTCH PPS
proposed rule (88 FR 27221).
To model hospital outlier payments for the CY 2024 proposed rule,
we apply the overall CCRs from the April 2023 OPSF after adjustment
(using the proposed CCR inflation adjustment factor of 0.977799 to
approximate CY 2024 CCRs) to charges on CY 2022 claims that were
adjusted (using the proposed charge inflation factor of 1.118412 to
approximate CY 2024 charges). We simulated aggregated CY 2022 hospital
outlier payments using these costs for several different fixed-dollar
thresholds, holding the 1.75 multiplier threshold constant and assuming
that outlier payments would continue to be made at 50 percent of the
amount by which the cost of furnishing the service would exceed 1.75
times the APC payment amount, until the total outlier payments equaled
1.0 percent of aggregated estimated total CY 2024 OPPS payments. We
estimated that a proposed fixed-dollar threshold of $8,350, combined
with the proposed multiplier threshold of 1.75 times the APC payment
rate, would allocate 1.0 percent of aggregated total OPPS payments to
outlier payments. For CMHCs, we propose that, if a CMHC's cost for
partial hospitalization or intensive outpatient services exceeds 3.40
times the APC payment rate, the outlier payment would be calculated as
50 percent of the amount by which the cost exceeds 3.40 times the APC
payment rate.
Section 1833(t)(17)(A) of the Act, which applies to hospitals, as
defined under section 1886(d)(1)(B) of the Act, requires that hospitals
that fail to report data required for the quality measures selected by
the Secretary, in the form and manner required by the Secretary under
section 1833(t)(17)(B) of the Act, incur a 2.0 percentage point
reduction to their OPD fee schedule increase factor; that is, the
annual payment update factor. The application of a reduced OPD fee
schedule increase factor results in reduced national unadjusted payment
rates that would apply to certain outpatient items and services
furnished by hospitals that are required to report outpatient quality
data and that fail to meet the Hospital Outpatient Quality Reporting
(OQR) Program requirements. For hospitals that fail to meet the
Hospital OQR
[[Page 49591]]
Program requirements, we proposed to continue the policy that we
implemented in CY 2010 that the hospitals' costs would be compared to
the reduced payments for purposes of outlier eligibility and payment
calculation. For more information on the Hospital OQR Program, we refer
readers to section XIV of this proposed rule.
H. Proposed Calculation of an Adjusted Medicare Payment From the
National Unadjusted Medicare Payment
The national unadjusted payment rate is the payment rate for most
APCs before accounting for the wage index adjustment or any applicable
adjustments. The basic methodology for determining prospective payment
rates for HOPD services under the OPPS is set forth in existing
regulations at 42 CFR part 419, subparts C and D. For this CY 2024
OPPS/ASC proposed rule, the payment rate for most services and
procedures for which payment is made under the OPPS is the product of
the conversion factor calculated in accordance with section II.B and
the relative payment weight described in section II.A of this proposed
rule. The national unadjusted payment rate for most APCs contained in
Addendum A to this proposed rule (which is available via the CMS
website ``Hospital Outpatient Regulations and Notices'' and for most
HCPCS codes to which separate payment under the OPPS has been assigned
in Addendum B to this proposed rule (which is available on the CMS
website link above) is calculated by multiplying the proposed CY 2024
scaled weight for the APC by the CY 2024 conversion factor.
We note that section 1833(t)(17) of the Act, which applies to
hospitals, as defined under section 1886(d)(1)(B) of the Act, requires
that hospitals that fail to submit data required to be submitted on
quality measures selected by the Secretary, in the form and manner and
at a time specified by the Secretary, incur a reduction of 2.0
percentage points to their OPD fee schedule increase factor, that is,
the annual payment update factor. The application of a reduced OPD fee
schedule increase factor results in reduced national unadjusted payment
rates that apply to certain outpatient items and services provided by
hospitals that are required to report outpatient quality data and that
fail to meet the Hospital OQR Program requirements. For further
discussion of the payment reduction for hospitals that fail to meet the
requirements of the Hospital OQR Program, we refer readers to section
XIV of this proposed rule.
Below we demonstrate the steps used to determine the APC payments
that will be made in a CY under the OPPS to a hospital that fulfills
the Hospital OQR Program requirements and to a hospital that fails to
meet the Hospital OQR Program requirements for a service that has any
of the following status indicator assignments: ``J1'', ``J2'', ``P'',
``Q1'', ``Q2'', ``Q3'', ``Q4'', ``R'', ``S'', ``T'', ``U'', or ``V''
(as defined in Addendum D1 to this proposed rule, which is available
via the internet on the CMS website), in a circumstance in which the
multiple procedure discount does not apply, the procedure is not
bilateral, and conditionally packaged services (status indicator of
``Q1'' and ``Q2'') qualify for separate payment. We note that, although
blood and blood products with status indicator ``R'' and brachytherapy
sources with status indicator ``U'' are not subject to wage adjustment,
they are subject to reduced payments when a hospital fails to meet the
Hospital OQR Program requirements.
Individual providers interested in calculating the payment amount
that they would receive for a specific service from the national
unadjusted payment rates presented in Addenda A and B to this proposed
rule (which are available via the internet on the CMS website) should
follow the formulas presented in the following steps. For purposes of
the payment calculations below, we refer to the national unadjusted
payment rate for hospitals that meet the requirements of the Hospital
OQR Program as the ``full'' national unadjusted payment rate. We refer
to the national unadjusted payment rate for hospitals that fail to meet
the requirements of the Hospital OQR Program as the ``reduced''
national unadjusted payment rate. The reduced national unadjusted
payment rate is calculated by multiplying the reporting ratio of 0.9805
times the ``full'' national unadjusted payment rate. The national
unadjusted payment rate used in the calculations below is either the
full national unadjusted payment rate or the reduced national
unadjusted payment rate, depending on whether the hospital met its
Hospital OQR Program requirements to receive the full CY 2024 OPPS fee
schedule increase factor.
Step 1. Calculate 60 percent (the labor-related portion) of the
national unadjusted payment rate. Since the initial implementation of
the OPPS, we have used 60 percent to represent our estimate of that
portion of costs attributable, on average, to labor. We refer readers
to the April 7, 2000 OPPS/ASC final rule with comment period (65 FR
18496 through 18497) for a detailed discussion of how we derived this
percentage. During our regression analysis for the payment adjustment
for rural hospitals in the CY 2006 OPPS final rule with comment period
(70 FR 68553), we confirmed that this labor-related share for hospital
outpatient services is appropriate.
The formula below is a mathematical representation of Step 1 and
identifies the labor-related portion of a specific payment rate for a
specific service.
X is the labor-related portion of the national unadjusted payment
rate.
X = .60 * (national unadjusted payment rate).
Step 2. Determine the wage index area in which the hospital is
located and identify the wage index level that applies to the specific
hospital. The wage index values assigned to each area would reflect the
geographic statistical areas (which are based upon OMB standards) to
which hospitals are assigned for FY 2024 under the IPPS,
reclassifications through the Medicare Geographic Classification Review
Board (MGCRB), section 1886(d)(8)(B) ``Lugar'' hospitals, and
reclassifications under section 1886(d)(8)(E) of the Act, as
implemented in Sec. 412.103 of the regulations. We propose to continue
to apply for the CY 2024 OPPS wage index any adjustments for the FY
2024 IPPS post-reclassified wage index, including, but not limited to,
the rural floor adjustment, a wage index floor of 1.00 in frontier
states, in accordance with section 10324 of the Affordable Care Act of
2010, and an adjustment to the wage index for certain low wage index
hospitals. For further discussion of the wage index we propose to apply
for the CY 2024 OPPS, we refer readers to section II.C of this proposed
rule.
Step 3. Adjust the wage index of hospitals located in certain
qualifying counties that have a relatively high percentage of hospital
employees who reside in the county, but who work in a different county
with a higher wage index, in accordance with section 505 of the
Medicare Prescription Drug, Improvement, and Modernization Act of 2003
(Pub. L. 108-173). Addendum L to this proposed rule (which is available
via the internet on the CMS website) contains the qualifying counties
and the associated wage index increase developed for the proposed FY
2024 IPPS wage index, which are listed in Table 3 associated with the
FY 2024 IPPS proposed rule and available via the internet on the CMS
website at: https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/AcuteInpatientPPS/index.html. (Click on the link on the left
side of the screen titled ``FY 2024 IPPS Proposed Rule Home
[[Page 49592]]
Page'' and select ``FY 2024 Proposed Rule Tables.'') This step is to be
followed only if the hospital is not reclassified or redesignated under
section 1886(d)(8) or section 1886(d)(10) of the Act.
Step 4. Multiply the applicable wage index determined under Steps 2
and 3 by the amount determined under Step 1 that represents the labor-
related portion of the national unadjusted payment rate.
The formula below is a mathematical representation of Step 4 and
adjusts the labor-related portion of the national unadjusted payment
rate for the specific service by the wage index.
Xa is the labor-related portion of the national unadjusted payment
rate (wage adjusted).
Xa = labor-portion of the national unadjusted payment rate * applicable
wage index.
Step 5. Calculate 40 percent (the nonlabor-related portion) of the
national unadjusted payment rate and add that amount to the resulting
product of Step 4. The result is the wage index adjusted payment rate
for the relevant wage index area.
The formula below is a mathematical representation of Step 5 and
calculates the remaining portion of the national payment rate, the
amount not attributable to labor, and the adjusted payment for the
specific service.
Y is the nonlabor-related portion of the national unadjusted
payment rate.
Y = .40 * (national unadjusted payment rate).
Step 6. If a provider is an SCH, as set forth in the regulations at
Sec. 412.92, or an EACH, which is considered to be an SCH under
section 1886(d)(5)(D)(iii)(III) of the Act, and located in a rural
area, as defined in Sec. 412.64(b), or is treated as being located in
a rural area under Sec. 412.103, multiply the wage index adjusted
payment rate by 1.071 to calculate the total payment.
The formula below is a mathematical representation of Step 6 and
applies the rural adjustment for rural SCHs.
Adjusted Medicare Payment (SCH or EACH) = Adjusted Medicare Payment *
1.071.
Step 7. The adjusted payment rate is the sum of the wage adjusted
labor-related portion of the national unadjusted payment rate and the
nonlabor-related portion of the national unadjusted payment rate.
Xa is the labor-related portion of the national unadjusted payment
rate (wage adjusted).
Y is the nonlabor-related portion of the national unadjusted
payment rate.
Adjusted Medicare Payment = Xa + Y
We are providing examples below of the calculation of both the full
and reduced national unadjusted payment rates that would apply to
certain outpatient items and services performed by hospitals that meet
and that fail to meet the Hospital OQR Program requirements, using the
steps outlined previously. For purposes of this example, we are using a
provider that is located in Brooklyn, New York that is assigned to CBSA
35614. This provider bills one service that is assigned to APC 5071
(Level 1 Excision/Biopsy/Incision and Drainage). The proposed CY 2024
full national unadjusted payment rate for APC 5071 is $675.15. The
proposed reduced national adjusted payment rate for APC 5071 for a
hospital that fails to meet the Hospital OQR Program requirements is
$661.98. This reduced rate is calculated by multiplying the reporting
ratio of 0.9805 by the full unadjusted payment rate for APC 5071.
Step 1. The labor-related portion of the proposed full national
unadjusted payment is approximately $405.09 (.60 * $675.15). The labor-
related portion of the proposed reduced national adjusted payment is
approximately $397.19 (.60 * $675.15).
Step 2 & 3. The FY 2024 wage index for a provider located in CBSA
35614 in New York, which includes the adoption of the proposed IPPS
2024 wage index policies, is 1.3631.
Step 4. The wage adjusted labor-related portion of the proposed
full national unadjusted payment is approximately $522.18 ($405.09
*1.3631). The wage adjusted labor-related portion of the proposed
reduced national adjusted payment is approximately $541.41 ($397.19 *
1.3631).
Step 5. The nonlabor-related portion of the proposed full national
unadjusted payment is approximately $270.06 (.40 * $675.15). The
nonlabor-related portion of the proposed reduced national adjusted
payment is approximately $264.79 (.40 * $661.98).
Step 6. For this example of a provider located in Brooklyn, New
York, the rural adjustment for rural SCHs does not apply.
Step 7. The sum of the labor-related and nonlabor-related portions
of the proposed full national unadjusted payment is approximately
$822.24 ($552.18 + $270.06). The sum of the portions of the proposed
reduced national adjusted payment is approximately $806.20 ($541.41 +
$264.79).
[GRAPHIC] [TIFF OMITTED] TP31JY23.011
I. Proposed Beneficiary Copayments
1. Background
Section 1833(t)(3)(B) of the Act requires the Secretary to set
rules for determining the unadjusted copayment amounts to be paid by
beneficiaries for covered OPD services. Section 1833(t)(8)(C)(ii) of
the Act specifies that the Secretary must reduce the national
unadjusted copayment amount for a covered OPD service (or group of such
services) furnished in a year in a manner so that the effective
copayment rate (determined on a national unadjusted basis) for that
service in the year does not exceed a specified percentage. As
specified in section 1833(t)(8)(C)(ii)(V) of the Act, the effective
copayment rate for a covered OPD service paid under the OPPS in CY
2006, and in CYs thereafter, shall not exceed 40 percent of the APC
payment rate.
Section 1833(t)(3)(B)(ii) of the Act provides that, for a covered
OPD service (or group of such services) furnished in a year, the
national unadjusted copayment amount cannot be less than 20 percent of
the OPD fee schedule amount. However, section 1833(t)(8)(C)(i) of the
Act limits the amount of beneficiary copayment that may be collected
for a procedure (including items such as drugs and biologicals)
performed in a year to the amount of the inpatient hospital deductible
for that year.
Section 4104 of the Affordable Care Act eliminated the Medicare
Part B
[[Page 49593]]
coinsurance for preventive services furnished on and after January 1,
2011, that meet certain requirements, including flexible
sigmoidoscopies and screening colonoscopies, and waived the Part B
deductible for screening colonoscopies that become diagnostic during
the procedure. For a discussion of the changes made by the Affordable
Care Act with regard to copayments for preventive services furnished on
and after January 1, 2011, we refer readers to section XII.B of the CY
2011 OPPS/ASC final rule with comment period (75 FR 72013).
Section 122 of the Consolidated Appropriations Act (CAA) of 2021
(Pub. L. 116-260), Waiving Medicare Coinsurance for Certain Colorectal
Cancer Screening Tests, amends section 1833(a) of the Act to offer a
special coinsurance rule for screening flexible sigmoidoscopies and
screening colonoscopies, regardless of the code that is billed for the
establishment of a diagnosis as a result of the test, or for the
removal of tissue or other matter or other procedure, that is furnished
in connection with, as a result of, and in the same clinical encounter
as the colorectal cancer screening test. We refer readers to section
X.B, ``Changes to Beneficiary Coinsurance for Certain Colorectal Cancer
Screening Tests,'' of the CY 2022 OPPS/ASC final rule with comment
period for the full discussion of this policy (86 FR 63740 through
63743). Under the regulation at 42 CFR 410.152(l)(5)(i)(B), the
Medicare Part B payment percentage for colorectal cancer screening
tests described in the regulation at Sec. 410.37(j) that are furnished
in CY 2023 through 2026 (and the corresponding reduction in
coinsurance) is 85 percent (with beneficiary coinsurance equal to 15
percent).
On August 16, 2022, the Inflation Reduction Act of 2022 (IRA) (Pub.
L. 117-169) was signed into law. Section 11101(a) of the IRA amended
section 1847A of the Act by adding a new subsection (i), which requires
the payment of rebates into the Supplementary Medical Insurance Trust
Fund for Part B rebatable drugs if the payment limit amount exceeds the
inflation-adjusted payment amount, which is calculated as set forth in
section 1847A(i)(3)(C) of the Act. The provisions of section 11101 of
the IRA are currently being implemented through program instruction, as
permitted under section 1847A(c)(5)(C) of the Act. As such, we issued
final guidance for the computation of inflation-adjusted beneficiary
coinsurance under section 1847A(i)(5) of the Act and amounts paid under
section 1833(a)(1)(EE) of the Act on February 9, 2023.4 5
For additional information regarding implementation of section 11101 of
the IRA, please see the inflation rebates resources page at https://www.cms.gov/inflation-reduction-act-and-medicare/inflation-rebates-medicare. We also refer readers to the CY 2024 Medicare Physician Fee
Schedule (PFS) proposed rule for a detailed discussion of proposals
related to inflation-adjusted beneficiary coinsurance and Medicare
payment for Medicare Part B rebatable drugs.
---------------------------------------------------------------------------
\4\ https://www.cms.gov/files/document/medicare-part-b-inflation-rebate-program-initial-guidance.pdf.
\5\ In addition, beginning with the April 2023 ASP Drug Pricing
file, the file includes the coinsurance percentage for each drug and
specifies ``inflation-adjusted coinsurance'' in the ``Notes'' column
if the coinsurance for a drug is less than 20 percent of the
Medicare Part B payment amount. Drug pricing files are available at
https://www.cms.gov/medicare/medicare-fee-for-service-part-b-drugs/mcrpartbdrugavgsalesprice.
---------------------------------------------------------------------------
Section 11101(b) of the IRA amended sections 1833(i) and 1833(t)(8)
of the Act by adding a new paragraph (9) and subparagraph (F),
respectively. Section 1833(i)(9) requires under the ASC payment system
that in the case of a Part B rebatable drug, in lieu of calculation of
coinsurance that would otherwise apply under the ASC payment system,
the provisions of section 1847A(i)(5) of the Act shall, as determined
appropriate by the Secretary, apply for calculation of beneficiary
coinsurance in the same manner as the provisions of section 1847A(i)(5)
of the Act apply under that section. Similarly, section 1833(t)(8)(F)
of the Act requires under the OPPS that in the case of a Part B
rebatable drug (except for a drug that has no copayment applied under
subparagraph (E) of such section or for which payment is packaged into
the payment for a covered OPD service or group of services), in lieu of
the calculation of the copayment amount that would otherwise apply
under the OPPS, the provisions of section 1847A(i)(5) of the Act shall,
as determined appropriate by the Secretary, apply in the same manner as
the provisions of section 1847A(i)(5) of the Act apply under that
section. Section 1847A(i)(5) of the Act requires that for Part B
rebatable drugs, as defined in section 1847A(i)(2)(A) of the Act,
furnished on or after April 1, 2023, in calendar quarters in which the
amount specified in section 1847A(i)(3)(A)(ii)(I) of the Act (or, in
the case of selected drugs described under section 1192(c) of the Act,
the amount specified in section 1847A(b)(1)(B) of the Act), exceeds the
inflation-adjusted payment amount determined in accordance with section
1847A(i)(3)(C) of the Act, the coinsurance will be 20 percent of the
inflation-adjusted payment amount for such quarter (hereafter, the
inflation-adjusted coinsurance amount). This inflation-adjusted
coinsurance amount is applied as a percent, as determined by the
Secretary, to the payment amount that would otherwise apply for such
calendar quarter in accordance with section 1847A(b)(1)(B) or (C) of
the Act, as applicable, including in the case of a selected drug.
Paragraph (9) of section 1833(i) o the Act and subparagraph (F) of
section 1833(t)(8) of the Act, as added by section 11101(b) of the IRA,
also provide that in lieu of the amounts of payment otherwise
applicable under the ASC payment system and OPPS, the provisions of
paragraph (1)(EE) of subsection (a) of section 1833 of the Act shall
apply, as determined appropriate by the Secretary. Section 11101(b) of
the IRA amended section 1833(a)(1) of the Act by adding a new
subparagraph (EE), which requires that if the inflation-adjusted
payment amount of a Part B rebatable drug exceeds the payment amount
described in section 1847A(i)(3)(A)(ii)(I) of the Act (or, in the case
of a selected drug, the payment amount described in section
1847A(b)(1)(B) of the Act), the Part B payment will, subject to the
deductible and sequestration, equal the difference between such payment
amount and the inflation-adjusted coinsurance amount.
In this proposed rule, we propose to codify the OPPS program
payment and cost sharing amounts for Part B rebatable drugs as required
by section 1833(t)(8)(F) by adding a new paragraph (e) to Sec. 419.41,
which cross-references the regulations proposed in the CY 2024 PFS
proposed rule (Sec. Sec. 410.152(m) and 489.30(b)(6)). We also propose
to amend the regulation text to reflect our longstanding policies for
calculating the Medicare program payment and cost sharing amounts for
separately payable drugs and biologicals by adding a new paragraph (d)
to Sec. 419.41. Similarly, we propose to codify the ASC cost sharing
amounts for Part B rebatable drugs as required by section 1833(i)(9) of
the Act by revising Sec. 416.172(d) to include a cross-reference to 42
CFR 489.30(b)(6), as proposed in the CY 2024 PFS proposed rule to
codify the cost sharing amounts for Part B rebatable drugs with prices
increasing at a rate faster than inflation. We are not proposing any
changes to the ASC regulations at 42 CFR part 416 to reflect the
Medicare payment amount for Part B rebatable drugs with prices
increasing at a rate faster than inflation, because 42 CFR
[[Page 49594]]
416.171(b) already incorporates, for the ASC payment system, the
payment amounts that apply for the OPPS under 42 CFR part 419. Part 419
would include our proposed new Sec. 419.41(e), which addresses
Medicare payment for Part B rebatable drugs under the OPPS.
2. Proposed OPPS Copayment Policy
For CY 2024, we propose to determine copayment amounts for new and
revised APCs using the same methodology that we implemented beginning
in CY 2004. (We refer readers to the November 7, 2003 OPPS final rule
with comment period for a discussion of that methodology (68 FR
63458).) In addition, we propose to use the same standard rounding
principles that we have historically used in instances where the
application of our standard copayment methodology would result in a
copayment amount that is less than 20 percent and cannot be rounded,
under standard rounding principles, to 20 percent. (We refer readers to
the CY 2008 OPPS/ASC final rule with comment period (72 FR 66687) in
which we discuss our rationale for applying these rounding principles.)
The proposed national unadjusted copayment amounts for services payable
under the OPPS that would be effective January 1, 2024 are included in
Addenda A and B to this proposed rule (which are available via the
internet on the CMS website).
As discussed in section XIV.E of this proposed rule, for CY 2024,
the Medicare beneficiary's minimum unadjusted copayment and national
unadjusted copayment for a service to which a reduced national
unadjusted payment rate applies will equal the product of the reporting
ratio and the national unadjusted copayment, or the product of the
reporting ratio and the minimum unadjusted copayment, respectively, for
the service.
We note that OPPS copayments may increase or decrease each year
based on changes in the calculated APC payment rates, due to updated
cost report and claims data, and any changes to the OPPS cost modeling
process. However, as described in the CY 2004 OPPS final rule with
comment period, the development of the copayment methodology generally
moves beneficiary copayments closer to 20 percent of OPPS APC payments
(68 FR 63458 through 63459).
In the CY 2004 OPPS final rule with comment period (68 FR 63459),
we adopted a new methodology to calculate unadjusted copayment amounts
in situations including reorganizing APCs, and we finalized the
following rules to determine copayment amounts in CY 2004 and
subsequent years.
When an APC group consists solely of HCPCS codes that were
not paid under the OPPS the prior year because they were packaged or
excluded or are new codes, the unadjusted copayment amount would be 20
percent of the APC payment rate.
If a new APC that did not exist during the prior year is
created and consists of HCPCS codes previously assigned to other APCs,
the copayment amount is calculated as the product of the APC payment
rate and the lowest coinsurance percentage of the codes comprising the
new APC.
If no codes are added to or removed from an APC and, after
recalibration of its relative payment weight, the new payment rate is
equal to or greater than the prior year's rate, the copayment amount
remains constant (unless the resulting coinsurance percentage is less
than 20 percent).
If no codes are added to or removed from an APC and, after
recalibration of its relative payment weight, the new payment rate is
less than the prior year's rate, the copayment amount is calculated as
the product of the new payment rate and the prior year's coinsurance
percentage.
If HCPCS codes are added to or deleted from an APC and,
after recalibrating its relative payment weight, holding its unadjusted
copayment amount constant results in a decrease in the coinsurance
percentage for the reconfigured APC, the copayment amount would not
change (unless retaining the copayment amount would result in a
coinsurance rate less than 20 percent).
If HCPCS codes are added to an APC and, after
recalibrating its relative payment weight, holding its unadjusted
copayment amount constant results in an increase in the coinsurance
percentage for the reconfigured APC, the copayment amount would be
calculated as the product of the payment rate of the reconfigured APC
and the lowest coinsurance percentage of the codes being added to the
reconfigured APC.
We noted in the CY 2004 OPPS final rule with comment period that we
would seek to lower the copayment percentage for a service in an APC
from the prior year if the copayment percentage was greater than 20
percent. We noted that this principle was consistent with section
1833(t)(8)(C)(ii) of the Act, which accelerates the reduction in the
national unadjusted coinsurance rate so that beneficiary liability will
eventually equal 20 percent of the OPPS payment rate for all OPPS
services to which a copayment applies, and with section 1833(t)(3)(B)
of the Act, which achieves a 20-percent copayment percentage when fully
phased in and gives the Secretary the authority to set rules for
determining copayment amounts for new services. We further noted that
the use of this methodology would, in general, reduce the beneficiary
coinsurance rate and copayment amount for APCs for which the payment
rate changes as the result of the reconfiguration of APCs and/or
recalibration of relative payment weights (68 FR 63459).
3. Proposed Calculation of an Adjusted Copayment Amount for an APC
Group
Individuals interested in calculating the national copayment
liability for a Medicare beneficiary for a given service provided by a
hospital that met or failed to meet its Hospital OQR Program
requirements should follow the formulas presented in the following
steps.
Step 1. Calculate the beneficiary payment percentage for the APC by
dividing the APC's national unadjusted copayment by its proposed
payment rate. For example, using APC 5071, $135.03 is approximately 20
percent of the full national unadjusted payment rate of $675.15. For
APCs with only a minimum unadjusted copayment in Addenda A and B to
this proposed rule with comment period (which are available via the
internet on the CMS website), the beneficiary payment percentage is 20
percent.
The formula below is a mathematical representation of Step 1 and
calculates the national copayment as a percentage of national payment
for a given service.
B is the beneficiary payment percentage.
B = National unadjusted copayment for APC/national unadjusted payment
rate for APC.
Step 2. Calculate the appropriate wage-adjusted payment rate for
the APC for the provider in question, as indicated in Steps 2 through 4
under section II.H of this proposed rule. Calculate the rural
adjustment for eligible providers, as indicated in Step 6 under section
II.H of this proposed rule.
Step 3. Multiply the percentage calculated in Step 1 by the payment
rate calculated in Step 2. The result is the wage-adjusted copayment
amount for the APC.
The formula below is a mathematical representation of Step 3 and
applies the beneficiary payment percentage to the adjusted payment rate
for a service calculated under section II.H of this proposed rule, with
and without the
[[Page 49595]]
rural adjustment, to calculate the adjusted beneficiary copayment for a
given service.
Wage-adjusted copayment amount for the APC = Adjusted Medicare Payment
* B.
Wage-adjusted copayment amount for the APC (SCH or EACH) = (Adjusted
Medicare Payment * 1.071) * B.
Step 4. For a hospital that failed to meet its Hospital OQR Program
requirements, multiply the copayment calculated in Step 3 by the
reporting ratio of 0.9805.
The unadjusted copayments for services payable under the OPPS that
would be effective January 1, 2024 are shown in Addenda A and B to this
proposed rule (which are available via the CMS website). We note that
the proposed national unadjusted payment rates and copayment rates
shown in Addenda A and B to this proposed rule reflect the proposed CY
2024 OPD increase factor discussed in section II.B of this proposed
rule.
In addition, as noted earlier, section 1833(t)(8)(C)(i) of the Act
limits the amount of beneficiary copayment that may be collected for a
procedure performed in a year to the amount of the inpatient hospital
deductible for that year.
III. Proposed OPPS Ambulatory Payment Classification (APC) Group
Policies
A. Proposed OPPS Treatment of New and Revised HCPCS Codes
Payments for OPPS procedures, services, and items are generally
based on medical billing codes, specifically, HCPCS codes, that are
reported on HOPD claims. HCPCS codes are used to report surgical
procedures, medical services, items, and supplies under the hospital
OPPS. The HCPCS is divided into two principal subsystems, referred to
as Level I and Level II of the HCPCS. Level I is comprised of CPT
(Current Procedural Terminology) codes, a numeric and alphanumeric
coding system that is established and maintained by the American
Medical Association (AMA), and consists of Category I, II, III, MAAA,
and PLAA CPT codes. Level II, which is established and maintained by
CMS, is a standardized coding system that is used primarily to identify
products, supplies, and services not included in the CPT codes.
Together, Level I and II HCPCS codes are used to report procedures,
services, items, and supplies under the OPPS payment system.
Specifically, we recognize the following codes on OPPS claims:
Category I CPT codes, which describe surgical procedures,
diagnostic and therapeutic services, and vaccine codes;
Category III CPT codes, which describe new and emerging
technologies, services, and procedures;
MAAA CPT codes, which describe laboratory multianalyte
assays with algorithmic analyses (MAA);
PLA CPT codes, which describe proprietary laboratory
analyses (PLA) services; and
Level II HCPCS codes (also known as alpha-numeric codes),
which are used primarily to identify drugs, devices, supplies,
temporary procedures, and services not described by CPT codes.
The codes are updated and changed throughout the year. CPT and
Level II HCPCS code changes that affect the OPPS are published through
the annual rulemaking cycle and through the OPPS quarterly update
Change Requests (CRs). Generally, these code changes are effective
January 1, April 1, July 1, or October 1. CPT code changes are released
by the AMA (via their website) while Level II HCPCS code changes are
released to the public via the CMS HCPCS website. CMS recognizes the
release of new CPT and Level II HCPCS codes outside of the formal
rulemaking process via OPPS quarterly update CRs. Based on our review,
we assign the new codes to interim status indicators (SIs) and APCs.
These interim assignments are finalized in the OPPS/ASC final rules.
This quarterly process offers hospitals access to codes that more
accurately describe the items or services furnished and provides
payment for these items or services in a timelier manner than if we
waited for the annual rulemaking process. We solicit public comments on
the new CPT and Level II HCPCS codes, status indicators, and APC
assignments through our annual rulemaking process.
We note that, under the OPPS, the APC assignment determines the
payment rate for an item, procedure, or service. The items, procedures,
or services not exclusively paid separately under the hospital OPPS are
assigned to appropriate status indicators. Certain payment status
indicators provide separate payment while other payment status
indicators do not. In section XI ``Proposed CY 2024 Payment Status and
Comment Indicators'' of this proposed rule, we discuss the various
status indicators and comment indicators used under the OPPS. We also
provide a complete list of the proposed status indicators and their
definitions in Addendum D1 to this proposed rule.
1. April 2023 HCPCS Codes Proposed Rule Comment Solicitation
For the April 2023 update, 67 new HCPCS codes were established and
made effective on April 1, 2023. Through the April 2023 OPPS quarterly
update CR (Transmittal 11937, Change Request 13136, dated March 31,
2023), we recognized several new HCPCS codes for payment under the
OPPS. In this proposed rule, we solicit public comments on the proposed
APC and status indicator assignments for the codes listed in Table 6
(New HCPCS Codes Effective April 1, 2023). The proposed status
indicator, APC assignment, and payment rate for each HCPCS code can be
found in Addendum B to this proposed rule. The new codes effective
April 1, 2023, are assigned to comment indicator ``NP'' in Addendum B
to this proposed rule to indicate that the codes are assigned to an
interim APC assignment and comments will be accepted on their interim
APC assignments. The complete list of proposed status indicators and
definitions used under the OPPS can be found in Addendum D1 to this
proposed rule, while the complete list of proposed comment indicators
and definitions can be found in Addendum D2. We note that OPPS Addendum
B (OPPS payment file by HCPCS code), Addendum D1 (OPPS Status
Indicators), and Addendum D2 (OPPS Comment Indicators) are available
via the internet on the CMS website.
BILLING CODE 4120-01-P
[[Page 49596]]
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[[Page 49597]]
[GRAPHIC] [TIFF OMITTED] TP31JY23.013
[[Page 49598]]
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[[Page 49599]]
[GRAPHIC] [TIFF OMITTED] TP31JY23.015
2. July 2023 HCPCS Codes Proposed Rule Comment Solicitation
For the July 2023 update, 97 new codes were established and made
effective July 1, 2023. Through the July 2023 OPPS quarterly update CR
(Transmittal 12077, Change Request 13210, dated June 13, 2023), we
recognized several new codes for payment and assigned them to
appropriate interim OPPS status indicators and APCs. In this proposed
rule, we solicit public comments on the proposed APC and status
indicator assignments for the codes listed in Table 7 (New HCPCS Codes
Effective July 1, 2023). The proposed status indicator, APC assignment,
and payment rate for each HCPCS code can be found in Addendum B to this
proposed rule. The complete list of proposed status indicators and
corresponding definitions used under the OPPS can be found in Addendum
D1 to this proposed rule. In addition, the new codes are assigned to
comment indicator ``NP'' in Addendum B to this proposed rule to
indicate that the codes are assigned to an interim APC assignment and
comments will be accepted on their interim APC assignments. The
complete list of proposed comment indicators and definitions used under
the OPPS can be found in Addendum D2 to this proposed rule. We note
that OPPS Addendum B (OPPS payment file by HCPCS code), Addendum D1
(OPPS Status Indicators), and Addendum D2 (OPPS Comment Indicators) are
available via the internet on the CMS website.
[[Page 49600]]
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BILLING CODE 4120-01-C
3. October 2023 HCPCS Codes Final Rule Comment Solicitation
As has been our practice in the past, we will solicit comments on
the new CPT and Level II HCPCS codes that will be effective October 1,
2023, in the CY 2024 OPPS/ASC final rule with comment period, thereby
allowing us to finalize the status indicators and APC assignments for
the codes in the CY 2025 OPPS/ASC final rule with comment period. The
HCPCS codes will be released to the public through the October 2023
OPPS Update CR and the CMS HCPCS website while the CPT codes will be
released to the public through the AMA website.
For CY 2024, we propose to continue our established policy of
assigning comment indicator ``NI'' in Addendum B to the OPPS/ASC final
rule with comment period to those new HCPCS codes that will be
effective October 1, 2023, to indicate that we are assigning them an
interim status indicator, which is subject to public comment. We will
be inviting public comments in the CY 2024 OPPS/ASC final rule with
comment period on the status indicator and APC assignments, which would
then be finalized in the CY 2025 OPPS/ASC final rule with comment
period.
4. January 2024 HCPCS Codes
a. New Level II HCPCS Codes Final Rule Comment Solicitation
Consistent with past practice, we will solicit comments on the new
Level II HCPCS codes that will be effective January 1, 2024, in the CY
2024 OPPS/ASC final rule with comment period, thereby allowing us to
finalize the status indicators and APC assignments for the codes in the
CY 2025 OPPS/ASC final rule with comment period. Unlike the CPT codes
that are effective January 1 and are included in the OPPS/ASC proposed
rules, and except for the proposed new C-codes and G-codes listed in
Addendum O of this proposed rule, most Level II HCPCS codes are not
released until sometime around November to be effective January 1.
Because these codes are not available until November, we are unable to
include them in the OPPS/ASC proposed rules. Consequently, for CY 2024,
we propose to include the new Level II HCPCS codes effective January 1,
2024, in Addendum B to the CY 2024 OPPS/ASC final rule with comment
period, which would be incorporated in the January 2024 OPPS quarterly
update CR. Specifically, for CY 2024, we propose to continue our
established policy of assigning comment indicator ``NI'' in Addendum B
to the OPPS/ASC final rule with comment period to the new HCPCS codes
that will be effective January 1, 2024, to indicate that we are
assigning them an interim status indicator, which is subject to public
comment. We will be inviting public comments in the CY 2024 OPPS/ASC
final rule with comment period on the status indicator and APC
assignments, which would then be finalized in the CY 2025 OPPS/ASC
final rule with comment period.
b. New CPT Codes Proposed Rule Comment Solicitation
In the CY 2015 OPPS/ASC final rule with comment period (79 FR 66841
through 66844), we finalized a revised process of assigning APC and
status indicators for new and revised Category I and III CPT codes that
would be effective January 1. Specifically, for the new/revised CPT
codes that we receive in a timely manner from the AMA's CPT Editorial
Panel, we finalized our proposal to include the codes that would be
effective January 1 in the OPPS/ASC proposed rules, along with proposed
APC and status indicator assignments for them, and to finalize the APC
and status indicator assignments in the OPPS/ASC final rules beginning
with the CY 2016 OPPS update. For those new/revised CPT codes that were
received too late for inclusion in the OPPS/ASC proposed rule, we
finalized our proposal to establish and use HCPCS G-codes that mirror
the predecessor CPT codes and retain the current APC and status
indicator assignments for a year until we can propose APC and status
indicator assignments in the following year's rulemaking cycle. We note
that even if we find that we need to create HCPCS G-codes in place of
certain CPT codes for the PFS proposed rule, we do not anticipate that
these HCPCS G-codes will always be necessary for OPPS purposes. We will
make every effort to include proposed APC and status indicator
assignments for all new and revised CPT codes that the AMA makes
publicly available in time for us to include them in the proposed rule,
and to avoid resorting to use of HCPCS G-codes and the resulting delay
in utilization of the most current CPT codes. Also, we finalized our
proposal to make interim APC and status indicator assignments for CPT
codes that are not available in time for the proposed rule and that
describe wholly new services (such as new technologies or new surgical
procedures), to solicit public comments in the final rule, and to
finalize the specific APC and status indicator assignments for those
codes in the following year's final rule.
[[Page 49606]]
For the CY 2024 OPPS update, we received the CPT codes that will be
effective January 1, 2024, from the AMA in time to be included in this
proposed rule. The new, revised, and deleted CPT codes can be found in
Addendum B to this proposed rule (which is available via the internet
on the CMS website). We note that the new and revised CPT codes are
assigned to comment indicator ``NP'' in Addendum B of this proposed
rule to indicate that the code is new for the next calendar year or the
code is an existing code with substantial revision to its code
descriptor in the next calendar year as compared to the current
calendar year with a proposed APC assignment, and that comments will be
accepted on the proposed APC assignment and status indicator. Further,
we note that the CPT code descriptors that appear in Addendum B are
short descriptors and do not accurately describe the complete
procedure, service, or item described by the CPT code. Therefore, we
are including the 5-digit placeholder codes and the long descriptors
for the new and revised CY 2024 CPT codes in Addendum O, specifically
under the column labeled ``CY 2024 OPPS/ASC Proposed Rule 5-Digit AMA/
CMS Placeholder Code.'' The final HCPCS code numbers will be included
in the CY 2024 OPPS/ASC final rule with comment period. In summary, we
solicit public comments on the proposed CY 2024 status indicators and
APC assignments for the new and revised CPT codes that will be
effective January 1, 2024. Because the CPT codes listed in Addendum B
appear with short descriptors only, we list them again in Addendum O to
this proposed rule with long descriptors. In addition, we propose to
finalize the status indicator and APC assignments for these codes (with
their final CPT code numbers) in the CY 2024 OPPS/ASC final rule with
comment period. The proposed status indicator and APC assignment for
these codes can be found in Addendum B to this proposed rule. In
addition, the complete list of proposed comment indicators and
definitions used under the OPPS can be found in Addendum D2 to this
proposed rule. We note that OPPS Addendum B (OPPS payment file by HCPCS
code), Addendum D1 (OPPS Status Indicators), and Addendum D2 (OPPS
Comment Indicators) are available via the internet on the CMS website.
Finally, in Table 8 (Comment and Finalization Timeframes for New
and Revised OPPS-Related HCPCS Codes) below, we summarize our current
process for updating codes through our OPPS quarterly update CRs,
seeking public comments, and finalizing the treatment of these codes
under the OPPS.
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[[Page 49607]]
B. Proposed OPPS Changes--Variations Within APCs
1. Background
Section 1833(t)(2)(A) of the Act requires the Secretary to develop
a classification system for covered hospital outpatient department
services. In addition, section 1833(t)(2)(B) of the Act provides that
the Secretary may establish groups of covered OPD services within this
classification system, so that services classified within each group
are comparable clinically and with respect to the use of resources. In
accordance with these provisions, we developed a grouping
classification system, referred to as Ambulatory Payment
Classifications (APCs), as set forth in regulations at 42 CFR 419.31.
We use Level I (also known as CPT codes) and Level II HCPCS codes (also
known as alphanumeric codes) to identify and group the services within
each APC. The APCs are organized such that each group is homogeneous
both clinically and in terms of resource use. Using this classification
system, we have established distinct groups of similar services. We
also have developed separate APC groups for certain medical devices,
drugs, biologicals, therapeutic radiopharmaceuticals, and brachytherapy
devices that are not packaged into the payment for the procedure.
We have packaged into the payment for each procedure or service
within an APC group the costs associated with those items and services
that are typically ancillary and supportive to a primary diagnostic or
therapeutic modality and, in those cases, are an integral part of the
primary service they support. Therefore, we do not make separate
payment for these packaged items or services. In general, packaged
items and services include, but are not limited to, the items and
services listed in regulations at 42 CFR 419.2(b). A further discussion
of packaged services is included in section II.A.3 of this proposed
rule.
Under the OPPS, we generally pay for covered hospital outpatient
services on a rate-per-service basis, where the service may be reported
with one or more HCPCS codes. Payment varies according to the APC group
to which the independent service or combination of services is
assigned. For CY 2024, we propose that each APC relative payment weight
represents the hospital cost of the services included in that APC,
relative to the hospital cost of the services included in APC 5012
(Clinic Visits and Related Services). The APC relative payment weights
are scaled to APC 5012 because it is the hospital clinic visit APC and
clinic visits are among the most frequently furnished services in the
hospital outpatient setting.
2. Application of the 2 Times Rule
Section 1833(t)(9)(A) of the Act requires the Secretary to review,
not less often than annually, and revise the APC groups, the relative
payment weights, and the wage and other adjustments described in
paragraph (2) to take into account changes in medical practice, changes
in technology, the addition of new services, new cost data, and other
relevant information and factors. Section 1833(t)(9)(A) of the Act also
requires the Secretary to consult with an expert outside advisory panel
composed of an appropriate selection of representatives of providers to
review (and advise the Secretary concerning) the clinical integrity of
the APC groups and the relative payment weights. We note that the
Advisory Panel on Hospital Outpatient Payment (also known as the HOP
Panel or the Panel) recommendations for specific services for the CY
2024 OPPS update will be discussed in the relevant specific sections
throughout the CY 2024 OPPS/ASC final rule with comment period.
In addition, section 1833(t)(2) of the Act provides that, subject
to certain exceptions, the items and services within an APC group
cannot be considered comparable with respect to the use of resources if
the highest cost for an item or service in the group is more than 2
times greater than the lowest cost for an item or service within the
same group (referred to as the ``2 times rule''). The statute
authorizes the Secretary to make exceptions to the 2 times rule in
unusual cases, such as for low-volume items and services (but the
Secretary may not make such an exception in the case of a drug or
biological that has been designated as an orphan drug under section 526
of the Federal Food, Drug, and Cosmetic Act). In determining the APCs
with a 2 times rule violation, we consider only those HCPCS codes that
are significant based on the number of claims. We note that, for
purposes of identifying significant procedure codes for examination
under the 2 times rule, we consider procedure codes that have more than
1,000 single major claims or procedure codes that both have more than
99 single major claims and contribute at least 2 percent of the single
major claims used to establish the APC cost to be significant (75 FR
71832). This longstanding definition of when a procedure code is
significant for purposes of the 2 times rule was selected because we
believe that a subset of 1,000 or fewer claims is negligible within the
set of approximately 100 million single procedure or single session
claims we use for establishing costs. Similarly, a procedure code for
which there are fewer than 99 single claims and that comprises less
than 2 percent of the single major claims within an APC will have a
negligible impact on the APC cost (75 FR 71832). In this section of
this proposed rule, for CY 2024, we propose to make exceptions to this
limit on the variation of costs within each APC group in unusual cases,
such as for certain low-volume items and services.
For the CY 2024 OPPS update, we identified the APCs with violations
of the 2 times rule and we propose changes to the procedure codes
assigned to these APCs (with the exception of those APCs for which we
propose a 2 times rule exception) in Addendum B to this proposed rule.
We note that Addendum B does not appear in the printed version of the
Federal Register as part of this proposed rule. Rather, it is published
and made available via the internet on the CMS website at: https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/HospitalOutpatientPPS/Hospital-Outpatient-Regulations-and-Notices. To
eliminate a violation of the 2 times rule and improve clinical and
resource homogeneity in the APCs for which we are not proposing a 2
times rule exception, we propose to reassign these procedure codes to
new APCs that contain services that are similar with regard to both
their clinical and resource characteristics. In many cases, the
proposed HCPCS code reassignments and associated APC reconfigurations
for CY 2024 included in this proposed rule are related to changes in
costs of services that were observed in the CY 2022 claims data
available for CY 2024 ratesetting. Addendum B to this proposed rule
identifies with a comment indicator ``CH'' those procedure codes for
which we propose a change to the APC assignment or status indicator, or
both, that were initially assigned in the July 1, 2023, OPPS Addendum B
Update, which is available via the internet on the CMS website at:
https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/HospitalOutpatientPPS/Addendum-A-and-Addendum-B-Updates.
3. Proposed APC Exceptions to the 2 Times Rule
Taking into account the APC changes that we propose to make for CY
2024, we reviewed all of the APCs for which we identified 2 times rule
violations to
[[Page 49608]]
determine whether any of the APCs would qualify for an exception. We
used the following criteria to evaluate whether to propose exceptions
to the 2 times rule for affected APCs:
Resource homogeneity;
Clinical homogeneity;
Hospital outpatient setting utilization;
Frequency of service (volume); and
Opportunity for upcoding and code fragments.
For a detailed discussion of these criteria, we refer readers to
the April 7, 2000 final rule (65 FR 18457 through 18458).
Based on the CY 2022 claims data available for this proposed rule,
we found 21 APCs with violations of the 2 times rule. We applied the
criteria as described above to identify the APCs for which we propose
to make exceptions under the 2 times rule for CY 2024 and found that
all of the 21 APCs we identified meet the criteria for an exception to
the 2 times rule based on the CY 2022 claims data available for this
proposed rule. We note that, on an annual basis, based on our analysis
of the latest claims data, we identify violations to the 2 times rule
and propose changes when appropriate. Those APCs that violate the 2
times rule are identified and appear in Table 9 below. In addition, we
did not include in that determination those APCs where a 2 times rule
violation was not a relevant concept, such as APC 5401 (Dialysis),
which only has two HCPCS codes assigned to it that have similar
geometric mean costs and do not create a 2 times rule violation.
Therefore, we have only identified those APCs, including those with
criteria-based costs, such as device-dependent CPT/HCPCS codes, with
violations of the 2 times rule, where a 2 times rule violation is a
relevant concept.
Table 9 of this proposed rule lists the 21 APCs for which we
propose to make an exception under the 2 times rule for CY 2024 based
on the criteria cited above and claims data submitted between January
1, 2022 and December 31, 2022, and processed on or before December 31,
2022, and CCRs, if available. The proposed geometric mean costs for
covered hospital outpatient services for these and all other APCs that
were used in the development of this proposed rule can be found on the
CMS website at: https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/HospitalOutpatientPPS/Hospital-Outpatient-Regulations-and-Notices.
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C. Proposed New Technology APCs
1. Background
In the CY 2002 OPPS final rule (66 FR 59903), we finalized changes
to the time period in which a service can be eligible for payment under
a New Technology APC. Beginning in CY 2002, we retain services within
New Technology APC groups until we gather sufficient claims data to
enable us to assign the service to an appropriate clinical APC. This
policy allows us to move a service from
[[Page 49609]]
a New Technology APC in less than 2 years if sufficient data are
available. It also allows us to retain a service in a New Technology
APC for more than 2 years if sufficient data upon which to base a
decision for reassignment have not been collected.
We also adopted in the CY 2002 OPPS final rule the following
criteria for assigning a complete or comprehensive service to a New
Technology APC: (1) the service must be truly new, meaning it cannot be
appropriately reported by an existing HCPCS code assigned to a clinical
APC and does not appropriately fit within an existing clinical APC; (2)
the service is not eligible for transitional pass-through payment
(however, a truly new, comprehensive service could qualify for
assignment to a new technology APC even if it involves a device or drug
that could, on its own, qualify for a pass-through payment); and (3)
the service falls within the scope of Medicare benefits under section
1832(a) of the Act and is reasonable and necessary in accordance with
section 1862(a)(1)(A) of the Act (66 FR 59898 through 59903). For
additional information about our New Technology APC policy, we refer
readers to https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/HospitalOutpatientPPS/passthrough_payment on the CMS website
and then follow the instructions to access the MEARISTM system for OPPS
New Technology APC applications.
In the CY 2004 OPPS final rule with comment period (68 FR 63416),
we restructured the New Technology APCs to make the cost intervals more
consistent across payment levels and refined the cost bands for these
APCs to retain two parallel sets of New Technology APCs: one set with a
status indicator of ``S'' (Significant Procedures, Not Discounted when
Multiple. Paid under OPPS; separate APC payment) and the other set with
a status indicator of ``T'' (Significant Procedure, Multiple Reduction
Applies. Paid under OPPS; separate APC payment). These current New
Technology APC configurations allow us to price new technology services
more appropriately and consistently.
For CY 2023, there were 52 New Technology APC levels, ranging from
the lowest cost band assigned to APC 1491 (New Technology--Level 1A
($0-$10)) to the highest cost band assigned to APC 1908 (New
Technology--Level 52 ($145,001-$160,000)). We note that the cost bands
for the New Technology APCs, specifically, APCs 1491 through 1599 and
1901 through 1908, vary with increments ranging from $10 to $14,999.
These cost bands identify the APCs to which new technology procedures
and services with estimated service costs that fall within those cost
bands are assigned under the OPPS. Payment for each APC is made at the
mid-point of the APC's assigned cost band. For example, payment for New
Technology APC 1507 (New Technology--Level 7 ($501-$600)) is made at
$550.50.
Under the OPPS, one of our goals is to make payments that are
appropriate for the services that are necessary for the treatment of
Medicare beneficiaries. The OPPS, like other Medicare payment systems,
is budget neutral and increases are limited to the annual hospital
market basket increase reduced by the productivity adjustment. We
believe that our payment rates reflect the costs that are associated
with providing care to Medicare beneficiaries and are adequate to
ensure access to services (80 FR 70374). For many emerging
technologies, there is a transitional period during which utilization
may be low, often because providers are first learning about the
technologies and their clinical utility. Quite often, parties request
that Medicare make higher payments under the New Technology APCs for
new procedures in that transitional phase. These requests, and their
accompanying estimates for expected total patient utilization, often
reflect very low rates of patient use of expensive equipment, resulting
in high per-use costs for which requesters believe Medicare should make
full payment. Medicare does not, and we believe should not, assume
responsibility for more than its share of the costs of procedures based
on projected utilization for Medicare beneficiaries and does not set
its payment rates based on initial projections of low utilization for
services that require expensive capital equipment. For the OPPS, we
rely on hospitals to make informed business decisions regarding the
acquisition of high-cost capital equipment, taking into consideration
their knowledge about their entire patient base (Medicare beneficiaries
included) and an understanding of Medicare's and other payers' payment
policies. We refer readers to the CY 2013 OPPS/ASC final rule with
comment period (77 FR 68314) for further discussion regarding this
payment policy.
Some services assigned to New Technology APCs have very low annual
volume, which we consider to be fewer than 100 claims (86 FR 63528).
Where utilization of services assigned to a New Technology APC is low,
it can lead to wide variation in payment rates from year to year,
resulting in even lower utilization and potential barriers to access to
new technologies, which ultimately limits our ability to assign the
service to the appropriate clinical APC. To mitigate these issues, we
finalized a policy, in the CY 2019 OPPS/ASC final rule with comment
period, to utilize our equitable adjustment authority at section
1833(t)(2)(E) of the Act to adjust how we determine the costs for low-
volume services assigned to New Technology APCs (83 FR 58892 through
58893). Specifically, in the CY 2019 OPPS/ASC final rule with comment
period (83 FR 58893), we established that, in each of our annual
rulemakings, we would calculate and present the result of each
statistical methodology (arithmetic mean, geometric mean, and median)
based on up to 4 years of claims data and solicit public comment on
which methodology should be used to establish the payment rate for the
low-volume new technology service. In the CY 2022 OPPS/ASC final rule
(86 FR 63529), we replaced the New Technology APC low volume policy
with the universal low volume APC policy. Unlike the New Technology APC
low volume policy, the universal low volume APC policy applies to
clinical APCs and brachytherapy APCs, in addition to procedures
assigned to New Technology APCs, and uses the highest of the geometric
mean, arithmetic mean, or median based on up to 4 years of claims data
to set the payment rate for the APC. We refer readers to the CY 2022
OPPS/ASC final rule with comment period (86 FR 63529) for further
discussion regarding this policy.
Finally, we note that, in a budget-neutral system, payments may not
fully cover hospitals' costs in a particular circumstance, including
those for the purchase and maintenance of capital equipment. We rely on
hospitals to make their decisions regarding the acquisition of high-
cost equipment with the understanding that the Medicare program must be
careful to establish its initial payment rates, including those made
through New Technology APCs, for new services that lack hospital claims
data based on realistic utilization projections for all such services
delivered in cost-efficient hospital outpatient settings. As the OPPS
acquires claims data regarding hospital costs associated with new
procedures, we regularly examine the claims data and any available new
information regarding the clinical aspects of new procedures to confirm
that our OPPS payments remain appropriate for procedures as they
transition into mainstream medical practice (77 FR 68314). For CY 2024,
we included the
[[Page 49610]]
proposed payment rates for New Technology APCs 1491 to 1599 and 1901
through 1908 in Addendum A to this proposed rule (which is available on
the CMS website at https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/HospitalOutpatientPPS/Hospital-Outpatient-Regulations-and-Notices.
2. Procedures Assigned to New Technology APC Groups for CY 2024
As we described in the CY 2002 OPPS final rule (66 FR 59902), we
generally retain a procedure in the New Technology APC to which it is
initially assigned until we have obtained sufficient claims data to
justify reassignment of the procedure to a clinically appropriate APC.
In addition, in cases where we find that our initial New Technology APC
assignment was based on inaccurate or inadequate information (although
it was the best information available at the time), where we obtain new
information that was not available at the time of our initial New
Technology APC assignment, or where the New Technology APCs are
restructured, we may, based on more recent resource utilization
information (including claims data) or the availability of refined New
Technology APC cost bands, reassign the procedure or service to a
different New Technology APC that more appropriately reflects its cost
(66 FR 59903).
Consistent with our current policy, for CY 2024, we propose to
retain services within New Technology APC groups until we obtain
sufficient claims data to justify reassignment of the service to an
appropriate clinical APC. The flexibility associated with this policy
allows us to reassign a service from a New Technology APC in less than
2 years if we have obtained sufficient claims data. It also allows us
to retain a service in a New Technology APC for more than 2 years if we
have not obtained sufficient claims data upon which to base a
reassignment decision (66 FR 59902).
a. Administration of Subretinal Therapies Requiring Vitrectomy (APC
1563)
Effective January 1, 2021, CMS established HCPCS code C9770
(Vitrectomy, mechanical, pars plana approach, with subretinal injection
of pharmacologic/biologic agent) and assigned it to a New Technology
APC based on the geometric mean cost of CPT code 67036 (Vitrectomy,
mechanical, pars plana approach) due to similar resource utilization.
For CY 2021, HCPCS code C9770 was assigned to APC 1561 (New
Technology--Level 24 ($3001-$3500)). This code may be used to describe
the administration of HCPCS code J3398 (Injection, voretigene
neparvovec-rzyl, 1 billion vector genomes). This procedure was
previously discussed in depth in the CY 2021 OPPS/ASC final rule with
comment period (85 FR 85939 through 85940). For CY 2022, we maintained
the APC assignment of APC 1561 (New Technology--Level 24 ($3001-$3500))
for HCPCS code C9770 (86 FR 63531 through 63532).
HCPCS code J3398 (Injection, voretigene neparvovec-rzyl, 1 billion
vector genomes) is for a gene therapy product indicated for a rare
mutation-associated retinal dystrophy. Voretigene neparvovec-rzyl
(Luxturna[supreg]) was approved by FDA in December of 2017 and is an
adeno-associated virus vector-based gene therapy indicated for the
treatment of patients with confirmed biallelic RPE65 mutation-
associated retinal dystrophy.\6\ This therapy is administered through a
subretinal injection, which interested parties describe as an extremely
delicate and sensitive surgical procedure. The FDA package insert
describes one of the steps for administering Luxturna as, ``after
completing a vitrectomy, identify the intended site of administration.
The subretinal injection can be introduced via pars plana.''
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\6\ Luxturna. FDA Package Insert. Available: https://www.fda.gov/media/109906/download.
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Interested parties, including the manufacturer of Luxturna[supreg],
recommended CPT code 67036 (Vitrectomy, mechanical, pars plana
approach) for the administration of the gene therapy.\7\ However, the
manufacturer previously contended the administration was not accurately
described by any existing codes as CPT code 67036 (Vitrectomy,
mechanical, pars plana approach) does not account for the
administration itself.
---------------------------------------------------------------------------
\7\ LUXTURNA REIMBURSEMENT GUIDE FOR TREATMENT CENTERS. https://mysparkgeneration.com/pdf/Reimbursement_Guide_for_Treatment_Centers_Interactive_010418_FINAL.pdf.
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CMS recognized the need to accurately describe the unique procedure
that is required to administer the therapy described by HCPCS code
J3398. Therefore, in the CY 2021 OPPS/ASC proposed rule (85 FR 48832),
we proposed to establish a new HCPCS code, C97X1 (Vitrectomy,
mechanical, pars plana approach, with subretinal injection of
pharmacologic/biologic agent) to describe this process. We stated that
we believed this new HCPCS code accurately described the unique service
associated with intraocular administration of HCPCS code J3398. We
recognized that CPT code 67036 represents a clinically similar
procedure and process that approximates similar resource utilization to
C97X1. However, we also recognized that it is not prudent for the code
that describes the administration of this unique gene therapy, C97X1,
to be assigned to the same C-APC to which CPT code 67036 is assigned,
as this would package the primary therapy, HCPCS code J3398, into the
code that represents the process to administer the gene therapy.
Therefore, for CY 2021, we proposed to assign the services
described by C97X1 to a New Technology APC with a cost band that
contains the geometric mean cost for CPT code 67036. The placeholder
code C97X1 was replaced by HCPCS code C9770. For CY 2021, we finalized
our proposal to create HCPCS code C9770 (Vitrectomy, mechanical, pars
plana approach, with subretinal injection of pharmacologic/biologic
agent), and we assigned this code to APC 1561 (New Technology--Level 24
($3001-$3500)) using the geometric mean cost of CPT code 67036. For CY
2022, we continued to assign HCPCS code C9770 to APC 1561 (New
Technology--Level 24 ($3001-$3500)) using the geometric mean cost of
CPT code 67036.
CY 2023 was the first year that claims data were available for
HCPCS code C9770; so we proposed and finalized a policy to base the
payment rate of HCPCS code C9770 on claims data for that code rather
than on the geometric mean cost of CPT code 67036. Given the low number
of claims for this procedure, we designated HCPCS code C9770 as a low
volume procedure under our universal low volume APC policy and used the
greater of the geometric mean, arithmetic mean, or median cost
calculated based on the available claims data to calculate an
appropriate payment rate for purposes of assigning HCPCS code C9770 to
a New Technology APC.
Based on the claims data available for the CY 2023 OPPS/ASC final
rule, we found the median was the statistical methodology that
estimated the highest cost for the service. The payment rate calculated
using this methodology fell within the cost band for New Technology APC
1562 (New Technology--Level 25 ($3501-$4000)). Therefore, we finalized
our proposal to assign HCPCS code C9770 to APC 1562 for CY 2023.
CPT code 0810T 9Subretinal injection of a pharmacologic agent,
including vitrectomy and 1 or more retinotomies) will be effective July
1, 2023. We recognize the similarity between HCPCS
[[Page 49611]]
code C9770 and CPT code 0810T; therefore, we propose to delete HCPCS
code C9770 effective December 31, 2023, and to recognize CPT code 0810T
starting January 1, 2024. We propose to determine the payment rate for
the procedure using the claims data for HCPCS code C9770. Similar to CY
2023, for CY 2024, given that there are only 10 single frequency claims
available for ratesetting, we propose to designate CPT code 0810T as a
low volume procedure under our universal low volume APC policy and to
use the greater of the geometric mean, arithmetic mean, or median cost
calculated based on the available claims data for HCPCS code C9770 to
calculate an appropriate payment rate for purposes of assigning CPT
code 0810T to a New Technology APC.
Using all available claims from the 4-year lookback period, we
determined the geometric mean cost to be $3,944, the arithmetic mean
cost to be $4,192, and the median cost to be $4,148. Because the
arithmetic mean is the statistical methodology that estimated the
highest cost for the service, we propose to use this cost to determine
the New Technology APC placement. The arithmetic mean of $4,192 falls
within the cost band for New Technology APC 1563 (New Technology--Level
26 ($4001-$4500)). Therefore, we propose to assign CPT code 0810T to
APC 1563 for CY 2024. Additionally, we propose to perform a similar
analysis using updated claims data in the CY 2024 OPPS/ASC final rule
with comment period and update the APC placement as needed.
Please refer to Table 10 below for the proposed OPPS New Technology
APC and status indicator assignments for HCPCS code C9770 and CPT code
0810T for CY 2024. The proposed CY 2024 payment rates can be found in
Addendum B to this proposed rule via the internet on the CMS website.
[GRAPHIC] [TIFF OMITTED] TP31JY23.024
b. Bronchoscopy With Transbronchial Ablation of Lesion(s) by Microwave
Energy (APC 1562)
Effective January 1, 2019, CMS established HCPCS code C9751
(Bronchoscopy, rigid or flexible, transbronchial ablation of lesion(s)
by microwave energy, including fluoroscopic guidance, when performed,
with computed tomography acquisition(s) and 3-D rendering, computer-
assisted, image-guided navigation, and endobronchial ultrasound (EBUS)
guided transtracheal and/or transbronchial sampling (for example,
aspiration[s]/biopsy[ies]) and all mediastinal and/or hilar lymph node
stations or structures and therapeutic intervention(s)). This microwave
ablation procedure utilizes a flexible catheter to access the lung
tumor via a working channel and may be used as an alternative procedure
to a percutaneous microwave approach. Based on our review of the New
Technology APC application for this service and the service's clinical
similarity to existing services paid under the OPPS, we estimated the
likely cost of the procedure would be between $8,001 and $8,500.
In claims data available for CY 2019 for the CY 2021 OPPS/ASC final
rule with comment period, there were four claims reported for
bronchoscopy with transbronchial ablation of lesions by microwave
energy. Given the low volume of claims for the service, we proposed for
CY 2021 to apply the universal low volume APC policy we adopted in CY
2019, under which we utilize our equitable adjustment authority under
section 1833(t)(2)(E) of the Act to calculate the geometric mean,
arithmetic mean, and median costs to determine an appropriate payment
rate for purposes of assigning bronchoscopy with transbronchial
ablation of lesions by microwave energy to a New Technology APC. We
found the geometric mean cost for the service to be approximately
$2,693, the arithmetic mean cost to be approximately $3,086, and the
median cost to be approximately $3,708. The median was the statistical
methodology that estimated the highest cost for the service. The
payment rate calculated using this methodology fell within the cost
band for New Technology APC 1562 (New Technology--Level 25 ($3501-
$4000)). Therefore, we assigned HCPCS code C9751 to APC 1562 for CY
2021.
In CY 2022, we again used the claims data from CY 2019 for HCPCS
code C9751. Because the claims data was unchanged from when it was used
in CY 2021, the values for the geometric mean cost ($2,693), the
arithmetic mean cost ($3,086), and the median cost ($3,708) for the
service described by HCPCS code C9751 remained the same. The highest
cost metric using these methodologies was again the median and within
the
[[Page 49612]]
cost band for New Technology APC 1562 (New Technology--Level 25
($3,501-$4,000)). Therefore, we continued to assign HCPCS code C9751 to
APC 1562 (New Technology--Level 25 ($3,501-$4,000)), with a payment
rate of $3,750.50 for CY 2022.
There were no claims reported in CY 2020, CY 2021, or CY 2022 for
HCPCS code C9751. Therefore, for CY 2024, the only available claims for
HCPCS code C9751 continue to be from CY 2019; and the reported claims
are the same claims used to calculate the payment rate for the service
in the CY 2021, CY 2022, and CY 2023 OPPS/ASC final rules with comment
period. Given the low number of claims for this procedure, we propose
to continue to designate this procedure as a low volume procedure under
our universal low volume policy and use the highest of the geometric
mean cost, arithmetic mean cost, or median cost based on up to 4 years
of claims data to assign the procedure to the appropriate New
Technology APC. Because our proposal uses the same claims as we used
for CY 2021, CY 2022, and CY 2023, the same values for the geometric
mean cost, arithmetic mean cost, and the median cost are used to
propose a payment rate for CY 2024. Once again, the median ($3,708) was
the statistical methodology that estimated the highest cost for the
service. The payment rate calculated using this methodology continues
to fall within the cost band for New Technology APC 1562 (New
Technology--Level 25 ($3501-$4000)). Therefore, we propose to continue
to assign HCPCS code C9751 to APC 1562 (New Technology--Level 25
($3501-$4000)), with a proposed payment rate of $3,750.50 for CY 2024.
Please refer to Table 11 below for the proposed OPPS New Technology
APC and status indicator assignment for HCPCS code C9751 for CY 2024.
The proposed CY 2024 payment rates can be found in Addendum B to this
proposed rule via the internet on the CMS website.
[GRAPHIC] [TIFF OMITTED] TP31JY23.025
c. Cardiac Positron Emission Tomography (PET)/Computed Tomography (CT)
Studies (APCs 1518, 1521, and 1522)
Effective January 1, 2020, we assigned three CPT codes (78431,
78432, and 78433) that describe the services associated with cardiac
PET/CT studies to New Technology APCs. CPT code 78431 was assigned to
APC 1522 (New Technology--Level 22 ($2001-$2500)) with a payment rate
of $2,250.50. CPT codes 78432 and 78433 were assigned to APC 1523 (New
Technology--Level 23 ($2501-$3000)) with a payment rate of $2,750.50.
We did not receive any claims data for these services for either of the
CY 2021 or CY 2022 OPPS proposed or final rules. Therefore, we
continued to assign CPT code 78431 to APC 1522 (New Technology--Level
22 ($2001-$2500)) with a payment rate of $2,250.50 in CY 2021 and CY
2022. Likewise, we continued to assign CPT codes 78432 and 78433 to APC
1523 (New Technology--Level 23 ($2501-$3000)) with a payment rate of
$2,750.50.
For CY 2023, we used CY 2021 claims data to determine the payment
rates for CPT codes 78431, 78432, and 78433. Based on our analysis of
the available claims data, for CY 2023, we assigned CPT code 78431 to
APC 1523 (New Technology--Level 23 ($2501-$3000)) with a payment rate
of $2,750.50; CPT code 78432 to APC 1520 (New Technology--Level 20
($1801-$1900)) with a payment rate of $1,850.50 based on the
application of the universal low-volume policy; and CPT code 78433 to
APC 1521 (New Technology--Level 21 ($1901-$2000)) with a payment rate
of $1,950.50.
For CY 2024, the OPPS payment rates are proposed to be based on
available CY 2022 claims data. CPT code 78431 had over 22,000 single
frequency claims in CY 2022. The geometric mean for CPT code 78431 was
approximately $2,300, which is an amount that is below the cost band
for APC 1523 (New Technology--Level 23 ($2501-$3000)), where the
procedure is currently assigned. We propose, for CY 2024, that CPT code
78431 be reassigned to APC 1522 (New Technology--Level 22 ($2001-
$2500)) with a payment rate of $2,250.50. Please refer to Table 12
below for the proposed New Technology APC and status indicator
assignments for CPT code 78431.
There were only six single frequency claims in CY 2022 for CPT code
78432. As this is below the threshold of 100 claims for a service
within a year, we propose to apply our universal low volume APC policy
and use the highest of the geometric mean cost, arithmetic mean cost,
or median cost based on up to 4 years of claims data to assign CPT code
78432 to the appropriate New Technology APC. Using available claims
data from CY 2021 and CY 2022, our analysis found the geometric mean
cost of the service is approximately $1,658, the arithmetic mean cost
of the service is approximately $1,445, and the median cost of the
service is approximately $1,562. The geometric mean was the statistical
methodology that estimated the highest cost for the service. The
geometric mean cost of $1,658, is an amount that is below the
[[Page 49613]]
cost band for APC 1520 (New Technology--Level 20 ($1801-$1900)), where
the procedure is currently assigned. Therefore, we propose, for CY
2024, to assign CPT code 78432 to APC 1518 (New Technology--Level 18
($1601-$1700)) with a payment rate of $1,650.50. Please refer to Table
12 for the proposed New Technology APC and status indicator assignments
for CPT code 78432.
There were over 1200 single frequency claims for CPT code 78433 in
CY 2022. The geometric mean for CPT code 78433 was approximately
$1,960, which is an amount that is within the cost band for APC 1521
(New Technology--Level 21 ($1901-$2000)), to which it is currently
assigned. Therefore, for CY 2024, we propose to continue to assign CPT
code 78433 to APC 1521 with a payment rate of $1,950.50.
Please refer to Table 12 below for the proposed OPPS New Technology
APC and status indicator assignment for CPT codes 78431, 78432, and
78433 for CY 2024. The proposed CY 2024 payment rates can be found in
Addendum B to this proposed rule via the internet on the CMS website.
BILLING CODE 4120-01-P
[GRAPHIC] [TIFF OMITTED] TP31JY23.026
BILLING CODE 4120-01-C
d. V-Wave Medical Interatrial Shunt Procedure (APC 1590)
A randomized, double-blinded, controlled IDE study is currently in
progress for the V-Wave interatrial shunt. The V-Wave interatrial shunt
is for patients with severe symptomatic heart failure and is designed
to regulate left atrial pressure in the heart. All participants who
passed initial screening for the study receive a right heart
catheterization procedure described by CPT code 93451 (Right heart
catheterization including measurement(s) of oxygen saturation and
cardiac output, when performed). Participants assigned to the
experimental group also receive the V-Wave interatrial shunt procedure
while participants assigned to the control group only receive right
heart catheterization. The developer of V-
[[Page 49614]]
Wave was concerned that the current coding of these services by
Medicare would reveal to the study participants whether they had
received the interatrial shunt because an additional procedure code,
CPT code 93799 (Unlisted cardiovascular service or procedure), would be
included on the claims for participants receiving the interatrial
shunt. Therefore, for CY 2020, we created a temporary HCPCS code to
describe the V-Wave interatrial shunt procedure for both the
experimental group and the control group in the study. Specifically, we
established HCPCS code C9758 (Blinded procedure for NYHA class III/IV
heart failure; transcatheter implantation of interatrial shunt or
placebo control, including right heart catheterization, trans-
esophageal echocardiography (TEE)/intracardiac echocardiography (ICE),
and all imaging with or without guidance (for example, ultrasound,
fluoroscopy), performed in an approved investigational device exemption
(IDE) study) to describe the service, and we assigned the service to
New Technology APC 1589 (New Technology--Level 38 ($10,001-$15,000))
with a payment rate of $12,500.50.
In the CY 2021 OPPS/ASC final rule with comment period (85 FR
85946), we stated that we believe similar resources and device costs
are involved with the V-Wave interatrial shunt procedure and the Corvia
Medical interatrial shunt procedure (HCPCS code C9760), except that
payment for HCPCS codes C9758 and C9760 differs based on how often the
interatrial shunt is implanted when each code is billed. An interatrial
shunt is implanted one-half of the time HCPCS code C9758 is billed,
whereas an interatrial shunt is implanted every time HCPCS code C9760
is billed. Accordingly, for CY 2021, we reassigned HCPCS code C9758 to
New Technology APC 1590 (New Technology--Level 39 ($15,001-$20,000)),
which reflects the cost of receiving the interatrial shunt one-half of
the time the procedure is performed.
For CY 2022, we used the same claims data from CY 2019 that we did
for the CY 2021 OPPS final rule with comment period. Because there were
no claims reporting HCPCS code C9758, we continued to assign HCPCS code
C9758 to New Technology APC 1590 with a payment rate of $17,500.50 for
CY 2022. For CY 2023 we used claims data from CY 2019 through CY 2022.
Because there were no claims reporting HCPCS code C9758, we continued
to assign HCPCS code C9758 to New Technology APC 1590 with a payment
rate of $17,500.50 for CY 2023.
For CY 2024, the OPPS payment rates are proposed to be based on
available CY 2022 claims data. Although HCPCS code C9758 was effective
January 1, 2020, we have no claims data at this time. Because we have
no claims data, for CY 2024, we propose to continue to assign HCPCS
code C9758 to New Technology APC 1590 with a proposed payment rate of
$17,500.50.
Please refer to Table 13 below for the proposed OPPS New Technology
APC and status indicator assignment for HCPCS code C9758 for CY 2024.
The proposed CY 2024 payment rates can be found in Addendum B to this
proposed rule via the internet on the CMS website.
[GRAPHIC] [TIFF OMITTED] TP31JY23.027
e. Corvia Medical Interatrial Shunt Procedure (APC 1592)
On July 1, 2020, we established HCPCS code C9760 (Non-randomized,
non-blinded procedure for nyha class ii, iii, iv heart failure;
transcatheter implantation of interatrial shunt or placebo control,
including right and left heart catheterization, transeptal puncture,
trans-esophageal echocardiography (tee)/intracardiac echocardiography
(ice), and all imaging with or without guidance (for example,
ultrasound, fluoroscopy), performed in an approved investigational
device exemption (ide) study) to facilitate payment for the
implantation of the Corvia Medical interatrial shunt.
As we stated in the CY 2021 OPPS final rule with comment period (85
FR 85947), we believe that similar resources and device costs are
involved with the Corvia Medical interatrial shunt procedure and the V-
Wave interatrial shunt procedure. But unlike the V-Wave interatrial
shunt, which is implanted half the time the associated interatrial
shunt procedure described by HCPCS code C9758 is billed, the Corvia
Medical interatrial shunt is implanted every time the associated
interatrial shunt procedure (HCPCS code C9760) is billed. Therefore,
for CY 2021, we assigned HCPCS code C9760 to New Technology APC 1592
(New Technology--Level 41 ($25,001-$30,000)) with a payment rate of
$27,500.50. We also modified the code descriptor for HCPCS code C9760
to remove the phrase ``or placebo control,'' from the descriptor. In CY
2022, we used the same claims data as was used in the CY 2021 OPPS
final rule to determine the payment rate for HCPCS code C9760 because
there were no claims for this service in CY 2019, the
[[Page 49615]]
year used for ratesetting for CY 2022. Accordingly, we continued to
assign HCPCS code C9760 to New Technology APC 1592 in CY 2022. For CY
2023, we used claims data from CY 2021 through CY 2022 to determine the
payment rate for HCPCS code C9760. Because there were no claims for
this service, we continued to assign HCPCS code C9760 to New Technology
APC 1592 in CY 2023.
For CY 2024, the OPPS payment rates are proposed to be based on
available CY 2022 claims data. There was only one claim for HCPCS code
C9760 within this time period. As this is below the threshold of 100
claims for a service within a year, we would designate C9760 as a low
volume service and apply our universal low volume APC policy. Under
this policy, we would use the highest of the geometric mean cost,
arithmetic mean cost, or median cost based on up to 4 years of claims
data to assign HCPCS code C9760 to the appropriate New Technology APC.
Using the only one claim available for HCPCS code C9760, the geometric
mean, arithmetic mean, and median costs are estimated to be
approximately $7945 for this service. However, because there is only a
single claim for HCPCS code C9760, its payment rate appears to be an
outlier based on the cost information we received from the
manufacturer. Therefore, we have concerns that the universal low volume
APC policy calculations do not accurately capture the cost of the
service. Therefore, we propose to continue assigning HCPCS code C9760
to New Technology APC 1592.
Please refer to Table 14 below for the proposed OPPS New Technology
APC and status indicator assignment for HCPCS code C9760 for CY 2024.
The proposed CY 2024 payment rates can be found in Addendum B to this
proposed rule via the internet on the CMS website.
[GRAPHIC] [TIFF OMITTED] TP31JY23.028
f. Supervised Visits for Esketamine Self-Administration (APCs 1513 and
1518)
On March 5, 2019, FDA approved SpravatoTM (esketamine)
nasal spray, used in conjunction with an oral antidepressant, for
treatment of depression in adults who have tried other antidepressant
medicines but have not benefited from them (treatment-resistant
depression (TRD)). Because of the risk of serious adverse outcomes
resulting from sedation and dissociation caused by esketamine nasal
spray administration, and the potential for misuse of the product, it
is only available through a restricted distribution system under a Risk
Evaluation and Mitigation Strategy (REMS). A REMS is a drug safety
program that FDA can require for certain medications with serious
safety concerns to help ensure the benefits of the medication outweigh
its risks. Patients must be monitored by a health care provider for at
least 2 hours after receiving their esketamine nasal spray dose, the
prescriber and patient must both sign a Patient Enrollment Form, and
the product must only be administered in a certified medical office
where the health care provider can monitor the patient.
A treatment session of esketamine consists of instructed nasal
self-administration by the patient followed by a period of post-
administration observation of the patient under direct supervision of a
health care professional. Esketamine is a noncompetitive N-methyl D-
aspartate (NMDA) receptor antagonist. It is a nasal spray supplied as
an aqueous solution of esketamine hydrochloride in a vial with a nasal
spray device. This is the first FDA approval of esketamine for any use.
Each device delivers two sprays containing a total of 28 mg of
esketamine. Patients require either two devices (for a 56 mg dose) or
three devices (for an 84 mg dose) per treatment.
Please refer to the CY 2020 PFS final rule and interim final rule
for more information about supervised visits for esketamine nasal spray
self-administration (84 FR 63102 through 63105).
To facilitate prompt beneficiary access to the new, potentially
life-saving treatment for TRD using esketamine, we created two new
HCPCS G codes, G2082 and G2083, effective January 1, 2020. HCPCS code
G2082 is for an outpatient visit for the evaluation and management of
an established patient who requires the supervision of a physician or
other qualified health care professional and provision of up to 56 mg
of esketamine through nasal self-administration and includes two hours
of post-administration observation. For CY 2020, HCPCS code G2082 was
assigned to New Technology APC 1508 (New Technology--Level 8 ($601-
$700)) with a payment rate of $650.50. HCPCS code G2083 describes a
similar service to HCPCS code G2082 but involves the administration of
more than 56 mg of esketamine. For CY 2020, HCPCS code G2083 was
assigned to New Technology APC 1511 (New Technology--Level 11 ($901-
$1000)) with a payment rate of $950.50. Please see the CY 2021 OPPS/
[[Page 49616]]
ASC final rule with comment period (85 FR 85948), CY 2022 OPPS/ASC
final rule with comment period (86 FR 63538), and the CY 2023 OPPS/ASC
final rule with comment period (87 FR 71816-71817) for the updates to
the APC assignments for G2082 and G2083 we have made in past rules.
For CY 2024, the OPPS payment rates are proposed to be based on
available CY 2022 claims data as the available single frequency claims
exceed the 100 claims threshold generally used for our universal low
volume policy. Therefore, for CY 2024, we propose to assign HCPCS codes
G2082 and G2083 to New Technology APCs based on the codes' geometric
mean costs. Specifically, we propose to assign HCPCS code G2082 to New
Technology APC 1513 (New Technology--Level 13 ($1101-$1200)) with a
payment rate of $1,150.50 based on its geometric mean cost of $1,138,
which was calculated using the available 294 single frequency claims
from CY 2022 claims data. We also propose to assign HCPCS code G2083 to
New Technology APC 1518 (New Technology--Level 18 ($1601-$1700)) with a
payment rate of $1,650.50 based on its geometric mean cost of $1,693,
which was calculated using the available 1581 single frequency claims
from CY 2022 claims data. We note, as we have begun to gather adequate
claims data on these codes, we are considering placing HCPCS codes
G2082 and G2083 in clinical APCs through future rulemaking.
The proposed New Technology APC and status indicator assignments
for HCPCS codes G2082 and G2083 are shown in Table 15. The proposed CY
2024 payment rates for these HCPCS codes can be found in Addendum B to
this proposed rule.
[GRAPHIC] [TIFF OMITTED] TP31JY23.029
g. DARI Motion Procedure (APC 1505)
Effective January 1, 2022, CPT code 0693T (Comprehensive full body
computer-based markerless 3D kinematic and kinetic motion analysis and
report) is associated with the DARI Motion Procedure, a service that
provides human motion analysis to aid clinicians in pre- and post-
operative surgical intervention and in making other treatment
decisions, including selecting the best course of physical therapy and
rehabilitation. The technology consists of eight cameras that surround
a patient, which send live video to a computer workstation that
analyzes the video to create a 3D reconstruction of the patient without
the need for special clothing, markers, or devices attached to the
patient's clothing or skin. For CY 2022, we assigned CPT code 0693T to
New Technology APC 1505 (New Technology--Level 5 ($301-$400)). For CY
2023, the OPPS payment rates were based on claims submitted between
January 1, 2021, and December 31, 2021, processed through June 30,
2022. Due to its effective date of January 1, 2022, there were no
claims available for CPT code 0693T for rate setting in CY 2023.
Therefore, in CY 2023, we continued to assign CPT code 0693T to New
Technology APC 1505.
For CY 2024, the OPPS payment rates are proposed to be based on
available CY 2022 claims data. Although CPT code 0693T was effective
January 1,
[[Page 49617]]
2022, we have no claims data at this time. Because we have no claims
data, for CY 2024, we propose to continue to assign CPT code 0693T to
APC 1505 with a proposed payment rate of $350.50.
Please refer to Table 16 below for the proposed OPPS New Technology
APC and status indicator assignment for CPT code 0693T for CY 2024. The
proposed CY 2024 payment rates can be found in Addendum B to this
proposed rule via the internet on the CMS website.
[GRAPHIC] [TIFF OMITTED] TP31JY23.030
h. Liver Histotripsy Service (APC 1575)
CPT code 0686T (Histotripsy (i.e., non-thermal ablation via
acoustic energy delivery) of malignant hepatocellular tissue, including
image guidance) was first effective July 1, 2021, and describes the
histotripsy service associated with the use of the HistoSonics system.
Histotripsy is a non-invasive, non-thermal, mechanical process that
uses a focused beam of sonic energy to destroy cancerous liver tumors
and is currently in a non-randomized, prospective clinical trial to
evaluate the efficacy and safety of the device for the treatment of
primary or metastatic tumors located in the liver.\8\ When HCPCS code
0686T was first effective, the histotripsy procedure was designated as
a Category A IDE clinical study (NCT04573881). Since devices in
Category A IDE studies are excluded from Medicare payment, payment for
CPT code 0686T only reflected the cost of the service that is performed
each time it is reported on a claim. For CY 2023, we assigned CPT code
0686T to New Technology APC 1575 (New Technology--Level 38 ($10,000-
$15,000) with a payment rate of $12,500. However, on March 2, 2023, the
histotripsy IDE clinical study was re-designated as a Category B (Non-
experimental/Investigational) IDE study. Due to this new designation,
the proposed payment for CPT code 0686T in CY 2024 would reflect
payment for both the service that is performed and the device used each
time it is reported on a claim.
---------------------------------------------------------------------------
\8\ ClinicalTrials.gov. ``The HistoSonics System for Treatment
of Primary and Metastatic Liver Tumors Using Histotripsy
(#HOPE4LIVER) (#HOPE4LIVER).'' Accessed May 10, 2022. https://clinicaltrials.gov/ct2/show/study/NCT04573881.
---------------------------------------------------------------------------
For CY 2024, the OPPS payment rates are proposed to be based on
available CY 2022 claims data. There are only two claims for CPT code
0686T within this time period. We note that 0686T was still designated
as a Category A IDE study for these claims and therefore, the payment
for these claims only included payment for the cost of the service. As
the available claims data is below the threshold of 100 claims for a
service within a year, we could propose to designate CPT code 0686T as
a low volume service under our universal low volume APC policy, and use
the highest of the geometric mean cost, arithmetic mean cost, or median
cost to assign CPT code 0686T to the appropriate New Technology APC.
Based on the two available claims in CY 2022, when CPT code 0686T was
still designated as a Category A IDE study, the geometric mean is
estimated to be: $4,466; the median is estimated to be: $4,480; and the
arithmetic mean is estimated to be: $4,480. Because $4,480 is the
greatest of these methodologies, we would use this value to set the
payment rate for CPT code 0686T. However, we have concerns that the
available claims data and universal low volume APC policy calculations
would not accurately capture the cost of the service following its
approval as a Category B IDE study in March of 2023. If 0686T were
still designated as a Category A IDE study, then the two claims
available would be appropriate to set its payment rate, as the claims
reflect the cost of the service and exclude the cost of the device.
However, because CPT code 0686T was approved as a Category B IDE study,
meaning Medicare coverage and payment of the device is no longer
statutorily prohibited, the two CY 2022 claims available would not
accurately capture the cost of 0686T for CY 2024.
Therefore, based on the service costs reflected in the available
claims and our estimates of the cost of the Category B device, for CY
2024, we propose to maintain CPT code 0686T's current APC assignment.
Specifically, we propose to assign CPT code 0686T to APC 1575 (New
Technology--Level 38 ($10,001-$15,000)) with a payment rate of
$12,500.50.
Please refer to Table 17 below for the proposed OPPS New Technology
APC and status indicator assignment for CPT code 0686T for CY 2024. The
proposed CY 2024 payment rates can be found in Addendum B to this
proposed rule via the internet on the CMS website.
[[Page 49618]]
[GRAPHIC] [TIFF OMITTED] TP31JY23.031
i. Liver Multiscan Service (APC 1505)
Effective July 1, 2021, CPT codes 0648T (Quantitative magnetic
resonance for analysis of tissue composition (e.g., fat, iron, water
content), including multiparametric data acquisition, data preparation
and transmission, interpretation and report, obtained without
diagnostic mri examination of the same anatomy (e.g., organ, gland,
tissue, target structure) during the same session; single organ) and
0649T (Quantitative magnetic resonance for analysis of tissue
composition (e.g., fat, iron, water content), including multiparametric
data acquisition, data preparation and transmission, interpretation and
report, obtained with diagnostic mri examination of the same anatomy
(e.g., organ, gland, tissue, target structure); single organ (list
separately in addition to code for primary procedure)) are associated
with the Liver MultiScan service. LiverMultiScan is a Software as a
medical Service (SaaS) that is intended to aid the diagnosis and
management of chronic liver disease, the most prevalent of which is
Non-Alcoholic Fatty Liver Disease (NAFLD). It provides standardized,
quantitative imaging biomarkers for the characterization and assessment
of inflammation, hepatocyte ballooning, and fibrosis, as well as
steatosis, and iron accumulation. LiverMultiScan receives MR images
acquired from patients' providers and analyzes the images using their
proprietary Artificial Intelligence (AI) algorithms. It then sends the
providers a quantitative metric report of the patient's liver fibrosis
and inflammation. For CY 2023, we assigned CPT codes 0648T and 0649T to
New Technology APC 1511 (New Technology--Level 11 ($901-$1,000) with a
payment rate of $950.50.
For CY 2024, the OPPS payment rates are proposed to be based on
available CY 2022 claims data. We identified only 39 claims each for
CPT code 0648T and CPT code 0649T during this time period. As this is
below the threshold of 100 claims for a service within a year, we
propose to apply our universal low volume APC policy and use the
highest of the geometric mean cost, arithmetic mean cost, or median
cost based on up to 4 years of claims data to assign CPT codes 0648T
and 0649T to the appropriate New Technology APC. There are available
claims data from CY 2021 and CY 2022 for CPT codes 0648T and 0649T. Our
analysis of the data for CPT code 0648T found the geometric mean cost
of the service is approximately $269, the arithmetic mean cost of the
service is approximately $320, and the median cost of the service is
approximately $313. Our analysis of the data for CPT code 0649T found
the geometric mean cost of the service is approximately $102, the
arithmetic mean cost of the service is approximately $136, and the
median cost of the service is approximately $83. The arithmetic mean
was the statistical methodology that estimated the highest cost for CPT
codes 0648T and 0649T. In accordance to our SaaS Add-on Codes policy
(87 FR 72032 to 72033), SaaS CPT add-on codes are assigned to the
identical APCs and the same status indicator assignments as their
standalone codes. Consistent with our SaaS Add-on Codes policy, CPT
code 0649T, the add-on code for LiverMultiScan would be assigned to the
identical APC and status indicator to CPT code 0648T, the standalone
code for the same service. Therefore, we propose, for CY 2024, to
assign CPT codes 0648T and 0649T to APC 1505 (New Technology--Level 5
($301-$400)) with a payment rate of $350.50.
Please refer to Table 18 below for the proposed OPPS New Technology
APC and status indicator assignments for CPT codes 0648T and 0649T for
CY 2024. The proposed CY 2024 payment rates can be found in Addendum B
to this proposed rule via the internet on the CMS website.
[[Page 49619]]
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j. Minimally Invasive Glaucoma Surgery (MIGS) (APC 5493)
Prior to CY 2022, extracapsular cataract removal with insertion of
intraocular lens was reported using CPT codes describing cataract
removal alongside a CPT code for device insertion. Specifically, the
procedure was described using CPT codes 66982 (Extracapsular cataract
removal with insertion of intraocular lens prosthesis (1-stage
procedure), manual or mechanical technique (for example, irrigation and
aspiration or phacoemulsification), complex, requiring devices or
techniques not generally used in routine cataract surgery (for example,
iris expansion device, suture support for intraocular lens, or primary
posterior capsulorrhexis) or performed on patients in the amblyogenic
developmental stage; without endoscopic cyclophotocoagulation) or 66984
(Extracapsular cataract removal with insertion of intraocular lens
prosthesis (1-stage procedure), manual or mechanical technique (for
example, irrigation and aspiration or phacoemulsification); without
endoscopic cyclophotocoagulation) and 0191T (Insertion of anterior
segment aqueous drainage device, without extraocular reservoir,
internal approach, into the trabecular meshwork; initial insertion).
For CY 2022, the AMA's CPT Editorial Panel created two new Category
I CPT codes describing extracapsular cataract removal with insertion of
intraocular lens prosthesis, specifically, CPT codes 66989
(Extracapsular cataract removal w/IOL insertion, complex; with
insertion of intraocular (e.g., trabecular meshwork, supraciliary,
suprachoroidal) anterior segment aqueous drainage device, without
extraocular reservoir, internal approach, one or more) and 66991
(Extracapsular cataract removal w/IOL insertion; with insertion of
intraocular (e.g., trabecular meshwork, supraciliary, suprachoroidal)
anterior segment aqueous drainage device, without extraocular
reservoir, internal approach, one or more); deleted a Category III CPT
code, specifically, CPT code 0191T, describing insertion of anterior
segment aqueous drainage device; and created a new Category III CPT
code, specifically, CPT code 0671T, describing anterior segment aqueous
drainage device without concomitant cataract removal.
For CY 2022, we finalized the assignment of CPT codes 66989 and
66991 to New Technology APC 1563 (New Technology--Level 26 ($4,001-
$4,500)). We stated that we believed that the change in coding for MIGS
is
[[Page 49620]]
significant in that it changes longstanding billing for the service
from reporting two separate CPT codes to reporting a single bundled
code. Without claims data, and given the magnitude of the coding
change, we explained that we did not believe we had the necessary
information on the costs associated with CPT codes 66989 and 66991 to
assign them to a clinical APC at that time. We maintained these APC
assignments for CY 2023.
For CY 2023, the payment rates were based on claims data submitted
between January 1, 2021, and December 31, 2021, and processed on or
before June 30, 2022, and CCRs, if available. Because CPT codes 66989
and 66991 were effective January 1, 2022, and we had no claims data for
CY 2022, we finalized continued assignment of CPT codes 66989 and 66991
to New Technology APC 1563.
For CY 2024, the OPPS payment rates are proposed to be based on
available CY 2022 claims data. For CY 2024, based on our analysis of
claims data, we found a total of 898 single frequency claims and an
estimated geometric mean cost of $5,241.55 for CPT code 66989 and a
total of 5,576 single frequency claims and an estimated geometric mean
cost of $4,957.01 for CPT code 66991. Given the claims volume, we
believe it is appropriate to reassign the service to a clinical APC
using our regular process of using the most recent year of claims data
for a procedure. Upon review, we determined that the most appropriate
clinical APC family for CPT codes 66989 and 66991 would be the
Intraocular Procedures APC family (APC 5491 through 5495). However,
there was a large payment rate difference between the level 2
Intraocular Procedures APC (APC 5492), which has a payment rate of
$3,970.62, and the level 3 Intraocular Procedures APC (APC 5493), which
has a payment rate of $14,067.62. Assigning CPT codes 66989 and 66991
to either APC 5492 or 5493 would result in a payment rate that would
not reflect the cost for these procedures.
Therefore, given the significant difference in payment between APC
5492 and APC 5493, we believe it is appropriate to restructure the
Intraocular Procedures APC family. Specifically, we propose to create a
sixth level in the Intraocular Procedures APC family by dividing APC
5492 into two APCs--an APC for services with a geometric mean cost of
less than $5,000 and an APC for services with a geometric mean cost of
greater than, or equal to, $5,000. We believe that the creation of an
additional level in the Intraocular APC family will create a smoother
distribution of the costs between the different levels based on their
resource costs and clinical characteristics. See section III.E. (OPPS
APC-Specific Policies: Intraocular Procedures) of this proposed rule
for a detailed discussion of our proposal to restructure the
Intraocular Procedures APC family. Reorganizing the Intraocular
Procedures APCs would create a proposed Level 3 APC to be referred to
as ``Proposed APC 5493'' with a payment rate of approximately $5,110.58
which is closer to the geometric mean of CPT codes 66989 and 66991. We
note that, although these services have different estimated geometric
mean costs, interested parties have indicated that it is preferable
that they be placed within the same APC due to clinical similarity;
therefore, we propose to reassign CPT codes 66989 and 66991 to Proposed
APC 5493 for CY 2024.
The proposed clinical APC and status indicator assignments for CPT
codes 66989 and 66991 are found in Table 19. The proposed CY 2024
payment rates can be found in Addendum B to this proposed rule.
[GRAPHIC] [TIFF OMITTED] TP31JY23.033
[[Page 49621]]
k. Scalp Cooling (APC 1514)
CPT code 0662T (Scalp cooling, mechanical; initial measurement and
calibration of cap) became effective on July 1, 2021, to describe
initial measurement and calibration of a scalp cooling device for use
during chemotherapy administration to prevent hair loss. According to
Medicare's National Coverage Determination (NCD) policy, specifically,
NCD 110.6 (Scalp Hypothermia During Chemotherapy to Prevent Hair Loss),
the scalp cooling cap itself is classified as an incident to supply to
a physician service, and would not be paid under the OPPS; however,
interested parties have indicated that there are substantial resource
costs of around $1,900 to $2,400 associated with calibration and
fitting of the cap. CPT guidance states that CPT code 0662T should be
billed once per chemotherapy session, which we interpret to mean once
per course of chemotherapy. Therefore, if a course of chemotherapy
involves, for example, 6 or 18 sessions, HOPDs should report CPT 0662T
only once for that 6 or 18 therapy sessions. For CY 2022, we assigned
CPT code 0662T to APC New Technology 1520 (New Technology--Level 20
($1,801-$1,900)) with a payment rate of $1,850.50. For CY 2023, we did
not have any claims data; so we continued to assign CPT code 0662T to
APC 1520.
For CY 2024, the OPPS payment rates are proposed to be based on
available CY 2022 claims data. The Scalp Cooling service became
effective in the OPPS in CY 2022, and we have identified 11 single
frequency paid claims for CPT code 0662T for CY 2022. As this is below
the threshold of 100 claims for a service within a year, we propose to
designate CPT code 0662T as a low volume service under our universal
low volume APC policy and to use the highest of the geometric mean
cost, arithmetic mean cost, or median cost based on up to 4 years of
claims data to assign the service to the appropriate New Technology
APC. Based on our review of the available claims, the geometric mean
cost for CPT code 0662T is $831.16; the median is $797.63; and the
arithmetic mean is $1,284.59. Therefore, for CY 2024, we propose to
designate this service as a low volume service under our universal low
volume APC policy and reassign CPT code 0662T to APC 1514 (New
Technology--Level 14 ($1,201-$1,300)) with a payment rate of $1,250.50
for CY 2024 based on the arithmetic mean of $1,284.59.
Please refer to Table 20 below for the proposed OPPS New Technology
APC and status indicator assignment for CPT code 0662T. The proposed CY
2024 payment rates can be found in Addendum B to this proposed rule via
the internet on the CMS website.
[GRAPHIC] [TIFF OMITTED] TP31JY23.034
1. Optellum Lung Cancer Prediction (LCP) (APC 1508)
CPT codes 0721T (Quantitative computed tomography (CT) tissue
characterization, including interpretation and report, obtained without
concurrent CT examination of any structure contained in previously
acquired diagnostic imaging) and 0722T (Quantitative computed
tomography (ct) tissue characterization, including interpretation and
report, obtained with concurrent ct examination of any structure
contained in the concurrently acquired diagnostic imaging dataset (list
separately in addition to code for primary procedure)) became effective
July 1, 2022, and are associated with the Optellum LCP technology. The
Optellum LCP applies an algorithm to a patient's CT scan to produce a
raw risk score for a patient's pulmonary nodule. The physician uses the
risk score to quantify the risk of lung cancer and to determine what
the next management step should be for the patient (e.g., CT
surveillance versus invasive procedure). For CY 2023, we assigned CPT
codes 0721T and 0722T to APC New Technology 1508 (New Technology--Level
8 ($601-$700)).
For CY 2024, the OPPS payment rates are proposed to be based on
available CY 2022 claims data. There are no claims available for CPT
codes 0721T and 0722T. Therefore, for CY 2024, we propose to continue
assigning CPT codes 0721T and 0722T to New Technology APC 1508.
Please refer to Table 21 below for the proposed OPPS New Technology
APC and status indicator assignment for HCPCS codes 0721T and 0722T for
CY 2024. The proposed CY 2024 payment rates can be found in Addendum B
to this proposed rule via the internet on the CMS website.
[[Page 49622]]
[GRAPHIC] [TIFF OMITTED] TP31JY23.035
m. Quantitative Magnetic Resonance Cholangiopancreatography (QMRCP)
(APC 1511)
Effective July 1, 2022, CPT codes 0723T (Quantitative magnetic
resonance cholangiopancreatography (QMRCP) including data preparation
and transmission, interpretation and report, obtained without
diagnostic magnetic resonance imaging (MRI) examination of the same
anatomy (e.g., organ, gland, tissue, target structure) during the same
session) and 0724T (Quantitative magnetic resonance
cholangiopancreatography (qmrcp), including data preparation and
transmission, interpretation and report, obtained with diagnostic
magnetic resonance imaging (mri) examination of the same anatomy (e.g.,
organ, gland, tissue, target structure) (list separately in addition to
code for primary procedure)) are associated with the QMRCP Software as
a medical Service (SaaS). The service performs quantitative assessment
of the biliary tree and gallbladder. It uses a proprietary algorithm
that produces a three-dimensional reconstruction of the biliary tree
and pancreatic duct and also provides precise quantitative information
of biliary tree volume and duct metrics. For CY 2023, we assigned CPT
codes 0723T and 0724T to New Technology APC 1511 (New Technology--Level
11 ($900-$1,000)).
For CY 2024, the OPPS payment rates are proposed to be based on
available CY 2022 claims data. For CPT code 0723T, there were no claims
during this time period. Because there are no claims available, we
propose to continue to assign CPT code 0723T to New Technology APC 1511
with a payment rate of $950.50.
For CPT code 0724T, there was only one claim for CY 2022. As this
is below the threshold of 100 claims for a service within a year, we
could propose to designate CPT code 0724T as a low volume service under
our universal low volume APC policy and use the highest of the
geometric mean cost, arithmetic mean cost, or median cost based on up
to 4 years of claims data to assign the service to an appropriate New
Technology APC. Because there is only one claim available, the
geometric mean, arithmetic mean, and median costs are estimated to be
$26 for this service. However, because there is only a single claim for
CPT code 0724T, the single claim available appears to be an outlier
based on the cost information we received from the manufacturer.
Therefore, we have concerns that the universal low volume APC policy
calculations do not accurately capture the cost of the service.
Therefore, for CY 2024, we propose to continue assigning CPT code 0724T
to New Technology APC 1511 with a payment rate of $950.50.
Please refer to Table 22 below for the proposed OPPS New Technology
APC and status indicator assignment for HCPCS code 0724T for CY 2024.
The proposed CY 2024 payment rates can be found in Addendum B to this
proposed rule via the internet on the CMS website.
[[Page 49623]]
[GRAPHIC] [TIFF OMITTED] TP31JY23.036
n. CardiAMP (APC 1590)
The CardiAMP cell therapy IDE studies are two randomized, double-
blinded, controlled IDE studies: The CardiAMP Cell Therapy Chronic
Myocardial Ischemia Trial \9\ and the CardiAMP Cell Therapy Heart
Failure Trial.\10\ The two trials are designed to investigate the
safety and efficacy of autologous bone marrow mononuclear cells
treatment for the following: (1) Patients with medically refractory and
symptomatic ischemic cardiomyopathy; and (2) patients with refractory
angina pectoris and chronic myocardial ischemia. On April 1, 2022, we
established HCPCS code C9782 to describe the CardiAMP cell therapy IDE
studies and assigned HCPCS code C9782 to APC 1574 (New Technology--
Level 37 ($9,501-$10,000)) with the status indicator ``T.'' We
subsequently revised the descriptor for HCPCS code C9782 to: (Blinded
procedure for New York Heart Association (NYHA) Class II or III heart
failure, or Canadian Cardiovascular Society (CCS) Class III or IV
chronic refractory angina; transcatheter intramyocardial
transplantation of autologous bone marrow cells (e.g., mononuclear) or
placebo control, autologous bone marrow harvesting and preparation for
transplantation, left heart catheterization including ventriculography,
all laboratory services, and all imaging with or without guidance
(e.g., transthoracic echocardiography, ultrasound, fluoroscopy), all
device(s), performed in an approved Investigational Device Exemption
(IDE) study) to clarify the inclusion of the Helix transendocardial
injection catheter device in the descriptor. Additionally, we
determined that APC 1590 (New Technology--Level 39 ($15,001-$20,000))
most accurately accounted for the resources associated with furnishing
the procedure described by HCPCS code C9782.
---------------------------------------------------------------------------
\9\ ClinicalTrials.gov. ``Randomized Controlled Pivotal Trial of
Autologous Bone Marrow Cells Using the CardiAMP Cell Therapy System
in Patients With Refractory Angina Pectoris and Chronic Myocardial
Ischemia.'' Accessed May 10, 2022. https://clinicaltrials.gov/ct2/show/NCT03455725?term=NCT03455725&rank=1.
\10\ ClinicalTrials.gov. ``Randomized Controlled Pivotal Trial
of Autologous Bone Marrow Mononuclear Cells Using the CardiAMP Cell
Therapy System in Patients With Post Myocardial Infarction Heart
Failure.'' Accessed May 10, 2022. https://clinicaltrials.gov/ct2/show/NCT02438306.
---------------------------------------------------------------------------
For CY 2024, the OPPS payment rates are proposed to be based on
available CY 2022 claims data. There are no available claims for
ratesetting for CY 2024. Therefore, for CY 2024, we propose to continue
assigning HCPCS code C9782 to New Technology APC 1590 with a payment
rate of $17,050.50.
Please refer to Table 23 below for the proposed OPPS New Technology
APC and status indicator assignment for HCPCS code C9782 for CY 2024.
The proposed CY 2024 payment rates can be found in Addendum B to this
proposed rule via the internet on the CMS website.
[[Page 49624]]
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o. Surfacer[supreg] Inside-Out[supreg] Access Catheter System (APC
1534)
HCPCS code C9780 (Insertion of central venous catheter through
central venous occlusion via inferior and superior approaches (e.g.,
inside-out technique), including imaging guidance) describes the
procedure associated with the use of the Surfacer[supreg] Inside-
Out[supreg] Access Catheter System that is designed to address central
venous occlusion. HCPCS code C9780 was established on October 1, 2021,
and since its establishment the code has been assigned to New
Technology APC 1534 (New Technology--Level 34 ($8,001-$8,500)).
For CY 2024, the OPPS payment rates are proposed to be based on
available CY 2022 claims data. Although HCPCS code C9780 was effective
October 1, 2021, we have no claims data at this time. Because we have
no claims data available, for CY 2024, we propose to continue to assign
HCPCS code C9780 to APC 1534 with a proposed payment rate of $8,250.50.
Please refer to Table 24 below for the proposed OPPS New Technology
APC and status indicator assignment for HCPCS code C9780 for CY 2024.
The proposed CY 2024 payment rates can be found in Addendum B to this
proposed rule via the internet on the CMS website.
[GRAPHIC] [TIFF OMITTED] TP31JY23.038
p. Insertion or Replacement of Neurostimulator System for Treatment of
Central Sleep Apnea; Complete System (APC 1580)
HCPCS code 0424T (Insertion or replacement of a neurostimulator
system for treatment of central sleep apnea; complete system
(transvenous placement of right or left stimulation lead, sensing lead,
implantable pulse generator)) is associated with the use of the
Remede[supreg] System, which is used to treat adult patients with
moderate to severe Central Sleep Apnea. HCPCS code 0424T was first
effective in January 1, 2016, and subsequently assigned to
Comprehensive APC 5464 (Neurostimulator and Related Procedures APC--
Level 4). For CY 2021, we created a 5-level structure for the
Neurostimulator and Related Procedure
[[Page 49625]]
APC series, and consequently, assigned HCPCS code 0424T to the highest
level in the series: Comprehensive APC 5465 (Neurostimulator & Related
Procedures APC--Level 5). For CY 2023, we proposed to continue the 5-
level structure for the Neurostimulator and Related Procedure APC
series, while also soliciting comment on the creation of an additional
Level 6 APC in the series. In the CY 2023 final rule with comment
period, we finalized our proposal to continue the 5-level APC structure
based on a determination that the existing structure remained
appropriate based on clinical and cost characteristics. However, we
also recognized that CPT code 0424T was not appropriately assigned to
the Comprehensive APC 5465 based on a significant difference between
its geometric mean cost and that of the APC. Therefore, for CY 2023, we
finalized the assignment of HCPCS code 0424T to New Technology APC 1581
(New Technology--Level 44 ($50,001-$60,000)).
For CY 2024, the OPPS payment rates are proposed to be based on
available CY 2022 claims data. There are only 30 claims for HCPCS code
0424T available during this time period. As this is below the threshold
of 100 claims for a service within a year, we propose to apply our
universal low volume APC policy and use the highest of the geometric
mean cost, arithmetic mean cost, or median cost based on up to 4 years
of claims data to assign HCPCS code 0424T to the appropriate New
Technology APC. Considering the available claims data for HCPCS code
0424T, the arithmetic mean is $49,468; the median is $48,285; and the
geometric mean cost is $44,287. Of these, the arithmetic mean is the
statistical methodology that estimates the highest cost for the
service. The payment rate calculated using this methodology falls
within the cost band for New Technology APC 1580 (New Technology--Level
43 ($40,001-$50,000)) with a payment rate of $45,000.50. Therefore, for
CY 2024, we propose to assign HCPCS code 0424T to New Technology APC
1580. We note that for the CY 2024 update, the CPT Editorial Panel is
deleting HCPCS code 0424T and replacing it with placeholder code 3X008
effective January 1, 2024. Consequently, we propose to assign HCPCS
code 0424T to status indicator ``D'' to indicate the code will be
deleted and assigning its replacement code, specifically, placeholder
code 3X008, to APC 1580 for CY 2024. For placeholder code 3X008, the
final 5-digit CPT code number will be listed in the CY 2024 OPPS/ASC
final rule with comment period.
Please refer to Table 25 below for the proposed OPPS New Technology
APC and status indicator assignment for placeholder code 3X008 for CY
2024. The proposed CY 2024 payment rates can be found in Addendum B to
this proposed rule via the internet on the CMS website.
[GRAPHIC] [TIFF OMITTED] TP31JY23.039
q. Cleerly Labs (APC 1511)
Cleerly Labs is a Software as a Service (SaaS) that assesses the
extent of coronary artery disease severity using Atherosclerosis
Imaging-Quantitative Computer Tomography (AI-QCT). This procedure is
performed to quantify the extent of coronary plaque and stenosis in
patients who have undergone coronary computed tomography analysis
(CCTA). The AMA CPT Editorial Panel established the following four
codes associated with this service, effective January 1, 2021:
0623T: Automated quantification and characterization of coronary
atherosclerotic plaque to assess severity of coronary disease, using
data from coronary computed tomographic. angiography; data preparation
and transmission, computerized analysis of
[[Page 49626]]
data, with review of computerized analysis output to reconcile
discordant data, interpretation and report.
0624T: Automated quantification and characterization of coronary
atherosclerotic plaque to assess severity of coronary disease, using
data from coronary computed tomographic angiography; data preparation
and transmission.
0625T: Automated quantification and characterization of coronary
atherosclerotic plaque to assess severity of coronary disease, using
data from coronary computed tomographic angiography; computerized
analysis of data from coronary computed tomographic angiography.
0626T: Automated quantification and characterization of coronary
atherosclerotic plaque to assess severity of coronary disease, using
data from coronary computed tomographic angiography; review of
computerized analysis output to reconcile discordant data,
interpretation and report.
In the CY 2021 OPPS/ASC final rule with comment period, we assigned
the CPT codes 0623T, 06234T, 0625T, 0626T codes to status indicator
``E1'' to indicate that the codes are not payable by Medicare when
submitted on outpatient claims because the service had not received FDA
clearance at the time of the assignment.
For the October 2022 update, based on our review of the New
Technology application submitted to CMS for OPPS payment consideration,
we evaluated the current status indicator assignments for CPT codes
0623T-0626T. Based on the technology and its potential utilization in
the HOPD setting, our evaluation of the service, as well as input from
our medical advisors, we assigned CPT code 0625T to a separately
payable status. Specifically, in the October 2022 OPPS Update CR
(Change Request 12885, Transmittal 11594, dated September 9, 2022), we
reassigned CPT code 0625T to status indicator ``S'' (Significant
Procedures, Not Discounted when Multiple. Paid under OPPS; separate APC
payment) and APC 1511 (New Technology--Level 11 ($900-$1,000)) with a
payment rate of $950.50, effective October 1, 2022, following our
review of the manufacturer's New Technology APC application.
For CY 2024, the OPPS payment rates are proposed to be based on
available CY 2022 claims data. There are 90 claims for CPT code 0625T
during this time period. As this is below the threshold of 100 claims
for a service within a year, we could propose to designate CPT code
0625T as a low volume service under our universal low volume APC policy
and use the highest of the geometric mean cost, arithmetic mean cost,
or median cost based on up to 4 years of claims data to assign code
0625T to the appropriate New Technology APC. We found the geometric
mean cost for the service to be approximately $3.70, the arithmetic
mean cost to be approximately $4.10, and the median cost to be
approximately $3.50. Under our universal low volume APC policy, we
would use the greatest of the statistical methodologies, the arithmetic
mean, to assign CPT code 0625T to New Technology 1491 (New Technology--
Level 1A (0-$10)) with a payment rate of $5.00. However, we acknowledge
that, because CPT code 0625T was only made separately payable as part
of the OPPS in October 2022, and, therefore, the claims available only
reflect two months of data, we have concerns that we do not have
sufficient claims data to justify reassignment to another New
Technology APC (66 FR 69902). Therefore, consistent with our current
policy to retain services within New Technology APC groups until we
obtain sufficient claims data to justify reassignment (66 FR 59902),
for CY 2024 we propose to maintain CPT code 0625T's current assignment.
Specifically, for CY 2024, we propose to continue to assign CPT code
0625T to New Technology APC 1511 with a payment rate of $950.50.
Please refer to Table 26 below for the proposed OPPS New Technology
APC and status indicator assignment for CPT code 0625T for CY 2024. The
proposed CY 2024 payment rates can be found in Addendum B to this
proposed rule via the internet on the CMS website.
[GRAPHIC] [TIFF OMITTED] TP31JY23.040
D. Universal Low Volume APC Policy for Clinical and Brachytherapy APCs
In the CY 2022 OPPS/ASC final rule with comment period (86 FR 63743
through 63747), we adopted a policy to designate clinical and
brachytherapy APCs as low volume APCs if they have fewer than 100
single claims that can be used for ratesetting purposes in the claims
year used for ratesetting for the prospective year. For this proposed
rule, CY 2022 claims are generally the claims used for ratesetting; and
clinical and brachytherapy APCs with fewer than 100 single claims from
CY 2022 that can be used for ratesetting would be low volume APCs
subject to our universal low volume APC policy. As we stated in the CY
2022 OPPS/ASC final rule with comment period, we adopted this policy to
reduce the volatility in the payment rate for those APCs with fewer
than 100 single claims. Where a clinical or
[[Page 49627]]
brachytherapy APC has fewer than 100 single claims that can be used for
ratesetting, under our low volume APC payment adjustment policy, we
determine the APC cost as the greatest of the geometric mean cost,
arithmetic mean cost, or median cost based on up to four years of
claims data. We excluded APC 5853 (Partial Hospitalization for CMHCs)
and APC 5863 (Partial Hospitalization for Hospital-based PHPs) from our
universal low volume APC policy given the different nature of policies
that affect the partial hospitalization program. We also excluded APC
2698 (Brachytx, stranded, nos) and APC 2699 (Brachytx, non-stranded,
nos) as our current methodology for determining payment rates for non-
specified brachytherapy sources is appropriate.
Based on claims data available for this proposed rule, we propose
to designate five brachytherapy APCs and five clinical APCs as low
volume APCs under the OPPS. The five brachytherapy APCs and five
clinical APCs meet our criteria of having fewer than 100 single claims
in the claims year used for ratesetting (CY 2022 for this proposed
rule). Eight of the ten APCs were designated as low volume APCs in CY
2023. Based on data for this CY 2024 OPPS/ASC proposed rule, APC 2642
(Brachytx, stranded, C-131) now meets our criteria to be designated a
Low Volume APC; and we propose to designate it as such for CY 2024.
Further, with the proposed addition of Level 6 Intraocular APC (APC
5496), as discussed in section III.E of this proposed rule, and the
reassignment of certain intraocular procedures from Level 2 to Level 3,
the Level 4 Intraocular APC (which was the Level 3 Intraocular APC in
CY 2023), now meets our criteria to be designated a Low Volume APC; and
we propose to designate it as such for CY 2024.
Table 27 includes the APC geometric mean cost without the low
volume APC designation, that is, if we calculated the geometric mean
cost based on CY 2022 claims data available for ratesetting; the
median, arithmetic mean, and geometric mean cost using up to four years
of claims data based on the APC's designation as a low volume APC; and
the statistical methodology we propose to use to determine the APC's
cost for ratesetting purposes for CY 2024. As discussed in our CY 2022
OPPS/ASC final rule with comment period (86 FR 63751 through 63754),
given our concerns with CY 2020 claims data as a result of the PHE, the
four years of claims data we proposed to use to calculate the costs for
these APCs are CYs 2018, 2019, 2021, and 2022.
[[Page 49628]]
[GRAPHIC] [TIFF OMITTED] TP31JY23.041
[[Page 49629]]
E. Proposed APC-Specific Policies: Intraocular Procedures
In reviewing the claims data available for the CY 2024 OPPS
proposed rule, we believed that it was appropriate to create an
additional Intraocular Procedures level, between the current Level 2
and 3 APCs. We last adjusted the number of APCs in the Intraocular
Procedures family in CY 2020, when we reestablished APC 5495 (Level 5
Intraocular Procedures) to accommodate the procedure described by CPT
code 0308T (Insertion of ocular telescope prosthesis including removal
of crystalline lens or intraocular lens prosthesis) based on its
estimated cost (84 FR 61249 through 61250). Creating a new APC in the
Intraocular Procedures family will allow for a smoother distribution of
the costs between the different levels based on their resource costs
and clinical characteristics. Therefore, for the CY 2024 OPPS, we
propose to establish a six-level APC structure for the Intraocular
Procedures series. We noted that in addition to creating the new level,
we also proposed to assign CPT codes 66989 (Extracapsular cataract
removal w/IOL insertion, complex; with insertion of intraocular (e.g.,
trabecular meshwork, supraciliary, suprachoroidal) anterior segment
aqueous drainage device, without extraocular reservoir, internal
approach, one or more) and 66991 (Extracapsular cataract removal w/IOL
insertion; with insertion of intraocular (e.g., trabecular meshwork,
supraciliary, suprachoroidal) anterior segment aqueous drainage device,
without extraocular reservoir, internal approach, one or more) to the
new Level 3 APC, as discussed in further detail in section III.C.2.j.
(Minimally Invasive Glaucoma Surgery (MIGS) (APC 5493)) of this
proposed rule.
IV. Proposed OPPS Payment for Devices
A. Proposed Pass-Through Payment for Devices
1. Beginning Eligibility Date for Device Pass-Through Status and
Quarterly Expiration of Device Pass-Through Payments
a. Background
The intent of transitional device pass-through payment, as
implemented at Sec. 419.66, is to facilitate access for beneficiaries
to the advantages of new and truly innovative devices by allowing for
adequate payment for these new devices while the necessary cost data is
collected to incorporate the costs for these devices into the procedure
APC rate (66 FR 55861). Under section 1833(t)(6)(B)(iii) of the Act,
the period for which a device category eligible for transitional pass-
through payments under the OPPS can be in effect is at least 2 years
but not more than 3 years. Prior to CY 2017, our regulation at Sec.
419.66(g) provided that this pass-through payment eligibility period
began on the date CMS established a particular transitional pass-
through category of devices, and we based the pass-through status
expiration date for a device category on the date on which pass-through
payment was effective for the category. In the CY 2017 OPPS/ASC final
rule with comment period (81 FR 79654), in accordance with section
1833(t)(6)(B)(iii)(II) of the Act, we amended Sec. 419.66(g) to
provide that the pass-through eligibility period for a device category
begins on the first date on which pass-through payment is made under
the OPPS for any medical device described by such category.
In addition, prior to CY 2017, our policy was to propose and
finalize the dates for expiration of pass-through status for device
categories as part of the OPPS annual update. This means that device
pass-through status would expire at the end of a calendar year when at
least 2 years of pass-through payments had been made, regardless of the
quarter in which the device was approved. In the CY 2017 OPPS/ASC final
rule with comment period (81 FR 79655), we changed our policy to allow
for quarterly expiration of pass-through payment status for devices,
beginning with pass-through devices approved in CY 2017 and subsequent
calendar years, to afford a pass-through payment period that is as
close to a full 3 years as possible for all pass-through payment
devices. We also have an established policy to package the costs of the
devices that are no longer eligible for pass-through payments into the
costs of the procedures with which the devices are reported in the
claims data used to set the payment rates (67 FR 66763).
We refer readers to the CY 2017 OPPS/ASC final rule with comment
period (81 FR 79648 through 79661) for a full discussion of the current
device pass-through payment policy.\11\
---------------------------------------------------------------------------
\11\ To apply for OPPS transitional device pass-through status,
applicants complete an application that is subject to the Paperwork
Reduction Act (PRA). This collection (CMS-10052) has an OMB control
number of 0938-0857 and an expiration date of November 30, 2025.
---------------------------------------------------------------------------
In the CY 2023 OPPS/ASC final rule with comment period, we
finalized our policy to publicly post online OPPS device pass-through
applications received on or after March 1, 2023, beginning with the
issuance of the CY 2025 proposed rule and for each OPPS rulemaking
thereafter. We refer readers to the CY 2023 OPPS/ASC final rule with
comment period (87 FR 71934 through 71938) for a full discussion of the
policy to publicly post OPPS device pass-through applications.
b. Expiration of Transitional Pass-Through Payments for Certain Devices
As stated earlier, section 1833(t)(6)(B)(iii) of the Act requires
that, under the OPPS, a category of devices be eligible for
transitional pass-through payments for at least 2 years, but not more
than 3 years. Currently, there are 15 device categories eligible for
pass-through payment. These devices are listed in Table 28 of this
proposed rule where we detail the expiration dates of pass-through
payment status for each of the 15 devices currently receiving device
pass-through payment.
In the CY 2022 OPPS/ASC final rule with comment period we used CY
2019 claims data, rather than CY 2020 claims data, to inform CY 2022
ratesetting (86 FR 63755). As a result, we utilized our equitable
adjustment authority at section 1833(t)(2)(E) of the Act to provide up
to four quarters of separate payment for 27 drugs and biologicals and
one device category whose pass-through payment status expired between
December 31, 2021 and September 30, 2022 to mimic continued pass-
through payment, promote adequate access to innovative therapies for
Medicare beneficiaries, and gather sufficient data for purposes of
assigning these devices to clinical APCs (86 FR 63755). A full
discussion of this finalized policy is included in section X.F of the
CY 2022 OPPS/ASC final rule with comment (86 FR 63755).
Section 4141(a)(2) of the Consolidated Appropriations Act, 2023
(CAA, 2023) (Pub. L. 117-328) amended section 1833(t)(6) by adding a
new subparagraph (K), which extended the device pass-through status
under paragraph (6) for a 1-year period beginning January 1, 2023, for
device categories whose period of pass-through status would have ended
on December 31, 2022. There are five device categories for which pass-
through status would have ended on December 31, 2022, but which will
now end on December 31, 2023. Pass-through status began for these
device categories on January 1, 2020.
[[Page 49630]]
[GRAPHIC] [TIFF OMITTED] TP31JY23.042
2. New Device Pass-Through Applications for CY 2024
a. Background
Section 1833(t)(6) of the Act provides for pass-through payments
for devices, and section 1833(t)(6)(B) of the Act requires CMS to use
categories in determining the eligibility of devices for pass-through
payments. As part of implementing the statute through regulations, we
have continued to believe that it is important for hospitals to receive
pass-through payments for devices that offer substantial clinical
improvement in the treatment of
[[Page 49631]]
Medicare beneficiaries to facilitate access by beneficiaries to the
advantages of the new technology. Conversely, we have noted that the
need for additional payments for devices that offer little or no
clinical improvement over previously existing devices is less apparent.
In such cases, these devices can still be used by hospitals, and
hospitals will be paid for them through appropriate APC payment.
Moreover, a goal is to target pass-through payments for those devices
where cost considerations are most likely to interfere with patient
access (66 FR 55852; 67 FR 66782; and 70 FR 68629).
As specified in regulations at Sec. 419.66(b)(1) through (3), to
be eligible for transitional pass-through payment under the OPPS, a
device must meet the following criteria:
If required by FDA, the device must have received FDA
approval or clearance and FDA marketing authorization (except for a
device that has received an FDA investigational device exemption (IDE)
and has been classified as a Category B device by FDA), or meet another
appropriate FDA exemption; and the pass-through payment application
must be submitted within 3 years from the date of the initial FDA
marketing authorization, if required, unless there is a documented,
verifiable delay in U.S. market availability after FDA marketing
authorization is granted, in which case CMS will consider the pass-
through payment application if it is submitted within 3 years from the
date of market availability;
The device is determined to be reasonable and necessary
for the diagnosis or treatment of an illness or injury or to improve
the functioning of a malformed body part, as required by section
1862(a)(1)(A) of the Act; and
The device is an integral part of the service furnished,
is used for one patient only, comes in contact with human tissue, and
is surgically implanted or inserted (either permanently or
temporarily), or applied in or on a wound or other skin lesion.
In addition, according to Sec. 419.66(b)(4), a device is not
eligible to be considered for device pass-through payment if it is any
of the following: (1) equipment, an instrument, apparatus, implement,
or item of this type for which depreciation and financing expenses are
recovered as depreciation assets as defined in Chapter 1 of the
Medicare Provider Reimbursement Manual (CMS Pub. 15-1); or (2) a
material or supply furnished incident to a service (for example, a
suture, customized surgical kit, or clip, other than a radiological
site marker).
Separately, we use the following criteria, as set forth under Sec.
419.66(c), to determine whether a new category of pass-through payment
devices should be established. The device to be included in the new
category must--
Not be appropriately described by an existing category or
by any category previously in effect established for transitional pass-
through payments, and was not being paid for as an outpatient service
as of December 31, 1996;
Have an average cost that is not ``insignificant''
relative to the payment amount for the procedure or service with which
the device is associated as determined under Sec. 419.66(d) by
demonstrating: (1) the estimated average reasonable cost of devices in
the category exceeds 25 percent of the applicable APC payment amount
for the service related to the category of devices; (2) the estimated
average reasonable cost of the devices in the category exceeds the cost
of the device-related portion of the APC payment amount for the related
service by at least 25 percent; and (3) the difference between the
estimated average reasonable cost of the devices in the category and
the portion of the APC payment amount for the device exceeds 10 percent
of the APC payment amount for the related service (with the exception
of brachytherapy and temperature-monitored cryoablation, which are
exempt from the cost requirements as specified at Sec. 419.66(c)(3)
and (e)); and
Demonstrate a substantial clinical improvement, that is,
substantially improve the diagnosis or treatment of an illness or
injury or improve the functioning of a malformed body part compared to
the benefits of a device or devices in a previously established
category or other available treatment, or, for devices for which pass-
through payment status will begin on or after January 1, 2020, as an
alternative pathway to demonstrating substantial clinical improvement,
a device is part of the FDA's Breakthrough Devices Program and has
received marketing authorization for the indication covered by the
Breakthrough Device designation.
Beginning in CY 2016, we changed our device pass-through evaluation
and determination process. Device pass-through applications are still
submitted to CMS through the quarterly subregulatory process, but the
applications are subject to notice and comment rulemaking in the next
applicable OPPS annual rulemaking cycle. Under this process, all
applications that are preliminarily approved upon quarterly review will
automatically be included in the next applicable OPPS annual rulemaking
cycle, while submitters of applications that are not approved upon
quarterly review will have the option of being included in the next
applicable OPPS annual rulemaking cycle or withdrawing their
application from consideration. Under this notice-and-comment process,
applicants may submit new evidence, such as clinical trial results
published in a peer-reviewed journal or other materials, for
consideration during the public comment process for the proposed rule.
This process allows those applications that we are able to determine
meet all of the criteria for device pass-through payment under the
quarterly review process to receive timely pass-through payment status,
while still allowing for a transparent, public review process for all
applications (80 FR 70417 through 70418).
In the CY 2020 annual rulemaking process, we finalized an
alternative pathway for devices that are granted a Breakthrough Device
designation (84 FR 61295) and receive FDA marketing authorization for
the indication covered by the Breakthrough Device designation. Under
this alternative pathway, devices that are granted an FDA Breakthrough
Device designation are not evaluated in terms of the current
substantial clinical improvement criterion at Sec. 419.66(c)(2) for
the purposes of determining device pass-through payment status, but do
need to meet the other requirements for pass-through payment status in
our regulation at Sec. 419.66. Devices that are part of the
Breakthrough Devices Program, have received FDA marketing authorization
for the indication covered by the Breakthrough Devices designation, and
meet the other criteria in the regulation can be approved through the
quarterly process and announced through that process (81 FR 79655).
Proposals regarding these devices and whether pass-through payment
status should continue to apply are included in the next applicable
OPPS rulemaking cycle. This process promotes timely pass-through
payment status for innovative devices, while also recognizing that such
devices may not have a sufficient evidence base to demonstrate
substantial clinical improvement at the time of FDA marketing
authorization.
More details on the requirements for device pass-through payment
applications are included on the CMS website in the application form
itself at: https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/HospitalOutpatientPPS/passthrough_payment.html, in the
``Downloads'' section. In addition, CMS is amenable to
[[Page 49632]]
meeting with applicants or potential applicants to facilitate
information sharing to support the evaluation of an OPPS device pass-
through payment application or discuss general application criteria,
including the substantial clinical improvement criterion.
b. Applications Received for Device Pass-Through Status for CY 2024
We received six complete applications by the March 1, 2023
quarterly deadline, which was the last quarterly deadline for
applications to be received in time to be included in this proposed
rule. We received three of the applications in the second quarter of
2022, one of the applications in the third quarter of 2022, no
applications in the fourth quarter of 2022, and two of the applications
in the first quarter of 2023. One of the applications was approved for
device pass-through status during the quarterly review process: MY01
Continuous Compartmental Pressure Monitor, which was submitted on May
31, 2022 and conditionally approved as HCPCS code C1834 on October 1,
2022. However, after further review, we determined that the conditional
approval was in error, and consequently, we deleted code C1834 on March
31, 2023.
Applications received for the later deadlines for the remaining
2023 quarters (the quarters beginning June 1, September 1, and December
1 of 2023), if any, will be discussed in the CY 2025 OPPS/ASC proposed
rule. We note that the quarterly application process and requirements
have not changed because of the addition of rulemaking review. Detailed
instructions on submission of a quarterly device pass-through payment
application are included on the CMS website at: https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/HospitalOutpatientPPS/Downloads/catapp.pdf.
Discussions of the applications we received by the March 1, 2023
deadline are included below.
(1) Alternative Pathway Device Pass-Through Applications
We received two device pass-through applications by the March 2023
quarterly application deadline for devices that have received
Breakthrough Device designation from FDA and FDA marketing
authorization for the indication for which they have a Breakthrough
Device designation, and therefore are eligible to apply under the
alternative pathway.
(a) CavaClear Inferior Vena Cava (IVC) Filter Removal Laser Sheath
Phillips North America, LLC submitted an application for a new
device category for transitional pass-through payment status for
CavaClear Inferior Vena Cava (IVC) Filter Removal Laser Sheath
(CavaClear) for CY 2024. Per the applicant, CavaClear is a breakthrough
device intended for tissue ablation in the removal of embedded IVC
filters that have failed a previous retrieval method. IVC filters are
used to capture blood clots and prevent them from moving to the lungs
in patients with venous thromboembolism. Per the applicant, research
has shown that IVC filters may have long-term complications, including
device migration, filter fracture, and IVC occlusion; as a result, FDA
issued a safety notice that recommends that physicians remove
retrievable IVC filters as soon as they are no longer needed. The
applicant stated that CavaClear facilitates the detachment of firmly
adherent IVC filters using ultraviolet laser energy. The applicant
explained that CavaClear uses circumferential tissue ablation that can
aid in capturing the filter within seconds of laser activation, which
can help increase physician efficiency, and may help lower costs by
reducing the number of retrieval attempts to remove an embedded IVC
filter.
According to the applicant, CavaClear is a 14F or 16F laser
catheter used for the intra-operative removal of IVC filters. The
applicant further explained that CavaClear consists of optical fibers
arranged in a circle, sandwiched between inner and outer polymer
tubing. The fibers terminate at the distal end within a polished tip
and at the proximal end within a coupler that mates with the excimer
laser. According to the applicant, inner and outer stainless-steel
bands, which form a radiopaque marker, protect the optical fibers at
the distal tip. The applicant also stated that CavaClear was designed
to slide through an introducer sheath and with an inner lumen to allow
an appropriate traction platform to pass through it. Per the applicant,
the device facilitates detachment of IVC filters from the IVC wall
using ultraviolet laser energy and subsequent collapse of the filter,
partially within the laser sheath and entirely within the introducer
sheath. The laser sheath was designed for use with the CVX-300[supreg]
Excimer Laser or Philips Laser System (PLS), which allows the
multifiber laser sheaths to transmit ultraviolet energy to the tissue
at the distal tip of the device. The applicant further explained that,
when activated, the laser ablates the tissue and frees the IVC filter
from overgrowth in a controllable fashion. The applicant stated that by
using cool ultraviolet laser energy around the embedded IVC filter,
CavaClear can assist in fast filter capture with low force.
As stated previously, to be eligible for transitional pass-through
payment under the OPPS, a device must meet the criteria at Sec.
419.66(b)(1) through (4). With respect to the newness criterion at
Sec. 419.66(b)(1), CavaClear received FDA Breakthrough Device
designation effective April 23, 2021, for the ablation of tissue in the
removal of IVC filters that have failed a previous retrieval method.
FDA granted the applicant De Novo classification for CavaClear (laser-
powered IVC filter retrieval catheter) on December 21, 2021, for the
same indication as the one covered by the Breakthrough Device
designation. We received the application for a new device category for
transitional pass-through payment status for CavaClear on May 30, 2022,
which is within 3 years of the date of the initial FDA marketing
authorization.
We are inviting public comment on whether CavaClear meets the
newness criterion at Sec. 419.66(b)(1).
With respect to the eligibility criterion at Sec. 419.66(b)(3),
according to the applicant, CavaClear is integral to the service
provided, is used for one patient only, comes in contact with human
tissue, and is surgically implanted or inserted into the patient
through the insertion of a laser catheter temporarily for the
interoperative removal of IVC filters as required at Sec.
419.66(b)(3).
We are inviting public comment on whether CavaClear meets the
eligibility criterion at Sec. 419.66(b)(3).
With respect to the exclusion criterion at Sec. 419.66(b)(4), the
applicant also claimed that CavaClear meets the criterion because it is
not equipment, an instrument, apparatus, implement, or item of this
type for which depreciation and financing expenses are recovered, and
it is not a supply or material furnished incident to a service.
We are inviting public comment on whether CavaClear meets the
exclusion criterion at Sec. 419.66(b)(4).
In addition to the criteria at Sec. 419.66(b)(1) through (4), the
criteria for establishing new device categories are specified at Sec.
419.66(c). The first criterion, at Sec. 419.66(c)(1), provides that
CMS determines that a device to be included in the category is not
appropriately described by any of the existing categories or by any
category previously in effect, and was not being paid for as an
outpatient service as of
[[Page 49633]]
December 31, 1996. The applicant described CavaClear as an IVC filter
removal device that uses a laser to ablate tissue and is intended to
facilitate detaching and removing indwelling IVC filters. Per the
applicant, CavaClear is the first and only FDA-cleared solution for
advanced IVC filter removal, and the applicant claimed that no previous
device categories for pass-through payment appropriately describe
CavaClear. Per the applicant, the possible existing pass-through code--
HCPCS code C2629 (Introducer/sheath, other than guiding, other than
intracardiac electrophysiological, laser)--does not appropriately
describe CavaClear because CavaClear uses a unique laser mechanism of
action, unlike the snag, snare, and forcep method to remove IVC
filters; CavaClear is not intended to remove pacemaker and
defibrillator leads like the products described by C2629; and CavaClear
impacts different anatomy than the products described by C2629.
Specifically, the applicant asserted that C2629 includes devices that
are indicated to remove implanted pacemaker and defibrillator leads and
devices via a catheter inserted into the vascular system. In addition,
the applicant noted that FDA granted CavaClear De Novo classification,
reflecting that there is no legally marketed predicate device for
CavaClear.
We note, based on the description the applicant provided, that
CavaClear is a laser sheath intended for use in the IVC, which is not
intracardiac, and thus could be encompassed by the descriptor of C2629.
We also note that another existing pass-through payment category may
appropriately describe CavaClear. Specifically, we believe that C1773
(Retrieval device, insertable (used to retrieve fractured medical
devices)) may appropriately describe CavaClear. Pass-through payment
category C1773 is a broad category descriptor for a device that
retrieves another device within a patient's vascular system. Based on
the description the applicant provided, CavaClear is a device (a laser-
powered sheath that uses a laser to ablate tissue in the IVC) used to
retrieve another medical device (an IVC filter device), which is
consistent with the descriptor for C1773. In this context, we believe
CavaClear may be similar to the devices currently described by C2629
and C1773, and therefore, CavaClear may also be appropriately described
by C2629 and C1773.
We are inviting public comment on whether CavaClear meets the
device category criterion at Sec. 419.66(c)(1).
The second criterion for establishing a device category, at Sec.
419.66(c)(2), provides that CMS determines either of the following: (i)
that a device is included in the category that has demonstrated that it
will substantially improve the diagnosis or treatment of an illness or
injury or improve the functioning of a malformed body party compared to
the benefits of a device or devices in a previously established
category or other available treatment; or (ii) for devices for which
pass-through status will begin on or after January 1, 2020, as an
alternative to the substantial clinical improvement criterion, the
device is part of the FDA's Breakthrough Devices Program and has
received FDA marketing authorization for the indication covered by the
Breakthrough Device designation. CavaClear has a Breakthrough Device
designation and marketing authorization from FDA for the indication
covered by the Breakthrough Device designation, and therefore, appears
to meet the criterion at Sec. 419.66(c)(2)(ii) and is not evaluated
for substantial clinical improvement.
The third criterion for establishing a device category, at Sec.
419.66(c)(3), requires us to determine if the cost of the device is not
insignificant, as described in Sec. 419.66(d). Section 419.66(d)
includes three cost significance criteria that must each be met. The
applicant provided the following information in support of cost
significance requirements. The applicant stated that CavaClear would be
reported with HCPCS code listed in Table 29.
[GRAPHIC] [TIFF OMITTED] TP31JY23.043
To meet the cost criterion for device pass-through payment status,
a device must pass all three tests of the cost criterion for at least
one APC. As we explained in the CY 2005 OPPS final rule with comment
period (69 FR 65775), we generally use the lowest APC payment rate
applicable for use with the nominated device when we assess whether a
device meets the cost significance criterion, thus increasing the
probability the device will pass the cost significance test. For our
calculations, we used APC 5183, which had a CY 2022 payment rate of
$2,923.63 at the time the application was received. Beginning in CY
2017, we calculate the device offset amount at the HCPCS/CPT code level
instead of the APC level (81 FR 79657). HCPCS code 37193 had a device
offset amount of $762.48 at the time the application was received.\12\
According to the applicant, the cost of CavaClear is $3,165.00.
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\12\ We note that the applicant selected a value of $537.36 for
the device offset amount. However, the value selected is
inconsistent with the device offset amount related to HCPCS 37193 in
APC 5183 found in Addendum P to the CY 2022 OPPS/ASC final rule with
comment period, as corrected in the 2022 Correction Notice OPPS
Addendum (87 FR 2060). We selected the value of $762.48, which we
believe is the accurate value. Based on our initial assessment for
this proposed rule, using the device offset amount of $762.48 would
result in CavaClear meeting the cost significance requirement.
---------------------------------------------------------------------------
Section 419.66(d)(1), the first cost significance requirement,
provides that the estimated average reasonable cost of devices in the
category must exceed 25 percent of the applicable APC payment amount
for the service related to the category of devices. The estimated
average reasonable cost of $3,165.00 for CavaClear is 108.26 percent of
the applicable APC payment amount for the service related to the
category of devices of $2,923.63 (($3,165.00/$2,923.63) x 100 = 108.26
percent). Therefore, we
[[Page 49634]]
believe CavaClear meets the first cost significance requirement.
The second cost significance requirement, at Sec. 419.66(d)(2),
provides that the estimated average reasonable cost of the devices in
the category must exceed the cost of the device-related portion of the
APC payment amount for the related service by at least 25 percent,
which means that the device cost needs to be at least 125 percent of
the offset amount (the device-related portion of the APC found on the
offset list). The estimated average reasonable cost of $3,165 for
CavaClear is 415.09 percent of the cost of the device-related portion
of the APC payment amount for the related service of $762.48
(($3,165.00/$762.48) x 100 = 415.09 percent). Therefore, we believe
CavaClear meets the second cost significance requirement.
The third cost significance requirement, at Sec. 419.66(d)(3),
provides that the difference between the estimated average reasonable
cost of the devices in the category and the portion of the APC payment
amount for the device must exceed 10 percent of the APC payment amount
for the related service. The difference between the estimated average
reasonable cost of $3,165.00 for CavaClear and the portion of the APC
payment amount for the device of $762.48 is 82.18 percent of the APC
payment amount for the related service of $2,923.63 ((($3,165.00-
762.48)/$2,923.63) x 100 = 82.18 percent). Therefore, we believe that
CavaClear meets the third cost significance requirement.
We are inviting public comment on whether CavaClear meets the
device pass-through payment criteria discussed in this section,
including the cost criterion for device pass-through payment status.
(b) CERAMENT[supreg] G
BONESUPPORT AB submitted an application for a new device category
for transitional pass-through payment status for CERAMENT[supreg] G for
CY 2024. Per the applicant, CERAMENT[supreg] G is a single-use
implantable bone void filler combination device/drug that remodels into
bone and elutes gentamicin. The applicant further explained that
CERAMENT[supreg] G is an adjunct to systematic antibiotic therapy as
part of the surgical treatment of osteomyelitis (i.e., bone infection)
in the extremities and is used where there is a need for supplemental
bone void filler material. The applicant asserted that CERAMENT[supreg]
G can reduce the recurrence of chronic osteomyelitis from gentamicin-
sensitive microorganisms to protect bone healing and augment
provisional hardware to help support bone fragments during the surgical
procedure. The applicant stated that CERAMENT[supreg] G is the first
on-label solution for a one-stage surgical approach to treating bone
infections with its unique dual mode of action: (1) promote bone
healing (bone remodeling), and (2) protect bone healing (elution of a
local broad-spectrum antibiotic). According to the applicant, once
implanted, CERAMENT[supreg] G resorbs overtime and remodels into bone
in 6 to 12 months.
Per the applicant, CERAMENT[supreg] G is comprised of three key
compounds: (1) hydroxyapatite (HA), (2) calcium sulfate (CaS), and (3)
gentamicin sulfate. According to the applicant, by combining calcium
sulfate and hydroxyapatite, a balance is achieved between implant
resorption rate and bone remodeling rate. The applicant further
explained that the CaS acts as a resorbable carrier for HA. The
applicant described that HA has a slow resorption rate and high
osteoconductivity promoting bone remodeling and thus gives long-term
structural support to the newly-formed bone. The gentamicin sulfate is
a broad-spectrum aminoglycoside antibiotic that is sensitive to a
spectrum of aerobic bacteria, particularly gram-negative bacilli, as
well as aerobic gram-positive cocci, in particular Staphylococcus
aureus, some coagulase negative staphylococci (CoNS) (e.g.,
Staphylococcus epidermidis), and some strains of streptococci.
According to the applicant, the gentamicin sulfate is present in the
bone void filler to prevent colonization from gentamicin-sensitive
microorganisms to protect bone healing.
Per the applicant, CERAMENT[supreg] G is comprised of eight
components (these components contain the three key compounds as well as
other parts for the successful application of CERAMENT[supreg] G): (1)
CERAMENT[supreg] CMI, a closed mixing injection system pre-packed with
ceramic bone substitute (CBS), is a mixture of the CaS (60 wt percent)
and HA (40 wt percent). The applicant further explained that the mixing
device is comprised of a 60 mL syringe, which in its proximal part is
equipped with a movable combined plunger and mixing paddle, and in its
distal part with a luer-lock connection. The movable mixing paddle
allows effective mixing of the material inside the syringe. Calcium
Sulfate and Hydroxyapatite (CSH) are the setting component of the bone
void filler, and per the applicant, this component will react to
calcium sulfate dihydrate (CSD) and will be resorbed over time, giving
place for natural bone to grow into the bone graft. The applicant
described that CSD is added as a seeding agent to accelerate the
setting reaction of CSH to CSD, and that HA is an osteoconductive
mineral similar to natural bone (this part of the bone graft substitute
will not be resorbed and does not need to be surgically removed). The
applicant stated that CSH and CSD conform to specifications based on
the monograph Calcium Sulfate Dihydrate 0982, European Pharmacopoeia
(EP) and the Official Monograph for Calcium Sulfate U.S. Pharmacopoeia/
National Formulary (USP) as well as internal requirements; (2)
CERAMENT[supreg] ID, an injection device used to inject the paste into
the bone void or gap; (3) Valve, a needleless valve needed for the
transfer of the ceramic paste from the CERAMENT[supreg] CMI to the
CERAMENT[supreg] ID; (4) Tip Extenders, which are sterile, plastic
needles with an inner diameter of 2.55 mm and two lengths (50 and 100
mm), that are connected to the CERAMENT[supreg] ID to facilitate
placement of the paste at the debridement site; (5) CERAMENT[supreg]
GENTAMICIN, the gentamicin sulfate in a glass vial equipped with a
stopper and a cap. The gentamicin sulfate subcomponent has a potency
equivalent to >=590[mu]g gentamicin/mg (anhydrous substance) and is
dissolved in the 0.9 percent sterile sodium chloride solution and mixed
with the CBS powder. Per the applicant, the prepared paste sets to a
calcium sulfate dihydrate matrix with embedded hydroxyapatite
particles, and gentamicin sulfate. The applicant further explained that
it delivers 17.5 mg gentamicin per mL paste. Per the applicant, the
gentamicin sulfate subcomponent complies with the EP monograph for
gentamicin sulfate; (6) CERAMENT[supreg] MIXING LIQUID, a sterile
sodium chloride, (NaCl) solution, 9 mg per mL in a glass vial. Per the
applicant, it is the liquid component of CERAMENT[supreg] G. This
component contains water which is needed for the calcium sulfate
reaction to occur. The liquid meets requirements of the compendial
excipient of USP/EP grade and is also registered in the inactive
ingredient database; (7) BONESUPPORT DP, which includes two ventilated
dispensing pins to facilitate easy handling when preparing the
gentamicin solution; and (8) BONESUPPORT SYRINGE, a single packed,
sterile 10 mL syringe with a male/female rotator assembly, and is used
when preparing the gentamicin solution.
According to the applicant, after the surgical site has been
prepared and any dead bone is debrided (i.e., removed),
[[Page 49635]]
the CERAMENT[supreg] G paste is prepared by the surgeon or surgical
technician by: (1) mixing the gentamicin powder with the provided
saline to make a gentamicin liquid; (2) adding the gentamicin liquid to
the powder in the CERAMENT[supreg] CMI syringe and mixing the
gentamicin liquid and powder; and (3) transferring the resulting paste
to a smaller delivery syringe. Four minutes after the start of mixing,
the paste is ready to be used as a bone void filler. Per the applicant,
it can be injected using the tip extenders provided in the kit or by
attaching a needle to the delivery syringe, or it can be placed into a
bead mold to form beads. Fifteen minutes after the start of mixing,
CERAMENT[supreg] G can be drilled into, if required. At 20 minutes, it
is fully set, at which time the wound can be closed.
As stated previously, to be eligible for transitional pass-through
payment under the OPPS, a device must meet the criteria at Sec.
419.66(b)(1) through (4). With respect to the newness criterion at
Sec. 419.66(b)(1), CERAMENT[supreg] G received FDA Breakthrough Device
designation effective March 12, 2020, as a resorbable, gentamicin-
eluting ceramic bone graft substitute intended for use as a bone void
filler as an adjunct to systemic antibiotic therapy and surgical
debridement (standard treatment approach to a bone infection) as part
of the surgical treatment of osteomyelitis. By eluting gentamicin,
CERAMENT[supreg] G can inhibit the colonization of gentamicin-sensitive
microorganisms to protect bone healing. CERAMENT[supreg] G can augment
provisional hardware to help support bone fragments during the surgical
procedure and is resorbed and replaced by bone during the healing
process. FDA granted the applicant De Novo classification for
CERAMENT[supreg] G under the generic name, resorbable calcium salt bone
void filler containing a single approved aminoglycoside antibacterial
substance on May 17, 2022, for the same indication as the one covered
by the Breakthrough Device designation. We received the application for
a new device category for transitional pass-through payment status for
CERAMENT[supreg] G on May 31, 2022, which is within 3 years of the date
of the initial FDA marketing authorization.
We are inviting public comment on whether CERAMENT[supreg] G meets
the newness criterion at Sec. 419.66(b)(1).
With respect to the integral part of the service criterion at Sec.
419.66(b)(3), the applicant did not indicate whether CERAMENT[supreg] G
is integral to the service provided. However, per the applicant,
CERAMENT[supreg] G is used for one patient only, comes in contact with
human tissue, and is surgically implanted or inserted into the patient
as required at Sec. 419.66(b)(3).
We are inviting public comment on whether CERAMENT[supreg] G meets
the eligibility criterion at Sec. 419.66(b)(3).
With respect to the exclusion criterion at Sec. 419.66(b)(4), the
applicant did not address whether CERAMENT[supreg] G is equipment, an
instrument, apparatus, implement, or item of this type for which
depreciation and financing expenses are recovered, or if
CERAMENT[supreg] G is a supply or material furnished incident to a
service.
We are inviting public comment on whether CERAMENT[supreg] G meets
the exclusion criterion at Sec. 419.66(b)(4).
In addition to the criteria at Sec. 419.66(b)(1) through (4), the
criteria for establishing new device categories are specified at Sec.
419.66(c). The first criterion, at Sec. 419.66(c)(1), provides that
CMS determines that a device to be included in the category is not
appropriately described by any of the existing categories or by any
category previously in effect, and was not being paid for as an
outpatient service as of December 31, 1996. The applicant described
CERAMENT[supreg] G as a single-use implantable bone void filler
combination device/drug that remodels into bone and elutes gentamicin.
The applicant asserted that there are no existing bone void filler
devices cleared or approved for use in the U.S. for single stage
surgical reconstruction of bone defects that provide stability, promote
bone formation, and effectively support the surgical treatment of
infection by antibiotic elution. However, for comparison purposes, the
applicant listed HCPCS code C1734 (Orthopedic/device/drug matrix for
opposing bone-to-bone or soft-tissue-to-bone (implantable)), as a
device category that it considers similar to CERAMENT[supreg] G's
device category.\13\
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\13\ HCPCS code C1734 is a device category for which pass-
through status was extended for a 1-year period beginning January 1,
2023, by section (a)(2) of the Consolidated Appropriations Act, 2023
(CAA, 2023) (Pub. L. 117-328), titled Extension of Pass-Through
Status Under the Medicare Program for Certain Devices Impacted by
COVID-19. https://www.cms.gov/files/document/r11801cp.pdf
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The applicant stated that CERAMENT[supreg] G differs from the bone
substitutes AUGMENT[supreg] and AUGMENT[supreg] Injectable (devices
described by HCPCS code C1734). We note that CMS approved an
application for AUGMENT[supreg] Bone Graft as a new device category for
transitional pass-through payment status and established HCPCS code
C1734 as a new device category beginning in CY 2020. We refer readers
to the CY 2019 OPPS/ASC final rule with comment period (84 FR 61292
through 61294) for a full discussion of the AUGMENT[supreg] Bone Graft
application and decision.\14\ The applicant asserted that
CERAMENT[supreg] G and AUGMENT[supreg] differ in terms of the product
composition and mechanism of action, or intended use. In addition, the
applicant asserted that the products are intended for different groups
of patients. With respect to composition, per the applicant,
CERAMENT[supreg] G consists of HA, CaS, and gentamicin sulfate. In
contrast, the applicant stated that AUGMENT[supreg] consists of beta-
tricalcium phosphate ([beta]-TCP) and recombinant human platelet-
derived growth factor (rhPDGF-BB), and AUGMENT[supreg] Injectable
consists of [beta]-TCP, rhPDGF-BB, and a collagen matrix. With respect
to the mechanism of action, the applicant stated that CaS in
CERAMENT[supreg] G acts as a resorbable carrier for HA, which has a
slow resorption rate and high osteoconductivity, providing a scaffold
for new bone generation. The applicant further explained that by
combining CaS and HA, a balance is achieved between implant resorption
rate and bone remodeling rate, and by eluting gentamicin,
CERAMENT[supreg] G can reduce the recurrence of chronic osteomyelitis
from gentamicin-sensitive microorganisms to protect bone healing. In
contrast, according to the applicant, the rhPDGF-BB in AUGMENT[supreg]
acts as a chemo-attractant and mitogen for cells involved in wound
healing and through its promotion of angiogenesis at the site of
healing, and the [beta]- TCP acts as a bone void filler to prevent soft
tissue from collapsing into the void.
---------------------------------------------------------------------------
\14\ https://www.govinfo.gov/content/pkg/FR-2019-11-12/pdf/2019-24138.pdf
---------------------------------------------------------------------------
Per the applicant, CERAMENT[supreg] G is indicated for use as a
bone void filler in skeletally mature patients as an adjunct to
systemic antibiotic therapy and surgical debridement (standard
treatment approach to a bone infection) as part of the surgical
treatment of osteomyelitis in defects in the extremities. In contrast,
per the applicant, AUGMENT[supreg] and AUGMENT[supreg] Injectable \15\
are indicated
[[Page 49636]]
for use as an alternative to autograft in arthrodesis in patients who
require a bone fusion, such as patients who have arthritis, avascular
necrosis, joint instability or deformity, or joint arthroplasty of the
ankle and/or hindfoot. Further, the applicant asserted that
AUGMENT[supreg] cannot be used in the patients for whom
CERAMENT[supreg] G is indicated because AUGMENT[supreg] is specifically
contraindicated in patients with an active infection at the operative
site.
---------------------------------------------------------------------------
\15\ The applicant differentiates itself from AUGMENT[supreg]
and AUGMENT[supreg] Injectable, but does not use the term
``AUGMENT[supreg] Bone Graft'' in the application. However, the link
provided in the application goes to the AUGMENT[supreg] web page
that describes AUGMENT[supreg] Regenerative Solutions,
AUGMENT[supreg] Bone Graft and AUGMENT[supreg] Injectable. We use
the term ``AUGMENT[supreg]'' to collectively refer to the
AUGMENT[supreg] products described herein and those listed on the
AUGMENT[supreg] website. The applicant provided web page (in
footnote): AUGMENT BONE GRAFT website: https://www.augmentbonegraft.com/healthcare-professionals/.
---------------------------------------------------------------------------
We note that, based on the description of the device provided by
the applicant, CERAMENT[supreg] G and AUGMENT[supreg] differ in terms
of composition and intended use, but also note that device categories
are not intended to be device specific. Rather, device categories are
intended to encompass any device that can be appropriately described by
the category. As such, when we evaluate a potential pass-through device
to determine whether it meets the device category criterion at Sec.
419.66(c)(1), we compare the subject device to the device category
descriptor rather than to the specific device for which the device
category was created. Specifically, C1734 describes any device that
meets the following descriptor: Orthopedic/device/drug matrix for
opposing bone-to-bone or soft-tissue-to-bone (implantable), and per the
applicant, CERAMENT[supreg] G is described as an implantable device/
drug matrix that, with its intended use, will oppose soft-tissue-to-
bone. In this context, we believe CERAMENT[supreg] G may be similar to
the devices currently described by C1734, and therefore
CERAMENT[supreg] G may also be appropriately described by C1734.
We are inviting public comment on whether CERAMENT[supreg] G meets
the device category criterion at Sec. 419.66(c)(1).
The second criterion for establishing a device category, at Sec.
419.66(c)(2), provides that CMS determines either of the following: (i)
that a device to be included in the category has demonstrated that it
will substantially improve the diagnosis or treatment of an illness or
injury or improve the functioning of a malformed body part compared to
the benefits of a device or devices in a previously established
category or other available treatment; or (ii) for devices for which
pass-through status will begin on or after January 1, 2020, as an
alternative to the substantial clinical improvement criterion, the
device is part of the FDA's Breakthrough Devices Program and has
received FDA marketing authorization for the indication covered by the
Breakthrough Device designation. CERAMENT[supreg] G has a Breakthrough
Device designation and marketing authorization from FDA for the
indication covered by the Breakthrough Device designation (as explained
in more detail in the discussion of the newness criterion) and
therefore appears to meet the criterion at Sec. 419.66(c)(2)(ii) and
is not evaluated for substantial clinical improvement.
The third criterion for establishing a device category, at Sec.
419.66(c)(3), requires us to determine that the cost of the device is
not insignificant, as described in Sec. 419.66(d). Section 419.66(d)
includes three cost significance criteria that must each be met. The
applicant provided the following information in support of the cost
significance requirements. The applicant stated that CERAMENT[supreg] G
would be reported with HCPCS codes listed in Table 30.
BILLING CODE 4120-01-P
[[Page 49637]]
[GRAPHIC] [TIFF OMITTED] TP31JY23.044
[[Page 49638]]
[GRAPHIC] [TIFF OMITTED] TP31JY23.045
BILLING CODE 4120-01-C
To meet the cost criterion for device pass-through payment status,
a device must pass all three tests of the cost criterion for at least
one APC. As we explained in the CY 2005 OPPS final rule with comment
period (69 FR 65775), we generally use the lowest APC payment rate
applicable for use with the nominated device when we assess whether a
device meets the cost significance criterion, thus increasing the
probability the device will pass the cost significance test. For our
calculations, we used APC 5112, which had a CY 2022 payment rate of
$1,422.51 at the time the application was received. Beginning in CY
2017, we calculate the device offset amount at the HCPCS/CPT code level
instead of the APC level (81 FR 79657). HCPCS code 23035 had a device
offset amount of $217.36 at the time the application was received. We
note that the applicant submitted cost information for two different
device sizes (5 ml and 10 ml) for CERAMENT[supreg] G. Per the
applicant, the average patient will require approximately 10 ml per
procedure, with a weighted cost of $7,567.00 per patient.
Section 419.66(d)(1), the first cost significance requirement,
provides that the estimated average reasonable cost of devices in the
category must exceed 25 percent of the applicable APC payment amount
for the service related to the category of devices. The estimated
average reasonable cost of $7,567.00 for CERAMENT[supreg] G is 531.95
percent of the applicable APC payment amount for the service related to
the category of devices of $1,422.51 (($7,567.00/$1,422.51) x 100 =
531.95 percent). Therefore, we believe CERAMENT[supreg] G meets the
first cost significance requirement.
The second cost significance requirement, at Sec. 419.66(d)(2),
provides that the estimated average reasonable cost of the devices in
the category must exceed the cost of the device-related portion of the
APC payment amount for the related service by at least 25 percent,
which means that the device cost needs to be at least 125 percent of
the offset amount (the device-related portion of the APC found on the
offset list). The estimated average reasonable cost of $7,567.00 for
CERAMENT[supreg] G is 3,481.32 percent of the cost of the device-
related portion of the APC payment amount for the related service of
$217.36 (($7,567.00/$217.36) x 100 = 3,481.32 percent). Therefore, we
believe that CERAMENT[supreg] G meets the second cost significance
requirement.
The third cost significance requirement, at Sec. 419.66(d)(3),
provides that the difference between the estimated average reasonable
cost of the devices in the category and the portion of the APC payment
amount for the device must exceed 10 percent of the APC payment amount
for the related service. The difference between the estimated average
reasonable cost of $7,567.00 for CERAMENT[supreg] G and the portion of
the APC payment amount for the device of $217.36 is 516.67 percent of
the APC payment amount for the related service of $1,422.51
((($7,567.00-$217.36)/$1,422.51) x 100 = 516.67 percent). Therefore, we
believe
[[Page 49639]]
that CERAMENT[supreg] G meets the third cost significance requirement.
We are inviting public comment on whether the CERAMENT[supreg] G
meets the device pass-through payment criteria discussed in this
section, including the cost criterion for device pass-through payment
status.
(2) Traditional Device Pass-Through Applications
(a) Ambu[supreg] aScopeTM 5 Broncho HD
Ambu Inc. submitted an application for a new device category for
transitional pass-through payment status for the Ambu[supreg]
aScopeTM 5 Broncho HD for CY 2024. Per the applicant, the
Ambu[supreg] aScopeTM 5 Broncho HD is one component of the
Ambu[supreg] aScopeTM 5 Broncho HD System which consists of:
(1) the Ambu[supreg] aScopeTM 5 Broncho HD (5.0/2.2 or 5.6/
2.8), a sterile, single-use, disposable flexible/rigid bronchoscope;
and (2) Ambu[supreg] aBoxTM 2, a compatible, reusable
display unit. The applicant is only seeking a new device category for
transitional pass-through payment status for the Ambu[supreg]
aScopeTM 5 Broncho HD component.
Per the applicant, the Ambu[supreg] aScopeTM 5 Broncho
HD, consists of: (1) a handle, to hold the scope (designed for left and
right hand); (2) a control lever, to move the distal tip up or down in
a single plane; (3) a working channel and working channel port, for
instillation of fluids and insertion of endotherapy instruments; (4) a
biopsy valve, to be attached to the working channel port, for insertion
of endotherapy instruments or attachment of a syringe; (5) a suction
connector, for connection of suction tubing; (6) a suction button, to
activate suction when pressed; (7) endoscope buttons 1 and 2 (depending
on settings in display unit the two remote switches allow for direct
activation on handle of four different functionalities such as image
and video capturing, initiate advanced red contrast (ARC), and zoom);
(8) a rotation control ring, for rotation of the insertion cord during
procedure; (9) a tube connection, for fixation of tubes with standard
connector during procedure; (10) an insertion cord and insertion
portion, flexible airway insertion cord; (11) bending section,
maneuverable part; (12) distal tip, which contains the camera, light
source (two light-emitting diodes (LEDs)), and the working channel
exit; (13) display unit connector, to connect to the port on the
Ambu[supreg] aBoxTM 2 display unit; (14) a cable, to
transmit the image signal to the Ambu[supreg] aBoxTM 2
display unit; (15) a protective handle cover, to protect the control
lever during transport and storage; (16) a protective pipe, to protect
the insertion cord during transport and storage; and (17) an
introducer, to facilitate introduction of luer lock syringes.
The applicant stated that the Ambu[supreg] aScopeTM 5
Broncho HD is an imaging/illumination bronchoscope device that uses an
integrated camera module and built-in dual LED illumination to provide
access to, and imaging of, the lungs for diagnostic and therapeutic
purposes for pulmonology patients. The device is intended for endoscopy
and endoscopic surgery within the lungs, also known as bronchoscopy.
According to the applicant, the Ambu[supreg] aScopeTM 5
Broncho HD was designed to perform a wide array of diagnostic and
interventional pulmonology procedures. The applicant noted that the
Ambu[supreg] aScopeTM 5 Broncho HD is a single-use
bronchoscope designed to be used with the Ambu[supreg]
aBoxTM 2 display unit, endotherapy instruments, and other
ancillary equipment for bronchoscopic procedures and examination within
the airways and the tracheobronchial tree. It is intended to provide
visualization via the compatible display unit, the Ambu[supreg]
aBoxTM 2, and to allow passage of endotherapy instruments
via its working channel.
Per the applicant, the Ambu[supreg] aScopeTM 5 Broncho
HD bronchoscope is inserted into the patient airway through either the
mouth, nose, or via a tracheostomy, if present. The applicant explained
that when the Ambu[supreg] aScopeTM 5 Broncho HD
bronchoscope has reached the correct position, endotherapy instruments
can be inserted into the working channel system of the bronchoscope.
Per the applicant, an introducer supplied with the bronchoscope can be
attached to the working channel port via a luer lock adaptor, while the
bronchoscope is in use. The applicant noted that the suction system may
be used to remove blood, saliva, and mucus from the airway. The
applicant indicated that a bronchoscope operator monitors the field of
view via the integrated camera of the Ambu[supreg] aScopeTM
5 Broncho HD bronchoscope and the procedure is finished when the device
is pulled out completely.
As stated previously, to be eligible for transitional pass-through
payment under the OPPS, a device must meet the criteria at Sec.
419.66(b)(1) through (4). With respect to the newness criterion at
Sec. 419.66(b)(1), on July 25, 2022, the applicant received 510(k)
clearance from FDA for the Ambu[supreg] aScopeTM 5 Broncho
HD as a device to be used for endoscopic procedures and examination
within the airways and tracheobronchial tree. We received the
application for a new device category for transitional pass-through
payment status for the Ambu[supreg] aScopeTM 5 Broncho HD on
February 28, 2023, which is within 3 years of the date of the initial
FDA marketing authorization.
We are inviting public comment on whether the Ambu[supreg]
aScopeTM 5 Broncho HD meets the newness criterion at Sec.
419.66(b)(1).
With respect to the eligibility criterion at Sec. 419.66(b)(3),
according to the applicant, the Ambu[supreg] aScopeTM 5
Broncho HD is integral to the service provided, is used for one patient
only, comes in contact with human tissue, and is surgically inserted as
required by Sec. 418.66(b)(3).
We are inviting public comment on whether the Ambu[supreg]
aScopeTM 5 Broncho HD meets the criterion at Sec.
419.66(b)(3).
With respect to the exclusion criterion at Sec. 419.66(b)(4), the
applicant did not address whether the Ambu[supreg] aScopeTM
5 Broncho HD is equipment, an instrument, apparatus, implement, or item
of this type for which depreciation and financing expenses are
recovered, or if the Ambu[supreg] aScopeTM 5 Broncho HD is a
supply or material furnished incident to a service.
We are inviting public comment on whether the Ambu[supreg]
aScopeTM 5 Broncho HD meets the exclusion criterion at Sec.
419.66(b)(4).
In addition to the criteria at Sec. 419.66(b)(1) through (4), the
criteria for establishing new device categories are specified at Sec.
419.66(c). The first criterion, at Sec. 419.66(c)(1), provides that
CMS determines that a device to be included in the category is not
appropriately described by any of the existing categories or by any
category previously in effect, and was not being paid for as an
outpatient service as of December 31, 1996. The applicant described the
Ambu[supreg] aScopeTM 5 Broncho HD as a single-use,
disposable, digital flexible/rigid bronchoscope that is used in
pulmonary procedures (bronchoscopy) to diagnose and treat conditions of
the lungs, including tumors or bronchial cancer, airway blockage
(obstruction), narrowed areas in airways (strictures), inflammation,
and infections such as tuberculosis (TB), pneumonia, fungal or
parasitic lung infections, interstitial pulmonary disease, causes of
persistent cough, causes of coughing up blood, spots seen on chest X-
rays, and vocal cord paralysis. The applicant claimed that the
Ambu[supreg] aScopeTM 5 Broncho HD is different from other
endoscopes because it is a single-use endoscope indicated
[[Page 49640]]
for use in the respiratory system, the device records snapshots or
video of images, and the device is temporarily inserted into the
patient airway to diagnose and treat lung problems. According to the
applicant, there are two possible existing pass-through device
categories, represented by the following codes: C1748 (Endoscope,
single-use (i.e., disposable), upper gastrointestinal tract (GI),
imaging/illumination device (insertable)); and C1747 (Endoscope,
single-use (i.e., disposable), urinary tract, imaging/illumination
device (insertable)). The applicant noted that while these two codes
are for single-use endoscopic devices, they are only appropriate for GI
and urinary tract imaging, respectively. Therefore, the applicant
asserted that these two codes would not apply to a single-use,
disposable, bronchoscopy for use in pulmonary procedures. We note that
while C1748 and C1747 are intended to be used in different anatomical
areas of the patient, the codes for both device categories describe
devices that are single use and have imaging capabilities.
We are inviting public comment on whether the Ambu[supreg]
aScopeTM 5 Broncho HD meets the device category criterion at
Sec. 419.66(c)(1).
The second criterion for establishing a device category, at Sec.
419.66(c)(2), provides that CMS determines either of the following: (i)
that a device to be included in the category has demonstrated that it
will substantially improve the diagnosis or treatment of an illness or
injury or improve the functioning of a malformed body part compared to
the benefits of a device or devices in a previously established
category or other available treatment; or (ii) for devices for which
pass-through status will begin on or after January 1, 2020, as an
alternative to the substantial clinical improvement criterion, the
device is part of the FDA's Breakthrough Devices Program and has
received FDA marketing authorization for the indication covered by the
Breakthrough Device designation. The applicant claimed that the
Ambu[supreg] aScopeTM 5 Broncho HD represents a substantial
clinical improvement over existing technologies by: (1) elimination of
complex cleaning/reprocessing procedures, (2) reduction of microbial
transmission and infection since it is single-use, (3) elimination of
the need for continuous training of reprocessing staff, (4)
minimization of the risk of patient cross-contamination, (5) assurance
that a sterilized scope will be used each time, and (6) assurance that
there will be no biofilm from endoscope channels. The applicant
provided four articles, an FDA guidance letter, and an FDA safety
notice specifically for the purpose of addressing the substantial
clinical improvement criterion.
In support of its claim that the use of the Ambu[supreg]
aScopeTM 5 Broncho HD eliminates complex cleaning/
reprocessing procedures because it is a single-use device, the
applicant referenced an FDA Reprocessing Final Guidance document \16\
issued March 17, 2015. This FDA document provides guidance to medical
device manufacturers on the complex activities involved in crafting and
validating reprocessing instructions that ensure that the device can be
used safely and for the purpose for which it is intended. The guidance
document is limited to reusable medical devices and single-use medical
devices that are initially supplied as non-sterile to the user and
require the user to process the device prior to its use. In this
guidance document, FDA identifies a subset of reusable medical devices
(including bronchoscopes and accessories) that pose a greater
likelihood of microbial transmission and represent a high risk of
infection (subclinical or clinical) if they are not adequately
reprocessed and indicates design features which may pose a challenge to
adequate reprocessing for arthroscopes, laparoscopic instruments, and
electrosurgical instruments, and their respective accessories. However,
the FDA guidance does not mention sterile, single-use medical devices
in this document.
---------------------------------------------------------------------------
\16\ FDA Guidance March 17 2015 ``Reprocessing Medical Devices
in Health Care Settings: Validation Methods and Labeling: Guidance
for Industry and Food and Drug Administration Staff'' https://www.fda.gov/downloads/medicaldevices/deviceregulationandguidance/guidancedocuments/ucm253010.pdf.
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In support of its claim that the use of the Ambu[supreg]
aScopeTM 5 Broncho HD reduces microbial transmission and
infection because it is single-use, the applicant referenced an FDA
safety notice \17\ issued on September 17, 2015 (2015 FDA safety
notice). The FDA notice discussed the findings of an investigation into
infections associated with reprocessed reusable medical devices,
including an analysis of Medical Device Reports (MDRs) submitted to FDA
from manufacturers and health care facilities. The notice provided that
between January 2010 and June 2015, FDA received 109 MDRs concerning
infections or device contamination associated with flexible
bronchoscopes. However, FDA noted that, when compared to the number of
bronchoscopy procedures performed in the U.S. each year, this is
considered a small number of MDRs. In 2014, FDA received 50 MDRs that
mentioned infections or device contamination associated with
reprocessed flexible bronchoscopes, which prompted additional
investigation of this issue. FDA indicated that a small number of the
reported infections were from persistent device contamination despite
following the manufacturer's reprocessing instructions, however, most
of the infections were the result of the failure to meticulously follow
manufacturer instructions for reprocessing, or continued use of devices
despite integrity, maintenance, and mechanical issues. FDA provides
additional recommendations for health care facilities and staff that
reprocess flexible bronchoscopes and patients considering bronchoscopy
procedures, but does not reference single-use bronchoscopes in the
notice.
---------------------------------------------------------------------------
\17\ FDA Safety Communications, Infections Associated with
Reprocessed Flexible Bronchoscopes: FDA Safety Communication, issued
September 17, 2015. https://www.fdanews.com/ext/resources/files/09-15/092115-safety-notice.pdf?1442508647.
---------------------------------------------------------------------------
In support of its claim that the use of the Ambu[supreg]
aScopeTM 5 Broncho HD eliminates the need for continuous
training of reprocessing staff, the applicant referenced a study by
Ch[acirc]teauvieux et al.,\18\ which assessed the organizational and
economic impacts of the introduction of a single[hyphen]use flexible
bronchoscope (FB) (Ambu[supreg] aScopeTM, versions 2 and 3)
in comparison with a reusable FB (Pentax[supreg]) at the hospital
level. The study took place between May 2016 and October 2016 in the
Georges Pompidou European Hospital, an 800-bed university hospital in
France. Ch[acirc]teauvieux et al. noted that the introduction of
single[hyphen]use FBs led to a more simplified process, less stress for
medical and paramedical staff in emergency situations, teaching
benefits, and easier management of transport, in comparison with
reusable FBs. However, the authors recommended limiting the use of
single-use FBs to specific situations, and to prioritize the use of
reusable devices for most of the bronchoscopies for cost savings.
---------------------------------------------------------------------------
\18\ Ch[acirc]teauvieux, C., Farah, L., Gu[eacute]rot, E.,
Wermert, D., Pineau, J., Prognon, P., Borget, I., & Martelli, N.
(2018). Single-use flexible bronchoscopes compared with reusable
bronchoscopes: Positive organizational impact but a costly solution.
Journal of evaluation in clinical practice, 24(3), 528-535. https://doi.org/10.1111/jep.12904.
---------------------------------------------------------------------------
The applicant referred to a meta study by Barron and Kennedy \19\
to support its
[[Page 49641]]
claim that the use of Ambu[supreg] aScopeTM 5 Broncho HD
minimizes the risk of patient cross-contamination, ensuring that health
care providers have taken optimal steps to safeguard their patients.
Barron and Kennedy summarized the major advantages of single-use FBs
over the standard reusable FBs in clinical scenarios. The authors noted
that single-use FBs offer a safer alternative to standard reusable FBs
in specific scenarios where reduced risk of cross infection was
critical in the immunocompromised patient and in rare cases of prior
contamination due to transmissible spongiform encephalopathies.
---------------------------------------------------------------------------
\19\ Barron, S.P., & Kennedy, M.P. (2020). Single-Use
(Disposable) Flexible Bronchoscopes: The Future of Bronchoscopy?
Advances in therapy, 37(11), 4538-4548. https://doi.org/10.1007/s12325-020-01495-8.
---------------------------------------------------------------------------
The applicant referred to a self-sponsored study \20\ by Ofstead et
al.\21\ in 2019, in support of its claim that the use of the
Ambu[supreg] aScopeTM 5 Broncho HD ensures a sterilized
scope is available for each procedure while reusable endoscopes may not
be sterile even if manufacturers' cleaning protocols are followed. The
study first referenced Ofstead et al.'s 2017 \22\ evaluation of the
effectiveness of bronchoscope processing in three large hospitals where
every bronchoscope had visible defects, protein was detected on 100
percent of high-level disinfected bronchoscopes, and bacteria or mold
were found on 58 percent of the patient-ready bronchoscopes. Then, in
2019, Ofstead et al. conducted the study to determine the time and cost
of acquiring, maintaining, and reprocessing bronchoscopes in four
hospitals (two in the Midwest and two in the West Coast). Three
hospitals had obtained single-use Ambu[supreg] bronchoscopes (2018,
version unspecified) for procedures done in certain departments, after
hours, or in emergency situations. Per Ofstead et al. (2019), the cost
for procedures with reusable bronchoscopes ($281 to $803) were
comparable or higher than the cost of single-use bronchoscopes ($220 to
$315), due to acquisition and maintenance of large inventories of
bronchoscopes to ensure real-time availability for various hospital
departments. Ofstead et al. (2019) suggested the use of single-use
bronchoscopes and accessories for after hours and emergency situations
and any procedures that do not require advanced bronchoscopy
capabilities. Ofstead et al. (2019) summarized the steps that can be
taken to reduce risks related to bronchoscope contamination and to
focus on implementing quality management systems to improve personnel
competence, bronchoscope inventory management, maintenance,
reprocessing effectiveness, and storage. In addition to following
manufacturer's steps for reprocessing the devices, Ofstead et al.
(2019) suggest the use of single-use bronchoscopes and accessories for
after hours and emergency situations and any procedures that do not
require advanced bronchoscopy capabilities, which are currently
available in the list of recommendations.
---------------------------------------------------------------------------
\20\ Ofstead et al. acknowledged that this study was supported
by an unrestricted research grant from Ambu Inc. The study sponsor
did not participate in designing the study, identifying sites,
collecting data, compiling results, interpreting the findings, or
writing this article.
\21\ Ofstead, C.L., Hopkins, K.M., Eiland, J.E., & Wetzler, H.P.
Managing Bronchoscope Quality and Cost: Results of a Real-world
Study. https://www.ambu.com/Files/Files/Ambu/Investor/News/English/2019/Managing%20Bronchoscope%20cost%20a%20real%20world%20study.pdf.
\22\ Ofstead CL, Quick MR, Wetzler HP, et al. Effectiveness of
reprocessing for flexible bronchoscopes and endobronchial ultrasound
bronchoscopes. Chest. 2018;154(5):1024-34.
---------------------------------------------------------------------------
The applicant referenced a review article by Kovaleva et al.\23\ in
support of its claim that the Ambu[supreg] aScopeTM 5
Broncho HD's single-use feature is free of biofilm from endoscope
channels since routine cleaning procedures do not remove biofilm
reliably from endoscope channels. This review presents an overview of
the infections and cross-contaminations related to flexible
gastrointestinal endoscopy and bronchoscopy and illustrates the impact
of biofilm on endoscope reprocessing and post-endoscopic infection.
Kovaleva et al. noted that the use of antibiofilm-oxidizing agents with
an antimicrobial coating inside washer disinfectors could reduce
biofilm build-up inside endoscopes and automated endoscope re-
processors and decrease the risk of transmitting infections.\24\ Per
Kovaleva et al. while sterilization can be helpful to destroy
microorganisms within biofilms, ethylene oxide sterilization may fail
in the presence of organic debris after an inadequate cleaning
procedure before reprocessing of flexible endoscopes. There was no
mention of single-use bronchoscopes in the study.
---------------------------------------------------------------------------
\23\ Kovaleva, J., Peters, F.T., van der Mei, H.C., & Degener,
J.E. (2013). Transmission of infection by flexible gastrointestinal
endoscopy and bronchoscopy. Clinical microbiology reviews, 26(2),
231-254. https://doi.org/10.1128/CMR.00085-12.
\24\ Kovaleva, J., Peters, F.T., van der Mei, H.C., & Degener,
J.E. (2013). Transmission of infection by flexible gastrointestinal
endoscopy and bronchoscopy. Clinical microbiology reviews, 26(2),
231-254. https://doi.org/10.1128/CMR.00085-12.
---------------------------------------------------------------------------
The applicant cited a self-sponsored, laboratory study by Kurman et
al.,\25\ in general support of its application. Kurman et al. evaluated
and assessed four different manufacturers' single-use flexible
bronchoscopes (SFB), including the nominated device and its prior
model, against their reusable flexible bronchoscopes (RFB) on a cadaver
(i.e., corpse) model, benchtop fixturing, and artificial plastic lung
model. The study compared the Ambu[supreg] aScopeTM 5
Broncho HD with four devices: (1) Olympus H-SteriScope; (2) Verathon
BFLEX; (3) Boston Scientific Exalt-B; and (4) Ambu[supreg]
aScopeTM 4 Broncho (the prior model of the nominated
device). The study concluded that the Ambu[supreg] aScopeTM
5 Broncho HD has the highest overall performance, the highest overall
rating for sampling, and highest maneuverability in difficult segmental
airways among the comparator devices.
---------------------------------------------------------------------------
\25\ Kurman, J., Wagh, A., Benn, B., & Islam, S., (2023). A
Comparison of Single-use Bronchoscopes and Reusable Bronchoscopes
for Interventional Pulmonology Applications. Confidential. Ambu
Inc., funded evaluation and testing.
---------------------------------------------------------------------------
The applicant indicated that the Ambu[supreg] aScopeTM 5
Broncho HD differs from these comparator devices as it is the only
device that is compatible with argon gas plasma coagulation,
cryotherapy, and laser, with an HD (1200x800) chip, has more degrees of
articulation with tools, and provides image and video capture from the
scope handle with multiple programmable functions including capture
photo, start/end video, enable zoom, and initiate ARC. In addition, the
applicant stated that the nominated device is superior to its earlier
legally marketed device in terms of maneuverability into difficult
segmental airways, overall performance, and overall sampling
assessment. The applicant asserted that the nominated device differs
from the predicate device due to a rotation mechanism on the handle and
its superior articulation, which allow for more complicated procedures
to be performed such as cryotherapy and coagulation. The applicant
stated that the nominated device is equipped with an HD image chip and
increased depth-of-field and field-of-view, which allow interventional
pulmonologists to perform inspections, biopsies, and debulking. The
applicant also stated that the nominated device's programmable buttons
allow for superior documentation than the earlier bronchoscope device.
We note that the nominated device was determined to be
substantially equivalent to the earlier device that the applicant had
previously legally marketed. The FDA 510(k) summary indicated that both
devices share similar technological characteristics such as optical
system, bending section, diameter of insertion cord and distal
[[Page 49642]]
end, and insertion portion length. Furthermore, the 510(k) summary
indicated that both have the same technical characteristics, which
include maneuverable tip controlled by the user, flexible insertion
cord, camera and LED light source at the distal tip, sterilized by
ethylene oxide, single-use devices, ability for aspiration and sample
collection in bronchoalveolar lavage, and bronchial wash procedures.
We note that in its application, the applicant provided a
comparison of certain devices or device categories that it believed are
most closely related or similar to the Ambu[supreg] aScopeTM
5 Broncho HD. The applicant identified six reusable devices that it
believed are most closely related: (1) Olympus Evis Exera Iii
Bronchovideoscope Bf-h190; (2) Pentax EB-J10 Video Bronchoscope; (3)
Fujifilm EB-580S Video Bronchoscope; (4) Olympus BF-Q190; (5) Olympus
BF-1TH190; and (6) Olympus BF-XT190. According to the applicant, these
devices are used during the same specific procedure(s) and/or services
with which the Ambu[supreg] aScopeTM 5 Broncho HD is used.
The applicant stated that the Ambu[supreg] aScopeTM 5
Broncho HD's single-use feature is unique among the comparators.
According to the applicant, the single-use feature eliminates
bronchoscope reprocessing. The applicant further submitted several
articles reporting results on the prevalence of infection due to
incomplete or inadequate processing for reusable bronchoscopes, which
we summarize as follows. An article by Shimizu et al.\26\ concluded
that patients with larger lesions, presence of endobronchial lesions,
histology of small-cell lung cancer, and advanced-disease stage tended
to develop pulmonary infectious complications more often than other
patients. A 2020 systematic literature review and meta-analysis by
Travis et al.\27\ reported an estimated average reusable FB cross-
contamination rate of 8.69 percent 1.86 (standard division
[SD]) (95 percent confidence interval [CI]: 5.06-12.33 percent) among
eight studies from the U.S. and four European countries. Travis et
al.\28\ attributed the infection rate to the differences in the study
design and sampling methods, geography, low number of data points,
clinical settings, and an aversion towards publishing negative findings
among the eight studies. Furthermore, the applicant submitted a 2019
systematic review and cost-effective analysis by Mouritsen et al.,\29\
which reported an average 2.8 percent cross-contamination rate from
reusable, flexible bronchoscopes among 16 studies from the United
Kingdom, U.S., France, Spain, Australia, and Taiwan. Mouristen et al.
identified that the single-use flexible bronchoscopes were cost
effective and associated with a reduction of infection risk of
approximately 1.71-4.07 percent compared with reusable flexible
bronchoscopes. Lastly, the applicant again cited the meta study by
Barron and Kennedy \30\ referencing the findings from Ofstead et
al.\31\, the review by Mouristen et al., and the Emergency Care
Research Institute's (ECRI's) report.\32\ Of note, ECRI highlighted the
recontamination of flexible endoscopes due to mishandling or improper
storage as one of the top 10 health technology hazards.
---------------------------------------------------------------------------
\26\ Shimizu, T., Okachi, S., Imai, N., Hase, T., Morise, M.,
Hashimoto, N., Sato, M., & Hasegawa, Y. (2020). Risk factors for
pulmonary infection after diagnostic bronchoscopy in patients with
lung cancer. Nagoya journal of medical science, 82(1), 69-77.
https://doi.org/10.18999/nagjms.82.1.69.
\27\ Travis, H.S., Russell, R.V., & Kovaleva, J. (2023). Cross-
contamination rate of reusable flexible bronchoscopes: A systematic
literature review and meta-analysis. Journal of Infection
Prevention, 17571774231158203.
\28\ Id.
\29\ Mouritsen, J.M., Ehlers, L., Kovaleva, J., Ahmad, I., &
El[hyphen]Boghdadly, K. (2020). A systematic review and cost
effectiveness analysis of reusable vs. single-use flexible
bronchoscopes. Anaesthesia, 75(4), 529-540.
\30\ Barron, S. P., & Kennedy, M.P. (2020). Single-Use
(Disposable) Flexible Bronchoscopes: The Future of Bronchoscopy?
Advances in therapy, 37(11), 4538-4548. https://doi.org/10.1007/s12325-020-01495-8.
\31\ Ofstead CL, Quick MR, Wetzler HP, et al. Effectiveness of
reprocessing for flexible bronchoscopes and endobronchial ultrasound
bronchoscopes. Chest. 2018;154(5):1024-34.
\32\ ECRI. Top 10 health technology hazards. Executive brief.
Pennsylvania: ECRI Institute, Health devices; 2019. p. 2019.
---------------------------------------------------------------------------
Based on the evidence submitted with the application, we note the
following concerns: We are concerned about whether the Ambu[supreg]
aScopeTM 5 Broncho HD can be distinguished from similar
devices on the market and the earlier versions of the nominated device
on the market sufficiently to demonstrate substantial clinical
improvement. Four of the studies the applicant submitted,
Ch[acirc]teauvieux et al.,\33\ Barron and Kennedy,\34\ Kurman et
al.,\35\ and Ofstead et al.,\36\ investigated and provided data on the
applicant's earlier models of the device, but did not provide
comparisons to the nominated device. In addition, we note that the
studies provided also did not compare the nominated device to an
appropriate comparator such as a single-use bronchoscope from a
different manufacturer or a standard reusable bronchoscope in a
clinical setting. In addition, we note that the applicant's self-
sponsored study by Kurman, et al.\37\ was conducted in the laboratory
(i.e., on cadaver, benchtop fixturing, and artificial plastic lung) and
not in the clinical setting. In order to demonstrate substantial
clinical improvement over currently available treatments, we consider
supporting evidence, preferably published peer-reviewed clinical
trials, that shows improved clinical outcomes, such as reduction in
mortality, complications, subsequent interventions, future
hospitalizations, recovery time, pain, or a more rapid beneficial
resolution of the disease process compared to the standard of care.
---------------------------------------------------------------------------
\33\ Ch[acirc]teauvieux, C., Farah, L., Gu[eacute]rot, E.,
Wermert, D., Pineau, J., Prognon, P., Borget, I., & Martelli, N.
(2018). Single-use flexible bronchoscopes compared with reusable
bronchoscopes: Positive organizational impact but a costly solution.
Journal of evaluation in clinical practice, 24(3), 528-535. https://doi.org/10.1111/jep.12904.
\34\ Barron, S.P., & Kennedy, M.P. (2020). Single-Use
(Disposable) Flexible Bronchoscopes: The Future of Bronchoscopy?
Advances in therapy, 37(11), 4538-4548. https://doi.org/10.1007/s12325-020-01495-8.
\35\ Kurman, J., Wagh, A., Benn, B., & Islam, S., (2023). A
Comparison of Single-use Bronchoscopes and Reusable Bronchoscopes
for Interventional Pulmonology Applications. Confidential. Ambu
Inc., funded evaluation and testing.
\36\ Ofstead, C.L., Hopkins, K.M., Eiland, J.E., & Wetzler, H.P.
Managing Bronchoscope Quality and Cost: Results of a Real-world
Study. https://www.ambu.com/Files/Files/Ambu/Investor/News/English/2019/Managing%20Bronchoscope%20cost%20a%20real%20world%20study.pdf.
\37\ Kurman, J., Wagh, A., Benn, B., & Islam, S., (2023). A
Comparison of Single-use Bronchoscopes and Reusable Bronchoscopes
for Interventional Pulmonology Applications. Confidential. Ambu
Inc., funded evaluation and testing.
---------------------------------------------------------------------------
Furthermore, we note that the Ch[acirc]teauvieux et al.\38\ and
Barron and Kennedy \39\ studies suggested limiting the use of single-
use bronchoscope device to specific situations (i.e., after hours or
emergency), immunocompromised patients, and in rare cases of preventing
prior contamination in the inpatient setting. We believe that further
investigation with comparators in these specified cases would be
particularly helpful to determine whether the device demonstrates
substantial clinical improvements over currently available
[[Page 49643]]
treatments in the clinical setting where it is most likely to be used.
---------------------------------------------------------------------------
\38\ Ch[acirc]teauvieux, C., Farah, L., Gu[eacute]rot, E.,
Wermert, D., Pineau, J., Prognon, P., Borget, I., & Martelli, N.
(2018). Single-use flexible bronchoscopes compared with reusable
bronchoscopes: Positive organizational impact but a costly solution.
Journal of evaluation in clinical practice, 24(3), 528-535. https://doi.org/10.1111/jep.12904.
\39\ Barron, S.P., & Kennedy, M.P. (2020). Single-Use
(Disposable) Flexible Bronchoscopes: The Future of Bronchoscopy?
Advances in therapy, 37(11), 4538-4548. https://doi.org/10.1007/s12325-020-01495-8.
---------------------------------------------------------------------------
We note concern that the application and all the articles submitted
as evidence of substantial clinical improvement discuss potential
adverse events from reusable bronchoscope procedures, but do not
directly show any clinical improvement that results from the use of the
Ambu[supreg] aScopeTM 5 Broncho HD. We note that Shimizu et
al.,\40\ Travis et al.,\41\ Barron and Kennedy,\42\ and Ofstead et
al.\43\ provided information about the risks associated with
reprocessing reusable devices and reported mixed results.
---------------------------------------------------------------------------
\40\ Shimizu, T., Okachi, S., Imai, N., Hase, T., Morise, M.,
Hashimoto, N., Sato, M., & Hasegawa, Y. (2020). Risk factors for
pulmonary infection after diagnostic bronchoscopy in patients with
lung cancer. Nagoya journal of medical science, 82(1), 69-77.
https://doi.org/10.18999/nagjms.82.1.69.
\41\ Travis, H.S., Russell, R.V., & Kovaleva, J. (2023). Cross-
contamination rate of reusable flexible bronchoscopes: A systematic
literature review and meta-analysis. Journal of Infection
Prevention, 17571774231158203.
\42\ Barron, S.P., & Kennedy, M.P. (2020). Single-Use
(Disposable) Flexible Bronchoscopes: The Future of Bronchoscopy?
Advances in therapy, 37(11), 4538-4548. https://doi.org/10.1007/s12325-020-01495-8.
\43\ Ofstead, C.L., Hopkins, K.M., Eiland, J.E., & Wetzler, H.P.
Managing Bronchoscope Quality and Cost: Results of a Real-world
Study. https://www.ambu.com/Files/Files/Ambu/Investor/News/English/2019/Managing%20Bronchoscope%20cost%20a%20real%20world%20study.pdf.
---------------------------------------------------------------------------
We also note that the 2015 FDA safety notice \44\ provided
preliminary information regarding infections associated with the use of
reprocessed flexible bronchoscopes, but did not discuss or recommend
the use of disposable, single-use devices in the notice. Furthermore,
we note the following concerns about studies on the prevalence of
infection due to incomplete/inadequate reprocessing of reusable
bronchoscopes. The studies authored by Ch[acirc]teauvieux et al.,\45\
Shimizu et al.,\46\ Travis et al.,\47\ and Mouritsen et al.\48\ have
small sample sizes. Furthermore, the Barron and Kennedy,\49\ Travis et
al.,\50\ and Mouritsen et al.\51\ studies used different study designs
and sampling methodologies, or were performed in various clinical
settings other than outpatient, which may affect the quality and
reliability of the data provided in support of the applicant's
assertions. We do not believe that we have sufficient information on
the prevalence of infection to evaluate the applicant's substantial
clinical improvement claims for the nominated device. We are seeking
comments on the prevalence of infection due to incomplete/inadequate
processing for bronchoscopes in the U.S. and whether single-use
bronchoscopes reduce the infection rate in patients to identify the
extent of the problem with existing technologies.
---------------------------------------------------------------------------
\44\ FDA Safety Communications, Infections Associated with
Reprocessed Flexible Bronchoscopes: FDA Safety Communication, issued
September 17, 2015. https://www.fdanews.com/ext/resources/files/09-15/092115-safety-notice.pdf?1442508647.
\45\ Ch[acirc]teauvieux, C., Farah, L., Gu[eacute]rot, E.,
Wermert, D., Pineau, J., Prognon, P., Borget, I., & Martelli, N.
(2018). Single-use flexible bronchoscopes compared with reusable
bronchoscopes: Positive organizational impact but a costly solution.
Journal of evaluation in clinical practice, 24(3), 528-535. https://doi.org/10.1111/jep.12904.
\46\ Shimizu, T., Okachi, S., Imai, N., Hase, T., Morise, M.,
Hashimoto, N., Sato, M., & Hasegawa, Y. (2020). Risk factors for
pulmonary infection after diagnostic bronchoscopy in patients with
lung cancer. Nagoya journal of medical science, 82(1), 69-77.
https://doi.org/10.18999/nagjms.82.1.69.
\47\ Travis, H.S., Russell, R.V., & Kovaleva, J. (2023). Cross-
contamination rate of reusable flexible bronchoscopes: A systematic
literature review and meta-analysis. Journal of Infection
Prevention, 17571774231158203.
\48\ Mouritsen, J.M., Ehlers, L., Kovaleva, J., Ahmad, I., & El-
Boghdadly, K. (2020). A systematic review and cost effectiveness
analysis of reusable vs. single[hyphen]use flexible bronchoscopes.
Anaesthesia, 75(4), 529-540.
\49\ Barron, S.P., & Kennedy, M.P. (2020). Single-Use
(Disposable) Flexible Bronchoscopes: The Future of Bronchoscopy?
Advances in therapy, 37(11), 4538-4548. https://doi.org/10.1007/s12325-020-01495-8.
\50\ Travis, H.S., Russell, R.V., & Kovaleva, J. (2023). Cross-
contamination rate of reusable flexible bronchoscopes: A systematic
literature review and meta-analysis. Journal of Infection
Prevention, 17571774231158203.
\51\ Mouritsen, J.M., Ehlers, L., Kovaleva, J., Ahmad, I., &
El[hyphen]Boghdadly, K. (2020). A systematic review and cost
effectiveness analysis of reusable vs. single-use flexible
bronchoscopes. Anaesthesia, 75(4), 529-540.
---------------------------------------------------------------------------
The applicant provided evidence which seemed to rely on indirect
inferences from other sources of data. We question the relevance of the
2015 FDA safety notice \52\ to the nominated device because as stated
above, the guidance applies to reprocessed flexible bronchoscopes
broadly, but not to disposable, single-use devices comparable to the
nominated device. We are concerned that many of the applicant's
substantial clinical improvement claims rely on an assumption that
inadequate reprocessing of reusable bronchoscopes is positively
correlated with heightened risk of infection, providing studies with
small sample sizes and other limitations as described above as their
only support. We note that the applicant provided background
information on the established reprocessing guidelines \53\ for
reusable devices; however, the existence of reprocessing guidelines
does not provide evidence on the prevalence of infection rates,
establish a relationship between infection risk and reprocessing
procedures, or substantiate that single-use disposable scopes, or the
nominated device specifically, would be a substantial clinical
improvement over currently available treatments.
---------------------------------------------------------------------------
\52\ FDA Safety Communications, Infections Associated with
Reprocessed Flexible Bronchoscopes: FDA Safety Communication, issued
September 17, 2015. https://www.fdanews.com/ext/resources/files/09-15/092115-safety-notice.pdf?1442508647.
\53\ FDA Guidance March 17, 2015, ``Reprocessing Medical Devices
in Health Care Settings: Validation Methods and Labeling: Guidance
for Industry and Food and Drug Administration Staff.''
---------------------------------------------------------------------------
We are inviting public comment on whether the Ambu[supreg]
aScopeTM 5 Broncho HD meets the substantial clinical
improvement criterion at Sec. 419.66(c)(2)(i).
The third criterion for establishing a device category, at Sec.
419.66(c)(3), requires us to determine that the cost of the device is
not insignificant, as described in Sec. 419.66(d). Section 419.66(d)
includes three cost significance criteria that must be met. The
applicant provided the following information in support of the cost
significance requirements. The applicant stated that the Ambu[supreg]
aScopeTM 5 Broncho HD would be reported with HCPCS codes
listed in Table 31.
BILLING CODE 4120-01-P
[[Page 49644]]
[GRAPHIC] [TIFF OMITTED] TP31JY23.046
[[Page 49645]]
[GRAPHIC] [TIFF OMITTED] TP31JY23.047
[[Page 49646]]
[GRAPHIC] [TIFF OMITTED] TP31JY23.048
BILLING CODE 4120-01-C
To meet the cost criterion for device pass-through payment status,
a device must pass all three tests of the cost criterion for at least
one APC. As we explained in the CY 2005 OPPS final rule with comment
period (69 FR 65775), we generally use the lowest APC payment rate
applicable for use with the nominated device when we assess whether a
device meets the cost significance criterion, thus increasing the
probability the device will pass the cost significance test. For our
calculations, we used APC 5152, which had a CY 2022 payment rate of
$383.33 at the time the application was received. Beginning in CY 2017,
we calculate the device offset amount at the HCPCS/CPT code level
instead of the APC level (81 FR 79657). We note that the HCPCS code
31646 identified by the applicant had a device offset amount of $0.00
at the time the application was received. Accordingly, we are
evaluating the cost significance requirements using $0.00 as the
appropriate device offset amount. According to the applicant, the cost
of the Ambu[supreg] aScopeTM 5 Broncho HD is $799.00.
Section 419.66(d)(1), the first cost significance requirement,
provides that the estimated average reasonable cost of devices in the
category must exceed 25 percent of the applicable APC payment amount
for the service related to the category of devices. The estimated
average reasonable cost of $799.00 for the Ambu[supreg]
aScopeTM 5 Broncho HD is 208.44 percent of the applicable
APC payment amount for the service related to the category of devices
of $383.33 (($799.00/$383.33) x 100 = 208.44 percent). Therefore, we
believe the Ambu[supreg] aScopeTM 5 Broncho HD meets the
first cost significance requirement.
The second cost significance requirement, at Sec. 419.66(d)(2),
provides that the estimated average reasonable cost of the devices in
the category must exceed the cost of the device-related portion of the
APC payment amount for the related service by at least 25 percent,
which means that the device cost needs to be at least 125 percent of
the offset amount (the device-related portion of the APC found on the
offset list). Given that there are no device-related costs in the APC
payment amount, and the Ambu[supreg] aScopeTM 5 Broncho HD
has an estimated average reasonable cost of $799.00, we believe that
the Ambu[supreg] aScopeTM 5 Broncho HD meets the second cost
significance requirement.
The third cost significance requirement, at Sec. 419.66(d)(3),
provides that the difference between the estimated average reasonable
cost of the devices in the category and the portion of the APC payment
amount for the device must exceed 10 percent of the APC payment amount
for the related service. The difference between the estimated average
reasonable cost of $799.00 for the Ambu[supreg] aScopeTM 5
Broncho HD and the portion of the APC payment amount for the device of
$0.00 exceeds the APC payment amount for the related service of $799.00
by 208.44 percent ((($799.00-$0.00)/$383.33) x 100 = 208.44 percent).
Therefore, we believe that the Ambu[supreg] aScopeTM 5
Broncho HD meets the third cost significance requirement.
We are inviting public comment on whether the Ambu[supreg]
aScopeTM 5 Broncho HD meets the device pass-through payment
criteria discussed in this section, including the cost criterion for
device pass-through payment status.
(b) Praxis Medical CytoCore
Praxis Medical, LLC submitted an application for a new device
category for transitional pass-through payment status for Praxis
Medical CytoCore (CytoCore) for CY 2024. Per the applicant, CytoCore is
a single-use disposable biopsy instrument. Per the
[[Page 49647]]
applicant, at the time of biopsy, the motorized CytoCore device
contains gears and an internal motor that spins a minimally invasive
needle to increase cellular yields in fewer passes. The applicant
further explained that CytoCore is vacuum-assisted and can easily be
operated using one hand. According to the applicant, the primary use is
for biopsy of any suspicious thyroid nodule.
The applicant stated that the CytoCore Biopsy Instrument device
package includes: (1) five CytoCore Biopsy Instruments, each containing
three luer adapters in a sterile pouch, a syringe-holding device,
equipped with a scissor-slide mechanism for drawing back the syringe
plunger to create suction, an internal motor that rotates a needle, and
an internal alkaline type battery; (2) five 5-mL syringes; and (3)
instructions for use (IFU) booklets. Per the applicant, the CytoCore is
compatible with disposable needles of 22-to-25-gauge and 4-to-10-cm
length that are intended for soft tissue biopsy procedures (needles are
not included in the device package). The applicant further explained
that only the CytoCore luer adapters and syringes provided by Praxis
can be used on CytoCore and that the CytoCore luer adapters can only be
used with the CytoCore Biopsy Instrument.
Per the applicant, the operator of CytoCore can direct the needle
and draw back the plunger with only one hand, thereby diminishing the
need to move the needle in an in-and-out motion to harvest cells. As
with other types of biopsies, the sample collected can help make a
diagnosis or rule out conditions such as cancer. The applicant claimed
that CytoCore enables the physician to collect more cellular material
in fewer passes and reduce the number of repeat biopsies and surgeries
related to inadequate cellular samples using the standard fine needle
aspiration (FNA) biopsy. According to the applicant, CytoCore is
designed to collect enough DNA for pathology to definitively rule in or
out cancer and inform subsequent treatment at the time of the first
biopsy. Per the applicant, studies report nondiagnostic rates for
thyroid biopsies to be as high as 30 to 50 percent using standard FNA
biopsy.
As stated previously, to be eligible for transitional pass-through
payment under the OPPS, a device must meet the criteria at Sec.
419.66(b)(1) through (4). With respect to the newness criterion at
Sec. 419.66(b)(1), on March 31, 2020, the applicant received 510(k)
clearance from FDA for CytoCore for use as a device to hold a syringe
for performing a biopsy of an identified mass with one hand. We
received the application for a new device category for transitional
pass-through payment status for CytoCore on August 31, 2022, which is
within 3 years from the date of the initial FDA marketing
authorization.
We are inviting public comments on whether CytoCore meets the
newness criterion at Sec. 419.66(b)(1).
With respect to the eligibility criterion at Sec. 419.66(b)(3),
the applicant did not assert whether CytoCore is integral to the
service provided. According to the applicant, CytoCore is used for one
patient only. Per the applicant, CytoCore comes into contact with human
tissue and is surgically inserted via the syringe attached to the
motorized CytoCore device. Per the applicant, CytoCore is used with a
22-to-25-gauge standard fine needle (not included in the device
package), which is inserted into human tissue to collect cellular
samples. The applicant stated that the fine needle is attached to
CytoCore, inserted into the nodule, and cellular material is collected
through the needle into the syringe. The applicant further explained
that the cellular material is visible in the hub of the needle or the
luer adapter. However, we note that the motorized CytoCore device
itself is not surgically implanted or inserted (either permanently or
temporarily) or applied in or on a wound or other skin lesion, as
required at Sec. 419.66(b)(3). Further, we note that according to the
FDA 510(k) Summary and Indication for Use, CytoCore is a device to hold
a syringe for performing a biopsy of an identified mass with one hand
and that the device never comes in contact with the patient. With
respect to the exclusion criterion at Sec. 419.66(b)(4), the applicant
did not address whether CytoCore is equipment, an instrument,
apparatus, implement, or item of this type for which depreciation and
financing expenses are recovered as depreciable assets. The applicant
also did not address whether CytoCore is a supply or material furnished
incident to a service. However, in the CY 2000 OPPS interim final rule
with comment period (65 FR 67798, 65 FR 67804 through 67805), we
explained how we interpreted Sec. 419.43(e)(4)(iv). We stated that we
consider a device to be surgically implanted or inserted if it is
surgically inserted or implanted via a natural or surgically created
orifice, or inserted or implanted via a surgically created incision. We
also stated that we do not consider an item used to cut or otherwise
create a surgical opening to be a device that is surgically implanted
or inserted. We consider items used to create incisions, such as
scalpels, electrocautery units, biopsy apparatuses, or other commonly
used operating room instruments, to be supplies or capital equipment
not eligible for transitional pass-through payments. We stated that we
believe the function of these items is different and distinct from that
of devices that are used for surgical implantation or insertion.
Finally, we stated that, generally, we would expect that surgical
implantation or insertion of a device occurs after the surgeon uses
certain primary tools, supplies, or instruments to create the surgical
path or site for implanting the device. In the CY 2006 OPPS final rule
with comment period (70 FR 68516, 70 FR 68629 and 68630), we adopted as
final our interpretation that the surgical insertion or implantation
criterion can be met by devices that are surgically inserted or
implanted via a natural or surgically created orifice, as well as those
devices that are inserted or implanted via a surgically created
incision. We reiterated that we maintain all of the other criteria in
Sec. 419.66 of the regulations, namely, that we do not consider an
item used to cut or otherwise create a surgical opening to be a device
that is surgically implanted or inserted.
We are inviting public comments on whether CytoCore meets the
exclusion criterion at Sec. 419.66(b).
In addition to the criteria at Sec. 419.66(b)(1) through (4), the
criteria for establishing new device categories are specified at Sec.
419.66(c). The first criterion, at Sec. 419.66(c)(1), provides that
CMS determines that a device to be included in the category is not
appropriately described by any of the existing categories or by any
category previously in effect, and was not being paid for as an
outpatient service as of December 31, 1996. The applicant described
CytoCore as a motorized, single-use disposable biopsy instrument that
contains gears and an internal motor that spins a minimally invasive
needle during biopsy to increase cellular yields in fewer passes. Per
the applicant, no previous device categories for pass-through payment
have encompassed the device.
We have not identified an existing pass-through payment category
that describes CytoCore. We are inviting public comment on whether
CytoCore meets the device category criterion at Sec. 419.66(c)(1).
The second criterion for establishing a device category, at Sec.
419.66(c)(2), provides that CMS determines either of the following: (i)
that a device to be included in the category has demonstrated that it
will substantially improve the diagnosis or treatment of an
[[Page 49648]]
illness or injury or improve the functioning of a malformed body part
compared to the benefits of a device or devices in a previously
established category or other available treatment; or (ii) for devices
for which pass-through status will begin on or after January 1, 2020,
as an alternative to the substantial clinical improvement criterion,
the device is part of the FDA's Breakthrough Devices Program and has
received FDA marketing authorization for the indication covered by the
Breakthrough Device designation. The applicant claimed that the use of
CytoCore results in substantial clinical improvement over existing
technologies by: (1) reducing tissue trauma, bleeding; (2) increasing
cellular harvest; (3) reducing passes required, clinical invasiveness;
and (4) reducing nondiagnostic biopsy results follow up. The applicant
provided one article and one conference poster in support of these
claims.
In support of the claims that using CytoCore reduced tissue trauma
and/or bleeding, and that it increased cellular harvest, the applicant
submitted a conference poster of a study performed to evaluate the
consistency and diagnostic quality of cellular material obtained with a
22-to-25-gauge fine needle using CytoCore as compared to FNA without
using CytoCore and to traditional core biopsy. In the study,\54\
samples utilizing FNA syringe (n = 14) and core biopsy (n = 12) were
obtained and compared to biopsy samples obtained with CytoCore. The
samples were analyzed in pathology separately for diagnostic adequacy.
Using the Fisher exact test statistic, the study authors found no
significant difference (p < .05) between FNA and CytoCore. Similarly,
using the Fisher exact test statistic, the study authors found no
significant difference (p < . 05) between core biopsy and CytoCore.
Specifically, the study authors reported that CytoCore was successful
in obtaining a diagnosis in 78 percent of biopsies, which was unchanged
from FNA; however, the authors reported that the cellular yield of
samples obtained with CytoCore were superior to FNA biopsy samples. The
study authors also reported that when compared to traditional core
samples, CytoCore specimens were similar to traditional core biopsy in
yielding a diagnosis, with CytoCore yielding a diagnosis 99 percent of
the time and core biopsy 100 percent of the time. The authors concluded
that CytoCore provides a reliably high amount of cellular material with
significantly less tissue damage, which is especially useful for
vascular tissue such as lymph nodes and breast tissue.
---------------------------------------------------------------------------
\54\ Rey, E., Huber, J., Risam, R., Shahzad, R., Gonzalez, A.,
Acosta, A. (2022, April). Making the Diagnosis: Increasing the
Cellular Yield of Pathology Samples Through a Motorized Rotating,
Aspirating Device. Poster presented at the Daniel Manganaro Memorial
2022 Annual Scientific Poster Symposium, Elmira, NY. Retrieved from
https://www.arnothealthgme.org/_files/ugd/c76666_083113203de449a8a6054cf7b81aac82.pdf.
---------------------------------------------------------------------------
In support of the claims that using CytoCore reduces the number of
passes required and the clinical invasiveness of a thyroid biopsy, and
that it reduces nondiagnostic biopsy results and follow-up, the
applicant provided an unpublished article that described the
performance of CytoCore on the number of passes required to obtain an
adequate sample and diagnostic biopsy in comparison to using
traditional ultrasound-guided FNA (US-FNA) biopsy rates reported in the
literature.\55\ The study authors performed a retrospective chart
review of consecutive US-FNA thyroid biopsies performed with CytoCore
between August 2020 and March 2021. The chart records included
ultrasound and pathology data points, including exam code, name of
operator, biopsy tool, number of passes required for adequacy, and
pathological diagnosis using the Bethesda System for Reporting Thyroid
Cytopathology. The authors stated that the study included a total of
100 FNA biopsies from 69 patients, and a total of nine different
operators performed these biopsies. At the time of biopsy, most (88
percent) of the patients were women, and, on average, were 65 years of
age at the time of biopsy. In addition, the study authors stated that
the number of nodules biopsied ranged from one to three on average, but
most patients (65 percent) had only one nodule biopsied. The operators'
years of experience ranged from 4 to 39 years of practice, with most
(76 percent) performed by an operator with 5 years of practice
experience (the study authors noted that this operator was never the
sole operator for the procedure). In addition, a cytotechnologist was
present for all procedures and rapid on-site evaluation (ROSE) was done
on the smears to determine if the sample met the criteria for adequacy.
All biopsies were performed using a 25 gauge, 1\1/2\ inch BD
TM needle attached to CytoCore. The Bethesda System
classification categories include Category I (nondiagnostic), Category
II (benign), Category III (atypia), Category IV (suspicious for
neoplasm), Category V (suspicious for malignancy), and Category VI
(malignant). The study authors defined determinant diagnoses as the sum
total of biopsies classified in Categories II (benign) and IV
(malignant). The authors compared their study results to 20 published
articles with publication dates between 2012 and 2022 that reported
results for thyroid US-FNA biopsy. The study used descriptive
statistics (averages and frequencies) and a single sample proportion
test to compare the adequacy of the biopsy sample for each pass and the
percentage of nondiagnostic, indeterminant, and determinant diagnosis
classifications to conventional US-FNA techniques results reported in
literature. According to the study authors, the number of passes
required to attain an adequate sample using CytoCore ranged from one to
four and was statistically significantly lower than using conventional
FNA technique as reported in the 20 articles. Specifically, to obtain
an adequate sample of a thyroid nodule using CytoCore compared to the
conventional FNA technique, 65 percent required only one pass compared
to 36 percent, 93 percent required two or fewer passes compared to 60
percent, 97 percent required three or fewer passes compared to 72
percent, and 100 percent required four or fewer passes compared to 75
percent, respectively. The authors stated that restricting the analyses
to only one nodule per patient did not result in a change in
significance. In addition, the authors stated that for their study
group, pathology was able to make a determinant diagnosis (Category II
and Category VI) for 91 percent of the samples. Specifically, of the
100 samples included in the study, 3 percent were nondiagnostic
(Category I), 88 percent were benign (Category II), 4 percent were
atypia (Category III), 2 percent were suspicious for neoplasm (Category
IV), 0 percent were suspicious for malignancy (Category V), and 3
percent were malignant (Category VI). According to the authors, this
was significantly better than the median nondiagnostic (Category I) and
determinant diagnosis rates reported in the literature, 10% (p = 0.02)
and 65% (p < 0.001), respectively. The rate of indeterminant
classifications (Category III) was also lower in their study population
but was not statistically significant (p = 0.17). The study authors
concluded that if their study sample of 100 thyroid biopsies using
CytoCore had the same median results as FNA thyroid biopsies reported
in the literature, an additional 11 patients would have a
[[Page 49649]]
biopsy classified as Category I or Category III (nondiagnostic and
atypia) and would have required at least one more US-FNA to make a
diagnosis, and an additional four patients would have a biopsy
classified as Category IV (suspicious neoplasm) and would have required
a partial lobectomy to determine malignancy. The study authors further
concluded that in addition to the higher cost associated with
additional biopsies and/or surgical intervention, there may be a
greater impact on a patient's quality of life due to potential surgical
complications, vocal cord palsy (VCP), lifetime hormonal replacement,
and cosmetic scarring. Furthermore, the authors concluded that CytoCore
resulted in more than a three-fold decrease in nondiagnostic (Category
III) biopsies and significant increase in definitive diagnoses. The
management of an initially indeterminant biopsy can range from a repeat
US-FNA (Categories I and III) to lobectomy or thyroidectomy (Categories
IV and V). The actual risk of malignancy can be as low as 1 percent to
15 percent for Categories I and III, but as high as 75 percent for
Category V. Therefore, the authors concluded that initially
indeterminant diagnosis can result in unnecessary procedures and
increased costs for the healthcare system and patients for false
positives, but for true malignancies, indeterminant biopsies could also
delay diagnosis and treatment.
---------------------------------------------------------------------------
\55\ Authors unknown. Motorized rotating fine needle biopsy
device reduces number of passes needed for cytological adequacy and
improves diagnostic accuracy, not published; uses a retrospective
study type.
---------------------------------------------------------------------------
We note that the nominated device was determined to be
substantially equivalent to a legally marketed device, the TAO
Aspirator and Plastic Finger. The FDA 510(k) summary indicated that the
devices share similar technological characteristics such as a device to
hold a syringe for performing fine needle aspiration, a needle is
connected to the syringe and inserted into a lesion, and a syringe
plunger is retracted to create suction. The FDA 510(k) summary
indicated that CytoCore differs in that a battery powers a motor that
rotates the needle. In addition, the applicant provided a comparison of
certain devices that it believed are most closely related or similar to
CytoCore. Specifically, the applicant identified two devices with
related HCPCS procedure codes that it believes are most closely related
to CytoCore: (1) HCPCS code 10005 (fine needle aspiration biopsy,
including ultrasound guidance, first lesion) and the Benton [sic]
DickinsonTM (BDTM) device; and (2) HCPCS code 60100 (biopsy thyroid,
percutaneous core needle) and the BioPince device. According to the
applicant, the BDTM is a single-use 25-gauge 1-inch basic needle with
no syringe and is the standard fine needle used most often in thyroid
biopsy procedures. In contrast, the applicant stated that CytoCore is a
motorized vacuum assisted device that applies vacuum during biopsy and
rotates the [fine] needle. Per the applicant, BioPince is a full core
firing biopsy device with a 16-to-18-gauge needle, and it is not
recommended for head/neck biopsies due to sensitive structures in the
head/neck area (e.g., nerves, carotid, vessels, trachea). The applicant
further explained that medical society guidelines, including those of
the American Thyroid Association (ATA), recommend fine needle
aspiration for biopsy of thyroid nodules. In contrast, the applicant
stated that CytoCore is designed to obtain core comparable specimens,
but using the safe fine needle (25-to-22-gauge), obviating the need for
this more invasive procedure for thyroid biopsies.
Based on the evidence submitted, we note the following concerns:
The first study is an undated conference poster presentation and it is
not clear whether it has been submitted for publication in a peer-
reviewed journal. We also have concerns with the generalizability and
validity of the findings. The authors did not report their sampling
methodology used to obtain the study samples, calling into question the
validity of the comparison groups and any inferences made. In addition,
the authors did not describe how they addressed important confounding
variables that may affect the quality of the biopsy specimen (e.g.,
ultrasound guided, nature, and location of nodule biopsied), calling
into question whether the FNA and core biopsy samples can validly be
compared to CytoCore biopsy samples. The study used small sample sizes,
a sample of 14 biopsies for the comparison to FNA and a sample of 12
biopsies for the comparison to core biopsies, within one radiology
department location, limiting the generalizability of the findings. In
addition, it is not clear that the study is limited to thyroid biopsies
and the authors did not report any information on patient
characteristics (e.g., age or sex) or the nature of the nodule.
Furthermore, the study authors reported that there was no significant
difference in obtaining a diagnosis between CytoCore and FNA, and
CytoCore and core biopsy, which calls into question any claim of the
superiority (versus equivalency) of the CytoCore biopsy samples. The
study authors reported that the cellular yield of samples obtained with
CytoCore were overall superior to FNA biopsy samples, but the metrics
to evaluate this and whether this difference was statistically
significant were not reported. We note that we are unable to determine
the validity of this finding. We also note that, as presented in the
poster, the study authors presented two different rates of diagnosis
when using CytoCore with no explanation. Specifically, the study
authors stated that CytoCore was able to obtain a successful diagnosis
in 78 percent of biopsies when compared to FNA and in 99 percent of
biopsies when compared to core biopsy. Additionally, the purpose of the
study did not include an evaluation of whether CytoCore reduced trauma
or increased cellular harvest, but rather sought to evaluate the
consistency and diagnostic quality of cellular material obtained with
CytoCore using a 22-to-25-gauge fine needle compared to traditional
core biopsy. The study authors did not present metrics that might be
used to evaluate the amount of trauma as a result of the biopsy
procedures (e.g., bleeding or bruising after the biopsy procedures). We
note that we are unable to determine the validity of this finding
(i.e., using CytoCore compared to core biopsy reduces tissue damage).
The second document submitted with the application as evidence of
substantial clinical improvement is an article that is undated and does
not list the authors or location of the study. The applicant did not
provide any further details regarding the status of the article. The
study authors did not use a direct comparison group; rather, they
compared their study results to those found in published literature.
The paper did not describe the approach used to select the articles
used to compare the performance of CytoCore and there is no indication
that a systematic literature review was conducted. We note that we are
not able to determine if the literature reported rates included in the
study are representative of FNA thyroid biopsy results. Similarly,
beyond selecting articles that reported US-FNA thyroid biopsies, the
paper did not describe whether the study authors assessed the quality
of the study designs in the selected literature. We note the paper did
not control for confounding factors the study authors stated may impact
the adequacy of a biopsy sample, including the skill and knowledge of
the person performing the biopsy, the preparation of the specimens, and
the nature of the nodule (e.g., size, composition, vascularity).
Similarly, we note the study authors did not account for other
important potential confounders including the skill and knowledge of
the
[[Page 49650]]
pathologist and having a cytotechnologist present to perform ROSE on
the specimens during the biopsy.
We further note that none of the evidence submitted by the
applicant provides conclusive evidence that the use of CytoCore reduces
tissue trauma and/or bleeding, increases cellular yield, reduces the
number of passes required or clinical invasiveness, or reduces the
number of nondiagnostic biopsy results or follow-up. In order to
demonstrate substantial clinical improvement over currently available
treatments, we consider supporting evidence, preferably published peer-
reviewed clinical trials, that shows improved clinical outcomes, such
as reduction in mortality, complications, subsequent interventions,
future hospitalizations, recovery time, pain, or a more rapid
beneficial resolution of the disease process compared to the standard
of care. Additional supporting evidence, preferably published peer-
reviewed clinical trials, that shows these improved clinical outcomes
would help inform our assessment of whether CytoCore demonstrates
substantial clinical improvement over existing technologies.
Finally, we are concerned that CytoCore may not demonstrate that it
substantially improves the diagnosis or treatment of an illness when
compared to the benefits of other available treatments. CytoCore was
determined to be substantially equivalent to a legally marketed device,
the TAO Aspirator and Plastic Finger, which received 510(k) clearance
on December 9, 1997. The FDA 510(k) summary for CytoCore indicated that
the devices share similar technological characteristics. In fact, the
FDA 510(k) summary indicated that CytoCore differs only in that a
battery powers a motor that rotates the needle, while the TAO Aspirator
is moved manually in an in-and-out motion. In addition, while the
applicant distinguishes CytoCore from a comparator device, BioPince, it
is our understanding that BioPince is a large gauge full core firing
biopsy device that is not recommended for use in the head/neck, the
anatomic region for which CytoCore has primary use, according to the
application. Therefore it remains unclear how such a comparison with
BioPince supports the argument of substantial clinical improvement.
We are inviting public comments on whether CytoCore meets the
substantial clinical improvement criterion at Sec. 419.66(c)(2)(i).
The third criterion for establishing a device category, at Sec.
419.66(c)(3), requires us to determine that the cost of the device is
not insignificant, as described in Sec. 419.66(d). Section 419.66(d)
includes three cost significance criteria that must each be met. The
applicant provided the following information in support of the cost
significance requirements. The applicant stated that CytoCore would be
reported with HCPCS codes in Table 32.
[GRAPHIC] [TIFF OMITTED] TP31JY23.049
To meet the cost criterion for device pass-through payment status,
a device must pass all three tests of the cost criterion for at least
one APC. As we explained in the CY 2005 OPPS final rule with comment
period (69 FR 65775), we generally use the lowest APC payment rate
applicable for use with the nominated device when we assess whether a
device meets the cost significance criterion, thus increasing the
probability the device will pass the cost significance test. For our
calculations, we used APC 5071, which had a CY 2022 payment rate of
$635.54 at the time the application was received. Beginning in CY 2017,
we calculate the device offset amount at the HCPCS/CPT code level
instead of the APC level (81 FR 79657). HCPCS code 10005 had a device
offset amount of $0.89 at the time the application was received.\56\
According to the applicant, the cost of the CytoCore is $175.00.
---------------------------------------------------------------------------
\56\ We note that the applicant selected a value of $32.16 for
the device offset amount. However, the value selected is
inconsistent with the device offset amount related to HCPCS 10005 in
APC 5071 found in Addendum P to the CY 2022 OPPS/ASC final rule with
comment period, as corrected in the 2022 Correction Notice OPPS
Addendum (87 FR 2060). We selected the value of $0.89, which we
believe is the accurate value. Based on our initial assessment for
this proposed rule, using the device offset amount of $0.89 would
result in CytoCore meeting the cost significance requirement.
---------------------------------------------------------------------------
Section 419.66(d)(1), the first cost significance requirement,
provides that the estimated average reasonable cost of devices in the
category must exceed 25 percent of the applicable APC payment amount
for the service related to the category of devices. The estimated
average reasonable cost of $175.00 for CytoCore is 27.54 percent of the
applicable APC payment amount for the service related to the category
of devices of $635.54 (($175.00/$635.54) x 100 = 27.54 percent).
Therefore, we believe CytoCore meets the first cost significance
requirement.
The second cost significance requirement, at Sec. 419.66(d)(2),
provides that the estimated average reasonable cost of the devices in
the category must exceed the cost of the device-related portion of the
APC payment amount for the related service by at least 25 percent,
which means that the device cost needs to be at least 125 percent of
the offset amount (the device-related portion of the APC found on the
offset list). The estimated average reasonable cost of $175.00 for
CytoCore is 19,662.92 percent of the cost of the device-related portion
of the APC payment amount for the related service of $0.89 (($175.00/
$0.89) x 100 = 19,662.92 percent).
[[Page 49651]]
Therefore, we believe that CytoCore meets the second cost significance
requirement.
The third cost significance requirement, at Sec. 419.66(d)(3),
provides that the difference between the estimated average reasonable
cost of the devices in the category and the portion of the APC payment
amount for the device must exceed 10 percent of the APC payment amount
for the related service. The difference between the estimated average
reasonable cost of $175.00 for CytoCore and the portion of the APC
payment amount for the device of $0.89 is 27.40 percent of the APC
payment amount for the related service of $635.54 or ((($175.00-$0.89)/
$ 635.54) x 100 = 27.40 percent). Therefore, we believe that CytoCore
meets the third cost significance requirement.
We are inviting public comment on whether CytoCore meets the device
pass-through payment criteria discussed in this section, including the
cost criterion for device pass-through payment status.
(c) EchoTip[supreg]
Cook Medical submitted an application for a new device category for
transitional pass-through payment status for the EchoTip[supreg]
Insight Portosystemic Pressure Gradient Measurement System[supreg]
(EchoTip[supreg]) for CY 2024. According to the applicant,
EchoTip[supreg] is used in the diagnosis and management of patient
populations with chronic liver diseases (CLDs), and especially with
non-alcoholic fatty liver Disease (NAFLD). The applicant stated that
EchoTip[supreg] directly measures pressures in the hepatic and portal
venous vasculatures and is used in conjunction with an ultrasound
endoscope. The applicant provided that a physician measures the
portosystemic pressure gradient via endoscopic ultrasound guidance, a
curvilinear array echoendoscope is advanced to the stomach, and the
portal and hepatic veins are visualized under ultrasound guidance. A
25-gauge needle (which is prepared prior to the procedure by attaching
it to connection tubing and a disposable transducer) is advanced
through the echoendoscope which then punctures the hepatic vein through
the liver parenchyma, and a pressure measurement is obtained. Per the
applicant, a total of three measurements are obtained, after which the
needle is retracted in the scope and the echoendoscope is repositioned
for portal vein access. The needle is then advanced to the portal vein
where another set of three pressure measurements is obtained. The
portosystemic pressure gradient is calculated by determining the
difference between the two averaged measurements.
According to the applicant, EchoTip[supreg] is a single-use,
disposable device comprised of the EchoTip[supreg] Insight Needle, a
connecting tube, and a Compass CT transducer. EchoTip[supreg] is
supplied with a 10 ml syringe. Once assembled, EchoTip[supreg] is used
with an ultrasound endoscope and directly measures pressures in the
hepatic and portal venous vasculatures. The EchoTip[supreg] Insight
Needle is stainless steel, has a handle and protective outer sheath,
and attaches to the accessory channel of the endoscope. The
polyethylene connecting tube consists of a 90 cm tube, a female luer
fitting, a male luer fitting, and a stopcock. The connecting tube is
used to attach the transducer to the needle handle. The stopcock is
used to aid priming of the assembled components. The Compass CT
transducer is a self-calibrating disposable pressure transducer with
integrated digital display. EchoTip[supreg] is intended for direct
measurement and monitoring of physiological pressure, including during
the infusion of fluids and therapeutic and diagnostic agents.
As stated previously, to be eligible for transitional pass-through
payment under the OPPS, a device must meet the criteria at Sec.
419.66(b)(1) through (4). With respect to the newness criterion at
Sec. 419.66(b)(1), on November 20, 2019, FDA granted De Novo
classification for EchoTip[supreg] as a device to directly measure
pressures in the hepatic and portal venous vasculatures and is used in
conjunction with an ultrasound endoscope. We received the application
for a new device category for transitional pass-through payment status
for the EchoTip[supreg] on June 29, 2022, which is within 3 years of
the date of the initial FDA marketing authorization.
We are inviting public comment on whether the EchoTip[supreg] meets
the newness criterion at Sec. 419.66(b)(1).
With respect to the eligibility criterion at Sec. 419.66(b)(3),
the applicant stated that EchoTip[supreg] is integral to the service
provided, is used for one patient only, comes in contact with human
skin, and is applied in or on a wound or other skin lesion. According
to the applicant, the hepatic vein and portal vein are punctured
through the liver parenchyma to obtain pressure measurements.
We are inviting public comment on whether EchoTip[supreg] meets the
integral part of the service criterion at Sec. 419.66(b)(3).
With respect to the exclusion criterion at Sec. 419.66(b)(4), the
applicant claimed that EchoTip[supreg] meets the device eligibility
requirements because it is not equipment, an instrument, apparatus,
implement, or item of this type for which depreciation and financing
expenses are recovered, and it is not a supply or material furnished
incident to a service.
We are inviting public comment on whether EchoTip[supreg] meets the
exclusion criterion at Sec. 419.66(b)(4).
In addition to the criteria at Sec. 419.66(b)(1) through (4), the
criteria for establishing new device categories are specified at Sec.
419.66(c). The first criterion, at Sec. 419.66(c)(1), provides that
CMS determines that a device to be included in the category is not
appropriately described by any of the existing categories or by any
category previously in effect, and was not being paid for as an
outpatient service as of December 31, 1996. The applicant described
EchoTip[supreg] as the only device authorized by the FDA with an
indication to directly access and measure pressure in the hepatic and
portal venous vasculatures in conjunction with an ultrasound endoscope.
Per the applicant, FDA established there is no recognized predicate
product, or other similar approved device with a similar mechanism of
action. Per the applicant, no previous device categories for pass-
through payment have encompassed EchoTip[supreg] and there are no
similar device categories. Upon review, it does not appear that there
are any existing pass-through payment categories that might apply to
EchoTip[supreg].
We are inviting public comment on whether EchoTip[supreg]meets the
device category criterion at Sec. 419.66(c)(1).
The second criterion for establishing a device category, at Sec.
419.66(c)(2), provides that CMS determines either of the following: (i)
that a device to be included in the category has demonstrated that it
will substantially improve the diagnosis or treatment of an illness or
injury or improve the functioning of a malformed body part compared to
the benefits of a device or devices in a previously established
category or other available treatment; or (ii) for devices for which
pass-through status will begin on or after January 1, 2020, as an
alternative to the substantial clinical improvement criterion, the
device is part of the FDA's Breakthrough Devices Program and has
received FDA marketing authorization for the indication covered by the
Breakthrough Device designation. The applicant claimed that
EchoTip[supreg] represents a substantial clinical improvement over
[[Page 49652]]
existing technologies in the diagnosis and management of chronic liver
disease because: (1) Endoscopic ultra-sound-guided direct portal-
systemic pressure gradient measurement (EUS-PPG)-guided measurement is
clinically safer and more accurate than the current standard
transjugular endovascular indirect measurement, referred to as the
hepatic venous pressure gradient (HVPG); (2) EUS-PPG is technically
feasible and superior to HVPG; (3) EUS-PPG has benefits in non-
cirrhotic patients; and (4) EUS-PPG has utility in the evaluation of
ESRD patients and kidney transplant candidacy. The applicant provided
four articles specifically for the purpose of addressing the
substantial clinical improvement criterion claims. The applicant also
included one background article that discussed social determinants of
health and disparities in liver disease.\57\
---------------------------------------------------------------------------
\57\ Kardashian, A., Wilder, J., Terrault, N. Price, J. (2021).
Addressing Social Determinants of Liver Disease During the COVID-19
Pandemic and Beyond: A Call to Action. Hepatology 73 (2): 811-820.
---------------------------------------------------------------------------
In support of the first claim, the applicant submitted an article
on a prospective, single-armed, single-academic center study.\58\
Patients with suspected liver disease or cirrhosis were enrolled
prospectively from 2020 to 2021. EUS-PPG was measured by calculating
the difference between the mean portal pressure and the mean hepatic
vein pressure. PH was defined as PPG >5 mm Hg and clinically
significant PH as PPG <10 mm Hg. The primary outcomes were procedural
technical success rate and correlation of EUS-PPG with fibrosis stage
obtained from concurrent EUS-guided liver biopsy sampling and the
correlation of EUS-PPG with patients' imaging, clinical, and laboratory
findings. The secondary outcome was occurrence of procedural adverse
events. EUS-PPG measurement was successful in 23 patients, leading to a
technical success rate of 96 percent. The authors reported that there
was no statistically significant correlation between the fibrosis stage
on histology and measured PPG (P = .559). According to the authors,
this did not change after excluding three patients without established
chronic liver disease from the analysis. The authors reported that one
patient experienced a mild adverse event with postprocedural abdominal
pain resulting in an emergency department visit. The authors also
reported that five patients (28 percent) received oral acetaminophen in
the post anesthesia care unit for mild abdominal pain after the
procedure, which resolved in all cases before discharge without the
need for further pharmacotherapy.
---------------------------------------------------------------------------
\58\ Hajifathalian, K., Westerveld, D., Kaplan, A. et. al.
(2022). Simultaneous EUS-guided portosystemic pressure measurement
and liver biopsy sampling correlate with clinically meaningful
outcomes. Gastrointestinal Endoscopy 95(4): 703-710.
---------------------------------------------------------------------------
In support of its second claim, the applicant submitted a single-
center retrospective study on patients with various CLDs undergoing
EUS-PPG and EUS-guided liver biopsy (EUS-bx) to assess correlation with
histological hepatic fibrosis stage and various clinical, laboratory,
endoscopic and imaging variables indicative of advanced liver
disease.\59\ Cases with EUS-PPG were identified at the University of
California Irvine, a tertiary endoscopy center, between January 2014
and March 2020. Three different ways of evaluating the EUS-PPG outcomes
were assessed: (1) success rate of the EUS-PPG measurement; (2)
performance; and (3) safety profile. The primary outcome evaluated was
the association between EUS-PPG and the presence of histologic liver
fibrosis, stage >=3. EUS-PPG procedures were successfully completed in
all 64 cases. On multivariate analysis, EUS-PPG >=5 mmHg was
significantly associated with fibrosis stage >=3 on EUG-liver biopsy
(LR 27.0, 95% CI = 1.653-360.597, p = 0.004), independent from C-
cirrhosis, clinical portal hypertension, thrombocytopenia,
splenomegaly, aspartate aminotransferase to platelet ration index score
>2, and fibrosis-4 score >3.25. There were six complications in total,
including abdominal pain (n = 3) and sore throat (n = 3). The authors
reported that there were no subjects who had post-EUS-PPG emergency
room (ER) visits or hospital admissions.
---------------------------------------------------------------------------
\59\ Choi, A., Chang, K., Samaransena, J. et. al. (2022).
Endoscopic Ultrasound[hyphen]Guided Porto[hyphen]systemic Pressure
Gradient Measurement Correlates with Histological Hepatic Fibrosis.
Digestive Diseases and Sciences. https://doi.org/10.1007/s10620-022-07418-7.
---------------------------------------------------------------------------
In support of its third claim, the applicant submitted a review of
endoscopic ultrasound guided interventions. The article \60\ discussed
the diagnosis and treatment of portal hypertension and treatment of
gastric varices (GV) and compared liver biopsy, HVPG, and EUS-PPG. With
respect to the utility of HVPG, the authors explained that in the
absence of fibrosis/nodules (i.e., cirrhosis) the pressure equalizes
throughout the interconnected sinusoidal network, and results in
minimal gradient (i.e., normal; up to 4 mmHg). Thus, according to the
authors, HVPG does not provide useful information regarding prehepatic
or presinusoidal portal hypertension (PH) (i.e., non-cirrhotic causes
of PH). In comparison, EUS-guided portal pressure gradient (PPG)
measurements employ a direct sampling technique. Thus, the study
authors found direct measurement of the portal vein pressure could be
considered the gold standard because it is not an estimate of
sinusoidal pressure as is HVPG. The difference in the mean measurement
of these pressures is termed the PPG which is analogous to the HVPG,
with the caveat that direct portal vein measurement also allows for the
assessment of prehepatic/presinusoidal PH; a limitation of the
transjugular approach. The study authors cited a study by Huang et
al.\61\ that used a porcine animal model with a novel EUS-guided system
which included a manometer attached to a 25-gauge fine needle
aspiration (FNA) needle for directly measuring pressures in the hepatic
and portal veins. The purpose of this animal study was to assess
clinical feasibility and assess correlation with the standard of care:
HVPG measurement through transjugular approach. The study authors
further cited a pilot study involving 28 patients between the age of
18-75 years with a history of liver disease or suspected cirrhosis that
underwent EUS-PPG measurements using the technique and equipment in the
animal study. The portal vein and hepatic vein were targeted via a
transgastric-transduodenal approach (inferior vena cava (IVC) was
substituted for hepatic vein when not technically feasible). The
technical success rate of EUS-PPG measurement was 100 percent without
any adverse events. The study authors concluded that EUS-PPG
measurement was a safe and feasible alternative to HVPG measurement.
---------------------------------------------------------------------------
\60\ Rudnick, S., Conway, J., Russo, M. (2021). Current state of
endohepatology: Diagnosis and treatment of portal hypertension and
its complications with endoscopic ultrasound. World Journal of
Hepatology 13(8): 887-895.
\61\ Huang JY, Samarasena JB, Tsujino T, Chang KJ. EUS-guided
portal pressure gradient measurement with a novel 25-gauge needle
device versus standard transjugular approach: a comparison animal
study. Gastrointest Endosc 2016; 84: 358-362 [PMID: 26945557 DOI:
10.1016/j.gie.2016.02.032].
---------------------------------------------------------------------------
In support of its fourth claim, the applicant submitted a letter in
which the author described a retrospective, single-center study to
determine feasibility, safety, and utility of EUS-PPG using EUS-liver
biopsy as comparison in patients with end stage renal disease (ESRD)
and suspected portal hypertension.\62\ According to the
[[Page 49653]]
letter author, the purpose of the study was to investigate the use of
EUS-PPG to assess pressure and the recommendation to decide between
kidney transplant (KT) or combined liver KT. According to the letter
author, the study suggested that new endoscopic and EUS findings were
discovered with successful/reproducible EUS-PPG in 10 out of 11 (91
percent) subjects. The author stated there were no significant adverse
events such as bleeding related to venous punctures, transfusions, or
EUS-PPG-related hospitalizations. The author referenced conclusions
from the study citing the need for further studies correlating EUS-PPG
with wedged hepatic vein pressure gradient (WHVPG), assess patient
experience, and analyze cost/benefit of one-stop versus piecemeal
procedures. It is also noted in the letter that WHVPG may not always be
feasible in ESRD patients due to catheter-related suprapubic
thromboses. We note that this source did not include the original
retrospective study, only a letter referencing it and highlighting its
potential value to further research.
---------------------------------------------------------------------------
\62\ Rubin, R., Mehta, M., Rossi, A., Joeslon, D., Shrestha, R.
(2021). Letter to the Editor: Endoscopic ultrasound guided portal-
systemic pressure gradient measurement to determine candidacy for
kidney transplant alone versus combined liver kidney transplant in
patients with advanced fibrosis or cirrhosis. Transplant
International 2021 (34): 2903-2904.
---------------------------------------------------------------------------
Based on the evidence submitted with the application, we note the
following concerns: a lack of direct comparison of EUS-PPG with HVPG
and non-invasive methods, a lack of consistent correlation with liver
biopsy, the reliance on non-peer reviewed studies, and small sample
sizes.
In the first two claims, the applicant asserted EUS-PPG is
clinically safer and more accurate than HVPG and technically superior
to HVPG. However, the applicant did not directly compare EUS-PPG and
HVPG. The Hajifathalian et. al. study,\63\ which supported the first
claim, stated EUS-PPG offers an alternative and potentially superior
methodology to measure PPG regardless of liver disease etiology,
without showing evidence of a direct comparison between EUS-PPG and
HVPG. The Choi study,\64\ in support of the second claim, directly
compared EUS-PPG with EUS-liver biopsy, but it did not compare EUS-PPG
with HVPG. The authors cited the lack of direct comparison between EUS-
PPG and HVPG as a limitation in the study. Further these two studies
had small sample sizes and were conducted at a single site; the
Hajifathalian et. al. study included 24 patients while the Choi study
included 64 patients.
---------------------------------------------------------------------------
\63\ Hajifathalian, K., Westerveld, D., Kaplan, A. et. al.
(2022). Simultaneous EUS-guided portosystemic pressure measurement
and liver biopsy sampling correlate with clinically meaningful
outcomes. Gastrointestinal Endoscopy 95(4): 703-710.
\64\ Choi, A., Chang, K., Samaransena, J. et. al. (2022).
Endoscopic Ultrasound[hyphen]Guided Porto[hyphen]systemic Pressure
Gradient Measurement Correlates with Histological Hepatic Fibrosis.
Digestive Diseases and Sciences. P.7. https://doi.org/10.1007/s10620-022-07418-7.
---------------------------------------------------------------------------
In addition, we note that the Hajifathalian et. al. study results
did not achieve correlation with fibrosis stage obtained from
concurrent EUS-guided liver biopsy sampling. According to the authors,
there was no statistically significant correlation between the fibrosis
stage on histology and measured PPG ( P= .559). We are concerned that
the lack of correlation would not support the claim that EUS-guided PPG
measurement is more accurate than the current method using an indirect
measurement with the use of HVPG.
In support of its fourth claim, we note the applicant relied on a
letter to the editor that provides a study description rather than
submitting the study directly as evidence for its claim.\65\ In the
enclosed letter, the author also noted that future studies are needed
to correlate EUS-PPG with WHVPG. Lastly, the article the applicant
provided in support of social determinants of health and disparities
did not directly discuss the device. Additional supporting evidence,
preferably published peer-reviewed clinical trials that show improved
clinical outcomes would help with our assessment of whether
EchoTip[supreg] demonstrates substantial clinical improvement over
existing technologies.
---------------------------------------------------------------------------
\65\ Rubin, R., Mehta, M., Rossi, A., Joeslon, D., Shrestha, R..
(2021). Letter to the Editor: Endoscopic ultrasound guided portal-
systemic pressure gradient measurement to determine candidacy for
kidney transplant alone versus combined liver kidney transplant in
patients with advanced fibrosis or cirrhosis. Transplant
International 2021 (34): 2903-2904.
---------------------------------------------------------------------------
We are inviting public comment on whether EchoTip[supreg] meets the
substantial clinical improvement criterion at Sec. 419.66(c)(2)(i)
The third criterion for establishing a device category, at Sec.
419.66(c)(3), requires us to determine that the cost of the device is
not insignificant, as described in Sec. 419.66(d). Section 419.66(d)
includes three cost significance criteria that must each be met. The
applicant provided the following information in support of the cost
significance requirements. The applicant stated that EchoTip[supreg]
would be reported with HCPCS codes listed in Table 33.
[GRAPHIC] [TIFF OMITTED] TP31JY23.050
To meet the cost criterion for device pass-through payment status,
a device must pass all three tests of the cost criterion for at least
one APC. As we explained in the CY 2005 OPPS final rule with comment
period with comment period (69 FR 65775), we generally use the lowest
APC payment rate applicable for use with the
[[Page 49654]]
nominated device when we assess whether a device meets the cost
significance criterion, thus increasing the probability the device will
pass the cost significance test. For our calculations, we used APC
5302, which had a CY 2022 payment rate of $1,658.81 at the time the
application was received. Beginning in CY 2017, we calculate the device
offset amount at the HCPCS/CPT code level instead of the APC level (81
FR 79657). HCPCS code 43238 had a device offset amount of $19.08 at the
time the application was received.\66\ According to the applicant, the
cost of the EchoTip[supreg] is $1,965.00.
---------------------------------------------------------------------------
\66\ We note that the applicant selected a value of $156.43 for
the device offset amount. However, the value selected is
inconsistent with the device offset amount related to HCPCS 43238 in
APC 5302 found in Addendum P to the CY 2022 OPPS/ASC final rule with
comment period, as corrected in the 2022 Correction Notice OPPS
Addendum (87 FR 2060). We selected the value of $19.08, which we
believe is the accurate value. Based on our initial assessment for
this proposed rule, using the device offset amount of $19.08 would
result in EchoTip[supreg] meeting the cost significance requirement.
---------------------------------------------------------------------------
Section 419.66(d)(1), the first cost significance requirement,
provides that the estimated average reasonable cost of devices in the
category must exceed 25 percent of the applicable APC payment amount
for the service related to the category of devices. The estimated
average reasonable cost of $1,965.00 for EchoTip[supreg] is 118.46
percent of the applicable APC payment amount for the service related to
the category of devices of $1,658.81 (($1,965.00/$1,658.81) x 100 =
118.46 percent). Therefore, we believe EchoTip[supreg] meets the first
cost significance requirement.
The second cost significance requirement, at Sec. 419.66(d)(2),
provides that the estimated average reasonable cost of the devices in
the category must exceed the cost of the device-related portion of the
APC payment amount for the related service by at least 25 percent,
which means that the device cost needs to be at least 125 percent of
the offset amount (the device-related portion of the APC found on the
offset list). The estimated average reasonable cost of $1,965.00 for
EchoTip[supreg] is 10,298.74 percent of the cost of the device-related
portion of the APC payment amount for the related service of $19.08
(($1,965.00/$19.08) x 100 = 10,298.74. Therefore, we believe that
EchoTip[supreg] meets the second cost significance requirement.
The third cost significance requirement, at Sec. 419.66(d)(3),
provides that the difference between the estimated average reasonable
cost of the devices in the category and the portion of the APC payment
amount for the device must exceed 10 percent of the APC payment amount
for the related service. The difference between the estimated average
reasonable cost of $1,965.00 for EchoTip[supreg] and the portion of the
APC payment amount for the device of $19.08 is 117.31 percent of the
APC payment amount for the related service of $1,658.81 ((($1,965.00-
$19.08)/$1,658.81) x 100 = 117.31 percent). Therefore, we believe that
EchoTip[supreg] meets the third cost significance requirement.
We are inviting public comment on whether the EchoTip[supreg] meets
the device pass-through payment criteria discussed in this section,
including the cost criterion for device pass-through payment status.
(d) FLEX Vessel Prep TM System
Venture Med Group, Inc. submitted an application for a new device
category for transitional pass-through payment status for FLEX Vessel
Prep TM System (FLEX VP TM) for CY 2024. Per the
applicant, FLEX VP TM is an endovascular, over-the-wire,
retractable, sheathed catheter with a three-strut treatment element at
the distal tip used to help resolve stenoses occluding vascular access
in patients with End-Stage Renal Disease (ESRD) on hemodialysis.
According to the applicant, FLEX VP TM is used with
percutaneous transluminal angioplasty (PTA) catheters and for the
treatment of in-stent restenosis of balloon expandable and self-
expanding stents in the peripheral vasculature. The applicant asserted
that FLEX VP TM consists of three integrated components: (1)
control handle, which includes the flush and guidewire ports and sheath
and treatment element actuators; (2) catheter shaft; and (3) treatment
element, which includes three proximally mounted micro-surgical blades
on protective skids. The struts are radially opposed, and the proximal
portion of each strut includes a micro-surgical blade. A radiopaque
marker is located distally to assist in the positioning of the
catheter.
According to the applicant, when deployed, FLEX VP TM's
struts independently engage with neointimal hyperplastic stenoses
occluding an arteriovenous fistula or graft used for hemodialysis. As
the device is pulled back through the lesion, the blades create three
continuous, parallel micro-incisions, approximately 250 microns in
depth, along the lesion's entire length. The applicant provided that
this is a non-balloon-based device where the struts exert a consistent
force of approximately one atmosphere on the vessel wall. Per the
applicant, additional micro-incisions may be created by using several
passes of the device. According to the applicant, the device breaks the
lesion surface to facilitate the effectiveness of a percutaneous
transluminal balloon angioplasty, which immediately follows use of the
device in restoring patency to the vascular access.
The applicant asserted that the micro-incisions improve acute
luminal gain and vessel compliance by releasing circumferential tension
in the lesion. The applicant asserted that this preparation can help
reduce vessel trauma and complications (including severe dissection and
need for a bail-out stent) and the need for high pressure balloons
(which risk barotrauma). Per the applicant, the interventionalist
advances FLEX VP TM past the lesion, then unsheathes and
expands the treatment element and slowly draws the catheter back,
allowing each micro-surgical blade to simultaneously and independently
engage with the lesion. This step produces three continuous, parallel
micro-incisions along the lesion's length. According to the applicant,
this process may be repeated several times; once the lesion is crossed
on the first pass, the treatment element is re-sheathed, advanced again
through the lesion, and rotated approximately 30 to 90 degrees. The
treatment element is then re-deployed and the process is repeated.
As stated previously, to be eligible for transitional pass-through
payment under the OPPS, a device must meet the criteria at Sec.
419.66(b)(1) through (4). With respect to the newness criterion at
Sec. 419.66(b)(1), on September 11, 2020, the applicant received
510(k) clearance from FDA for FLEX VP TM for use with PTA
catheters to facilitate dilation of stenoses in the femoral and
popliteal arteries and treatment of obstructive lesions of native or
synthetic arteriovenous dialysis fistulae. The device is also indicated
for treatment of in-stent restenosis of balloon expandable and self-
expanding stents in the peripheral vasculature. We received the
application for a new device category for transitional pass-through
payment status for FLEX VP TM on February 28, 2023, which is
within 3 years of the date of the initial FDA marketing authorization.
We are inviting public comment on whether FLEX VP TM
meets the newness criterion at Sec. 419.66(b)(1).
With respect to the eligibility criterion at Sec. 419.66(b)(3),
according to the applicant, FLEX VP TM is integral to the
service provided, is used for one patient only, comes in contact with
human skin, and is applied through an incision (for hemodialysis
patients, the incision is in the wrist or arm area). FLEX VP
TM
[[Page 49655]]
is inserted through the incision over a guidewire until distal to the
lesion to be treated and prior to the angioplasty procedure.
We are inviting public comment on whether FLEX VP TM
meets the integral part of the service criterion at Sec. 419.66(b)(3).
With respect to the exclusion criterion at Sec. 419.66(b)(4), the
applicant claimed that FLEX VP TM meets the device
eligibility requirements of Sec. 419.66(b)(4) because it is not
equipment, an instrument, apparatus, implement, or item of this type
for which depreciation and financing expenses are recovered, and it is
not a supply or material furnished incident to a service.
We are inviting public comment on whether FLEX VPTM
meets the exclusion criterion at Sec. 419.66(b)(4).
In addition to the criteria at Sec. 419.66(b)(1) through (4), the
criteria for establishing new device categories are specified at Sec.
419.66(c). The first criterion, at Sec. 419.66(c)(1), provides that
CMS determines that a device to be included in the category is not
appropriately described by any of the existing categories or by any
category previously in effect, and was not being paid for as an
outpatient service as of December 31, 1996. The applicant described
FLEX VPTM as an endovascular, over-the-wire, retractable,
sheathed catheter with a three-strut treatment element at the distal
tip used to help resolve stenoses occluding vascular access in patients
with ESRD on hemodialysis. Per the applicant, no previous device
categories for pass-through payment have encompassed FLEX
VPTM and there are no similar device categories. Upon
review, it does not appear that there are any existing pass-through
payment categories that might apply to FLEX VPTM.
We are inviting public comment on whether FLEX VPTM
meets the device category criterion at Sec. 419.66(c)(1).
The second criterion for establishing a device category, at Sec.
419.66(c)(2), provides that CMS determines either of the following: (i)
that a device to be included in the category has demonstrated that it
will substantially improve the diagnosis or treatment of an illness or
injury or improve the functioning of a malformed body part compared to
the benefits of a device or devices in a previously established
category or other available treatment; or (ii) for devices for which
pass-through status will begin on or after January 1, 2020, as an
alternative to the substantial clinical improvement criterion, the
device is part of FDA's Breakthrough Devices Program and has received
FDA marketing authorization for the indication covered by the
Breakthrough Device designation. The applicant stated that FLEX
VPTM represents a substantial clinical improvement over
existing technologies by: (1) improving clinical outcomes for the
hemodialysis patient population with dysfunctional arteriovenous (AV)
access; and (2) reducing the rate of device-related complications. The
applicant cited two studies describing the findings of a single
clinical trial specifically for the purpose of addressing the
substantial clinical improvement criterion.
The first study presented findings 6 months after patients were
treated with FLEX VPTM followed by balloon angioplasty
(Aruny, et al.),\67\ and the second study presented findings at 12
months post-treatment with FLEX VPTM followed by balloon
angioplasty (author not identified in the manuscript for the 12-month
follow up).\68\ Both studies focused on results from methods used to
show the durability of the treatments of blocked vascular accesses with
FLEX VPTM. The trial was a prospective, observational
controlled clinical trial. A total of 148 lesions or blockages were
treated with FLEX VPTM prior to a PTA in 114 subjects (the
population was 53.5 percent female; 65.8 percent Black or African
American (B/AA)), treated at eight clinical sites. All subjects were
hemodialysis patients with vascular blockages. Of the 114 subjects, 104
patients had prior treatments to correct stenoses before enrolling in
the trial. A primary endpoint was anatomic success, defined as
angiographic confirmation of <30 percent residual stenosis post-
procedure without adverse event. Additional assessments included
dialysis circuit primary patency or vascular openness, clinical success
and procedural success. The trial also measured the target lesion
primary patency (TLPP) and freedom from target lesion restenosis
(FFTLR) to determine if there is a decreased rate of subsequent
therapeutic interventions. The two studies of the single clinical trial
also examined the rate of device-related complications. No serious
adverse events were reported initially (Aruny et al.), or in the 12-
month follow-up (author not identified in the manuscript for the 12-
month follow-up). The studies looked at differences in outcomes based
on race and sex and found no significant differences. Per the
applicant, the results suggest that FLEX VPTM followed by
angioplasty can substantially reduce the number and burden of
maintenance procedures for hemodialysis patients with arteriovenous
fistula (AVF), arteriovenous graft (AVG), and AV disfunctions that
cause cephalic arch stenoses.
---------------------------------------------------------------------------
\67\ Aruny et al., Real-World Results of a Novel Vessel
Preparation Device Prior to Balloon Angioplasty for Arteriovenous
Access Repair in Diverse Populations on Dialysis, under review, JVA,
Feb. 2023.
\68\ Durability of Arteriovenous Access Repair Involving Vessel
Preparation by Longitudinal Micro-Incisions Before Balloon
Angioplasty; unpublished manuscript (no author identified).
---------------------------------------------------------------------------
In support of its first claim, that FLEX VPTM improves
clinical outcomes for the hemodialysis patient population with
dysfunctional AV access, the applicant asserted that FLEX
VPTM decreased both the rates of therapeutic interventions
and subsequent therapeutic interventions. The applicant provided the
following evidence from the clinical trial and two studies. FLEX
VPTM treatment prior to angioplasty benefits hemodialysis
patients by improving the level of openness of blocked (or stenosed)
arteriovenous access; a recurring issue that occurs because of the
fistulas created to facilitate hemodialysis. The use of FLEX
VPTM also allows the site with prior blockage (also known as
lesions) to stay opened for a longer period of time, reducing the
frequency of future angioplasty procedures. The applicant discussed how
the initial study (Aruny et al.), found that patients treated with FLEX
VPTM prior to PTA (FLEX+PTA) had 6 months TLPP of 63.7
percent openness, versus the 15.6 percent to 50.5 percent rates of
vascular openness after PTA alone observed in other publications. This
study also presented results for FFTLR, a calculation to determine an
average number of days of durability of the percentage of the patency
or lesion openness reported; for the overall hemodialysis population
studied it was 206.7 days. The applicant also described results for
patients with only AVFs or AVGs. For FLEX+PTA in AVF patients, TLPP was
70.6 percent and FFTLR was 219.7 days. For FLEX+PTA in AVG patients,
TLPP was 46.6 percent and FFTLR was 173.9 days. Confirmation of
reliability of the findings was shown by dialysis access circuit
primary patency: 54.3 percent (AVF 54.1 percent; AVG 47.4 percent).
According to the applicant, results of dialysis access circuit primary
patency derived from the literature with only angioplasty performed
ranged from 0 percent to 48 percent. The applicant also presented
results 12 months post-treatment (author not identified in the
manuscript for the 12-month follow up) supporting the durability of the
FLEX+PTA. Per the applicant, results generally accord with Aruny et
al.'s 6-month results and exceed PTA-only
[[Page 49656]]
results from the literature. Overall, TLPP was 45.7 percent (versus
62.2 percent at 6 months) and FFTLR was 250.9 days (versus literature
(PTA only), 131.4 days). Per the applicant, this result suggests that
compared to the durability of PTA only, FTA+PTA would result in a lower
frequency of treatments to remove stenosis in overall hemodialysis
patients. For AVFs, TLPP was 47.4 percent (versus 67.5 percent at 6
months); FFTLR was 258.5 days (versus literature, 156.9 days). For
AVGs, TLPP was 43.8 percent (versus 52.4 percent at 6 months); FFTLR
was 239.4 days (versus literature, 76.6 days). Overall, 12 months
circuit primary patency was 36.5 percent (versus 54.3 percent at 6
months).\69\
---------------------------------------------------------------------------
\69\ Durability of Arteriovenous Access Repair Involving Vessel
Preparation by Longitudinal Micro-Incisions Before Balloon
Angioplasty; unpublished manuscript (no author identified).
---------------------------------------------------------------------------
In further support of the applicant's first claim, the applicant
presented results from the clinical trial comparing B/AA patients to
non-B/AA patients. In support of FLEX VPTM prior to PTA
improving clinical outcomes for B/AA hemodialysis patient population
with dysfunctional AV access, the applicant discussed the initial Aruny
et al. study, in which B/AA patients had better results with FLEX
VPTM intervention than did non-B/AA patients. The B/AA
cohort (65.8 percent of sample) had TLPP of 63.76 percent versus 58.8
percent for the non-B/AA cohort after treatment with FLEX+PTA. FFTLR
was 207.8 days for B/AA versus 192.2 days for non-B/AA. For B/AA
patients with cephalic arch lesions, TLPP was 78.6 percent versus 58.3
percent for non-B/AA. The applicant asserted that these results were
achieved despite pre-existing disparities in patient's experience with
AV access care. B/AA patients had more years since they started
hemodialysis (p<0.01), suggesting a possibility of increased severity
or complexity of lesions in the B/AA patients.\70\ The applicant also
presented results 12 months post-treatment.\71\ In terms of B/AA
patient outcomes comparable to the overall sample, the B/AA cohort
(65.8 percent of sample) had TLPP of 45.9 percent versus 45.7 percent
overall patients and FFTLR was 257.8 days for B/AA versus 250.9 days
overall patients. In B/AA patients with cephalic arch lesions, TLPP was
71.8 percent versus 59.7 percent overall patients.
---------------------------------------------------------------------------
\70\ Aruny et al., Real-World Results of a Novel Vessel
Preparation Device Prior to Balloon Angioplasty for Arteriovenous
Access Repair in Diverse Populations on Dialysis, under review, JVA,
Feb. 2023.
\71\ Durability of Arteriovenous Access Repair Involving Vessel
Preparation by Longitudinal Micro-Incisions Before Balloon
Angioplasty; unpublished manuscript (no author identified).
---------------------------------------------------------------------------
Furthermore, in support of the applicant's first claim, the
applicant provided the following evidence from the clinical trial. In
support of FLEX VPTM improving clinical outcomes for a
female hemodialysis patient population with dysfunctional AV access,
the applicant stated that in the initial Aruny et al. study, females
differed from males significantly in their pre-existing experiences
with AV care. Female patients had more years since they started
hemodialysis (p<0.01) and since AV access creation (p<0.01) and more
prior AV access interventions (p<0.05); according to the applicant,
this potentially suggests that female patients are more prone to
complexity of lesions or recurrence of stenosis. However, no
statistically significant differences in results of TLPP and FFTLR
measures at 6 months post treatment were observed between females and
males treated with FLX VPTM followed by PTA. Therefore,
females receiving a FLEX VPTM intervention prior to PTA
achieved results comparable to males, notwithstanding pre-existing
disparities.\72\
---------------------------------------------------------------------------
\72\ Aruny et al., Real-World Results of a Novel Vessel
Preparation Device Prior to Balloon Angioplasty for Arteriovenous
Access Repair in Diverse Populations on Dialysis, under review, JVA,
Feb. 2023.
---------------------------------------------------------------------------
In further support of the applicant's first claim, the applicant
explained that cephalic arch (CA) stenoses are notoriously difficult to
treat effectively and have some of the worst results in dialysis access
results and recurrence of the lesions in a short amount of time. The
applicant explained that complications are also high. In this sample,
the target stenosis was in the CA in 25/114 patients (21.9 percent).
TLPP following FLEX+PTA at 6 months (Aruny et al.) was 70.6 percent
overall patients, and 76.8 percent in the B/AA cohort. According to the
applicant comparable figures in the literature ranged from 0 percent to
51.6 percent. Access dialysis circuit primary patency gathered from the
literature for PTA only was 66.4 percent for CA cases.\73\ The
applicant also presented results 12-month post-treatment (author not
identified in the manuscript for the 12-month follow up). TLPP for
these patients following FLEX+PTA at 12 months was 59.7 percent for
overall patients and 71.8 percent in the B/AA cohort. According to the
applicant, comparable figures in the clinical literature ranged from 0
percent to 33.9 percent and access dialysis circuit primary patency was
55.3 percent for CA cases.\74\
---------------------------------------------------------------------------
\73\ Aruny et al., Real-World Results of a Novel Vessel
Preparation Device Prior to Balloon Angioplasty for Arteriovenous
Access Repair in Diverse Populations on Dialysis, under review, JVA,
Feb. 2023.
\74\ Durability of Arteriovenous Access Repair Involving Vessel
Preparation by Longitudinal Micro-Incisions Before Balloon
Angioplasty; unpublished manuscript (no author identified).
---------------------------------------------------------------------------
In support of the applicant's second claim, the applicant asserted
that no serious adverse events were reported from the initial study
(Aruny et al.). Five procedural complications and one dissection
related to the FLEX VPTM device were recorded. Three
dissections were associated with PTA.\75\ The applicant also presented
results 12 months post-treatment (author not identified in the
manuscript for the 12-month follow-up), noting that no serious adverse
events were reported during 12-month follow-up.
---------------------------------------------------------------------------
\75\ Aruny et al., Real-World Results on a Novel Vessel
Preparation Device Prior to Balloon Angioplasty for Arteriovenous
Access Repair in Diverse Populations on Dialysis, under review, JVA,
Feb. 2023.
---------------------------------------------------------------------------
According to the applicant, these findings confirm the safety
record for FLEX VPTM, which is better when compared to the
Journal of Vascular and Interventional Radiology (JVIR) Quality
Improvement Guidelines thresholds for AVF and AVG. According to the
applicant, in the literature, up to 15% cephalic arch lesions result in
vessel rupture and about 12% of PTAs in B/AA patients are reported to
result in major complications.\76\
---------------------------------------------------------------------------
\76\ Durability of Arteriovenous Access Repair Involving Vessel
Preparation by Longitudinal Micro-Incisions Before Balloon
Angioplasty; unpublished manuscript (no author identified).
---------------------------------------------------------------------------
Ultimately, the applicant concluded that FLEX VPTM is
safe and effective, notably in patients with AVGs and those with CA
stenoses, and furthermore, despite observed differences in time since
hemodialysis onset, clinical success was similar across sex and race,
suggesting an opportunity to enhance health equity.\77\ The applicant
also added that FLEX VPTM, when used with PTA, provides
sustained clinical improvement over existing technologies by increasing
the patency and time to reintervention of PTA procedures in AVFs and
AVGs at 12 months (author not identified in the manuscript for the 12-
month follow-up), while reducing the potential for serious
complications, such as perforations and vessel rupture. Favorable
results at 6 months for the B/AA cohort reported in Aruny et al.'s
article were sustained in the 12 month
[[Page 49657]]
results. Further, according to the applicant, the use of FLEX
VPTM offers the prospect of improved treatment of
unresponsive or difficult to treat stenosis in the cephalic arch.\78\
---------------------------------------------------------------------------
\77\ Aruny et al., Real-World Results of a Novel Vessel
Preparation Device Prior to Balloon Angioplasty for Arteriovenous
Access Repair in Diverse Populations on Dialysis, under review, JVA,
Feb. 2023.
\78\ Durability of Arteriovenous Access Repair Involving Vessel
Preparation by Longitudinal Micro-Incisions Before Balloon
Angioplasty; unpublished manuscript (no author identified).
---------------------------------------------------------------------------
Based on the evidence submitted in the application, we note the
following concerns: The applicant presented two studies (Aruny et al.
[a 6-month follow up], and an unpublished manuscript which did not
identify an author [12-month follow up] submitted with the application)
that are based on a single clinical trial of 114 patients followed for
12 months. Per the applicant, the results from the 6-months follow up
are not yet published, and the results from 12-months post-treatment
are also unpublished and only available at the FLEX VPTM
registry. Therefore, we note that the evidence presented on benefits to
patients in hemodialysis is not peer-reviewed and this may reduce the
strength of the evidence presented and the opinion of peers on study
quality. In order to demonstrate substantial clinical improvement over
currently available treatments, we consider supporting evidence,
preferably published peer-reviewed clinical trials, that shows improved
clinical outcomes, such as reduction in mortality, complications,
subsequent interventions, future hospitalizations, recovery time, pain,
or a more rapid beneficial resolution of the disease process compared
to the standard of care. We also note that, due to the clinical trial
design, there is insufficient data on the impact of angioplasty with
the drug-coated balloon option. The drug in these balloons may play a
role in the improvement of patency or openness durability and
additional studies to strengthen the initial observations presented by
the applicant would be helpful.
Lastly, we note the applicant did not show a clear crosswalk of
findings or data in terms of device-related complications (including
dissection and embolectomy) observed in the trial and compared to those
referenced in literature. For example, procedural complications and
dissection were mentioned in the FLEX VPTM group while
rupture and major complications were mentioned in the literature. The
clinical trial results presented one dissection attributed to FLEX
VPTM after 148 lesions were treated with FLEX
VPTM plus PTA. Per the applicant, there are approximately
732,000 interventions per year in the U.S. to maintain lifesaving
arteriovenous access and FLEX VPTM could be potentially used
in a fraction of those; this increases the concern for frequency of
complications and therefore, additional studies may be needed to
strengthen the second substantial clinical improvement claim.
We are inviting public comment on whether FLEX VPTM
meets the substantial clinical improvement criterion at Sec.
419.66(c)(2)(i).
The third criterion for establishing a device category, at Sec.
419.66(c)(3), requires us to determine that the cost of the device is
not insignificant, as described in Sec. 419.66(d). Section 419.66(d)
includes three cost significance criteria that must each be met. The
applicant provided the following information in support of the cost
significance requirements. The applicant stated that FLEX
VPTM would be reported with HCPCS codes listed in Table 34.
[GRAPHIC] [TIFF OMITTED] TP31JY23.051
To meet the cost criterion for device pass-through payment status,
a device must pass all three tests of the cost criterion for at least
one APC. As we explained in the CY 2005 OPPS final rule with comment
period (69 FR 65775), we generally use the lowest APC payment rate
applicable for use with the nominated device when we assess whether a
device meets the cost significance criterion, thus increasing the
probability the device will pass the cost significance test. For our
calculations, we used APC 5192, which had a CY 2022 payment rate of
$5,061.89 at the time the application was received. Beginning in CY
2017, we calculate the device offset amount at the HCPCS/CPT code level
instead of the APC level (81 FR 79657). HCPCS code 36902 had a device
offset amount of $1,271.04 at the time the application was
received.\79\ According to the applicant, the cost of FLEX VP
TM is $1,995.00.
---------------------------------------------------------------------------
\79\ We note that the applicant selected a value of $1,391.99
for the device offset amount. However, the value selected is
inconsistent with the device offset amount related to HCPCS 36902 in
APC 5192 found in Addendum P to the CY 2022 OPPS/ASC final rule with
comment period, as corrected in the 2022 Correction Notice OPPS
Addendum (87 FR 2060). We selected the value of $1,271.04, which we
believe is the accurate value. Based on our initial assessment for
this proposed rule, using the device offset amount of $1,271.04
would result in FLEX VP TM meeting the cost significance
requirement.
---------------------------------------------------------------------------
Section 419.66(d)(1), the first cost significance requirement,
provides that the estimated average reasonable cost of devices in the
category must exceed 25 percent of the applicable APC payment amount
for the service related to the category of devices. The estimated
average reasonable cost of $1,995.00 for FLEX VP TM is 39.41
percent of the applicable APC payment amount for the
[[Page 49658]]
service related to the category of devices of $5,061.89 (($1,995.00/
$5,061.89) x 100 = 39.41 percent). Therefore, we believe FLEX VP
TM meets the first cost significance requirement.
The second cost significance requirement, at Sec. 419.66(d)(2),
provides that the estimated average reasonable cost of the devices in
the category must exceed the cost of the device-related portion of the
APC payment amount for the related service by at least 25 percent,
which means that the device cost needs to be at least 125 percent of
the offset amount (the device-related portion of the APC found on the
offset list). The estimated average reasonable cost of $1,995.00 for
FLEX VP TM is 156.96 percent of the cost of the device-
related portion of the APC payment amount for the related service of
$1,271.04 (($1,995.00/$1,271.04) x 100 = 156.96 percent). Therefore, we
believe that FLEX VP TM meets the second cost significance
requirement.
The third cost significance requirement, at Sec. 419.66(d)(3),
provides that the difference between the estimated average reasonable
cost of the devices in the category and the portion of the APC payment
amount for the device must exceed 10 percent of the APC payment amount
for the related service. The difference between the estimated average
reasonable cost of $1,995.00 for FLEX VP TM and the portion
of the APC payment amount for the device of $1,271.04 is 14.30 percent
of the APC payment amount for the related service of $5,061.89
((($1,995.00-$1,271.04)/$5,061.89) x 100 = 14.30 percent). Therefore,
we believe that FLEX VP TM meets the third cost significance
requirement.
We are inviting public comment on whether FLEX VP TM
meets the device pass-through payment criteria discussed in this
section, including the cost criterion for device pass-through payment
status.
B. Proposed Device-Intensive Procedures
1. Background
Under the OPPS, prior to CY 2017, device-intensive status for
procedures was determined at the APC level for APCs with a device
offset percentage greater than 40 percent (79 FR 66795). Beginning in
CY 2017, CMS began determining device-intensive status at the HCPCS
code level. In assigning device-intensive status to an APC prior to CY
2017, the device costs of all the procedures within the APC were
calculated and the geometric mean device offset of all of the
procedures had to exceed 40 percent. Almost all of the procedures
assigned to device-intensive APCs utilized devices, and the device
costs for the associated HCPCS codes exceeded the 40-percent threshold.
The no cost/full credit and partial credit device policy (79 FR 66872
through 66873) applies to device-intensive procedures and is discussed
in detail in section IV.B.4 of this proposed rule. A related device
policy was the requirement that certain procedures assigned to device-
intensive APCs require the reporting of a device code on the claim (80
FR 70422) and is discussed in detail in section IV.B.3 of this proposed
rule. For further background information on the device-intensive APC
policy, we refer readers to the CY 2016 OPPS/ASC final rule with
comment period (80 FR 70421 through 70426).
a. HCPCS Code-Level Device-Intensive Determination
As stated earlier, prior to CY 2017, under the device-intensive
methodology we assigned device-intensive status to all procedures
requiring the implantation of a device that were assigned to an APC
with a device offset greater than 40 percent and, beginning in CY 2015,
that met the three criteria listed below. Historically, the device-
intensive designation was at the APC level and applied to the
applicable procedures within that APC. In the CY 2017 OPPS/ASC final
rule with comment period (81 FR 79658), we changed our methodology to
assign device-intensive status at the individual HCPCS code level
rather than at the APC level. Under this policy, a procedure could be
assigned device-intensive status regardless of its APC assignment, and
device-intensive APC designations were no longer applied under the OPPS
or the ASC payment system.
We believe that a HCPCS code-level device offset is, in most cases,
a better representation of a procedure's device cost than an APC-wide
average device offset based on the average device offset of all of the
procedures assigned to an APC. Unlike a device offset calculated at the
APC level, which is a weighted average offset for all devices used in
all of the procedures assigned to an APC, a HCPCS code-level device
offset is calculated using only claims for a single HCPCS code. We
believe that this methodological change results in a more accurate
representation of the cost attributable to implantation of a high-cost
device, which ensures consistent device-intensive designation of
procedures with a significant device cost. Further, we believe a HCPCS
code-level device offset removes inappropriate device-intensive status
for procedures without a significant device cost that are granted such
status because of their APC assignment.
Under our existing policy, procedures that meet the criteria listed
in section IV.C.1.b of this proposed rule are identified as device-
intensive procedures and are subject to all the policies applicable to
procedures assigned device-intensive status under our established
methodology, including our policies on device edits and no cost/full
credit and partial credit devices discussed in sections IV.C.3 and
IV.C.4 of this proposed rule.
b. Use of the Three Criteria To Designate Device-Intensive Procedures
We clarified our established policy in the CY 2018 OPPS/ASC final
rule with comment period (82 FR 52474), where we explained that device-
intensive procedures require the implantation of a device and
additionally are subject to the following criteria:
All procedures must involve implantable devices that would
be reported if device insertion procedures were performed;
The required devices must be surgically inserted or
implanted devices that remain in the patient's body after the
conclusion of the procedure (at least temporarily); and
The device offset amount must be significant, which is
defined as exceeding 40 percent of the procedure's mean cost.
We changed our policy to apply these three criteria to determine
whether procedures qualify as device-intensive in the CY 2015 OPPS/ASC
final rule with comment period (79 FR 66926), where we stated that we
would apply the no cost/full credit and partial credit device policy--
which includes the three criteria listed previously--to all device-
intensive procedures beginning in CY 2015. We reiterated this position
in the CY 2016 OPPS/ASC final rule with comment period (80 FR 70424),
where we explained that we were finalizing our proposal to continue
using the three criteria established in the CY 2007 OPPS/ASC final rule
with comment period for determining the APCs to which the CY 2016
device intensive policy will apply. Under the policies we adopted in
CYs 2015, 2016, and 2017, all procedures that require the implantation
of a device and meet the previously described criteria are assigned
device-intensive status, regardless of their APC placement.
[[Page 49659]]
2. Device-Intensive Procedure Policy for CY 2019 and Subsequent Years
As part of our effort to better capture costs for procedures with
significant device costs, in the CY 2019 OPPS/ASC final rule with
comment period (83 FR 58944 through 58948), for CY 2019, we modified
our criteria for device-intensive procedures. We had heard from
interested parties that the criteria excluded some procedures that
interested parties believed should qualify as device-intensive
procedures. Specifically, we were persuaded by interested party
arguments that procedures requiring expensive surgically inserted or
implanted devices that are not capital equipment should qualify as
device-intensive procedures, regardless of whether the device remains
in the patient's body after the conclusion of the procedure. We agreed
that a broader definition of device-intensive procedures was warranted,
and made two modifications to the criteria for CY 2019 (83 FR 58948).
First, we allowed procedures that involve surgically inserted or
implanted single-use devices that meet the device offset percentage
threshold to qualify as device-intensive procedures, regardless of
whether the device remains in the patient's body after the conclusion
of the procedure. We established this policy because we no longer
believe that whether a device remains in the patient's body should
affect a procedure's designation as a device-intensive procedure, as
such devices could, nonetheless, comprise a large portion of the cost
of the applicable procedure. Second, we modified our criteria to lower
the device offset percentage threshold from 40 percent to 30 percent,
to allow a greater number of procedures to qualify as device intensive.
We stated that we believe allowing these additional procedures to
qualify for device-intensive status will help ensure these procedures
receive more appropriate payment in the ASC setting, which will help
encourage the provision of these services in the ASC setting. In
addition, we stated that this change would help to ensure that more
procedures containing relatively high-cost devices are subject to the
device edits, which leads to more correctly coded claims and greater
accuracy in our claims data. Specifically, for CY 2019 and subsequent
years, we finalized that device-intensive procedures will be subject to
the following criteria:
All procedures must involve implantable devices assigned a
CPT or HCPCS code;
The required devices (including single-use devices) must
be surgically inserted or implanted; and
The device offset amount must be significant, which is
defined as exceeding 30 percent of the procedure's mean cost (83 FR
58945).
In addition, to further align the device-intensive policy with the
criteria used for device pass-through payment status, we finalized, for
CY 2019 and subsequent years, that for purposes of satisfying the
device-intensive criteria, a device-intensive procedure must involve a
device that:
Has received FDA marketing authorization, has received an
FDA investigational device exemption (IDE), and has been classified as
a Category B device by FDA in accordance with Sec. Sec. 405.203
through 405.207 and 405.211 through 405.215, or meets another
appropriate FDA exemption from premarket review;
Is an integral part of the service furnished;
Is used for one patient only;
Comes in contact with human tissue;
Is surgically implanted or inserted (either permanently or
temporarily); and
Is not either of the following:
(a) Equipment, an instrument, apparatus, implement, or item of the
type for which depreciation and financing expenses are recovered as
depreciable assets as defined in Chapter 1 of the Medicare Provider
Reimbursement Manual (CMS Pub. 15-1); or
(b) A material or supply furnished incident to a service (for
example, a suture, customized surgical kit, scalpel, or clip, other
than a radiological site marker) (83 FR 58945).
In addition, for new HCPCS codes describing procedures requiring
the implantation of devices that do not yet have associated claims
data, in the CY 2017 OPPS/ASC final rule with comment period (81 FR
79658), we finalized a policy for CY 2017 to apply device-intensive
status with a default device offset set at 41 percent for new HCPCS
codes describing procedures requiring the implantation or insertion of
a device that did not yet have associated claims data until claims data
are available to establish the HCPCS code-level device offset for the
procedures. This default device offset amount of 41 percent was not
calculated from claims data; instead, it was applied as a default until
claims data were available upon which to calculate an actual device
offset for the new code. The purpose of applying the 41-percent default
device offset to new codes that describe procedures that implant or
insert devices was to ensure ASC access for new procedures until claims
data become available.
As discussed in the CY 2019 OPPS/ASC proposed rule and final rule
with comment period (83 FR 37108 through 37109 and 58945 through 58946,
respectively), in accordance with our policy stated previously to lower
the device offset percentage threshold for procedures to qualify as
device-intensive from greater than 40 percent to greater than 30
percent, for CY 2019 and subsequent years, we modified this policy to
apply a 31-percent default device offset to new HCPCS codes describing
procedures requiring the implantation of a device that do not yet have
associated claims data until claims data are available to establish the
HCPCS code-level device offset for the procedures. In conjunction with
the policy to lower the default device offset from 41 percent to 31
percent, we continued our current policy of, in certain rare instances
(for example, in the case of a very expensive implantable device),
temporarily assigning a higher offset percentage if warranted by
additional information such as pricing data from a device manufacturer
(81 FR 79658). Once claims data are available for a new procedure
requiring the implantation or insertion of a device, device-intensive
status is applied to the code if the HCPCS code-level device offset is
greater than 30 percent, according to our policy of determining device-
intensive status by calculating the HCPCS code-level device offset.
In addition, in the CY 2019 OPPS/ASC final rule with comment
period, we clarified that since the adoption of our policy in effect as
of CY 2018, the associated claims data used for purposes of determining
whether or not to apply the default device offset are the associated
claims data for either the new HCPCS code or any predecessor code, as
described by CPT coding guidance, for the new HCPCS code. Additionally,
for CY 2019 and subsequent years, in limited instances where a new
HCPCS code does not have a predecessor code as defined by CPT, but
describes a procedure that was previously described by an existing
code, we use clinical discretion to identify HCPCS codes that are
clinically related or similar to the new HCPCS code but are not
officially recognized as a predecessor code by CPT, and to use the
claims data of the clinically related or similar code(s) for purposes
of determining whether or not to apply the default device offset to the
new HCPCS code (83 FR 58946). Clinically related and similar procedures
for purposes of this policy are procedures that have few or no
[[Page 49660]]
clinical differences and use the same devices as the new HCPCS code. In
addition, clinically related and similar codes for purposes of this
policy are codes that either currently or previously describe the
procedure described by the new HCPCS code. Under this policy, claims
data from clinically related and similar codes are included as
associated claims data for a new code, and where an existing HCPCS code
is found to be clinically related or similar to a new HCPCS code, we
apply the device offset percentage derived from the existing clinically
related or similar HCPCS code's claims data to the new HCPCS code for
determining the device offset percentage. We stated that we believe
that claims data for HCPCS codes describing procedures that have minor
differences from the procedures described by new HCPCS codes will
provide an accurate depiction of the cost relationship between the
procedure and the device(s) that are used, and will be appropriate to
use to set a new code's device offset percentage, in the same way that
predecessor codes are used. If a new HCPCS code has multiple
predecessor codes, the claims data for the predecessor code that has
the highest individual HCPCS-level device offset percentage is used to
determine whether the new HCPCS code qualifies for device-intensive
status. Similarly, in the event that a new HCPCS code does not have a
predecessor code but has multiple clinically related or similar codes,
the claims data for the clinically related or similar code that has the
highest individual HCPCS level device offset percentage is used to
determine whether the new HCPCS code qualifies for device-intensive
status.
As we indicated in the CY 2019 OPPS/ASC proposed rule and final
rule with comment period, additional information for our consideration
of an offset percentage higher than the default of 31 percent for new
HCPCS codes describing procedures requiring the implantation (or, in
some cases, the insertion) of a device that do not yet have associated
claims data, such as pricing data or invoices from a device
manufacturer, should be directed to the Division of Outpatient Care,
Mail Stop C4-01-26, Centers for Medicare & Medicaid Services, 7500
Security Boulevard, Baltimore, MD 21244-1850, or electronically at
[email protected] Additional information can be submitted
prior to issuance of an OPPS/ASC proposed rule or as a public comment
in response to an issued OPPS/ASC proposed rule. Device offset
percentages will be set in each year's final rule.
The full listing of the proposed CY 2024 device-intensive
procedures can be found in Addendum P to this proposed rule (which is
available via the internet on the CMS website). Further, our claims
accounting narrative contains a description of our device offset
percentage calculation. Our claims accounting narrative for this
proposed rule can be found under supporting documentation for the CY
2024 OPPS/ASC proposed rule on our website at: https://www.cms.gov/medicare/medicare-fee-for-service-payment/hospitaloutpatientpps.
3. Device Edit Policy
In the CY 2015 OPPS/ASC final rule with comment period (79 FR
66795), we finalized a policy and implemented claims processing edits
that require any of the device codes used in the previous device-to-
procedure edits to be present on the claim whenever a procedure code
assigned to any of the APCs listed in Table 5 of the CY 2015 OPPS/ASC
final rule with comment period (the CY 2015 device-dependent APCs) is
reported on the claim. In addition, in the CY 2016 OPPS/ASC final rule
with comment period (80 FR 70422), we modified our previously existing
policy and applied the device coding requirements exclusively to
procedures that require the implantation of a device that are assigned
to a device-intensive APC. In the CY 2016 OPPS/ASC final rule with
comment period, we also finalized our policy that the claims processing
edits are such that any device code, when reported on a claim with a
procedure assigned to a device-intensive APC (listed in Table 42 of the
CY 2016 OPPS/ASC final rule with comment period (80 FR 70422)) will
satisfy the edit.
In the CY 2017 OPPS/ASC final rule with comment period (81 FR 79658
through 79659), we changed our policy for CY 2017 and subsequent years
to apply the CY 2016 device coding requirements to the newly defined
device-intensive procedures. For CY 2017 and subsequent years, we also
specified that any device code, when reported on a claim with a device-
intensive procedure, will satisfy the edit. In addition, we created
HCPCS code C1889 to recognize devices furnished during a device-
intensive procedure that are not described by a specific Level II HCPCS
Category C-code. Reporting HCPCS code C1889 with a device-intensive
procedure will satisfy the edit requiring a device code to be reported
on a claim with a device-intensive procedure. In the CY 2019 OPPS/ASC
final rule with comment period, we revised the description of HCPCS
code C1889 to remove the specific applicability to device-intensive
procedures (83 FR 58950). For CY 2019 and subsequent years, the
description of HCPCS code C1889 is ``Implantable/insertable device, not
otherwise classified''. In the CY 2023 OPPS/ASC final rule with comment
period (87 FR 71830), we described a commenter's concern about the
potentially inadequate payment rate for APC 5495 (Level 5 Intraocular
Procedures) and their recommendation that we use our equitable
adjustment authority to limit the potential reduction in the CY 2023
APC payment rate by applying a 10 percent cap on the reduction in
relative weights for Low Volume APCs in CY 2023. While we did not
accept the commenter's recommendation to limit a Low Volume APC's
decline in relative weight to no more than 10 percent, we stated we
would continue to monitor the costs and payment rates for procedures
assigned to Low Volume APCs to determine if additional changes or
refinements to our current policy are needed.
In our review of claims data for CPT code 0308T (Insertion of
ocular telescope prosthesis including removal of crystalline lens or
intraocular lens prosthesis), we noticed unusual coding, charge, and
cost data in the claims data from CY 2017, CY 2018, CY 2019, and CY
2021. Some claims did not report the correct device code--HCPCS code
C1840 (Lens, intraocular (telescopic))--and such claims had
substantially lower cost than claims that reported the correct device
code. In particular, claims that reported the correct device code had
an average device cost of $15,030.04, while claims that did not report
the correct device code had an average device cost of $430.72. The vast
majority of claims for CPT code 0308T in our 4-year analysis did report
the correct device code; however, the limited number of claims that
either reported the wrong procedure code or reported the wrong device
code had an outsized impact on the APC payment rate because of the very
low volume of claims for this APC. Because payment stability for this
Low Volume APC relies so critically on accurate reporting of the
procedure's associated costs, we believe this APC would benefit from a
procedure-to-device edit--a claims processing edit that requires a
certain device code to be included on the claim when hospitals report a
specific procedure code. The procedures associated with the Level 5
Intraocular APC, which we propose to reassign to a new Level 6
Intraocular APC (APC 5496) in section III.E of this proposed
[[Page 49661]]
rule, describe the implantation of a specific device codes:
CPT code 0308T (Insertion of ocular telescope prosthesis
including removal of crystalline lens or intraocular lens prosthesis)
describes the implantation of device HCPCS code C1840 (Lens,
intraocular (telescopic));
CPT code 0616T (Insertion of iris prosthesis, including
suture fixation and repair or removal of iris, when performed; without
removal of crystalline lens or intraocular lens, without insertion of
intraocular lens) describes the implantation of device HCPCS code C1839
(Iris prosthesis);
CPT code 0617T (Insertion of iris prosthesis, including
suture fixation and repair or removal of iris, when performed; with
removal of crystalline lens and insertion of intraocular lens)
describes the implantation of device HCPCS code C1839 (Iris
prosthesis); or
CPT code 0618T (Insertion of iris prosthesis, including
suture fixation and repair or removal of iris, when performed; with
secondary intraocular lens placement or intraocular lens exchange) also
describes the implantation of device HCPCS code C1839 (Iris
prosthesis).
We propose to establish a procedure-to-device edit for the four
aforementioned procedures assigned to APC 5496 (Level 6 Intraocular
Procedures) and require hospitals to report the correct device HCPCS
codes when reporting any of the four procedures. While some interested
parties have previously recommended in past rulemaking that we
reestablish all of our previous procedure-to-device edits, we do not
expect to extend this policy beyond the procedures assigned to APC 5496
(Level 6 Intraocular Procedures). We continue to rely on hospitals'
accurate reporting and believe our current device edits policy of
requiring device-intensive procedures to be subject to an additional
device reporting edit has improved our ratesetting for hospital
outpatient department procedures without placing an undue burden on
hospitals. However, we believe this APC represents a unique situation--
the APC (which was the Level 5 Intraocular APC in previous years) has
been a Low Volume APC (fewer than 100 claims in a claims year) since we
established our Low Volume APC policy, the procedures associated with
this APC have significant procedure costs often greater than $15,000,
and the procedures associated with this APC require the implantation of
a high-cost intraocular device. We believe requiring a procedure-to-
device edit for procedures assigned to the APC 5496 (Level 6
Intraocular Procedures), would not be administratively burdensome to
hospitals given the low volume of services associated for this APC and
will have a meaningful and significant impact on the payment rate for
this APC and the stability of the payment rate in the future.
We are soliciting comments on our proposal to modify our device
edits policy to require a procedure-to-device edit for procedures
assigned to APC 5496 (Level 6 Intraocular Procedures) for CY 2024.
4. Adjustment to OPPS Payment for No Cost/Full Credit and Partial
Credit Devices
a. Background
To ensure equitable OPPS payment when a hospital receives a device
without cost or with full credit, in CY 2007, we implemented a policy
to reduce the payment for specified device-dependent APCs by the
estimated portion of the APC payment attributable to device costs (that
is, the device offset) when the hospital receives a specified device at
no cost or with full credit (71 FR 68071 through 68077). Hospitals were
instructed to report no cost/full credit device cases on the claim
using the ``FB'' modifier on the line with the procedure code in which
the no cost/full credit device is used. In cases in which the device is
furnished without cost or with full credit, hospitals were instructed
to report a token device charge of less than $1.01. In cases in which
the device being inserted is an upgrade (either of the same type of
device or to a different type of device) with a full credit for the
device being replaced, hospitals were instructed to report as the
device charge the difference between the hospital's usual charge for
the device being implanted and the hospital's usual charge for the
device for which it received full credit. In CY 2008, we expanded this
payment adjustment policy to include cases in which hospitals receive
partial credit of 50 percent or more of the cost of a specified device.
Hospitals were instructed to append the ``FC'' modifier to the
procedure code that reports the service provided to furnish the device
when they receive a partial credit of 50 percent or more of the cost of
the new device. We refer readers to the CY 2008 OPPS/ASC final rule
with comment period for more background information on the ``FB'' and
``FC'' modifiers payment adjustment policies (72 FR 66743 through
66749).
In the CY 2014 OPPS/ASC final rule with comment period (78 FR 75005
through 75007), beginning in CY 2014, we modified our policy of
reducing OPPS payment for specified APCs when a hospital furnishes a
specified device without cost or with a full or partial credit. For CY
2013 and prior years, our policy had been to reduce OPPS payment by 100
percent of the device offset amount when a hospital furnishes a
specified device without cost or with a full credit and by 50 percent
of the device offset amount when the hospital receives partial credit
in the amount of 50 percent or more of the cost for the specified
device. For CY 2014, we reduced OPPS payment, for the applicable APCs,
by the full or partial credit a hospital receives for a replaced
device. Specifically, under this modified policy, hospitals are
required to report on the claim the amount of the credit in the amount
portion for value code ``FD'' (Credit Received from the Manufacturer
for a Replaced Device) when the hospital receives a credit for a
replaced device that is 50 percent or greater than the cost of the
device. For CY 2014, we also limited the OPPS payment deduction for the
applicable APCs to the total amount of the device offset when the
``FD'' value code appears on a claim. For CY 2015, we continued our
policy of reducing OPPS payment for specified APCs when a hospital
furnishes a specified device without cost or with a full or partial
credit and to use the three criteria established in the CY 2007 OPPS/
ASC final rule with comment period (71 FR 68072 through 68077) for
determining the APCs to which our CY 2015 policy will apply (79 FR
66872 through 66873). In the CY 2016 OPPS/ASC final rule with comment
period (80 FR 70424), we finalized our policy to no longer specify a
list of devices to which the OPPS payment adjustment for no cost/full
credit and partial credit devices would apply and instead apply this
APC payment adjustment to all replaced devices furnished in conjunction
with a procedure assigned to a device-intensive APC when the hospital
receives a credit for a replaced specified device that is 50 percent or
greater than the cost of the device.
b. Policy for No Cost/Full Credit and Partial Credit Devices
In the CY 2017 OPPS/ASC final rule with comment period (81 FR 79659
through 79660), for CY 2017 and subsequent years, we finalized a policy
to reduce OPPS payment for device-intensive procedures, by the full or
partial credit a provider receives for a replaced device, when a
hospital furnishes a specified device without cost or with a full or
partial credit.
[[Page 49662]]
Under our current policy, hospitals continue to be required to report
on the claim the amount of the credit in the amount portion for value
code ``FD'' when the hospital receives a credit for a replaced device
that is 50 percent or greater than the cost of the device.
In the CY 2014 OPPS/ASC final rule with comment period (78 FR 75005
through 75007), we adopted a policy of reducing OPPS payment for
specified APCs when a hospital furnishes a specified device without
cost or with a full or partial credit by the lesser of the device
offset amount for the APC or the amount of the credit. We adopted this
change in policy in the preamble of the CY 2014 OPPS/ASC final rule
with comment period and discussed it in subregulatory guidance,
including Chapter 4, Section 61.3.6 of the Medicare Claims Processing
Manual. Further, in the CY 2021 OPPS/ASC final rule with comment period
(85 FR 86017 through 86018, 86302), we made conforming changes to our
regulations at Sec. 419.45(b)(1) and (2) that codified this policy.
We are not proposing any changes to our policies regarding payment
for no cost/full credit and partial credit devices for CY 2024.
V. Proposed OPPS Payment for Drugs, Biologicals, and
Radiopharmaceuticals
A. Proposed OPPS Transitional Pass-Through Payment for Additional Costs
of Drugs, Biologicals, and Radiopharmaceuticals
1. Background
Section 1833(t)(6) of the Act provides for temporary additional
payments or ``transitional pass-through payments'' for certain drugs
and biologicals. Throughout the proposed rule, the term ``biological''
is used because this is the term that appears in section 1861(t) of the
Act. A ``biological'' as used in the proposed rule includes (but is not
necessarily limited to) a ``biological product'' or a ``biologic'' as
defined under section 351 of the PHS Act. As enacted by the Medicare,
Medicaid, and SCHIP Balanced Budget Refinement Act of 1999 (BBRA) (Pub.
L. 106-113), this pass-through payment provision requires the Secretary
to make additional payments to hospitals for: current orphan drugs for
rare diseases and conditions, as designated under section 526 of the
Federal Food, Drug, and Cosmetic Act; current drugs and biologicals and
brachytherapy sources used in cancer therapy; and current
radiopharmaceutical drugs and biologicals. ``Current'' refers to those
types of drugs or biologicals mentioned above that are hospital
outpatient services under Medicare Part B for which transitional pass-
through payment was made on the first date the hospital OPPS was
implemented.
Transitional pass-through payments also are provided for certain
``new'' drugs and biologicals that were not being paid for as an HOPD
service as of December 31, 1996, and whose cost is ``not
insignificant'' in relation to the OPPS payments for the procedures or
services associated with the new drug or biological. For pass-through
payment purposes, radiopharmaceuticals are included as ``drugs.'' As
required by statute, transitional pass-through payments for a drug or
biological described in section 1833(t)(6)(C)(i)(II) of the Act can be
made for a period of at least 2 years, but not more than 3 years, after
the payment was first made for the drug as a hospital outpatient
service under Medicare Part B. Proposed CY 2024 pass-through drugs and
biologicals and their designated APCs are assigned status indicator
``G'' in Addenda A and B to this proposed rule (which are available on
the CMS website).\80\
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Section 1833(t)(6)(D)(i) of the Act specifies that the pass-through
payment amount, in the case of a drug or biological, is the amount by
which the amount determined under section 1842(o) of the Act for the
drug or biological exceeds the portion of the otherwise applicable
Medicare OPD fee schedule that the Secretary determines is associated
with the drug or biological. The methodology for determining the pass-
through payment amount is set forth in regulations at 42 CFR 419.64.
These regulations specify that the pass-through payment equals the
amount determined under section 1842(o) of the Act minus the portion of
the APC payment that CMS determines is associated with the drug or
biological.
Section 1847A of the Act establishes the average sales price (ASP)
methodology, which is used for payment for drugs and biologicals
described in section 1842(o)(1)(C) of the Act furnished on or after
January 1, 2005. The ASP methodology, as applied under the OPPS, uses
several sources of data as a basis for payment, including the ASP, the
wholesale acquisition cost (WAC), and the average wholesale price
(AWP). In the proposed rule, the term ``ASP methodology'' and ``ASP-
based'' are inclusive of all data sources and methodologies described
therein. Additional information on the ASP methodology can be found on
our website at: https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Part-B-Drugs/McrPartBDrugAvgSalesPrice/.
The pass-through application and review process for drugs and
biologicals is described on our website at: https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/HospitalOutpatientPPS/passthrough_payment.html.
2. Transitional Pass-Through Payment Period for Pass-Through Drugs,
Biologicals, and Radiopharmaceuticals and Quarterly Expiration of Pass-
Through Status
As required by statute, transitional pass-through payments for a
drug or biological described in section 1833(t)(6)(C)(i)(II) of the Act
can be made for a period of at least 2 years, but not more than 3
years, after the payment was first made for the drug or biological as a
hospital outpatient service under Medicare Part B. Our current policy
is to accept pass-through applications on a quarterly basis and to
begin pass-through payments for approved pass-through drugs and
biologicals on a quarterly basis through the next available OPPS
quarterly update after the approval of a drug's or biological's pass-
through status. However, prior to CY 2017, we expired pass-through
status for drugs and biologicals on an annual basis through notice-and-
comment rulemaking (74 FR 60480). In the CY 2017 OPPS/ASC final rule
with comment period (81 FR 79662), we finalized a policy change,
beginning with pass-through drugs and biologicals approved in CY 2017
and subsequent calendar years, to allow for a quarterly expiration of
pass-through payment status for drugs, biologicals, and
radiopharmaceuticals to afford a pass-through payment period that is as
close to a full 3 years as possible for all pass-through drugs,
biologicals, and radiopharmaceuticals.
This change eliminated the variability of the pass-through payment
eligibility period, which previously varied based on when a particular
application was initially received. We adopted this change for pass-
through approvals beginning on or after CY 2017, to allow, on a
prospective basis, for the maximum pass-through payment period for each
pass-through drug without exceeding the statutory limit of 3 years.
Notice of drugs for which pass-through payment status is ending during
the calendar year is included in the quarterly OPPS Change Request
transmittals.
[[Page 49663]]
3. Drugs and Biologicals With Expiring Pass-Through Payment Status in
CY 2023
There are 43 drugs and biologicals for which pass-through payment
status expires by December 31, 2023, as listed in Table 35. These drugs
and biologicals will have received OPPS pass-through payment for 3
years during the period of April 1, 2020 through December 31, 2023. In
accordance with the policy finalized in CY 2017 and described earlier,
pass-through payment status for drugs and biologicals approved in CY
2017 and subsequent years will expire on a quarterly basis, with a
pass-through payment period as close to 3 years as possible.
With the exception of those groups of drugs and biologicals that
are always packaged when they do not have pass-through payment status
(specifically, anesthesia drugs; drugs, biologicals, and
radiopharmaceuticals that function as supplies when used in a
diagnostic test or procedure (including diagnostic
radiopharmaceuticals, contrast agents, and stress agents); and drugs
and biologicals that function as supplies when used in a surgical
procedure), our standard methodology for providing payment for drugs
and biologicals with expiring pass-through payment status in an
upcoming calendar year is to determine the product's estimated per day
cost and compare it with the OPPS drug packaging threshold for that
calendar year (which is proposed to be $140 for CY 2024), as discussed
further in section V.B.1 of this proposed rule. If the estimated per
day cost for the drug or biological is less than or equal to the
applicable OPPS drug packaging threshold, we package payment for the
drug or biological into the payment for the associated procedure in the
upcoming calendar year. If the estimated per day cost of the drug or
biological is greater than the OPPS drug packaging threshold, we
provide separate payment at the applicable ASP methodology-based
payment amount (which is generally ASP plus 6 percent), as discussed
further in section V.B.2 of this proposed rule.
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4. Proposed Drugs, Biologicals, and Radiopharmaceuticals With Pass-
Through Payment Status Expiring in CY 2024
We propose to end pass-through payment status in CY 2024 for 25
drugs and biologicals. These drugs and biologicals, which were
initially approved for pass-through payment status between April 1,
2021, and January 1, 2022, are listed in Table 36. The APCs and HCPCS
codes for these drugs and biologicals, which have pass-through payment
status that will end by December 31, 2024, are assigned status
indicator ``G'' (Pass-Through Drugs and Biologicals) in Addenda A and B
to this proposed rule (which are available on the CMS website).\81\ The
APCs and HCPCS codes for these drugs and biologicals, which have pass-
through payment status, are assigned status indicator ``G'' only for
the duration of their pass-through status.
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Section 1833(t)(6)(D)(i) of the Act sets the amount of pass-through
payment for pass-through drugs and biologicals (the pass-through
payment amount) as the difference between the amount authorized under
section 1842(o) of the Act and the portion of the otherwise
[[Page 49667]]
applicable OPD fee schedule that the Secretary determines is associated
with the drug or biological. For CY 2024 and subsequent years, we
propose to continue to pay for pass-through drugs and biologicals using
the ASP methodology, meaning a payment rate based on ASP, WAC, or AWP.
This payment rate is generally ASP plus 6 percent, equivalent to the
payment rate these drugs and biologicals would receive in the
physician's office setting in CY 2024. We note that, under the OPD fee
schedule, separately payable drugs assigned to an APC are generally
payable at ASP plus 6 percent. Therefore, we propose that a $0 pass-
through payment amount would be paid for pass-through drugs and
biologicals under the CY 2024 OPPS, and in subsequent years, because
the difference between the amount authorized under section 1842(o) of
the Act, which is generally ASP plus 6 percent, and the portion of the
otherwise applicable OPD fee schedule that the Secretary determines is
appropriate, which is also proposed to be the same payment rate, which
is generally ASP plus 6 percent, is $0. We propose that this policy and
the other policies proposed in this section would apply in both CY 2024
and subsequent years as they have been our longstanding policies under
the OPPS. Therefore, we do not believe the policies need to be re-
proposed annually and should apply for subsequent years until such time
as we propose to change them.
In the case of policy-packaged drugs (which include the following:
anesthesia drugs; drugs, biologicals, and radiopharmaceuticals that
function as supplies when used in a diagnostic test or procedure
(including contrast agents, diagnostic radiopharmaceuticals, and stress
agents); and drugs and biologicals that function as supplies when used
in a surgical procedure), we propose that their pass-through payment
amount would be equal to a payment rate calculated using the ASP
methodology, meaning a payment rate based on ASP, WAC, or AWP. This
proposed payment rate would generally be ASP plus 6 percent for CY 2024
and subsequent years, minus a payment offset for the portion of the
otherwise applicable OPD fee schedule that the Secretary determines is
associated with the drug or biological as described in section V.A.6 of
this proposed rule. We propose this policy because, if not for the
pass-through payment status of these policy-packaged products, payment
for these products would be packaged into the associated procedure and
therefore, there are associated OPD fee schedule amounts for them.
We propose to continue to update pass-through payment rates on a
quarterly basis on the CMS website during CY 2024 and subsequent years
if later quarter ASP submissions (or more recent WAC or AWP
information, as applicable) indicate that adjustments to the payment
rates for these pass-through payment drugs or biologicals are
necessary. For a full description of this policy, we refer readers to
the CY 2006 OPPS/ASC final rule with comment period (70 FR 68632
through 68635).
For CY 2024 and subsequent years, consistent with our CY 2023
policy for diagnostic and therapeutic radiopharmaceuticals, we propose
to continue to provide payment for both diagnostic and therapeutic
radiopharmaceuticals that are granted pass-through payment status based
on the ASP methodology. As stated earlier, for purposes of pass-through
payment, we consider radiopharmaceuticals to be drugs under the OPPS.
Therefore, if a diagnostic or therapeutic radiopharmaceutical receives
pass-through payment status during CY 2024 or subsequent years, we
propose to follow the standard ASP methodology to determine the pass-
through payment rate that drugs receive under section 1842(o) of the
Act, which is generally ASP plus 6 percent. If ASP data are not
available for a radiopharmaceutical, we propose to provide pass-through
payment at WAC plus 3 percent (consistent with our policy in section
V.B.2.b of this proposed rule), the equivalent payment provided for
pass-through drugs and biologicals without ASP information. Additional
detail on the WAC plus 3 percent payment policy can be found in section
V.B.2.b of this proposed rule). If WAC information also is not
available, we propose to provide payment for the pass-through
radiopharmaceutical at 95 percent of its most recent AWP.
We refer readers to Table 36 below for the list of drugs and
biologicals with pass-through payment status expiring during CY 2024.
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5. Proposed Drugs, Biologicals, and Radiopharmaceuticals With Pass-
Through Payment Status Continuing Through CY 2024
We propose to continue pass-through payment status in CY 2024 for
42 drugs and biologicals. These drugs and biologicals, which were
approved for pass-through payment status with effective dates beginning
between April 1, 2022, and April 1, 2023, are listed in Table 37. The
APCs and HCPCS codes for these drugs and biologicals, which have pass-
through payment status that would continue after December 31, 2024, are
assigned status indicator ``G'' in Addenda A and B to this proposed
rule (which are available on the CMS website).\82\
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Section 1833(t)(6)(D)(i) of the Act sets the amount of pass-through
payment for pass-through drugs and biologicals (the pass-through
payment amount) as the difference between the amount authorized under
section 1842(o) of the Act and the portion of the otherwise applicable
OPD fee schedule that the Secretary determines is associated with the
drug or biological. For CY 2024 and subsequent years, we propose to
continue to pay for pass-through drugs and biologicals at a payment
rate based on the ASP methodology, which may be based on ASP, WAC, or
AWP, but is generally ASP plus 6 percent, which is equivalent to the
payment rate these drugs and biologicals would receive in the
physician's office setting in CY 2024. We propose that a $0 pass-
through payment amount would be paid for pass-through drugs and
biologicals that are not policy-packaged as described in section
V.B.1.c of this proposed rule under the CY 2024 OPPS and in subsequent
years, because the difference between the amount authorized under
section 1842(o) of the Act, which would generally be ASP plus 6
percent, and the portion of the otherwise applicable OPD fee schedule
that the Secretary determines is appropriate, which would also
generally be ASP plus 6 percent, is $0.
In the case of policy-packaged drugs (which include the following:
anesthesia drugs; drugs, biologicals, and radiopharmaceuticals that
function as supplies when used in a diagnostic test or procedure
(including contrast agents, diagnostic radiopharmaceuticals, and stress
agents); and drugs and biologicals that function as supplies when used
in a surgical procedure), we propose that their pass-through payment
amount would be equal to a payment rate based on the ASP methodology,
which may be based on ASP, WAC, or AWP, but would generally be ASP plus
6 percent for CY 2024, minus a payment offset for any predecessor drug
products contributing to the pass-through payment as described in
section V.A.6 of this proposed rule). We propose this policy because,
if not for the pass-through payment status of these policy-packaged
products, payment for these products would be packaged into the
associated procedure and therefore,
[[Page 49671]]
there are associated OPD fee schedule amounts for them.
We propose to continue to update pass-through payment rates on a
quarterly basis on our website during CY 2024, and in subsequent years,
if later quarter ASP submissions (or more recent WAC or AWP
information, as applicable) indicate that adjustments to the payment
rates for these pass-through payment drugs or biologicals are
necessary. For a full description of this policy, we refer readers to
the CY 2006 OPPS/ASC final rule with comment period (70 FR 68632
through 68635).
For CY 2024 and subsequent years, consistent with our CY 2023
policy for diagnostic and therapeutic radiopharmaceuticals, we propose
to continue to provide payment for both diagnostic and therapeutic
radiopharmaceuticals that are granted pass-through payment status based
on the ASP methodology. As stated earlier, for purposes of pass-through
payment, we consider radiopharmaceuticals to be drugs under the OPPS.
Therefore, if a diagnostic or therapeutic radiopharmaceutical receives
pass-through payment status during CY 2024, we will continue to follow
the standard ASP methodology to determine the pass-through payment rate
that drugs receive under section 1842(o) of the Act, which would
generally be ASP plus 6 percent. If ASP data are not available for a
radiopharmaceutical, we would provide pass-through payment at WAC plus
3 percent (consistent with our policy in section V.B.2.b of this
proposed rule), the equivalent payment provided to pass-through drugs
and biologicals without ASP information. Additional detail on the WAC
plus 3 percent payment policy can be found in section V.B.2.b of this
proposed rule). If WAC information also is not available, we would
provide payment for the pass-through radiopharmaceutical at 95 percent
of its most recent AWP.
We propose that the other policies proposed in this section would
apply in both CY 2024 and subsequent years as they have been our
longstanding policies under the OPPS. Therefore, we do not believe the
policies need to be re-proposed annually and should apply for
subsequent years until such time as we propose to change them.
The drugs and biologicals that we propose would have pass-through
payment status expire after December 31, 2024, are shown in Table 37.
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6. Proposed Provisions for Reducing Transitional Pass-Through Payments
for Policy-Packaged Drugs, Biologicals, and Radiopharmaceuticals To
Offset Costs Packaged Into APC Groups
Under the regulation at 42 CFR 419.2(b)(15), nonpass-through drugs,
biologicals, and radiopharmaceuticals that function as supplies when
used in a diagnostic test or procedure are packaged in the OPPS. This
category includes diagnostic radiopharmaceuticals, contrast agents,
stress agents, and other diagnostic drugs. Also, under the regulation
at 42 CFR 419.2(b)(16), nonpass-through drugs and biologicals that
function as supplies in a surgical procedure are packaged in the OPPS.
This category includes skin substitutes and other surgical-supply drugs
and biologicals. Finally, under the regulation at 42 CFR 419.2(b)(4),
anesthesia drugs are packaged in the OPPS. As described earlier,
section 1833(t)(6)(D)(i) of the Act specifies that the transitional
pass-through payment amount for pass-through drugs and biologicals is
the difference between the amount paid under section 1842(o) of the Act
and the otherwise applicable OPD fee schedule amount. Because a payment
offset is necessary in order to provide an appropriate transitional
pass-through payment, we deduct from the pass-through payment for
policy-packaged drugs, biologicals, and radiopharmaceuticals an amount
reflecting the portion of the APC payment associated with predecessor
products in order to ensure no duplicate payment is made. This amount
reflecting the portion of the APC payment associated with predecessor
products is called the payment offset.
[[Page 49676]]
The payment offset policy applies to all policy-packaged drugs,
biologicals, and radiopharmaceuticals. For a full description of the
payment offset policy as applied to policy-packaged drugs, which
include diagnostic radiopharmaceuticals, contrast agents, stress
agents, and skin substitutes, we refer readers to the discussion in the
CY 2016 OPPS/ASC final rule with comment period (80 FR 70430 through
70432). For CY 2024 and subsequent years, as we did in CY 2023, we
propose to continue to apply the same policy-packaged offset policy to
payment for pass-through diagnostic radiopharmaceuticals, pass-through
contrast agents, pass-through stress agents, and pass-through skin
substitutes. We propose that these policies would apply in both CY 2024
and subsequent years as they are our longstanding policies under the
OPPS, and we do not believe they need to be re-proposed annually.
Instead, we believe they should apply for subsequent years until such
time as we propose to change them or until such time as the APCs to
which a payment offset may be applicable for certain products change.
The APCs to which a payment offset may be applicable for pass-through
diagnostic radiopharmaceuticals, pass-through contrast agents, pass-
through stress agents, and pass-through skin substitutes are identified
in Table 38.
[GRAPHIC] [TIFF OMITTED] TP31JY23.062
We propose to continue to post annually on our website at: https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/HospitalOutpatientPPS/Annual-Policy-Files.html a file that contains the
APC offset amounts that will be used for that year for purposes of both
evaluating cost significance for candidate pass-through payment device
categories and drugs and biologicals and establishing any appropriate
APC offset amounts. Specifically, the file will continue to provide the
amounts and percentages of APC payment associated with packaged
implantable devices, policy-packaged drugs, and threshold packaged
drugs and biologicals for every OPPS clinical APC.
B. Proposed OPPS Payment for Drugs, Biologicals, and
Radiopharmaceuticals Without Pass-Through Payment Status
1. Proposed Criteria for Packaging Payment for Drugs, Biologicals, and
Radiopharmaceuticals
a. Proposed Packaging Threshold
In accordance with section 1833(t)(16)(B) of the Act, the threshold
for establishing separate APCs for payment of drugs and biologicals was
set to $50 per administration during CYs 2005 and 2006. In CY 2007, we
used the four-quarter moving average Producer Price Index (PPI) levels
for Pharmaceutical Preparations (Prescription) to trend the $50
threshold forward from the third quarter of CY 2005 (when the Pub. L.
108-173 mandated threshold became effective) to the third quarter of CY
2007. We then rounded the resulting dollar amount to the nearest $5
increment in order to determine the CY 2007 threshold amount of $55.
Using the same methodology as that used in CY 2007 (which is discussed
in more detail in the CY 2007 OPPS/ASC final rule with comment period
(71 FR 68085 through 68086)), we set the packaging threshold for
establishing separate APCs for drugs and biologicals at $135 for CY
2023 (87 FR 71960 through 71961).
Following the CY 2007 methodology, for this proposed rule, we use
the most recently available four quarter moving average PPI levels to
trend the $50 threshold forward from the third quarter of CY 2005 to
the third quarter of CY 2024 and round the resulting dollar amount
($138.44) to the nearest $5 increment, which yielded a figure of $140.
In performing this calculation, we used the most recent forecast of the
quarterly index levels for the PPI for Pharmaceuticals for Human Use
(Prescription) (Bureau of Labor Statistics series code WPUSI07003) from
IHS Global, Inc. IGI is a nationally recognized economic and financial
forecasting firm with which CMS contracts to forecast the various price
[[Page 49677]]
indexes including the PPI Pharmaceuticals for Human Use (Prescription).
Based on these calculations using the CY 2007 OPPS methodology, we
propose a packaging threshold for CY 2024 of $140.
b. Packaging of Payment for HCPCS Codes That Describe Certain Drugs,
Certain Biologicals, and Certain Therapeutic Radiopharmaceuticals Under
the Cost Threshold (``Threshold-Packaged Drugs'')
To determine the proposed CY 2024 packaging status for all nonpass-
through drugs and biologicals that are not policy packaged, we
calculated, on a HCPCS code-specific basis, the per day cost of all
drugs, biologicals, and therapeutic radiopharmaceuticals that had a
HCPCS code in CY 2022 and were paid (via packaged or separate payment)
under the OPPS. We used data from CY 2022 claims processed through June
30, 2022, for this calculation. However, we did not perform this
calculation for those drugs and biologicals with multiple HCPCS codes
that include different dosages, as described in section V.B.1.d of this
proposed rule, or for the following policy-packaged items that we
propose to continue to package in CY 2024: anesthesia drugs; drugs,
biologicals, and radiopharmaceuticals that function as supplies when
used in a diagnostic test or procedure; and drugs and biologicals that
function as supplies when used in a surgical procedure.
In order to calculate the per day costs for drugs, biologicals, and
therapeutic radiopharmaceuticals to determine their proposed packaging
status in CY 2024, we use the methodology that was described in detail
in the CY 2006 OPPS proposed rule (70 FR 42723 through 42724) and
finalized in the CY 2006 OPPS final rule with comment period (70 FR
68636 through 68638). For each drug and biological HCPCS code, we used
an estimated payment rate based on the ASP methodology, which is
generally ASP plus 6 percent (which is the payment rate we proposed for
separately payable drugs and biologicals) for CY 2024, as discussed in
more detail in section V.B.2.b of this proposed rule) to calculate the
CY 2024 proposed rule per day costs. We used the manufacturer-submitted
ASP data from the fourth quarter of CY 2022 (data that were used for
payment purposes in the physician's office setting, effective April 1,
2023) to determine the proposed rule per day cost.
As is our standard methodology, for CY 2024 we propose to use
payment rates based on the ASP data from the fourth quarter of CY 2022
for budget neutrality estimates, packaging determinations, impact
analyses, and completion of Addenda A and B to this proposed rule
(which are available via the internet on the CMS website) because these
are the most recent data available for use at the time of development
of the CY 2024 OPPS/ASC proposed rule. These data also were the basis
for drug payments in the physician's office setting, effective April 1,
2023. For items that did not have an ASP-based payment rate, such as
some therapeutic radiopharmaceuticals, we used their mean unit cost
derived from the CY 2022 hospital claims data to determine their per
day cost.
We propose to package items with a per day cost less than or equal
to $140 and identify items with a per day cost greater than $140 as
separately payable unless they are policy-packaged. Consistent with our
past practice, we cross-walked historical OPPS claims data from the CY
2022 HCPCS codes that were reported to the CY 2023 HCPCS codes that we
display in Addendum B to this proposed rule (which is available on the
CMS website) \83\ for proposed payment in CY 2024.
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\83\ https://www.cms.gov/medicare/medicare-fee-for-service-payment/hospitaloutpatientpps.
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Our policy during previous cycles of OPPS rulemaking has been to
use updated ASP and claims data to make final determinations of the
packaging status of HCPCS codes for drugs, biologicals, and therapeutic
radiopharmaceuticals for the OPPS/ASC final rule with comment period.
We note that it is also our policy to make an annual packaging
determination for a HCPCS code only when we develop the OPPS/ASC final
rule with comment period for the update year. Only HCPCS codes that are
identified as separately payable in the final rule with comment period
are subject to quarterly updates. For our calculation of per day costs
of HCPCS codes for drugs and biologicals in this proposed rule, we
propose to use ASP data from the fourth quarter of CY 2022, which is
the basis for calculating payment rates for drugs and biologicals in
the physician's office setting using the ASP methodology, effective
April 1, 2023, along with updated hospital claims data from CY 2022. We
note that we also propose to use these data for budget neutrality
estimates and impact analyses for this proposed rule.
Payment rates for HCPCS codes for separately payable drugs and
biologicals included in Addenda A and B of this proposed rule are based
on ASP data from the second quarter of CY 2023. These data will be the
basis for calculating payment rates for drugs and biologicals in the
physician's office setting using the ASP methodology, effective October
1, 2023. These payment rates would then be updated in the January 2024
OPPS update, based on the most recent ASP data to be used for
physicians' office and OPPS payment as of January 1, 2024. For items
that do not currently have an ASP-based payment rate, we calculated
their mean unit cost from all of the CY 2022 claims data and updated
cost report information available for this proposed rule to determine
their final per day cost.
Consequently, the packaging status of some HCPCS codes for drugs,
biologicals, and therapeutic radiopharmaceuticals in this OPPS/ASC
proposed rule may be different from the same drugs' HCPCS codes'
packaging status determined based on the data used for the final rule
with comment period. Under such circumstances, we propose to continue
to follow the established policies initially adopted for the CY 2005
OPPS (69 FR 65780) in order to more equitably pay for those drugs whose
costs fluctuate relative to the proposed CY 2024 OPPS drug packaging
threshold and the drug's payment status (packaged or separately
payable) in CY 2023. These established policies have not changed for
many years and are the same as described in the CY 2016 OPPS/ASC final
rule with comment period (80 FR 70434). Specifically, for CY 2024 and
subsequent years, consistent with our historical practice, we propose
to apply the following policies to those HCPCS codes for drugs,
biologicals, and therapeutic radiopharmaceuticals whose relationship to
the drug packaging threshold changes based on the updated drug
packaging threshold and on the final updated data:
HCPCS codes for drugs and biologicals that were paid
separately in CY 2023 and that are proposed for separate payment in CY
2024, and that then have per day costs equal to or less than the CY
2024 final rule drug packaging threshold, based on the updated ASPs and
hospital claims data used for the CY 2024 final rule, would continue to
receive separate payment in CY 2024.
HCPCS codes for drugs and biologicals that were packaged
in CY 2023 and that are proposed for separate payment in CY 2024, and
that then have per day costs equal to or less than the CY 2024 final
rule drug packaging threshold, based on the updated ASPs and hospital
claims data used for the CY 2024 final rule, would remain packaged in
CY 2024.
HCPCS codes for drugs and biologicals for which we
proposed
[[Page 49678]]
packaged payment in CY 2024 but that then have per-day costs greater
than the CY 2024 final rule drug packaging threshold, based on the
updated ASPs and hospital claims data used for the CY 2024 final rule,
would receive separate payment in CY 2024.
c. Policy-Packaged Drugs, Biologicals, and Radiopharmaceuticals
As mentioned earlier in this section, under the OPPS, we package
several categories of nonpass-through drugs, biologicals, and
radiopharmaceuticals, regardless of the cost of the products. Because
the products are packaged according to the policies in 42 CFR 419.2(b),
we refer to these packaged drugs, biologicals, and radiopharmaceuticals
as ``policy-packaged'' drugs, biologicals, and radiopharmaceuticals.
These policies are either longstanding or based on longstanding
principles and inherent to the OPPS and are as follows:
Anesthesia, certain drugs, biologicals, and other
pharmaceuticals; medical and surgical supplies and equipment; surgical
dressings; and devices used for external reduction of fractures and
dislocations (Sec. 419.2(b)(4));
Intraoperative items and services (Sec. 419.2(b)(14));
Drugs, biologicals, and radiopharmaceuticals that function
as supplies when used in a diagnostic test or procedure (including, but
not limited to, diagnostic radiopharmaceuticals, contrast agents, and
pharmacologic stress agents) (Sec. 419.2(b)(15)); and
Drugs and biologicals that function as supplies when used
in a surgical procedure (including, but not limited to, skin
substitutes and similar products that aid wound healing and implantable
biologicals) (Sec. 419.2(b)(16)).
The policy at Sec. 419.2(b)(16) is broader than that at Sec.
419.2(b)(14). As we stated in the CY 2015 OPPS/ASC final rule with
comment period: ``We consider all items related to the surgical outcome
and provided during the hospital stay in which the surgery is
performed, including postsurgical pain management drugs, to be part of
the surgery for purposes of our drug and biological surgical supply
packaging policy'' (79 FR 66875). The category described by Sec.
419.2(b)(15) is large and includes diagnostic radiopharmaceuticals,
contrast agents, stress agents, and some other products. The category
described by Sec. 419.2(b)(16) includes skin substitutes and some
other products. We believe it is important to reiterate that cost
consideration is not a factor when determining whether an item is a
surgical supply (79 FR 66875).
We welcome ongoing dialogue and engagement from interested parties
regarding suggestions for payment changes for consideration in future
rulemaking.
d. Packaging Determination for HCPCS Codes That Describe the Same Drug
or Biological But Different Dosages
In the CY 2010 OPPS/ASC final rule with comment period (74 FR 60490
through 60491), we finalized a policy to make a single packaging
determination for a drug, rather than an individual HCPCS code, when a
drug has multiple HCPCS codes describing different dosages because we
believe that adopting the standard HCPCS code-specific packaging
determinations for these codes could lead to inappropriate payment
incentives for hospitals to report certain HCPCS codes instead of
others. We continue to believe that making packaging determinations on
a drug-specific basis eliminates payment incentives for hospitals to
report certain HCPCS codes for drugs and allows hospitals flexibility
in choosing to report all HCPCS codes for different dosages of the same
drug or only the lowest dosage HCPCS code. Therefore, we propose to
continue our policy to make packaging determinations on a drug-specific
basis, rather than a HCPCS code-specific basis, for those HCPCS codes
that describe the same drug or biological but different dosages in CY
2024.
For CY 2024, in order to propose a packaging determination that is
consistent across all HCPCS codes that describe different dosages of
the same drug or biological, we aggregated both our CY 2022 claims data
and our pricing information, which is based on the ASP methodology,
which is generally ASP plus 6 percent, across all of the HCPCS codes
that describe each distinct drug or biological in order to determine
the mean units per day of the drug or biological in terms of the HCPCS
code with the lowest dosage descriptor. The following drugs did not
have pricing information available for the ASP methodology for this
proposed rule; and, as is our current policy for determining the
packaging status of other drugs, we used the mean unit cost available
from the CY 2022 claims data to make the proposed packaging
determinations for these drugs: HCPCS code C9257 (Injection,
bevacizumab, 0.25 mg); HCPCS code J1840 (Injection, kanamycin sulfate,
up to 500 mg); HCPCS code J1850 (Injection, kanamycin sulfate, up to 75
mg); HCPCS code J3472 (Injection, hyaluronidase, ovine, preservative
free, per 1,000 usp units); HCPCS code J7100 (Infusion, dextran 40, 500
ml); and HCPCS code J7110 (Infusion, dextran 75, 500 ml).
For all other drugs and biologicals that have HCPCS codes
describing different doses, we then multiplied the proposed weighted
average ASP methodology based payment rate, which is generally ASP plus
6 percent, per unit payment amount across all dosage levels of a
specific drug or biological by the estimated units per day for all
HCPCS codes that describe each drug or biological from our claims data
to determine if the estimated per day cost of each drug or biological
is less than or equal to the proposed CY 2024 drug packaging threshold
of $140 (in which case all HCPCS codes for the same drug or biological
would be packaged) or greater than the proposed CY 2024 drug packaging
threshold of $140 (in which case all HCPCS codes for the same drug or
biological would be separately payable). The proposed packaging status
of each drug and biological HCPCS code to which this methodology would
apply in CY 2024 is displayed in Table 39.
BILLING CODE 4120-01-P
[[Page 49679]]
[GRAPHIC] [TIFF OMITTED] TP31JY23.063
BILLING CODE 4120-01-C
2. Proposed Payment for Drugs and Biologicals Without Pass-Through
Status That Are Not Packaged
a. Proposed Payment for Specified Covered Outpatient Drugs (SCODs) and
Other Separately Payable Drugs and Biologicals
Section 1833(t)(14) of the Act defines certain separately payable
radiopharmaceuticals, drugs, and biologicals and mandates specific
payments for these items. Under section 1833(t)(14)(B)(i) of the Act, a
``specified covered outpatient drug'' (known as a SCOD) is defined as a
covered outpatient drug, as defined in section 1927(k)(2) of the Act,
for which a separate APC has been established and that either is a
radiopharmaceutical agent or a drug or biological for which payment was
made on a pass-through basis on or before December 31, 2002.
Under section 1833(t)(14)(B)(ii) of the Act, certain drugs and
biologicals are designated as exceptions and are not included in the
definition of SCODs. These exceptions are--
A drug or biological for which payment is first made on or
after January 1, 2003, under the transitional pass-through payment
provision in section 1833(t)(6) of the Act.
A drug or biological for which a temporary HCPCS code has
not been assigned.
[[Page 49680]]
During CYs 2004 and 2005, an orphan drug (as designated by
the Secretary).
Section 1833(t)(14)(A)(iii) of the Act requires that payment for
SCODs in CY 2006 and subsequent years be equal to the average
acquisition cost for the drug for that year as determined by the
Secretary, subject to any adjustment for overhead costs and taking into
account the hospital acquisition cost survey data collected by the
Government Accountability Office (GAO) in CYs 2004 and 2005, and later
periodic surveys conducted by the Secretary as set forth in the
statute. If hospital acquisition cost data are not available, the law
requires that payment be equal to payment rates established under the
methodology described in section 1842(o), section 1847A, or section
1847B of the Act, as calculated and adjusted by the Secretary as
necessary for purposes of paragraph (14). We refer to this alternative
methodology as the ``statutory default.'' Most physician Part B drugs
are paid at ASP plus 6 percent in accordance with section 1842(o) and
section 1847A of the Act.
Section 1833(t)(14)(E)(ii) of the Act provides for an adjustment in
OPPS payment rates for SCODs to take into account overhead and related
expenses, such as pharmacy services and handling costs. Section
1833(t)(14)(E)(i) of the Act required MedPAC to study pharmacy overhead
and related expenses and to make recommendations to the Secretary
regarding whether, and if so how, a payment adjustment should be made
to compensate hospitals for overhead and related expenses. Section
1833(t)(14)(E)(ii) of the Act authorizes the Secretary to adjust the
weights for ambulatory procedure classifications for SCODs to take into
account the findings of the MedPAC study.\84\
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\84\ Medicare Payment Advisory Committee. June 2005 Report to
the Congress. Chapter 6: Payment for pharmacy handling costs in
hospital outpatient departments. Available at: https://www.medpac.gov/wp-content/uploads/import_data/scrape_files/docs/default-source/reports/June05_ch6.pdf.
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It has been our policy since CY 2006 to apply the same treatment to
all separately payable drugs and biologicals, which include SCODs, and
drugs and biologicals that are not SCODs. Therefore, we apply the
payment methodology in section 1833(t)(14)(A)(iii) of the Act to SCODs,
as required by statute, but we also apply it to separately payable
drugs and biologicals that are not SCODs, which is a policy
determination rather than a statutory requirement. For CY 2023 and
subsequent years, we finalized a policy to apply section
1833(t)(14)(A)(iii)(II) of the Act to all separately payable drugs and
biologicals, including SCODs. Although we do not distinguish SCODs in
this discussion, we note that we are required to apply section
1833(t)(14)(A)(iii)(II) of the Act to SCODs, but we also are applying
this provision to other separately payable drugs and biologicals,
consistent with our history of using the same payment methodology for
all separately payable drugs and biologicals.
For a detailed discussion of our OPPS drug payment policies from CY
2006 to CY 2012, we refer readers to the CY 2013 OPPS/ASC final rule
with comment period (77 FR 68383 through 68385). In the CY 2013 OPPS/
ASC final rule with comment period (77 FR 68386 through 68389), we
first adopted the statutory default policy to pay for separately
payable drugs and biologicals at ASP plus 6 percent based on section
1833(t)(14)(A)(iii)(II) of the Act. We have continued this policy of
paying for separately payable drugs and biologicals at the statutory
default for CYs 2014 through 2023.
In the case of a drug or biological during an initial sales period
in which data on the prices for sales of the drug or biological are not
sufficiently available from the manufacturer, section 1847A(c)(4) of
the Act permits the Secretary to make payments that are based on WAC.
Under section 1833(t)(14)(A)(iii)(II) of the Act, the amount of payment
for a separately payable drug equals the average price for the drug for
the year established under, among other authorities, section 1847A of
the Act. As explained in greater detail in the CY 2019 PFS final rule,
under section 1847A(c)(4) of the Act, although payments may be based on
WAC, unlike section 1847A(b) of the Act (which specifies that payments
using ASP or WAC must be made with a 6 percent add-on), section
1847A(c)(4) of the Act does not require that a particular add-on amount
be applied to WAC-based pricing for this initial period when ASP data
are not available. Consistent with section 1847A(c)(4) of the Act, in
the CY 2019 PFS final rule (83 FR 59661 to 59666), we finalized a
policy that, effective January 1, 2019, WAC-based payments for Part B
drugs made under section 1847A(c)(4) of the Act will utilize a 3-
percent add-on in place of the 6 percent add-on that was being used
according to our policy in effect as of CY 2018. For the CY 2019 OPPS,
we followed the same policy finalized in the CY 2019 PFS final rule (83
FR 59661 to 59666). Since CY 2020, we have continued to utilize a 3
percent add-on instead of a 6 percent add-on for drugs that are paid
based on WAC pursuant to our authority under section
1833(t)(14)(A)(iii)(II) of the Act (84 FR 61318 and 85 FR 86039), which
provides, in part, that the amount of payment for a SCOD is the average
price of the drug in the year established under section 1847A of the
Act. We also apply this provision to non-SCOD separately payable drugs.
Because we establish the average price for a drug paid based on WAC
under section 1847A of the Act as WAC plus 3 percent instead of WAC
plus 6 percent, we believe it is appropriate to price separately
payable drugs paid based on WAC at the same amount under the OPPS. Our
policy to pay for drugs and biologicals at WAC plus 3 percent, rather
than WAC plus 6 percent, applies whenever WAC-based pricing is used for
a drug or biological under 1847A(c)(4). We refer readers to the CY 2019
PFS final rule (83 FR 59661 to 59666) for additional background on this
policy.
Consistent with our current policy, payments for separately payable
drugs and biologicals are included in the budget neutrality
adjustments, under the requirements in section 1833(t)(9)(B) of the
Act. Also, the budget neutral weight scalar is not applied in
determining payments for these separately payable drugs and
biologicals.
We note that separately payable drug and biological payment rates
listed in Addenda A and B to this proposed rule (available on the CMS
website \85\), which illustrate the proposed CY 2024 payment based on
the ASP methodology for separately payable nonpass-through drugs and
biologicals and the ASP methodology for pass-through drugs and
biologicals, reflect either ASP information that is the basis for
calculating payment rates for drugs and biologicals in the physician's
office setting effective April 1, 2023, or WAC, AWP, or mean unit cost
from CY 2022 claims data and updated cost report information available
for this CY 2024 OPPS/ASC proposed rule. In general, these published
payment rates are not the same as the actual January 2024 payment
rates. This is because payment rates for drugs and biologicals with ASP
information for January 2024 will be determined through the standard
quarterly process where ASP data submitted by manufacturers for the
third quarter of CY 2023 (July 1, 2023, through September 30, 2023)
will be used to set the payment rates that are released for the quarter
beginning in January 2024 in December 2023. In addition, payment rates
for drugs and
[[Page 49681]]
biologicals in Addenda A and B to this proposed rule, for which there
was no ASP, WAC, or AWP information available for April 2023, are based
on mean unit cost in the available CY 2022 claims data. If new pricing
information becomes available for payment for the quarter beginning in
January 2024, we will price payment for these drugs and biologicals
based on their newly available information. Finally, there may be drugs
and biologicals that have ASP, WAC, or AWP information available for
the CY 2024 OPPS/ASC proposed rule (reflecting April 2023 ASP data)
that do not have ASP, WAC, or AWP information available for the quarter
beginning in January 2024. These drugs and biologicals would then be
paid based on mean unit cost data derived from CY 2022 hospital claims.
Therefore, the proposed payment rates listed in Addenda A and B to this
proposed rule are not for January 2024 payment purposes and are only
illustrative of the CY 2024 OPPS payment methodology using the most
recently available information at the time of issuance of this proposed
rule.
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For CY 2024, we are not proposing any changes to our policies for
payment for separately payable drugs and biologicals; and we are
continuing our payment policy that has been in effect since CY 2013 to
pay for separately payable drugs and biologicals in accordance with
section 1833(t)(14)(A)(iii)(II) of the Act (the statutory default).
We are, however, proposing to amend the regulation text to reflect
our longstanding policies for calculating the Medicare program payment
and copayment amounts for separately payable drugs and biologicals by
adding a new paragraph (d) to Sec. 419.41.
b. Biosimilar Biological Products
(1) Provisions of the Inflation Reduction Act Relating to Biologicals
The Inflation Reduction Act (Pub. L. 117-169, August 16, 2022)
(hereinafter referred to as ``IRA'') contains two provisions that
affect payment limits for biosimilar biological products (hereinafter
referred to as ``biosimilars''): section 11402 of the IRA amends the
payment limit for new biosimilars furnished on or after July 1, 2024,
during the initial period when ASP data is not available. Section 11403
of the IRA makes changes to the payment limit for certain biosimilars
with an ASP that is not more than the ASP of the reference biological
for a period of 5 years. We implemented section 11403 of the IRA under
program instruction 86 87, as permitted under section
1847A(c)(5)(C) of the Act.
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\86\ https://www.cms.gov/files/document/r11496cp.pdf.
\87\ https://www.cms.gov/medicare/medicare-fee-for-service-part-b-drugs/mcrpartbdrugavgsalesprice.
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Section 11402 of the IRA amended section 1847A(c)(4) of the Act by
adding subparagraph (B), which limits the payment amount for
biosimilars during the initial period described in section
1847A(c)(4)(A). The provision requires that for new biosimilars
furnished on or after July 1, 2024, during the initial period when ASP
data is not available, the payment limit for the biosimilar is the
lesser of (1) an amount not to exceed 103 percent of the WAC of the
biosimilar or the Medicare Part B drug payment methodology in effect on
November 1, 2003, or (2) 106 percent of the lesser of the WAC or ASP of
the reference biological, or in the case of a selected drug during a
price applicability period, 106 percent of the maximum fair price of
the reference biological. We refer readers to the CY 2024 PFS proposed
rule for the discussion of the proposed changes to the regulation at
Sec. 414.904 to codify section 11402 of the IRA.
Section 11403 of the IRA amended section 1847A(b)(8) of the Act by
establishing a temporary payment increase for qualifying biosimilar
biological products (hereinafter referred to as ``qualifying
biosimilars'') furnished during the applicable 5-year period.\88\
Section 1847(b)(8)(B)(iii) of the Act defines ``qualifying biosimilar
biological product'' as a biosimilar biological product (as described
in section 1847A(b)(1)(C) of the Act) with an ASP (as described in
section 1847A(b)(8)(A)(i) of the Act) less than the ASP of the
reference biological for a calendar quarter during the applicable 5-
year period. Section 11403 of the IRA requires that a qualifying
biosimilar be paid at ASP plus 8 percent of the reference biological's
ASP rather than 6 percent during the applicable 5-year period. Section
1847A(b)(8)(B)(ii) of the Act defines the applicable 5-year period for
a qualifying biosimilar for which payment has been made using ASP (that
is, payment under section 1847A(b)(8) of the Act) as of September 30,
2022, as the 5-year period beginning on October 1, 2022. For a
qualifying biosimilar for which payment is first made using ASP during
the period beginning October 1, 2022, and ending December 31, 2027, the
statute defines the applicable 5-year period as the 5-year period
beginning on the first day of such calendar quarter of such payment. We
refer readers to the CY 2024 PFS proposed rule for the discussion of
the proposed changes to the regulations at Sec. Sec. 414.902 and
414.904 to codify section 11403 of the IRA.
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\88\ https://www.congress.gov/bill/117th-congress/house-bill/5376/text?q=%7B%22search%22%3A%5B%22inflation+reduction+act%22%2C%22inflation%22%2C%22reduction%22%2C%22act%22%5D%7D&r=1&s=1.
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Section 1833(t)(14)(A)(iii) of the Act provides for payment of
separately covered outpatient drugs (SCODs), and currently, CMS pays
under the OPPS for SCODs consistent with the payment methodology set
forth in section 1833(t)(14)(A)(iii)(II) of the Act (the statutory
default). Through rulemaking, CMS adopted a policy to apply the
statutory default payment methodology to separately payable drugs and
biologicals that are not SCODs (70 FR 68715 through 68716). Under this
authority, the payment rate for SCODs and applicable separately payable
drugs and biologicals is determined in accordance with sections 1842(o)
and 1847A of the Act, as calculated and adjusted by the Secretary as
necessary for purposes of paragraph (14). Because our current policy is
to pay for separately payable drugs and biologicals at payment amounts
determined under section 1847A, we propose that, for a separately
payable biosimilar that is new for purposes of section 1847A(c)(4)(A),
the OPPS payment amount would be the amount determined under section
1847A, subject to the payment limit in section 1847A(c)(4)(A). We also
propose that, for a separately payable biosimilar that meets the
definition of a ``qualifying biosimilar biological product'' for
purposes of section 1847A(b)(8)(B)(iii) of the Act, the OPPS payment
amount for the biosimilar would be the amount determined under section
1847A, subject to the temporary payment increase under section
1847A(b)(8)(B)(iii). We propose to codify OPPS payment for biosimilars
consistent with sections 1847A(c)(4)(A) and 1847A(b)(8)(B)(iii) by
adding new paragraphs (f) and (g) to the regulation at Sec. 419.41.
The proposed regulation text cross-references the regulation text
included in the PFS proposed rule, which proposes to codify the
requirements in sections 1847A(c)(4)(A) and 1847A(b)(8)(B)(iii). We
refer readers to the PFS proposed rule for more information about those
proposed regulations.
(2) Proposal to Except Biosimilars From the OPPS Packaging Threshold
When Their Reference Biologicals Are Separately Paid
Medicare Part B spending for biologicals and biosimilars has
[[Page 49682]]
significantly outpaced the spending for non-biologic drugs for the past
16 years. According to a 2020 report from the Assistant Secretary for
Planning and Evaluation (ASPE), the spending for biologicals and
biosimilars represented 77 percent of Medicare Part B prescription drug
spending in CY 2017.\89\ In a 2020 MedPAC report, the top 10 Part B
drugs based on spending were all biologicals, and spending on them in
the HOPD represented 39 percent of total HOPD drug spending in CY
2019.\90\ Although Part B drug spending for biologicals and biosimilars
has grown tremendously in the past 16 years, we also recognize that
there is evidence that the entry of biosimilars into the market has
contributed to lower aggregate spending for the Medicare program.\91\
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\89\ Assistant Secretary for Planning and Evaluation. ``Medicare
Part B Drugs: Trends in Spending and Utilization, 2006-2017.''
November, 2020. Available at https://aspe.hhs.gov/sites/default/files/private/pdf/264416/Part-B-Drugs-Trends-Issue-Brief.pdf.
\90\ Medicare Payment Advisory Commission. July 2021 Data Book:
Health Care Spending and the Medicare Program. July 2021. Available
at https://www.medpac.gov/wp-content/uploads/import_data/scrape_files/docs/default-source/data-book/july2021_medpac_databook_sec.pdf.
\91\ Medicare Payment Advisory Commission. July 2022 Data Book:
Health Care Spending and the Medicare Program. July 2022. Available
at https://www.medpac.gov/wp-content/uploads/2022/07/July2022_MedPAC_DataBook_Sec10_v2_SEC.pdf.
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Congress has made legislative changes related to payment for
biosimilars. First, it amended the Social Security Act to provide for
payment of biosimilars in the Affordable Care Act (ACA) and more
recently, in the IRA, to update payment for certain biosimilars. In
particular, section 3139 of the ACA amended section 1847A(b) by adding
a new paragraph (8), which provides that the payment amount for a
biosimilar biological product is the biosimilar's ASP and 6 percent of
the reference biological's ASP.\92\ And as explained previously,
section 11402 of the IRA changed the payment limit for biosimilars
during the initial period when ASP data is not available and section
11403 of the IRA temporarily increased the payment limit for certain
biosimilars.
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\92\ https://www.congress.gov/111/plaws/publ148/PLAW-111publ148.pdf.
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Our overarching policy goal is to create incentives for efficiency
and selection of the least costly products while still meeting a
beneficiary's clinical needs and to protect the long-term solvency of
the Part B Trust Fund. When we established a policy to pay for
biosimilars, we intended to promote the use of biosimilars as a less
expensive alternative to their reference biologicals. For CY 2016 and
CY 2017, we finalized a policy to pay for biosimilar biological
products based on the payment allowance of the product as determined
under section 1847A of the Act and to subject nonpass-through
biosimilar biological products to our annual threshold-packaged policy
(for CY 2016, 80 FR 70445 through 70446; and for CY 2017, 81 FR 79674).
In the CY 2018 OPPS/ASC final rule with comment period (82 FR 59351),
we explained that, consistent with our established OPPS drug,
biological, and radiopharmaceutical payment policy, HCPCS coding for
biosimilar biological products will be based on policy established
under the CY 2018 PFS final rule with comment period (82 FR 53182 to
53187), where CMS finalized a policy to implement separate HCPCS codes
for biosimilar biological products. We also clarified that all
biosimilar biological products will be eligible for pass-through
payment and not just the first biosimilar biological product for a
reference product.
Our threshold packaging policy's intent is to create incentives for
efficiency, but we have concerns that packaging biosimilars when the
reference biological or other marketed biosimilars are separately paid
may create financial incentives for providers to select more expensive,
but clinically similar, products. In most cases, a biosimilar either
has pass-through status or is separately payable. However, there have
been a few instances where biosimilars are packaged. For example, in CY
2021, we noted that HCPCS code Q5105 (Injection, epoetin alfa-epbx,
biosimilar, (Retacrit) (for esrd on dialysis), 100 units), was on pass-
through status through September 2021. HCPCS code Q5105 is a biosimilar
for HCPCS code Q4081 (injection, epoetin alfa, 1000 units (for esrd on
dialysis)) and HCPCS code Q4081 is currently packaged under the OPPS.
After HCPCS code Q5105's pass-through status expired, payment for HCPCS
code Q5105 was packaged because its per day cost fell below our
packaging threshold of $130 for CY 2021. In CY 2023, payment for HCPCS
code Q5101 (Injection, filgrastim-sndz, biosimilar, (zarxio), 1
microgram) is packaged because its per day cost fell below our
packaging threshold of $135 for CY 2023. HCPCS code Q5101 is the
biosimilar for HCPCS code J1442 (Injection, filgrastim (g-csf),
excludes biosimilars, 1 microgram), which is currently separately
payable with a status indicator ``K.''
Packaging payment for both of these biosimilars is consistent with
our policy since CY 2018 to subject non-pass through biosimilars to the
OPPS threshold-packaging policy. However, we believe this policy may
create incentives to use the more expensive reference product or
biosimilars that are separately payable, as hospitals would be paid
less for using the threshold-packaged biosimilar. For example, the CY
2023 threshold packaging of the biosimilar described by HCPCS code
Q5101 (Injection, filgrastim-sndz, biosimilar, (zarxio), 1 microgram)
may have created a financial incentive for providers to select the
separately paid reference biological or the separately paid filgrastim
biosimilar over the packaged filgrastim biosimilar, which is
inconsistent with our policy goal of encouraging efficiency and
promoting use of biosimilars as lower cost alternatives to their
reference biologicals. Accordingly, for CY 2024, we propose to except
biosimilars from the OPPS threshold packaging policy when their
reference biologicals are separately paid, meaning we would pay
separately for these biosimilars even if their per-day cost is below
the threshold packaging policy. We believe the threshold packaging
exception for biosimilars when their reference biologicals are
separately paid would preserve our policy intent to promote biosimilar
use as a lower cost alternative to higher cost reference biologicals.
In addition, if a reference product's per-day cost falls below the
threshold packaging policy, we propose that all the biosimilars related
to the reference product would be similarly packaged regardless of
whether their per-day costs are above the threshold. This would allow
for consistent treatment of similar biological products in the unusual
circumstance in which a biosimilar is priced above the reference
biological. For the purpose of identifying biosimilar(s) related to a
reference biological product, we would rely on the product's FDA
approval under section 351(k) of the Public Health Service Act. For
example, filgrastim-sndz (Zarxio), filgrastim-aafi (Nivestym), and
filgrastim-ayow (Releuko) are biosimilars related to filgrastim
(Neupogen).\93\
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\93\ https://purplebooksearch.fda.gov/results?query=filgrastim&title=Zarxio.
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(3) Comment Solicitation on Packaging Policy for Reference
Biologicals and Biosimilars
[[Page 49683]]
While we have proposed to except threshold packaging of biosimilars
when their reference biologicals are separately paid in this proposed
rule, we are also soliciting comment on the packaging of payment for a
reference biological and its biosimilar(s) into the payment for the
associated service or procedure when the per-day cost of the reference
biological, or any of its biosimilar(s), is less than or equal to the
applicable OPPS drug packaging threshold. While both our proposed
policy and the policy described by this comment solicitation share the
goal of consistent treatment of similar biologic products, the method
to achieve that goal differs. Our proposed policy would result in
biosimilars being paid separately if their reference biologic is paid
separately, whereas here we seek comment on a policy that would result
in packaged payment for a biologic if the reference biologic or any of
its biosimilars have per day costs below the drug packaging threshold.
For example, for purposes of this comment solicitation, if a
biosimilar's per-day cost is above the threshold and separately paid
but its reference product is packaged, the biosimilar (and all its
related biosimilar(s)) would be packaged.
Additionally, we seek comment on other ways to structure payment
for biologicals and biosimilars that would encourage efficiency while
maintaining beneficiary access.
3. Payment Policy for Therapeutic Radiopharmaceuticals
In the CY 2023 OPPS/ASC final rule with comment period, we adopted
as final our proposal to continue our longstanding payment policy for
therapeutic radiopharmaceuticals for CY 2023 and subsequent years.
Accordingly, we are continuing this payment policy for therapeutic
radiopharmaceuticals in CY 2024. We pay for separately payable
therapeutic radiopharmaceuticals under the ASP methodology adopted for
separately payable drugs and biologicals. If ASP methodology (ASP, WAC,
and AWP) information is unavailable for a therapeutic
radiopharmaceutical, we base therapeutic radiopharmaceutical payment on
mean unit cost data derived from hospital claims. The rationale
outlined in the CY 2010 OPPS/ASC final rule with comment period (74 FR
60524 through 60525) for applying the principles of separately payable
drug pricing to therapeutic radiopharmaceuticals continues to be
appropriate for nonpass-through, separately payable therapeutic
radiopharmaceuticals. Therefore, we are paying for all nonpass-through,
separately payable therapeutic radiopharmaceuticals at ASP plus 6
percent (or applicable WAC or AWP amount) based on the statutory
default described in section 1833(t)(14)(A)(iii)(II) of the Act. For a
full discussion of ASP-based payment for therapeutic
radiopharmaceuticals, we refer readers to the CY 2010 OPPS/ASC final
rule with comment period (74 FR 60520 through 60521).
Consistent with the policy we adopted for CY 2023 and subsequent
years, for CY 2024 we will rely on the most recently available mean
unit cost data derived from hospital claims data for payment rates for
therapeutic radiopharmaceuticals for which ASP methodology (ASP, WAC,
and AWP) data are unavailable and to update the payment rates for
separately payable therapeutic radiopharmaceuticals according to our
usual process for updating the payment rates for separately payable
drugs and biologicals on a quarterly basis if updated ASP methodology
(ASP, WAC, and AWP) information is unavailable. For a complete history
of the OPPS payment policy for therapeutic radiopharmaceuticals, we
refer readers to the CY 2005 OPPS final rule with comment period (69 FR
65811), the CY 2006 OPPS final rule with comment period (70 FR 68655),
and the CY 2010 OPPS/ASC final rule with comment period (74 FR 60524).
The proposed CY 2024 payment rates for nonpass-through, separately
payable therapeutic radiopharmaceuticals are included in Addenda A and
B of this proposed rule (which are available on the CMS website).\94\
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\94\ https://www.cms.gov/medicare/medicare-fee-for-service-payment/hospitaloutpatientpps.
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4. Payment for Blood Clotting Factors
For CY 2023, we provided payment for blood clotting factors under
the same methodology as other nonpass-through separately payable drugs
and biologicals under the OPPS and continued paying an updated
furnishing fee (87 FR 71969 through 71970). That is, for CY 2023, we
provided payment for blood clotting factors under the OPPS at ASP plus
6 percent, plus an additional payment for the furnishing fee. We note
that when blood clotting factors are provided in physicians' offices or
other settings for which Medicare makes payment under Part B, a
furnishing fee is also applied to the payment. The CY 2023 updated
furnishing fee was $0.250 per unit.
In the CY 2023 OPPS/ASC final rule with comment period, we adopted
as final our proposal for CY 2023 and subsequent years to pay for blood
clotting factors at ASP plus 6 percent, consistent with our payment
policy for other nonpass-through, separately payable drugs and
biologicals, and to pay an updated furnishing fee. Our policy to pay a
furnishing fee for blood clotting factors under the OPPS is consistent
with the methodology applied in the physician's office and in the
inpatient hospital setting. These methodologies were first articulated
in the CY 2006 OPPS final rule with comment period (70 FR 68661) and
later discussed in the CY 2008 OPPS/ASC final rule with comment period
(72 FR 66765). The proposed furnishing fee update is based on the
percentage increase in the Consumer Price Index (CPI) for medical care
for the 12-month period ending with June of the previous year. Because
the Bureau of Labor Statistics releases the applicable CPI data after
the PFS and OPPS/ASC proposed rules are published, we are not able to
include the actual updated furnishing fee in the proposed rules.
Therefore, in accordance with our policy as finalized in the CY 2008
OPPS/ASC final rule with comment period (72 FR 66765), we will announce
the actual figure for the percent change in the applicable CPI and the
updated furnishing fee calculated based on that figure through
applicable program instructions and posting on our website at: https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Part-B-Drugs/McrPartBDrugAvgSalesPrice/.
5. Payment for Nonpass-Through Drugs, Biologicals, and
Radiopharmaceuticals with HCPCS Codes But Without OPPS Hospital Claims
Data
In the CY 2023 OPPS/ASC final rule with comment period, we adopted
as final our proposal to continue our longstanding payment policy for
nonpass-through drugs, biologicals, and radiopharmaceuticals with HCPCS
codes but without OPPS hospital claims data for CY 2023 and subsequent
years. For CY 2024, we will continue to use the same payment policy as
in CY 2023 for nonpass-through drugs, biologicals, and
radiopharmaceuticals with HCPCS codes but without OPPS hospital claims
data. For a detailed discussion of the payment policy and methodology,
we refer readers to the CY 2016 OPPS/ASC final rule with comment period
(80 FR 70442 through 70443). Consistent with our policy, because we
have no claims data and must determine if these products exceed the
per-day cost threshold, we estimated the average number of units of
each product that would typically be furnished to a patient during 1
day in the hospital
[[Page 49684]]
outpatient setting and utilized the ASP methodology to determine their
proposed payment status indicators. We refer readers to Table 40 below
for the proposed CY 2024 status indicator for each of the nonpass-
through drugs, biologicals, and radiopharmaceuticals with HCPCS codes
but without OPPS hospital claims data which are also listed in Addendum
B to this proposed rule, which is available on the CMS website.\95\
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\95\ https://www.cms.gov/medicare/medicare-fee-for-service-payment/hospitaloutpatientpps.
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BILLING CODE 4120-01-P
[[Page 49685]]
[GRAPHIC] [TIFF OMITTED] TP31JY23.064
[[Page 49686]]
[GRAPHIC] [TIFF OMITTED] TP31JY23.065
BILLING CODE 4120-01-C
6. Proposed OPPS Payment Methodology for 340B Purchased Drugs and
Biologicals
a. Overview
Under the OPPS, we generally set payment rates for separately
payable drugs and biologicals under section 1833(t)(14)(A) of the Act.
Section 1833(t)(14)(A)(iii)(II) of the Act provides that, if hospital
acquisition cost data is not available, the payment amount is the
average price for the drug in a year established under section 1842(o)
of the Act, which cross-references section 1847A of the Act, which
generally sets a default rate of ASP plus 6 percent for certain drugs
and biologicals. The provision also provides that the average price for
the drug or biological in the year as established under section 1847A
of the Act is calculated and adjusted by the Secretary as necessary for
purposes of paragraph (14). As described below, beginning in CY 2018,
the Secretary adjusted the 340B drug payment rate to ASP minus 22.5
percent to approximate a minimum average discount for 340B drugs and
biologicals, which was based on findings of the GAO \96\ and MedPAC
\97\ that 340B hospitals were acquiring drugs and biologicals at a
significant discount under HRSA's 340B Drug Pricing Program. We direct
readers to the CY 2018 OPPS/ASC final rule with comment period for a
more detailed discussion of the 340B drug payment policy (82 FR 52493
to 52511).
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\96\ Government Accountability Office. ``Medicare Part B Drugs:
``Action Needed to Reduce Financial Incentives to Prescribe 340B
Drugs at Participating Hospitals.'' June 2015. Available at https://www.gao.gov/assets/gao-15-442.pdf.
\97\ Medicare Payment Advisory Commission. March 2016 Report to
the Congress: Medicare Payment Policy. March 2016. Available at
Medicare Payment Advisory Commission. March 2016 Report to the
Congress: Medicare Payment Policy. March 2016. Available at https://www.medpac.gov/document/http-www-medpac-gov-docs-default-source-reports-may-2015-report-to-the-congress-overview-of-the-340b-drug-pricing-program-pdf/.
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This policy has been the subject of extensive litigation, including
before the Supreme Court of the United States. On June 15, 2022, the
Supreme Court held in American Hospital Association v. Becerra, 142 S.
Ct. 1896, that if CMS has not conducted a survey of hospitals'
acquisition costs, it may not vary the payment rates for outpatient
prescription drugs by hospital group. While the Supreme Court's
decision addressed payment rates for CYs 2018 and 2019, it had
implications for subsequent payment rates. Therefore, for CY 2023, we
finalized a policy to revert to the default payment rate, which is
generally ASP plus 6 percent, for 340B acquired drugs and biologicals
and finalized a policy to pay for 340B acquired drugs and biologicals
no differently than we pay for drugs and biologicals that are not
acquired through the 340B program. We also finalized a budget
neutrality adjustment to the CY 2023 OPPS conversion factor of 0.9691
percent rather than the 0.9596 percent adjustment we had proposed. This
adjustment offset the prior increase of 3.19 percent that was applied
to the conversion factor when we implemented the 340B payment policy in
CY 2018 in a budget neutral manner and ensured the CY 2023 conversion
factor was equivalent to the conversion factor that would be in place
if the 340B drug payment policy had never been implemented.
After the publication of the proposed CY 2023 OPPS rule, on
September 28, 2022, the District Court issued a final judgment vacating
the 340B reimbursement rate for the remainder of 2022, which the
District Court explained would automatically reestablish the default
rate for 340B-acquired drugs and biologicals. The agency took the
necessary steps, including issuing instructions to
[[Page 49687]]
Medicare contractors and updating drug payment files, to implement that
September 28, 2022 decision and has since paid the default rate, which
is generally ASP plus 6 percent, for 340B acquired drugs and
biologicals.\98\
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\98\ Vacating Differential Payment Rate for 340B-Acquired Drugs
in 2022 Outpatient Prospective Payment System Final Rule with
Comment Period. https://www.cms.gov/medicare/medicare-fee-for-service-payment/hospitaloutpatientpps.
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b. Payment for 340B Drugs and Biologicals in CYs 2018 Through 2022
For full descriptions of our OPPS payment policy for drugs and
biologicals acquired under the 340B program beginning in CY 2018, we
refer readers to the CY 2018 OPPS/ASC final rule with comment period
(82 FR 59353 through 59371); the CY 2019 OPPS/ASC final rule with
comment period (83 FR 59015 through 59022); the CY 2021 OPPS/ASC final
rule with comment period (85 FR 86042 through 86055); the CY 2022 OPPS/
ASC final rule with comment period (86 FR 63640 through 63649); and the
CY 2023 OPPS/ASC final rule with comment period (87 FR 71970 through
71976).
In July, 2023, CMS published a proposed rule, referred to as
``remedy proposed rule'' to address the reduced payment amounts to 340B
hospitals under the reimbursement rates in the final OPPS rules for CYs
2018 through 2022 and to comply with the statutory requirement to
maintain budget neutrality under the OPPS. The remedy proposed rule
does not propose changes to our CY 2024 OPPS drug payment policy nor
the CY 2024 OPPS conversion factor, but it does propose changes to the
calculation of the OPPS conversion factor beginning in CY 2025. We
believe our proposed remedy rule is consistent with the Supreme Court's
decision in American Hospital Association and the District Court's
remand order. We refer readers to the 340B remedy proposed rule for a
full description of this proposed remedy policy as well as for when
comments are due to that proposed rule. This document can be found in
the Federal Register and on the CMS website.\99\
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\99\ https://www.cms.gov/medicare/medicare-fee-for-service-payment/hospitaloutpatientpps.
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c. CY 2024 Proposed 340B Drug Payment Policy
For CY 2024, consistent with our policy finalized for CY 2023, we
propose to continue to pay the statutory default rate, which is
generally ASP plus 6 percent, for 340B acquired drugs and biologicals.
The payment for 340B acquired drugs and biologicals will not differ
from the payment rate for drugs and biologicals not acquired through
the 340B program. We believe this policy is appropriate given the
Supreme Court decision discussed previously.
In the CY 2023 OPPS/ASC final rule with comment period, we
maintained the requirement that 340B hospitals report the ``JG'' (Drug
or biological acquired with 340B drug pricing program discount,
reported for informational purposes) or ``TB'' (Drug or biological
acquired with 340B drug pricing program discount, reported for
informational purposes for select entities) modifiers to identify drugs
and biologicals acquired through the 340B Program for informational
purposes (87 FR 71974). We explained that we believed maintaining both
modifiers would reduce provider burden compared to shifting to a single
modifier, as all providers can continue utilizing the modifier (either
``JG'' or ``TB'') that they had been using for the previous five
calendar years. On December 20, 2022, we issued ``Part B Inflation
Rebate Guidance: Use of 340B Modifiers,'' which, in accordance with
section 1847A(i) of the Act, requires all 340B covered entities,
including hospital-based and non-hospital-based entities, to report the
applicable modifier for separately payable drugs and biologicals
acquired through the 340B Program.\100\ Section 1847A(i) of the Act, as
added by the Inflation Reduction Act, requires the Secretary to
establish a Part B inflation rebate by manufacturers of certain single
source drugs and biologicals with prices increasing faster than the
rate of inflation. Section 1847A(i)(3)(B)(ii)(I) of the Act
specifically excludes units of drugs and biologicals for which the
manufacturer provides a discount under the 340B program from the units
of drugs and biologicals for which a manufacturer otherwise may have a
Part B inflation rebate liability. Effective implementation of the Part
B inflation rebate requires CMS to identify units of drugs and
biologicals acquired through the 340B Program so they can be subtracted
from the total number of otherwise rebatable units as applicable. This
guidance explained that the ``JG'' and ``TB'' modifiers provide an
existing mechanism to identify drugs and biologicals acquired through
the 340B Program that is familiar to most 340B covered entities paid
under the OPPS, and stated that it did not change the requirements in
the CY 2023 OPPS/ASC final rule with comment period (i.e., that 340B
covered entity hospitals should continue to use the modifiers they used
previously to identify 340B drugs and biologicals). For claims with
dates of service beginning no later than January 1, 2024, the guidance
instructed all 340B covered entities to report the appropriate
modifier, including those not currently reporting the ``JG'' or ``TB''
modifier, such as Ryan White clinics and hemophilia clinics, which
should report the ``JG'' modifier on separately payable Part B claim
lines for drugs and biologicals acquired through the 340B Program.
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\100\ https://www.cms.gov/files/document/part-b-inflation-rebate-guidance340b-modifierfinal.pdf.
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Although we stated in the CY 2023 OPPS/ASC final rule with comment
period and in the ``Part B Inflation Rebate Guidance: Use of 340B
Modifiers'' that hospital-based 340B covered entities should continue
to use the modifier they used previously (either the ``JG'' or ``TB''
modifier), we now believe utilizing a single modifier will allow for
greater simplicity, especially because both modifiers are used for the
same purpose: to identify separately payable drugs and biologicals
acquired under the 340B Program. Requiring hospitals to report a single
modifier would allow CMS to continue to identify and exclude 340B-
acquired drugs and biologicals from the definition of units for the
purpose of Part B inflation rebate liability, while eliminating the
need to use two modifiers for the same purpose. Additionally, we
believe this proposal would lessen the burden on providers as they
would only have to report one modifier for all scenarios in which a
340B drug is acquired. Accordingly, we propose that all 340B covered
entity hospitals paid under the OPPS would report the ``TB'' modifier
effective January 1, 2025, even if the hospital previously reported the
``JG'' modifier.
The ``JG'' modifier would remain effective through December 31,
2024. Hospitals that currently report the ``JG'' modifier could choose
to continue to use it in CY 2024 or choose to transition to use of the
``TB'' modifier during that year. Beginning on January 1, 2025, the
``JG'' modifier would be deleted and hospitals would be required to
report drugs and biologicals acquired through the 340B program using
the ``TB'' modifier. Additionally, beginning January 1, 2025, we would
revise the ``TB'' modifier descriptor (Drug or biological acquired with
340B drug pricing program discount, reported for informational purposes
for select entities) to no longer include ``. . . for select entities''
as all entities would report this modifier after this date. We note
that this proposal, if finalized, would update the December 20, 2022,
guidance titled ``Part B Inflation Rebate Guidance: Use of the 340B
[[Page 49688]]
Modifiers.'' \101\ Additionally, CMS plans to further update this
guidance to align the modifier requirements for 340B covered entity
providers and suppliers not paid under the OPPS with proposed modifier
requirement changes for 340B covered entity hospitals paid under the
OPPS.
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\101\ https://www.cms.gov/files/document/part-b-inflation-rebate-guidance340b-modifierfinal.pdf.
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For more information on the Medicare Part B inflation rebate
program, please visit ``Inflation Rebates in Medicare.''
7. High Cost/Low Cost Threshold for Packaged Skin Substitutes
a. Background
In the CY 2014 OPPS/ASC final rule with comment period (78 FR
74938), we unconditionally packaged skin substitute products into their
associated surgical procedures as part of a broader policy to package
all drugs and biologicals that function as supplies when used in a
surgical procedure. As part of the policy to package skin substitutes,
we also finalized a methodology that divides the skin substitutes into
a high-cost group and a low-cost group, to ensure adequate resource
homogeneity among APC assignments for the skin substitute application
procedures (78 FR 74933). In the CY 2015 OPPS/ASC final rule with
comment period (79 FR 66886), we stated that skin substitutes are best
characterized as either surgical supplies or devices because of their
required surgical application and because they share significant
clinical similarity with other surgical devices and supplies.
Skin substitutes assigned to the high-cost group are described by
HCPCS codes 15271 through 15278. Skin substitutes assigned to the low-
cost group are described by HCPCS codes C5271 through C5278. Geometric
mean costs for the various procedures are calculated using only claims
for the skin substitutes that are assigned to each group. Specifically,
claims billed with HCPCS code 15271, 15273, 15275, or 15277 are used to
calculate the geometric mean costs for procedures assigned to the high-
cost group, and claims billed with HCPCS code C5271, C5273, C5275, or
C5277 are used to calculate the geometric mean costs for procedures
assigned to the low-cost group (78 FR 74935).
Each of the HCPCS codes described earlier are assigned to one of
the following three skin procedure APCs according to the geometric mean
cost for the code: APC 5053 (Level 3 Skin Procedures): HCPCS codes
C5271, C5275, and C5277; APC 5054 (Level 4 Skin Procedures): HCPCS
codes C5273, 15271, 15275, and 15277; or APC 5055 (Level 5 Skin
Procedures): HCPCS code 15273. In CY 2023, the payment rate for APC
5053 (Level 3 Skin Procedures) was $580.95, the payment rate for APC
5054 (Level 4 Skin Procedures) was $1,725.86, and the payment rate for
APC 5055 (Level 5 Skin Procedures) was $3,253.04. This information is
also available in Addenda A and B of the CY 2023 final rule with
comment period (87 FR 71748) (the final rule and Addenda A and B are
available on the CMS website (https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/HospitalOutpatientPPS/Hospital-Outpatient-Regulations-and-Notices)).
We have continued the high cost/low cost categories policy since CY
2014, and we propose to continue it for CY 2024. Under the current
policy, skin substitutes in the high-cost category are reported with
the skin substitute application CPT codes, and skin substitutes in the
low-cost category are reported with the analogous skin substitute HCPCS
C-codes. For a discussion of the CY 2014 and CY 2015 methodologies for
assigning skin substitutes to either the high-cost group or the low-
cost group, we refer readers to the CY 2014 OPPS/ASC final rule with
comment period (78 FR 74932 through 74935) and the CY 2015 OPPS/ASC
final rule with comment period (79 FR 66882 through 66885).
For a discussion of the high cost/low cost methodology that was
adopted in CY 2016 and has been in effect since then, we refer readers
to the CY 2016 OPPS/ASC final rule with comment period (80 FR 70434
through 70435). Beginning in CY 2016 and in subsequent years, we
adopted a policy where we determined the high cost/low cost status for
each skin substitute product based on either a product's geometric mean
unit cost (MUC) exceeding the geometric MUC threshold or the product's
per day cost (PDC) (the total units of a skin substitute multiplied by
the mean unit cost and divided by the total number of days) exceeding
the PDC threshold. We assigned each skin substitute that exceeded
either the MUC threshold or the PDC threshold to the high-cost group.
In addition, we assigned any skin substitute with a MUC or a PDC that
did not exceed either the MUC threshold or the PDC threshold to the
low-cost group (87 FR 71976).
However, some skin substitute manufacturers have raised concerns
about significant fluctuation in both the MUC threshold and the PDC
threshold from year to year using the methodology developed in CY 2016.
The fluctuation in the thresholds may result in the reassignment of
several skin substitutes from the high-cost group to the low-cost
group, which, under current payment rates, can be a difference of over
$1,000 in the payment amount for the same procedure. In addition, these
interested parties were concerned that the inclusion of cost data from
skin substitutes with pass-through payment status in the MUC and PDC
calculations would artificially inflate the thresholds. Skin substitute
interested parties requested that CMS consider alternatives to the
current methodology used to calculate the MUC and PDC thresholds and
whether it might be appropriate to establish a new cost group in
between the low-cost group and the high-cost group to allow for
assignment of moderately priced skin substitutes to a newly created
middle group.
We share the goal of promoting payment stability for skin
substitute products and their related procedures as price stability
allows hospitals using such products to more easily anticipate future
payments associated with these products. We have attempted to limit
year-to-year shifts for skin substitute products between the high-cost
and low-cost groups through multiple initiatives implemented since CY
2014, including: establishing separate skin substitute application
procedure codes for low-cost skin substitutes (78 FR 74935); using a
skin substitute's MUC calculated from outpatient hospital claims data
instead of an average of ASP plus 6 percent as the primary methodology
to assign products to the high-cost or low-cost group (79 FR 66883);
and establishing the PDC threshold as an alternate methodology to
assign a skin substitute to the high-cost group (80 FR 70434 through
70435).
To allow additional time to evaluate concerns and suggestions from
interested parties about the volatility of the MUC and PDC thresholds,
in the CY 2018 OPPS/ASC proposed rule (82 FR 33627), we proposed that a
skin substitute that was assigned to the high-cost group for CY 2017
would be assigned to the high-cost group for CY 2018, even if it did
not exceed the CY 2018 MUC or PDC thresholds. We finalized this policy
in the CY 2018 OPPS/ASC final rule with comment period (82 FR 59347).
For more detailed information and discussion regarding the goals of
this policy and the subsequent comment solicitations in CY 2019 and CY
2020 regarding possible alternative payment methodologies for graft
skin substitute products, please refer to the CY 2018 OPPS/ASC final
rule with comment period (82 FR
[[Page 49689]]
59347); CY 2019 OPPS/ASC final rule with comment period (83 FR 58967 to
58968); and the CY 2020 OPPS/ASC final rule with comment period (84 FR
61328 to 61331).
b. Proposals for Packaged Skin Substitutes for CY 2024
For CY 2024, consistent with our policy since CY 2016, we propose
to continue to determine the high-cost/low-cost status for each skin
substitute product based on either a product's geometric MUC exceeding
the geometric MUC threshold or the product's PDC (the total units of a
skin substitute multiplied by the MUC and divided by the total number
of days) exceeding the PDC threshold. Consistent with the methodology
as established in the CY 2014 OPPS/ASC through CY 2018 OPPS/ASC final
rules with comment period, we analyzed CY 2022 claims data to calculate
the MUC threshold (a weighted average of all skin substitutes' MUCs)
and the PDC threshold (a weighted average of all skin substitutes'
PDCs). The proposed CY 2024 MUC threshold is $47 per cm\2\ (rounded to
the nearest $1) and the proposed CY 2024 PDC threshold is $817 (rounded
to the nearest $1). Also, the availability of a HCPCS code for a
particular human cell, tissue, or cellular or tissue-based product
(HCT/P) does not mean that that product is appropriately regulated
solely under section 361 of the PHS Act and the FDA regulations in 21
CFR part 1271. Manufacturers of HCT/Ps should consult with the FDA
Tissue Reference Group (TRG) or obtain a determination through a
Request for Designation (RFD) on whether their HCT/Ps are appropriately
regulated solely under section 361 of the PHS Act and the regulations
in 21 CFR part 1271.
For CY 2024, as we did for CY 2023, we propose to assign each skin
substitute that exceeds either the MUC threshold or the PDC threshold
to the high-cost group. In addition, we propose to assign any skin
substitute that does not exceed either the MUC threshold or the PDC
threshold to the low-cost group except that we propose that any skin
substitute product that was assigned to the high-cost group in CY 2023
would be assigned to the high-cost group for CY 2024, regardless of
whether it exceeds or falls below the CY 2024 MUC or PDC threshold.
This policy was established in the CY 2018 OPPS/ASC final rule with
comment period (82 FR 59346 through 59348).
For CY 2024, we propose to continue to assign skin substitutes with
pass-through payment status to the high-cost category. We propose to
assign skin substitutes with pricing information but without claims
data to calculate a geometric MUC or PDC to either the high-cost or
low-cost category based on the product's ASP plus 6 percent payment
rate as compared to the MUC threshold. If ASP is not available, we
propose to use WAC plus 3 percent to assign a product to either the
high-cost or low-cost category. Finally, if neither ASP nor WAC is
available, we propose to use 95 percent of AWP to assign a skin
substitute to either the high-cost or low-cost category. We propose to
continue to use WAC plus 3 percent instead of WAC plus 6 percent to
conform to our proposed policy described in section V.B.2.b of this
proposed rule to establish a payment rate of WAC plus 3 percent for
separately payable drugs and biologicals that do not have ASP data
available. We propose that any skin substitute product that is assigned
a code in the HCPCS A2XXX series would be assigned to the high-cost
skin substitute group including new products without pricing
information. New skin substitutes without pricing information that are
not assigned a code in the HCPCS A2XXX series would be assigned to the
low-cost category until pricing information is available to compare to
the CY 2024 MUC and PDC thresholds. For a discussion of our existing
policy under which we assign skin substitutes without pricing
information that are not assigned a code in the HCPCS A2XXX series to
the low-cost category until pricing information is available, we refer
readers to the CY 2016 OPPS/ASC final rule with comment period (80 FR
70436).
Table 41 includes the proposed CY 2024 cost category assignment for
each skin substitute product.
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8. Radioisotopes Derived From Non-Highly Enriched Uranium (Non-HEU)
Sources
Radioisotopes are widely used in modern medical imaging,
particularly for cardiac imaging and predominantly for the Medicare
population. Some of the Technetium-99 (Tc-99m), the radioisotope used
in the majority of such diagnostic imaging services, has been produced
in legacy reactors outside of the United States using highly enriched
uranium (HEU).
The United States wanted to eliminate domestic reliance on these
reactors and has been promoting the conversion of all medical
radioisotope production to non-HEU sources. Alternative methods for
producing Tc-99m without HEU are technologically and economically
viable, but it was expected that this change in the supply source for
the radioisotope used for modern medical imaging would introduce new
costs into the payment system that were not accounted for in the
historical claims data.
Therefore, beginning in CY 2013, we finalized a policy to provide
an additional payment of $10 for the marginal cost for radioisotopes
produced by non-HEU sources (77 FR 68323). Under this policy, hospitals
report HCPCS code Q9969 (Tc-99m from non-highly enriched uranium
source, full cost recovery add-on per study dose) once per dose along
with any diagnostic scan or scans furnished using Tc-99m as long as the
Tc-99m doses used can be certified by the hospital to be at least 95
percent derived from non-HEU sources (77 FR 68323).
We stated in the CY 2013 OPPS/ASC final rule with comment period
(77 FR 68321) that our expectation was that this additional payment
would be needed for the duration of the industry's conversion to
alternative methods of producing Tc-99m without HEU. We
[[Page 49694]]
also stated that we would reassess, and propose if necessary, on an
annual basis whether such an adjustment continued to be necessary and
whether any changes to the adjustment were warranted (77 FR 68321). A
2016 report from the National Academies of Sciences, Engineering, and
Medicine anticipated the conversion of Tc-99m production from non-HEU
sources would be completed at the end of 2019.\102\ However, the
Secretary of Energy issued a certification effective January 2, 2020,
stating that there continued to be an insufficient global supply of
molybdenum-99 (Mo-99), which is the source of Tc-99m, produced without
the use of HEU, available to satisfy the domestic U.S. market (85 FR
3362). The January 2, 2020 certification was to remain in effect for up
to 2 years.
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\102\ National Academies of Sciences, Engineering, and Medicine.
2016. Molybdenum-99 for Medical Imaging. Washington, DC: The
National Academies Press. Available at: https://doi.org/10.17226/23563.
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The Secretary of Energy issued a new certification regarding the
supply of non-HEU-sourced Mo-99 effective January 2, 2022 (86 FR
73270). This certification stated that there was a sufficient global
supply of Mo-99 produced without the use of HEU available to meet the
needs of patients in the United States. The Department of Energy also
expected that the last HEU reactor that produces Mo-99 for medical
providers in the United States would finish its conversion to a non-HEU
reactor by December 31, 2022. In CY 2019, we stated that we would
reassess the non-HEU incentive payment policy once conversion to non-
HEU sources is closer to completion or has been completed (83 FR
58979). There is now a sufficient supply of non-HEU-sourced Mo-99 in
the United States, and there is no available supply of HEU-sourced Mo-
99 in the United States. In the CY 2023 OPPS/ASC final rule with
comment period, we stated that we believed the conversion to non-HEU
sources of Tc-99m had reached a point where it was necessary to
reassess our policy of providing an additional payment of $10 for the
marginal cost for radioisotopes produced by non-HEU sources (87 FR
71987).
In the OPPS, diagnostic radiopharmaceuticals are packaged into the
cost of the associated diagnostic imaging procedure no matter the per
day cost of the radiopharmaceutical. The cost of the
radiopharmaceutical is included as a part of the cost of the diagnostic
imaging procedure and is reported through Medicare claims data.
Medicare claims data used to set payment rates under the OPPS generally
is from 2 years prior to the payment year.
As we explained in the CY 2023 OPPS/ASC final rule with comment
period (87 FR 71987), the claims data we would use to set payment rates
for CY 2024 (likely CY 2022 claims data) contain claims for diagnostic
radiopharmaceuticals that reflect both HEU-sourced Tc-99m and non-HEU-
sourced Tc-99m, rather than radiopharmaceuticals sourced solely from
non-HEU Tc-99m. The cost of HEU-sourced Tc-99m is substantially lower
than the cost of non-HEU-sourced Tc-99m. Therefore, we explained that
providers who use radiopharmaceuticals in CY 2024 that contain only
non-HEU-sourced Tc-99m might not receive a payment that is reflective
of the radiopharmaceutical's current cost without the add-on payment.
We believed that extending the additional $10 add-on payment described
by HCPCS code Q9969 for non-HEU-sourced Tc-99m through the end of CY
2024 would ensure adequate payment for non-HEU-sourced Tc-99m. Starting
in CY 2025, we believed the Medicare claims data utilized to set
payment rates (likely CY 2023 claims data) would only include claims
for diagnostic radiopharmaceuticals that utilized non-HEU-sourced Tc-
99m, meaning the data would reflect the full cost of the Tc-99m
diagnostic radiopharmaceuticals that would be used by providers in CY
2025. As a result, we believed there would no longer be a need for the
additional $10 add-on payment for CY 2025 or future years.
This policy was based on the Secretary of Energy's certification
that the last HEU reactor that produces Mo-99 for medical providers in
the United States would finish its conversion to a non-HEU reactor by
December 31, 2022, and that all Tc-99m used for radiopharmaceuticals in
2023 would be produced from non-HEU sources. However, we understand
that the conversion of the last HEU reactor that produces Tc-99m to a
non-HEU reactor did not occur until March 2023, so it is possible that
some claims for diagnostic radiopharmaceuticals in CY 2023 would report
the cost of HEU-sourced Tc-99m. This means that in CY 2025, as in CY
2024, there is the possibility that the payment rate for procedures
using diagnostic radiopharmaceuticals could be lower than the costs
providers will face for these procedures because providers will only
have access to non-HEU-sourced Tc-99m.
We believe that extending the additional $10 add-on payment
described by HCPCS code Q9969 for non-HEU-sourced Tc-99m through the
end of CY 2025 rather than the end of CY 2024, as we previously
finalized, would ensure adequate payment for non-HEU-sourced Tc-99m now
that the conversion from HEU-sourced Tc-99m to non-HEU-sourced Tc-99m
is complete. Starting in CY 2026, the Medicare claims data utilized to
set payment rates (likely CY 2024 claims data) will only include claims
for diagnostic radiopharmaceuticals that utilized non-HEU-sourced Tc-
99m, which means the data will more closely reflect the cost of the Tc-
99m diagnostic radiopharmaceuticals that will be used by providers in
CY 2026. As a result, there will no longer be a need for the additional
$10 add-on payment for CY 2026 or future years.
We propose to continue the additional $10 payment through December
31, 2025, as beginning in CY 2026, the Medicare claims data used to set
payment rates will reflect the full cost of non-HEU-sourced Tc-99m.
C. Requirement in the Physician Fee Schedule CY 2024 Proposed Rule for
HOPDs and ASCs To Report Discarded Amounts of Certain Single-Dose or
Single-Use Package Drugs
Section 90004 of the Infrastructure Investment and Jobs Act (Pub.
L. 117-9, November 15, 2021) (``the Infrastructure Act'') amended
section 1847A of the Act to re-designate subsection (h) as subsection
(i) and insert a new subsection (h), which requires manufacturers to
provide a refund to CMS for certain discarded amounts from a refundable
single-dose container or single-use package drug. The CY 2024 PFS
proposed rule includes proposals to operationalize section 90004 of the
Infrastructure Act, including a proposal that impacts hospital
outpatient departments (HOPDs) and ambulatory surgical centers (ASCs).
Similar to our CY 2023 notice in the OPPS/ASC proposed rule (87 FR
71988), we want to ensure interested parties are aware of these
proposals and know to refer to the Physician Fee Schedule (PFS)
proposed rule for a full description of the proposed policy. Interested
parties are asked to submit comments on any proposals related to
implementation of section 90004 of the Infrastructure Act on the CY
2024 PFS proposed rule. Public comments on these proposals will be
addressed in the CY 2024 PFS final rule with comment period. We note
that this same notice appears in section XIII.D.3 of this proposed
rule.
[[Page 49695]]
VI. Proposed Estimate of OPPS Transitional Pass-Through Spending for
Drugs, Biologicals, Radiopharmaceuticals, and Devices
A. Amount of Additional Payment and Limit on Aggregate Annual
Adjustment
Section 1833(t)(6)(E) of the Act limits the total projected amount
of transitional pass-through payment for drugs, biologicals, and
categories of devices for a given year to an ``applicable percentage,''
currently not to exceed 2.0 percent of total program payments estimated
to be made for all covered services under the OPPS furnished for that
year. If we estimate before the beginning of the calendar year that the
total amount of pass-through payments in that year would exceed the
applicable percentage, section 1833(t)(6)(E)(iii) of the Act requires a
uniform prospective reduction in the amount of each of the transitional
pass-through payments made in that year to ensure that the limit is not
exceeded. We estimate the pass-through spending to determine whether
payments exceed the applicable percentage and the appropriate pro rata
reduction to the conversion factor for the projected level of pass-
through spending in the following year to ensure that total estimated
pass-through spending for the prospective payment year is budget
neutral, as required by section 1833(t)(6)(E) of the Act.
For devices, developing a proposed estimate of pass-through
spending in CY 2024 entails estimating spending for two groups of
items. The first group of items consists of device categories that are
currently eligible for pass-through payment and that will continue to
be eligible for pass-through payment in CY 2024. The CY 2008 OPPS/ASC
final rule with comment period (72 FR 66778) describes the methodology
we have used in previous years to develop the pass-through spending
estimate for known device categories continuing into the applicable
update year. The second group of items consists of devices that we know
are newly eligible, or project may be newly eligible, for device pass-
through payment in the remaining quarters of CY 2023 or beginning in CY
2024. The sum of the proposed CY 2024 pass-through spending estimates
for these two groups of device categories equals the proposed total CY
2024 pass-through spending estimate for device categories with pass-
through payment status. We determined the device pass-through estimated
payments for each device category based on the amount of payment as
required by section 1833(t)(6)(D)(ii) of the Act, and as outlined in
previous rules, including the CY 2014 OPPS/ASC final rule with comment
period (78 FR 75034 through 75036). We note that, beginning in CY 2010,
the pass-through evaluation process and pass-through payment
methodology for implantable biologicals newly approved for pass-through
payment beginning on or after January 1, 2010, that are surgically
inserted or implanted (through a surgical incision or a natural
orifice) use the device pass-through process and payment methodology
(74 FR 60476). As has been our past practice (76 FR 74335), in the
proposed rule, we proposed to include an estimate of any implantable
biologicals eligible for pass-through payment in our estimate of pass-
through spending for devices. Similarly, we finalized a policy in CY
2015 that applications for pass-through payment for skin substitutes
and similar products be evaluated using the medical device pass-through
process and payment methodology (76 FR 66885 through 66888). Therefore,
as we did beginning in CY 2015, for CY 2024, we also propose to include
an estimate of any skin substitutes and similar products in our
estimate of pass-through spending for devices.
For drugs and biologicals eligible for pass-through payment,
section 1833(t)(6)(D)(i) of the Act establishes the pass-through
payment amount as the amount by which the amount authorized under
section 1842(o) of the Act (or, if the drug or biological is covered
under a competitive acquisition contract under section 1847B of the
Act, an amount determined by the Secretary equal to the average price
for the drug or biological for all competitive acquisition areas and
year established under such section as calculated and adjusted by the
Secretary) exceeds the portion of the otherwise applicable fee schedule
amount that the Secretary determines is associated with the drug or
biological. Consistent with current policy, we propose to apply a rate
of ASP plus 6 percent to most drugs and biologicals for CY 2024, and
therefore our estimate of drug and biological pass-through payment for
CY 2024 for this group of items is $100 million.
Payment for certain drugs, specifically diagnostic
radiopharmaceuticals and contrast agents without pass-through payment
status, is packaged into payment for the associated procedures, and
these products are not separately paid. In addition, we policy-package
all non pass-through drugs, biologicals, and radiopharmaceuticals that
function as supplies when used in a diagnostic test or procedure, drugs
and biologicals that function as supplies when used in a surgical
procedure, drugs and biologicals used for anesthesia, and other
categories of drugs and biologicals, as discussed in section V.B.1.c of
this proposed rule. Consistent with current policy, propose that all of
these policy-packaged drugs and biologicals with pass-through payment
status would generally be paid at ASP plus 6 percent, like other pass-
through drugs and biologicals, for CY 2024, less the policy-packaged
drug APC offset amount described below. Our estimate of passthrough
payment for policy-packaged drugs and biologicals with pass-through
payment status approved prior to CY 2024 is not $0. This is because the
pass-through payment amount and the fee schedule amount associated with
the drug or biological will not be the same, unlike for separately
payable drugs and biologicals. In section V.A.6 of this proposed rule,
we discuss our policy to determine if the costs of certain policy-
packaged drugs or biologicals are already packaged into the existing
APC structure. If we determine that a policy-packaged drug or
biological approved for pass-through payment resembles predecessor
drugs or biologicals already included in the costs of the APCs that are
associated with the drug receiving passthrough payment, we propose to
offset the amount of pass-through payment for the policy-packaged drug
or biological. For these drugs or biologicals, the APC offset amount is
the portion of the APC payment for the specific procedure performed
with the pass-through drug or biological, which we refer to as the
policy-packaged drug APC offset amount. Consistent with current policy,
if we determine that an offset is appropriate for a specific policy-
packaged drug or biological receiving pass-through payment, we propose
to reduce our estimate of pass-through payments for these drugs or
biologicals by the APC offset amount.
Similar to pass-through spending estimates for devices, the first
group of drugs and biologicals requiring a pass-through payment
estimate consists of those products that were recently made eligible
for pass-through payment and that will continue to be eligible for
pass-through payment in CY 2024. The second group contains drugs and
biologicals that we know are newly eligible, or project will be newly
eligible, in the remaining quarters of CY 2023 or beginning in CY 2024.
The sum of the CY 2024 pass-through spending estimates for these two
groups of drugs and biologicals equals the total CY 2024 pass-through
spending estimate for
[[Page 49696]]
drugs and biologicals with pass-through payment status.
B. Proposed Estimate of Pass-Through Spending for CY 2024
For CY 2024, we propose to set the applicable pass-through payment
percentage limit at 2.0 percent of the total projected OPPS payments
for CY 2024, consistent with section 1833(t)(6)(E)(ii)(II) of the Act
and our OPPS policy from CY 2004 through CY 2023 (87 FR 719889). The
pass-through payment percentage limit is calculated using pass-through
spending estimates for devices and for drugs and biologicals.
For the first group of devices, consisting of device categories
that are currently eligible for pass-through payment and will continue
to be eligible for pass-through payment in CY 2024, there are 7 active
categories for CY 2024. The active categories are described by HCPCS
codes C1747, C1761, C1826, C1827, C1831, C1832, and C1833. Based on the
information from the device manufacturers, we estimate that HCPCS code
C1747 will cost $37.5 million in pass-through expenditures in CY 2024,
HCPCS code C1761 will cost $19.6 million in pass-through expenditures
in CY 2024, HCPCS code C1826 will cost $7.4 million in pass-through
expenditures in CY 2024, HCPCS code C1827 will cost $28.8 million in
pass-through expenditures in CY 2024, HCPCS code C1831 will cost
$163,436 in pass-through expenditures in CY 2024, HCPCS code C1832 will
cost $37,603 in pass-through expenditures in CY 2024, and HCPCS code
C1833 will cost $281,238 in pass-through expenditures in CY 2024.
Therefore, we propose an estimate for the first group of devices of
$93.7 million.
In estimating our proposed CY 2024 pass-through spending for device
categories in the second group, we included: device categories that we
assumed at the time of the development of the proposed rule would be
newly eligible for pass-through payment in CY 2024; additional device
categories that we estimated could be approved for pass-through status
after the development of this proposed rule and before January 1, 2024;
and contingent projections for new device categories established in the
second through fourth quarters of CY 2024. For CY 2024, we propose to
use the general methodology described in the CY 2008 OPPS/ASC final
rule with comment period (72 FR 66778), while also taking into account
recent OPPS experience in approving new pass-through device categories.
For this proposed rule, the proposed estimate of CY 2024 pass-through
spending for this second group of device categories is $40.4 million.
To estimate proposed CY 2024 pass-through spending for drugs and
biologicals in the first group, specifically those drugs and
biologicals recently made eligible for pass-through payment and
continuing on pass-through payment status for at least one quarter in
CY 2024, we propose to use the CY 2022 Medicare hospital outpatient
claims data regarding their utilization, information provided in the
respective pass-through applications, other historical hospital claims
data, pharmaceutical industry information, and clinical information
regarding these drugs and biologicals to project the CY 2024 OPPS
utilization of the products.
For the known drugs and biologicals (excluding policy-packaged
diagnostic radiopharmaceuticals, contrast agents, drugs, biologicals,
and radiopharmaceuticals that function as supplies when used in a
diagnostic test or procedure, and drugs and biologicals that function
as supplies when used in a surgical procedure) that will continue to
have pass-through payment status in CY 2024, we estimate the pass-
through payment amount as the difference between ASP plus 6 percent and
the payment rate for non pass-through drugs and biologicals that will
be separately paid. Because we propose to apply a payment rate of ASP
plus 6 percent to most drugs and biologicals in this proposed rule, the
proposed payment rate difference between the pass-through payment
amount and the non pass-through payment amount is $0 for this group of
drugs.
Because payment for policy-packaged drugs and biologicals is
packaged if the product is not paid separately due to its pass-through
payment status, we propose to include in the CY 2024 pass-through
estimate the difference between payment for the policy-packaged drug or
biological at ASP plus 6 percent (or WAC plus 6 percent, or 95 percent
of AWP, if ASP or WAC information is not available) and the policy
packaged drug APC offset amount, if we determine that the policy-
packaged drug or biological approved for pass-through payment resembles
a predecessor drug or biological already included in the costs of the
APCs that are associated with the drug receiving pass-through payment,
which we estimate for CY 2024 for the first group of policy-packaged
drugs to be $90 million.
To estimate proposed CY 2024 pass-through spending for drugs and
biologicals in the second group (that is, drugs and biologicals that we
knew at the time of development of this proposed rule were newly
eligible or recently became eligible for pass-through payment in CY
2023, additional drugs and biologicals that we estimated could be
approved for pass-through status subsequent to the development of this
proposed rule and before January 1, 2024, and projections for new drugs
and biologicals that could be initially eligible for pass-through
payment in the second through fourth quarters of CY 2024), we propose
to use utilization estimates from pass-through applicants,
pharmaceutical industry data, clinical information, recent trends in
the per-unit ASPs of hospital outpatient drugs, and projected annual
changes in service volume and intensity as our basis for making the CY
2024 pass-through payment estimate. We also propose to consider the
most recent OPPS experience in approving new pass-through drugs and
biologicals. Using our proposed methodology for estimating CY 2024
pass-through payments for this second group of drugs, we calculated a
proposed spending estimate for this second group of drugs and
biologicals of approximately $10 million.
We estimate for this proposed rule that the amount of pass-through
spending for the device categories and the drugs and biologicals that
are continuing to receive pass-through payment in CY 2024 and those
device categories, drugs, and biologicals that first become eligible
for pass-through payment during CY 2024 would be approximately $234.1
million (approximately $134.1 million for device categories and
approximately $100 million for drugs and biologicals) which represents
0.26 percent of total projected OPPS payments for CY 2024
(approximately $88.6 billion). Therefore, we estimate that pass-through
spending in CY 2024 would not amount to 2.0 percent of total projected
OPPS CY 2024 program spending.
VII. Proposed OPPS Payment for Hospital Outpatient Visits and Critical
Care Services
For CY 2024, we propose to continue our current clinic and
emergency department (ED) hospital outpatient visits payment policies.
For a description of these policies, we refer readers to the CY 2016
OPPS/ASC final rule with comment period (80 FR 70448). We also propose
to continue our payment policy for critical care services for CY 2024.
For a description of this policy, we refer readers to the CY 2016 OPPS/
ASC final rule with comment period (80 FR 70449), and for the history
of this payment policy, we refer readers to the CY 2014 OPPS/ASC final
[[Page 49697]]
rule with comment period (78 FR 75043).
As we stated in the CY 2022 OPPS/ASC final rule with comment period
(86 FR 63663), the volume control method for clinic visits furnished by
non-excepted off-campus provider-based departments (PBDs) applies for
CY 2023 and subsequent years. More specifically, we finalized a policy
to continue to utilize a PFS-equivalent payment rate for the hospital
outpatient clinic visit service described by HCPCS code G0463 when it
is furnished by these departments for CY 2023 and beyond. The PFS-
equivalent rate for CY 2024 is 40 percent of the proposed OPPS payment.
Under this policy, these departments will be paid approximately 40
percent of the OPPS rate for the clinic visit service in CY 2024.
In the CY 2023 OPPS/ASC final rule with comment period (87 FR
71748), we finalized a policy that excepted off-campus provider-based
departments (PBDs) (departments that bill the modifier ``PO'' on claim
lines) of rural Sole Community Hospitals (SCHs), as described under 42
CFR 412.92 and designated as rural for Medicare payment purposes, are
exempt from the clinic visit payment policy that applies a Physician
Fee Schedule-equivalent payment rate for the clinic visit service, as
described by HCPCS code G0463, when provided at an off-campus PBD
excepted from section 1833(t)(21) of the Act. For the full discussion
of this policy, we refer readers to the CY 2023 OPPS/ASC final rule
with comment period (87 FR 72047 through 72051). For CY 2024, we
propose to continue to exempt excepted off-campus PBDs of rural SCHs
from the clinic visit payment policy. We will continue to monitor the
effect of this change in Medicare payment policy, including on the
volume of these types of OPD services.
VIII. Payment for Partial Hospitalization and Intensive Outpatient
Services
This section discusses proposed payment for partial hospitalization
services as well as intensive outpatient services. Since CY 2000,
Medicare has paid for partial hospitalization services under the OPPS.
Beginning in CY 2024, as authorized by section 4124 of the Consolidated
Appropriations Act (CAA), 2023 (Pub. L. 117-328), Medicare will begin
paying for intensive outpatient services furnished by hospital
outpatient departments, community mental health centers, federally
qualified health centers and rural health clinics. Additional
background on the partial hospitalization and intensive outpatient
benefits is included in the following paragraphs.
A. Partial Hospitalization
1. Background
A partial hospitalization program (PHP) is an intensive outpatient
program of psychiatric services provided as an alternative to inpatient
psychiatric care for individuals who have an acute mental illness,
which includes, but is not limited to, conditions such as depression,
schizophrenia, and substance use disorders. Section 1861(ff)(1) of the
Act defines partial hospitalization services as the items and services
described in paragraph (2) prescribed by a physician and provided under
a program described in paragraph (3) under the supervision of a
physician pursuant to an individualized, written plan of treatment
established and periodically reviewed by a physician (in consultation
with appropriate staff participating in such program), which sets forth
the physician's diagnosis, the type, amount, frequency, and duration of
the items and services provided under the plan, and the goals for
treatment under the plan. Section 1861(ff)(2) of the Act describes the
items and services included in partial hospitalization services.
Section 1861(ff)(3)(A) of the Act specifies that a PHP is a program
furnished by a hospital to its outpatients or by a community mental
health center (CMHC), as a distinct and organized intensive ambulatory
treatment service, offering less than 24-hour-daily care, in a location
other than an individual's home or inpatient or residential setting.
Section 1861(ff)(3)(B) of the Act defines a CMHC for purposes of this
benefit. We refer readers to sections 1833(t)(1)(B)(i), 1833(t)(2)(B),
1833(t)(2)(C), and 1833(t)(9)(A) of the Act and 42 CFR 419.21, for
additional information regarding PHP.
Partial hospitalization program policies and payment have been
addressed under OPPS since CY 2000. In CY 2008, we began efforts to
strengthen the PHP benefit through extensive data analysis, along with
policy and payment changes by implementing two refinements to the
methodology for computing the PHP median. For a detailed discussion on
these policies, we refer readers to the CY 2008 OPPS/ASC final rule
with comment period (72 FR 66670 through 66676). In CY 2009, we
implemented several regulatory, policy, and payment changes. For a
detailed discussion on these policies, we refer readers to the CY 2009
OPPS/ASC final rule with comment period (73 FR 68688 through 68697). In
CY 2010, we retained the two-tier payment approach for partial
hospitalization services and used only hospital-based PHP data in
computing the PHP APC per diem costs, upon which PHP APC per diem
payment rates are based (74 FR 60556 through 60559). In CY 2011 (75 FR
71994), we established four separate PHP APC per diem payment rates:
two for CMHCs (APC 0172 and APC 0173) and two for hospital-based PHPs
(APC 0175 and APC 0176) and instituted a 2-year transition period for
CMHCs to the CMHC APC per diem payment rates. For a detailed
discussion, we refer readers to section X.B of the CY 2011 OPPS/ASC
final rule with comment period (75 FR 71991 through 71994). In CY 2012,
we determined the relative payment weights for partial hospitalization
services provided by CMHCs based on data derived solely from CMHCs and
the relative payment weights for partial hospitalization services
provided by hospital-based PHPs based exclusively on hospital data (76
FR 74348 through 74352). In the CY 2013 OPPS/ASC final rule with
comment period, we finalized our proposal to base the relative payment
weights that underpin the OPPS APCs, including the four PHP APCs (APCs
0172, 0173, 0175, and 0176), on geometric mean costs rather than on the
median costs. For a detailed discussion on this policy, we refer
readers to the CY 2013 OPPS/ASC final rule with comment period (77 FR
68406 through 68412).
In the CY 2014 OPPS/ASC proposed rule (78 FR 43621 through 43622)
and CY 2015 OPPS/ASC final rule with comment period (79 FR 66902
through 66908), we continued to apply our established policies to
calculate the four PHP APC per diem payment rates based on geometric
mean per diem costs using the most recent claims data for each provider
type. For a detailed discussion on this policy, we refer readers to the
CY 2014 OPPS/ASC final rule with comment period (78 FR 75047 through
75050). In the CY 2016, we described our extensive analysis of the
claims and cost data and ratesetting methodology, corrected a cost
inversion that occurred in the final rule data with respect to
hospital-based PHP providers and renumbered the PHP APCs. In CY 2017
OPPS/ASC final rule with comment period (81 FR 79687 through 79691), we
continued to apply our established policies to calculate the PHP APC
per diem payment rates based on geometric mean per diem costs and
finalized a policy to combine the Level 1 and Level 2 PHP APCs for
CMHCs and for
[[Page 49698]]
hospital-based PHPs. We also implemented an eight-percent outlier cap
for CMHCs to mitigate potential outlier billing vulnerabilities. For a
comprehensive description of PHP payment policy, including a detailed
methodology for determining PHP per diem amounts, we refer readers to
the CY 2016 and CY 2017 OPPS/ASC final rules with comment period (80 FR
70453 through 70455 and 81 FR 79678 through 79680, respectively).
In the CYs 2018 and 2019 OPPS/ASC final rules with comment period
(82 FR 59373 through 59381, and 83 FR 58983 through 58998,
respectively), we continued to apply our established policies to
calculate the PHP APC per diem payment rates based on geometric mean
per diem costs, designated a portion of the estimated 1.0 percent
hospital outpatient outlier threshold specifically for CMHCs, and
proposed updates to the PHP allowable HCPCS codes. We finalized these
proposals in the CY 2020 OPPS/ASC final rule with comment period (84 FR
61352).
In the CY 2020 OPPS/ASC final rule with comment period (84 FR 61339
through 61350), we finalized a proposal to use the calculated CY 2020
CMHC geometric mean per diem cost and the calculated CY 2020 hospital-
based PHP geometric mean per diem cost, but with a cost floor equal to
the CY 2019 final geometric mean per diem costs as the basis for
developing the CY 2020 PHP APC per diem rates. Also, we continued to
designate a portion of the estimated 1.0 percent hospital outpatient
outlier threshold specifically for CMHCs, consistent with the
percentage of projected payments to CMHCs under the OPPS, excluding
outlier payments.
In the April 30, 2020 interim final rule with comment (85 FR 27562
through 27566), effective as of March 1, 2020 and for the duration of
the COVID-19 Public Health Emergency (PHE), hospital and CMHC staff
were permitted to furnish certain outpatient therapy, counseling, and
educational services (including certain PHP services), incident to a
physician's services, to beneficiaries in temporary expansion
locations, including the beneficiary's home, so long as the location
meets all conditions of participation to the extent not waived. A
hospital or CMHC can furnish such services using telecommunications
technology to a beneficiary in a temporary expansion location if that
beneficiary is registered as an outpatient. In the CY 2023 OPPS/ASC
final rule (87 FR 72247), we confirmed these provisions as final,
including that they apply only for the duration of the COVID-19 PHE. On
May 11, 2023, the COVID-19 PHE ended, and accordingly, these
flexibilities ended as well.
In the CY 2021 OPPS/ASC final rule with comment period (85 FR 86073
through 86080), we continued our current methodology to utilize cost
floors, as needed. Since the final calculated geometric mean per diem
costs for both CMHCs and hospital-based PHPs were significantly higher
than each proposed cost floor, a floor was not necessary at the time,
and we did not finalize the proposed cost floors in the CY 2021 OPPS/
ASC final rule with comment period.
In the CY 2022 OPPS/ASC final rule with comment period (86 FR 63665
through 63666), we explained that we observed a number of changes,
likely as a result of the COVID-19 PHE, in the CY 2020 OPPS claims that
we would have ordinarily used for CY 2022 ratesetting, and this
included changes in the claims for partial hospitalization. We
explained that significant decreases in utilization and in the number
of hospital-based PHP providers who submitted CY 2020 claims led us to
believe that CY 2020 data were not the best overall approximation of
expected PHP services in CY 2022. Therefore, we finalized our proposal
to calculate the PHP per diem costs using the year of claims consistent
with the calculations that would be used for other OPPS services, by
using the CY 2019 claims and the cost reports that were used for CY
2021 final rulemaking to calculate the CY 2022 PHP per diem costs. In
addition, for CY 2022 and subsequent years, we finalized our proposal
to use cost and charge data from the Hospital Cost Report Information
System (HCRIS) as the source for the CMHC cost-to-charge ratios (CCRs),
instead of using the Outpatient Provider Specific File (OPSF) (86 FR
63666).
In the CY 2023 OPPS/ASC final rule with comment period (87 FR
71995), we explained that we continued to observe a decrease in the
number of hospital-based and CMHC PHP days in our trimmed dataset due
to the continued effects of COVID-19, however, the Medicare outpatient
service volumes appeared to be returning to more normal, pre-pandemic
levels. Therefore, we finalized our proposal to use the latest
available CY 2021 claims, but use the cost information from prior to
the COVID-19 PHE for calculating the CY 2023 CMHC and hospital-based
PHP APC per diem costs. The application of the OPPS standard
methodology, including the effect of budget neutralizing all other OPPS
policy changes unique to CY 2023, resulted in the final calculated CMHC
PHP APC payment rate being unexpectedly lower than the CY 2022 final
CMHC PHP APC rate. Therefore, in the interest of accurately paying for
CMHC PHP services, under the unique circumstances of budget
neutralizing all other OPPS policy changes for CY 2023, and in keeping
with our longstanding goal of protecting continued access to PHP
services provided by CMHCs by ensuring that CMHCs remain a viable
option as providers of mental health care in the beneficiary's own
community, we finalized utilizing the equitable adjustment authority of
section 1833(t)(2)(E) of the Act to appropriately pay for CMHC PHP
services at the same payment rate as for CY 2022, that is, $142.70. In
addition, we clarified the payment under the OPPS for new HCPCS codes
that designate non-PHP services provided for the purposes of diagnosis,
evaluation, or treatment of a mental health disorder and are furnished
to beneficiaries in their homes by clinical staff of the hospital would
not be recognized as PHP services, however, none of the PHP regulations
would preclude a patient that is under a PHP plan of care from
receiving other reasonable and medically necessary non-PHP services
from a hospital (87 FR 72001 and 72002).
Section 4124(a) of Division FF of the CAA, 2023 amends section
1861(ff)(1) of the Act to modify the definition of partial
hospitalization services furnished on or after January 1, 2024.
Specifically, section 4124(a) of the CAA, 2023 amends section
1861(ff)(1) of the Act by adding to the current definition that partial
hospitalization services are ``for an individual determined (not less
frequently than monthly) by a physician to have a need for such
services for a minimum of 20 hours per week.'' We discuss these
revisions to the definition of partial hospitalization services in the
following section, section VIII.A.2, of this proposed rule.
2. Revisions to PHP Physician Certification Requirements
As amended by section 4124(a) of the CAA, 2023, section 1861(ff)(1)
requires that a physician determine that each patient needs a minimum
of 20 hours of PHP services per week, and this determination must occur
no less frequently than monthly. We propose to codify this requirement
in regulation as an additional requirement for the physician
certification applicable for PHP services that we would add to Sec.
424.24(e)(1)(i). We are not proposing any changes to the existing
physician certification requirements for PHP, including that the
patient would require inpatient hospitalization if they did not
[[Page 49699]]
receive PHP services, which would remain at Sec. 424.24(e)(1)(i).
Existing regulations at Sec. 410.43 set forth conditions and
exclusions that apply for partial hospitalization services. Under Sec.
410.43(a)(3), partial hospitalization services are services that are
furnished in accordance with a physician certification and plan of care
as specified under Sec. 424.24(e). Additionally, current patient
eligibility criteria at Sec. 410.43(c)(1) state that partial
hospitalization programs are intended for patients who require a
minimum of 20 hours per week of therapeutic services as evidenced in
their plan of care. Because partial hospitalization services are
already required to be furnished in accordance with a physician
certification and plan of care, we believe it is appropriate to include
this 20-hour minimum weekly requirement as a physician certification
requirement at Sec. 424.24(e)(1)(i). We note that we do not believe
this proposed change to the regulation would create a new requirement
for PHPs from a practical perspective, as the change to the definition
of partial hospitalization services made by the CAA, 2023 is consistent
with the longstanding 20-hour minimum weekly regulatory requirement at
Sec. 410.43(c)(1) that Medicare has applied to PHP.
We propose to modify the regulation at Sec. 424.24(e)(1)(i) to
require the physician certification for PHP services include a
certification that the patient requires such services for a minimum of
20 hours per week. Current regulations at Sec. 424.24(e)(3)(ii)
require an initial recertification after 18 days, with subsequent
recertifications of PHP services no less frequently than every 30 days.
We believe this interval is consistent with the CAA, 2023 requirement
that the physician's determination of the need for PHP services at
least 20 hours per week must occur no less frequently than monthly.
B. Intensive Outpatient Program Services
1. Establishment of Intensive Outpatient Services Benefit by Section
4124 of the CAA, 2023
Section 4124(b) of the CAA, 2023 established Medicare coverage for
intensive outpatient services effective for items and services
furnished on or after January 1, 2024. Section 4124(b)(1)(A) of the
CAA, 2023 amended section 1832(a)(2)(J) of the Act to add intensive
outpatient services to the scope of covered benefits provided by CMHCs,
and section 4124(b)(1)(B) amended section 1861(s)(2)(B) to add
intensive outpatient services to the definition of ``medical and other
health services'', specifically, as a service furnished ``incident to a
physicians' services.''
Intensive outpatient services are furnished under an intensive
outpatient program (IOP). Similar to PHP, an IOP is a distinct and
organized outpatient program of psychiatric services provided for
individuals who have an acute mental illness, which includes, but is
not limited to, conditions such as depression, schizophrenia, and
substance use disorders. Generally speaking, an IOP is thought to be
less intensive than a PHP, and the statutory definition of IOP services
reflects this difference in intensity. Specifically, section
4124(b)(2)(B) of the CAA, 2023 amended section 1861(ff) of the Act to
add a new paragraph (4) to define the term ``intensive outpatient
services'' as having the same meaning as ``partial hospitalization
services'' in paragraph (1). In particular, intensive outpatient
services are the items and services described in paragraph (2)
prescribed by a physician for an individual determined (not less
frequently than once every other month) by a physician to have a need
for such services for a minimum of 9 hours per week and provided under
a program described in paragraph (3) under the supervision of a
physician pursuant to an individualized, written plan of treatment
established and periodically reviewed by a physician (in consultation
with appropriate staff participating in such program), which sets forth
the physician's diagnosis, the type, amount, frequency, and duration of
the items and services provided under the plan, and the goals for
treatment under the plan. For patients of an IOP, section
1835(a)(2)(F)(i) of the Act does not apply, that is, individuals
receiving IOP would not require inpatient psychiatric care in the
absence of such services. Lastly, section 4124(b)(2)(B) of the CAA,
2023 further added to section 1861(ff)(4)(C), which cross-references
paragraph (3), that an IOP is a program furnished by a hospital to its
outpatients, or by a community mental health center (CMHC), a Federally
qualified health center (FQHC), or a rural health clinic (RHC), as a
distinct and organized intensive ambulatory treatment service, offering
less than 24-hour-daily care, in a location other than an individual's
home or inpatient or residential setting. Section 4124(c) of the CAA,
2023 amends section 1834 of the Act by adding a new paragraph (5) to
subsection (o) and a new paragraph (3) to subsection (y), which include
special payment rules for intensive outpatient services furnished in
FQHCs and RHCs, which are discussed in greater detail in section VIII.F
of this proposed rule.
This proposed rule includes proposals to establish payment and
program requirements for the IOP benefit in all of the above-described
settings. Section VIII.B.2 of this proposed rule discusses the proposed
scope of benefits for IOP services, and section VIII.B.3 of this
proposed rule discusses proposed physician certification requirements.
Section VIII.C of this proposed rule discusses proposed coding and
billing for both PHP and IOP services under the OPPS beginning in CY
2024. Section VIII.D of this proposed rule discusses the proposed
payment methodology. Section VIII.E of this proposed rule discusses
proposed outlier policy for CMHCs. Section VIII.F of this proposed rule
discusses proposed payment for IOP in FQHCs and RHCs, and Section
VIII.G of this proposed rule discusses proposed payment for IOP in
Opioid Treatment Programs (OTPs).
2. IOP Scope of Benefits
Section 1861(ff)(2) of the Act describes the items and services
available under the IOP benefit. These items and services include:
individual and group therapy with physicians or psychologists (or other
mental health professionals to the extent authorized under State law);
occupational therapy requiring the skills of a qualified occupational
therapist; services of social workers, trained psychiatric nurses, and
other staff trained to work with psychiatric patients; drugs and
biologicals furnished for therapeutic purposes (which cannot, as
determined in accordance with regulations, be self-administered);
individualized activity therapies that are not primarily recreational
or diversionary; family counseling (the primary purpose of which is
treatment of the individual's condition); patient training and
education (to the extent that training and educational activities are
closely and clearly related to individual's care and treatment);
diagnostic services; and such other items and services as the Secretary
may provide (excluding meals and transportation) that are reasonable
and necessary for the diagnosis or active treatment of the individual's
condition, reasonably expected to improve or maintain the individual's
condition and functional level and to prevent relapse or
hospitalization, and furnished pursuant to such guidelines relating to
frequency and duration of services as the Secretary shall by regulation
establish, taking into account accepted norms of medical practice and
the
[[Page 49700]]
reasonable expectation of patient improvement.
Consistent with the statutory definition of intensive outpatient
services under section 1861(ff)(2) of the Act, we propose to add
regulations at 42 CFR 410.44 to set forth the conditions and exclusions
that would apply for intensive outpatient services. Consistent with the
existing regulations for partial hospitalization services, we propose
to require that intensive outpatient services must be furnished in
accordance with a physician certification and plan of care. However,
where partial hospitalization requires the physician to certify that
the services are instead of inpatient hospitalization, intensive
outpatient program services are not intended for those who otherwise
need an inpatient level of care. That is, section 1861(ff)(4)(A) of the
Act, as added by section 4124 of the CAA, 2023, states that for
intensive outpatient services, section 1835(a)(2)(F)(i) shall not
apply. As further discussed in section VIII.B.3 of this proposed rule,
we propose to add language to the regulation at Sec. 424.24(d), which
is currently reserved, that would set forth the physician certification
and plan of care requirements for intensive outpatient services.
Additionally, we propose to revise certain existing regulations at
Sec. 410.2, Sec. 410.3, Sec. 410.10, Sec. 410.27, Sec. 410.150,
and Sec. 419.21 to add a regulatory definition of intensive outpatient
services and to include intensive outpatient services in the
regulations for medical and other health services paid for under
Medicare Part B, and in the case of Sec. 419.21, under the OPPS. We
propose to create regulations at Sec. 410.111 to establish the
requirements for coverage of IOP services furnished in CMHCs, and at
Sec. 410.173 to establish conditions of payment for IOP services
furnished in CMHCs. Lastly, we propose to revise Sec. 410.155 to
exclude IOP services from the outpatient mental health treatment
limitation, consistent with the statutory requirement of section
1833(c)(2) of the Act, as amended by section 4124(b)(3) of the CAA,
2023. We discuss these proposed changes in the following paragraphs.
a. Proposed Definition of Intensive Outpatient Services
We propose the following definition at Sec. 410.2 for intensive
outpatient services: Intensive outpatient services means a distinct and
organized intensive ambulatory treatment program that offers less than
24-hour daily care other than in an individual's home or in an
inpatient or residential setting and furnishes the services as
described in Sec. 410.44. Intensive outpatient services are not
required to be provided in lieu of inpatient hospitalization. We note
that the proposed definition for intensive outpatient services is
consistent with the statutory requirements of section 1861(ff)(3)(A),
which apply to both IOP and PHP services. Accordingly, the proposed
definition is largely consistent with the existing regulatory
definition of partial hospitalization services. However, in accordance
with section 1861(ff)(4)(A) of the Act, as added by the CAA, 2023, we
are including a clarification in the regulatory definition of
``intensive outpatient services'' that they are not required to be
provided in lieu of inpatient hospitalization. We are including this
clarification in order to more clearly differentiate between the
definitions of partial hospitalization and intensive outpatient at
Sec. 410.2.
The conditions and exclusions for partial hospitalization services
are included in the regulation at Sec. 410.43. We propose that the
conditions and exclusions for intensive outpatient services would be
included in new regulations at Sec. 410.44.
At new Sec. 410.44, we propose to establish regulatory language
for intensive outpatient services that is consistent with the existing
language for partial hospitalization conditions and exclusions and the
statutory definition of intensive outpatient services. Specifically,
under Sec. 410.44(a) we propose that IOP services are services that:
(1) are reasonable and necessary for the diagnosis or active treatment
of the individual's condition; (2) are reasonably expected to improve
or maintain the individual's condition and functional level and to
prevent relapse or hospitalization; (3) are furnished in accordance
with a physician certification and plan of care as specified under new
regulations at Sec. 424.24(d); and include any of the services listed
in Sec. 410.44(a)(4). Under Sec. 410.44(a)(4), we include a list of
the types of services that we propose would be covered as intensive
outpatient services:
Individual and group therapy with physicians or
psychologists or other mental health professionals to the extent
authorized under State law.
Occupational therapy requiring the skills of a qualified
occupational therapist, provided by an occupational therapist, or under
appropriate supervision of a qualified occupational therapist by an
occupational therapy assistant as specified in part 484 of this
chapter.
Services of social workers, trained psychiatric nurses,
and other staff trained to work with psychiatric patients.
Drugs and biologicals furnished for therapeutic purposes,
subject to the limitations specified in Sec. 410.29.
Individualized activity therapies that are not primarily
recreational or diversionary.
Family counseling, the primary purpose of which is
treatment of the individual's condition.
Patient training and education, to the extent the training
and educational activities are closely and clearly related to the
individual's care and treatment.
Diagnostic services.
The proposed list at Sec. 410.44(a)(4) is based on the list of
items and services described in section 1861(ff)(2) of the Act. We note
that 1861(ff)(2) of the Act also provides that intensive outpatient
services may include such other items and services as the Secretary may
provide (but in no event to include meals and transportation). As
discussed in section VIII.C of this proposed rule, we solicit comments
on whether additional codes should be added to the list of services
recognized as appropriate for PHP and IOP.
We further note that both the statute at section 1861(ff)(2)(C) of
the Act and our proposed regulation at Sec. 410.44(a)(4)(iii) refer to
``trained psychiatric nurses, and other staff trained to work with
psychiatric patients.'' Under our longstanding policy for partial
hospitalization services, we have considered nurses and other staff
trained to work with patients within their state scope of practice who
are receiving treatment for substance use disorder (SUD) to be included
under this statutory definition and the regulatory definition of PHP at
Sec. 410.43(a)(4). We have heard from interested parties that there
could be a misconception that Medicare does not cover PHP for the
treatment of SUD. We are clarifying that, in general, notwithstanding
the requirement that PHP services are provided in lieu of inpatient
hospitalization, Medicare covers PHP for the treatment of SUD, and we
consider services that are for the treatment of SUD and behavioral
health generally to be consistent with the statutory and regulatory
definition of PHP. We are taking this opportunity to clarify that the
terms ``trained psychiatric nurses, and other staff trained to work
with psychiatric patients,'' as used in Sec. 410.43(a)(4) and Sec.
410.44(a)(4) would include trained SUD nurses and other staff trained
to work with SUD patients. Under Sec. 410.44(b), we propose that the
following services are separately covered and not paid as intensive
[[Page 49701]]
outpatient services: (1) physician services; (2) physician assistant
services; (3) nurse practitioner and clinical nurse specialist
services; (4) qualified psychologist services; and (5) services
furnished to residents of a skilled nursing facility (SNF). We note
that these proposed exclusions are consistent with the services
excluded from payment as partial hospitalization program services at
Sec. 410.43(b). The services listed under Sec. Sec. 410.43(b) and
410.44(b) would be paid under the applicable systems for such services.
Lastly, under Sec. 410.44(c), we propose to establish patient
eligibility criteria for intensive outpatient services. Specifically,
we propose that intensive outpatient services are intended for patients
who: (1) require a minimum of 9 hours per week of therapeutic services
as evidenced in their plan of care; (2) are likely to benefit from a
coordinated program of services and require more than isolated sessions
of outpatient treatment; (3) do not require 24-hour care; (4) have an
adequate support system while not actively engaged in the program; (5)
have a mental health diagnosis; (6) are not judged to be dangerous to
self or others; and (7) have the cognitive and emotional ability to
participate in the active treatment process and can tolerate the
intensity of the intensive outpatient program.
We note that these proposed patient eligibility criteria at Sec.
410.44(c) are consistent with the existing partial hospitalization
patient eligibility criteria at Sec. 410.43(c). With respect to the
proposed criterion of a ``mental health diagnosis'', we are clarifying
that a mental health diagnosis would include SUD and behavioral health
diagnoses generally under both the existing partial hospitalization
regulation at Sec. 410.43(c)(5) and the proposed intensive outpatient
services regulation at Sec. 410.44(c)(5). As discussed earlier in this
section, this inclusion of SUD and behavioral health diagnoses as among
the patient eligibility criteria for PHP services is consistent with
our longstanding policy. However, we have noted that interested parties
have raised concerns that this policy may not be clear. Therefore, we
are clarifying that the term ``mental health diagnosis'' as used at
both Sec. Sec. 410.43(c)(5) and 410.44(c)(5) would include SUD and
behavioral health diagnoses.
b. Coverage of IOP as Medical and Other Health Services Paid Under Part
B
We propose to amend the regulation at Sec. 410.10(c) to add a
reference to ``intensive outpatient services'' to the list of services
that are covered as medical and other health services under Part B,
when furnished as hospital or CAH services incident to a physician's
professional services. We believe this is consistent with section
1861(s)(2)(B) of the Act, as amended by section 4124(b)(1)(B) of the
CAA, 2023 to include ``intensive outpatient services'' under the
definition of medical and other health services; specifically, hospital
services incident to a physicians' services. We note that the services
described at Sec. 410.10(c) are furnished by a hospital or CAH.
Accordingly, we propose conforming changes to the regulations at
Sec. Sec. 410.27(a)(2) and paragraph (e) introductory text to include
references to intensive outpatient services.
c. Technical Changes To Codify Requirements for IOP at CMHCs
We propose technical changes to the regulations at 42 CFR parts 488
and 489.
First, we propose to add the statutory basis for IOP at CMHCs at
Sec. 488.2. The proposed technical revision would add section
1832(a)(2)(J) of the Act, which sets forth the statutory basis of
intensive outpatient services provided by CMHCs at Sec. 488.2.
We also propose to revise the provision at 42 CFR 489.2(c)(2) so
that CMHCs may enter into provider agreements to furnish intensive
outpatient services. We propose to revise the current requirement that
allows for CMHCs to enter into provider agreements only for the
provision of partial hospitalization services. The proposed revisions
to this provision would allow CMHCs to enter into provider agreements
only to furnish partial hospitalization services and intensive
outpatient services.
d. Technical Changes To Codify Coverage of IOP at CMHCs
We propose several technical changes and additions to the
regulations at Sec. Sec. 410.2, 410.3, 410.111, and 410.150.
First, we propose to revise the definition of ``Community Mental
Health Center (CMHC)'' at Sec. 410.2 to refer to intensive outpatient
services. Specifically, we propose to revise the regulation to state
that a CMHC is an entity that provides day treatment or other partial
hospitalization services or intensive outpatient services, or
psychosocial rehabilitation services. Second, we propose to revise the
definition of ``Participating'' at Sec. 410.2 to refer to intensive
outpatient services as services that CMHCs can provide. Specifically,
we propose that ``Participating'' refers to a CMHC that has in effect
an agreement to participate in Medicare, but only for the purposes of
providing partial hospitalization services and intensive outpatient
services. We are clarifying that this proposed definition would allow a
CMHC to be considered a participating provider of both partial
hospitalization services and intensive outpatient services, but would
not require a CMHC to provide both types of services in order to be
considered participating.
In addition, we propose to revise the scope of benefits provision
at Sec. 410.3(a)(2) to provide that the covered services for which the
Medicare Part B supplementary medical insurance (SMI) program helps pay
include partial hospitalization services and intensive outpatient
services provided by CMHCs. We believe these proposed changes are
consistent with the scope of benefits provision at section
1832(a)(2)(J) of the Act, as amended by section 4124(b)(1)(A) of the
CAA, 2023 to include intensive outpatient services, as well as the
proposed CMHC conditions of participation at Sec. 485.918(b)(1)(iii).
We refer readers to section XVII.B.5 of this proposed rule for
discussion on the proposed amendments to regulations at Sec.
485.918(b)(1)(iii).
In addition, subpart E of Sec. 410 includes requirements for
Community Mental Health Centers (CMHCs) Providing Partial
Hospitalization Services. We propose to modify the Subpart E heading to
include a reference to intensive outpatient services as well. Under
subpart E, we propose to add a new Sec. 410.111 to set forth
Requirements for coverage of intensive outpatient services furnished in
CMHCs. We propose that Medicare Part B would cover IOP services
furnished by or under arrangements made by a CMHC if the CMHC has in
effect a provider agreement and the services are prescribed by a
physician and furnished under the general supervision of a physician,
and subject to the proposed physician certification and plan of care
requirements under Sec. 424.24(d).
Additionally, we propose to revise Sec. 410.150(b)(13) to include
a reference to intensive outpatient services. Specifically, we propose
that payment would be made to a CMHC on an individual's behalf for
partial hospitalization services or intensive outpatient services
furnished by or under arrangements made by the CMHC.
Lastly, we propose to amend Sec. 419.21(c) to refer to intensive
outpatient services provided by CMHCs as services for which payment is
made under the OPPS. This proposed amendment would be consistent with
current regulations at Sec. 419.21(c), which include partial
hospitalization services provided by CMHCs. We note that further
discussion of our proposed
[[Page 49702]]
payment methodology under the OPPS for intensive outpatient services is
found in section VIII.D of this proposed rule.
e. Exclusion of Intensive Outpatient Services From the Outpatient
Mental Health Treatment Limitation
Section 1833(c)(2) of the Act, as amended by section 4124(b)(3) of
the CAA, 2023, excludes intensive outpatient services that are not
directly provided by a physician from the term ``treatment'' for the
purposes of the outpatient mental health treatment limitation under
section 1833(c)(1) of the Act, similar to partial hospitalization
services. Accordingly, we propose to amend the regulations at Sec.
410.155(b)(2)(iii) to state that intensive outpatient services not
directly provided by a physician are not subject to the outpatient
mental health treatment limitation.
3. IOP Certification and Plan of Care Requirements
Section 4124(b)(2)(B) of the CAA, 2023 amended section 1861(ff) of
the Act by adding a new paragraph (4) to define intensive outpatient
services as the items and services prescribed by a physician for an
individual determined (not less frequently than once every other month)
by a physician to have a need for such services for a minimum of 9
hours per week. This certification must occur no less frequently than
once every other month, and there is no requirement to certify that IOP
patients would need inpatient hospitalization if they did not receive
such services, which is required for PHP patients.
We propose to codify the content of the certification and plan of
treatment requirements for intensive outpatient services at Sec.
424.24(d). Specifically, we propose to mirror the PHP content of
certification and plan of care treatment requirements at Sec.
424.24(e), with the following exceptions: require the content of
certification to include documentation that the individual requires
such services for a minimum of 9 hours per week (with no requirement
for the patient to need inpatient psychiatric care if the IOP services
were not provided). The physician's certification of the patient's need
for either IOP or PHP services should be based on the physician's
determination of the patient's needs and whether the patient meets the
IOP or PHP patient eligibility criteria under Sec. 410.44(c) or Sec.
410.43(c), respectively. We note that the physician's certification
should certify the patient's need for either IOP or PHP, and that
patients participating in an IOP or PHP should not be under any other
IOP or PHP plan of care for the same date of service. The patient's
individualized plan of treatment should address all of the conditions
that are being treated by the IOP or PHP.
Additionally, we propose to require in the regulation at Sec.
424.24(d)(3)(ii) that the recertification of IOP services occur no less
frequently than every 60 days. We believe the IOP recertification
timing of no less frequently than every 60 days is consistent with the
requirement in the statute that an individual be determined by a
physician to have a need for IOP services ``not less frequently than
once every other month'' because the minimum number of days for two
consecutive months is 59 days. We believe that a consistent 60-day
interval would be the most appropriate way to implement the statutory
recertification requirement for IOP.
We are soliciting public comments on whether it would be
appropriate to consider finalizing a shorter interval for the first
recertification and for subsequent recertification for IOP patients.
For example, we request comments on whether we should consider
requiring an initial recertification by the 30th day of IOP services,
and no less frequently than every 60 days thereafter. We request that
commenters provide as much detail as possible about the rationale for a
shorter recertification interval, if appropriate.
Lastly, we would make conforming changes to Sec. 424.24(b) to add
a reference to paragraph (d)(1) in the list of paragraphs that specify
the content for which physician certification is required for medical
and other health services furnished by providers (and not exempted
under Sec. 424.24(a)) which are paid for under Medicare Part B.
C. Coding and Billing for PHP and IOP Services Under the OPPS
We considered the similarities between the types of items and
services covered by both PHP and IOP, and the larger continuum of care,
when developing the proposed list of services that we believe would
appropriately identify the range of services that IOPs provide to
Medicare beneficiaries. Since the statutory definitions of both IOP and
PHP generally include the same types of items and services covered, we
believe it is appropriate to align the programs using a consistent list
of services, so that level of intensity would be the only
differentiating factor between partial hospitalization services and
intensive outpatient services.
Currently, hospital outpatient departments use condition code 41 to
indicate that a claim is for partial hospitalization services. CMHCs do
not currently use a condition code on the bill type used--that is,
76X--to indicate that a claim is for partial hospitalization services,
because they are only considered a provider of services for partial
hospitalization; and therefore, partial hospitalization services are
identified by the 76X bill type. In order to differentiate between IOP
and PHP for billing purposes, the National Uniform Billing Committee
(NUBC) is has approved a new condition code, condition code 92, to
identify intensive outpatient claims. Therefore, we propose to require
hospitals and CMHCs to report condition code 92 on claims to indicate
that a claim is for intensive outpatient services. We propose to
continue to require hospitals to report condition code 41 for partial
hospitalization claims. Additionally, because CMHCs would be permitted
to provide both PHP and IOP beginning January 1, 2024, we also propose
to require CMHCs to report condition code 41 for partial
hospitalization claims. We believe that this requirement would better
allow us to identify which claims are for PHP and which are for IOP. We
are soliciting comment on these proposed reporting requirements for PHP
and IOP.
Under current policy, PHPs submit claims with HCPCS codes to
identify the services provided during each PHP day. Therefore, we
worked in conjunction with physicians to develop a proposed
consolidated list of all HCPCS codes that we believe would
appropriately identify the full range of services that both IOPs and
PHPs provide to Medicare beneficiaries. For reference, Table 42
includes the current list of HCPCS codes that are recognized for PHP
payment. For CY 2024, we propose to add certain codes to the list,
change the descriptions of other codes, and remove one code from the
list. The list of proposed consolidated HCPCS codes is included in
Table 43.
We recognize that the level of intensity of mental health services
a patient requires may vary over time; therefore, we believe utilizing
a consolidated list of HCPCS codes to identify services under both the
IOP and PHP benefits would ensure a smooth transition for patients when
a change in the intensity or their services is necessary to best meet
their needs. For example, a patient receiving IOP services may
experience an acute mental health need that necessitates more intense
services through a PHP. Alternatively, an IOP patient that no longer
requires the level of intensity provided by the IOP can access less
intense mental health services, such as
[[Page 49703]]
individual mental health services. Therefore, we propose to add several
HCPCS codes to the list in Table 43 that are currently recognized as
mental health codes under the OPPS, but are not recognized for PHP
payment.
BILLING CODE 4120-01-P
[GRAPHIC] [TIFF OMITTED] TP31JY23.070
We propose to maintain all of the codes in Table 42, except for one
code. We propose to remove 90865 Narcosynthesis, because we do not
believe this code is widely used in the provision of PHP, and we do not
anticipate it would be widely used in the provision of IOP in the
future. We propose that the HCPCS codes listed in Table 43 would be
payable when furnished by PHPs or IOPs.
[[Page 49704]]
[GRAPHIC] [TIFF OMITTED] TP31JY23.071
[[Page 49705]]
[GRAPHIC] [TIFF OMITTED] TP31JY23.072
BILLING CODE 4120-01-C
We propose to add 18 codes to the list of recognized PHP/IOP codes,
as shown in Table 43. These codes are currently recognized as mental
health codes under the OPPS, and we believe it would be appropriate to
recognize them for PHP and IOP as well. Additionally, we propose to
update the descriptions of five existing Level II HCPCS codes that are
currently recognized for PHP to also refer to IOP.
As shown in Table 43, we propose to add CPT code 90853 Group
psychotherapy to the list of service codes recognized for PHP and IOP.
We believe there could be overlap between 90853 and two existing Level
II HCPCS codes for PHP group psychotherapy, specifically G0410 and
G0411. We are considering whether it would be appropriate to remove
G0410 and G0411 from the list of recognized service codes for PHP and
IOP, and retain only CPT code 90853. We are soliciting comments on this
topic, and we are interested in hearing specific reasons commenters
believe support either keeping G0410 and G0411 on the list or removing
them. We are particularly interested in understanding whether it would
be appropriate to maintain these codes on a temporary basis to provide
a transition for existing PHPs that are using these codes.
We propose to use the list of HCPCS in Table 43 to determine the
number of services per PHP or IOP day, and therefore to determine the
APC per diem payment amount for each day, as discussed in section
VIII.D of this proposed rule. In addition, as discussed in section
VIII.D of this proposed rule, we propose to calculate the costs for 3-
service and 4-service days based on the list of HCPCS in Table 43. We
remind readers that currently, to qualify for payment at the applicable
PHP APC (5853 or 5863) one service must be from the Partial
Hospitalization Primary list. Table 44 identifies the services that are
currently included in the Partial Hospitalization Primary list and
those which we propose to add based on our analysis of the services
included on days with three and four services from the proposed list in
Table 43. We propose to maintain this requirement for CY 2024 and
subsequent years to qualify for payment at the PHP or IOP APC. Thus, we
propose that to qualify for payment for an IOP APC, at least one
service must be from the Partial Hospitalization and Intensive
Outpatient Primary list. Specifically, we propose that to qualify for
payment for the IOP APC (5851, 5852, 5861 or 5862) or the PHP APC
(5853, 5854, 5863, or 5864) one service must be from the Partial
Hospitalization and Intensive Outpatient Primary list.
BILLING CODE 4120-01-P
[[Page 49706]]
[GRAPHIC] [TIFF OMITTED] TP31JY23.073
BILLING CODE 4120-01-C
In the future, in the event there are new codes that represent the
PHP and IOP services described under Sec. 410.43(a)(4) and Sec.
410.44(a)(4), respectively, we propose that we would add such codes to
Table 43 through sub-regulatory guidance, and that these codes would be
payable when furnished by a PHP or IOP. We note that coding updates
frequently occur outside of the standard rulemaking timeline. We
propose this sub-regulatory process in order to pay expeditiously when
new codes are created that describe any of the services enumerated at
Sec. 410.43(a)(4) and Sec. 410.44(a)(4), which PHPs and IOPs,
respectively, would provide. We would identify codes to be added sub-
regulatorily if a new code is cross-walked to a previously included
code, or if the code descriptor is substantially similar to a
descriptor for a code on the list or describes a service on the list.
Any additional services not described at Sec. 410.43(a)(4) or Sec.
410.44(a)(4) would be added to the lists in regulation through notice
and comment rulemaking.
We invite public comment on the proposed consolidated list of HCPCS
codes that would be payable when furnished in a PHP and IOP; and any
additional codes that we should consider adding. Specifically, we are
interested in hearing from commenters if there are any other existing
codes that CMS should consider adding to the list, or new codes that
CMS should consider creating, to describe specific services not
appropriately described by the codes in Table 43. For example, we are
particularly interested in and are soliciting comment on whether it
would be appropriate to include caregiver-focused services in the list
of recognized services for PHP and IOP. We have identified the
following HCPCS codes describing services related to caregivers:
96202 multiple-family group behavior management/
modification training for parents(s) guardians(s) caregivers(s) with a
mental or physical health diagnosis, administered by a physician or
other QHP without the patient present, face to face up to 60 minutes.
96203 each additional 15 minutes.
96161 administration of caregiver-focused health risk
assessment instrument (that is, depression inventory) for the benefit
of the patient, with scoring and documentation, per standardized
instrument.
9X015 CAREGIVER TRAING 1ST 30 MIN
9X016 CAREGIVER TRAING EA ADDL 15
9X017 GROUP CAREGIVER TRAINING
We note that the CMHC conditions of participation at Sec.
485.916(b) and (c) already include references to the role of
[[Page 49707]]
caregivers in the development and implementation of the individualized
treatment plan for PHP patients, and we refer readers to section
XVII.B.4 of this proposed rule for discussion of proposed amendments to
the regulations at Sec. 485.916(d). We are soliciting comments on
whether it would be appropriate to include costs for such services in
the calculation of PHP and IOP per diem payment rates. We note that if
we were to include such services, we believe it would be appropriate to
exclude them from the determination of the number of services provided
per day, but we could include such services in the calculation of cost
per day for determining the PHP and IOP payment rates.
Additionally, we are soliciting comments on peer services, and
whether these would be appropriate to include for PHPs and IOPs. Peer
support workers are people who have been successful in the recovery
process who help others experiencing similar situations. Through shared
understanding, respect, and mutual empowerment, peer support workers
help people become and stay engaged in the recovery process and reduce
the likelihood of relapse. Peer support services can effectively extend
the reach of treatment beyond the clinical setting into the everyday
environment of those seeking a successful, sustained recovery process.
Peer support workers typically engage in a wide range of activities,
including: advocating for people in recovery; sharing resources and
building skills; building community and relationships; leading recovery
groups; and mentoring and setting goals.\103\ We are interested in
information about any available codes that would appropriately describe
such services.
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\103\ https://www.samhsa.gov/brss-tacs/recovery-support-tools/peers.
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In addition, we are soliciting comments on whether it would be
appropriate to add services related to coordinating a patient's
discharge from a PHP or IOP, or their transition from one level of care
to another. We note that current regulations require physicians,
hospitals, and CMHCs to address discharge planning for PHP patients,
and we would propose the same requirements for IOP patients.
Specifically, physician recertification requirements for PHP at Sec.
424.24(e)(3)(iii)(C) state that the physician's recertification must
address treatment goals for coordination of services to facilitate
discharge from the partial hospitalization program. We propose the same
requirement for IOP at Sec. 424.24(d)(3)(iii)(C). Additionally,
hospital CoPs at Sec. 482.43, which apply to hospital outpatient
departments providing PHP and IOP, and CMHC CoPs at Sec. 485.914(e)
require appropriate discharge planning to meet each patient's needs. We
are soliciting comments on whether the codes proposed in Table 43
represent the services that PHPs and IOPs provide to support transition
and discharge planning for their patients, or whether we should
consider additional codes. We ask commenters to provide as much detail
as possible about the nature of any additional services, and whether
there are any existing codes that could describe such services.
Lastly, we note that our analysis of PHP claims showed that the
provision of testing and diagnostic services is very low among PHPs,
although such services are covered under the PHP benefit and we propose
to include them in Table 43 and cover such services under the IOP
benefit as well. We note that our analysis of non-PHP days with 3 and 4
services, which we believe could represent IOP days in the future,
shows a higher provision of testing and diagnostic services than is
found among PHP days. We believe that testing and diagnostic services
would be included as component services of PHPs and IOPs, and we are
interested in information from the public about why PHPs are not more
frequently billing for these services. In particular, we welcome
information from commenters about whether there are specific challenges
that PHPs face in providing these services, as well as whether there
are different codes, other than those proposed in Table 43 that could
better describe the testing and diagnostic services that are provided
to PHP patients. In addition, we are interested in understanding
whether these services are typically provided by an entity other than
the PHP, such as by a referring provider.
D. Proposed Payment Rate Methodology for PHP and IOP
In summary, we propose for CY 2024 to revise our methodology for
calculating PHP payment rates. We propose to establish four separate
PHP APC per diem payment rates: one for CMHCs for 3-service days and
another for CMHCs for 4-service days (APC 5853 and APC 5854,
respectively), and one for hospital-based PHPs for 3-service days and
another for hospital-based PHPs for 4-service days (APC 5863 and APC
5864, respectively). In addition, for hospital-based PHPs, we propose
to calculate payment rates using the broader OPPS data set, instead of
hospital-based PHP data only, because we believe using the broader OPPS
data set would allow CMS to capture data from claims not identified as
PHP, but that also include the service codes and intensity required for
a PHP day. Because we propose to establish consistent coding and
payment between the PHP and IOP benefits, we propose to consider all
OPPS data for PHP days and non-PHP days that include 3 or more of the
same service codes. We propose to establish four separate IOP APC per
diem payment rates at the same rates we propose for PHP APCs: one for
CMHCs for 3-service days and another for CMHCs for 4-service days (APC
5851 and APC 5852, respectively), and one for hospital-based IOPs for
3-service days and another for hospital-based IOPs for 4-service days
(APC 5861 and APC 5862, respectively).
1. Background
The standard PHP day is typically four services or more per day. We
currently provide payment for three services a day for extenuating
circumstances when a beneficiary would be unable to complete a full day
of PHP treatment. As we stated in the CY 2008 OPPS/ASC final rule with
comment period (72 FR 66672), it was never our intention that days with
only three units of service should represent the number of services
provided in a typical PHP day. Our intention was to cover days that
consisted of three units of service only in certain limited
circumstances. For example, as we noted in the CY 2009 OPPS/ASC
proposed rule (73 FR 41513), we believe 3-service days may be
appropriate when a patient is transitioning towards discharge (or days
when a patient who is transitioning at the beginning of his or her PHP
stay). Another example of when it may be appropriate for a program to
provide only three units of service in a day is when a patient is
required to leave the PHP early for the day due to an unexpected
medical appointment.
2. Current Payment Rate Methodology for PHP
Since CY 2017, our longstanding policy has been to pay PHP on a per
diem basis for days that include three or more PHP services, which are
identified using a defined list of codes in the Healthcare Common
Procedure Coding System (HCPCS). We currently (for CY 2023) utilize two
separate PHP APC per diem payment rates: CMHC PHP APC 5853 (Partial
Hospitalization (three or More Services Per Day)) using only CMHC data,
and hospital-based PHP APC 8563 (Partial Hospitalization (three
[[Page 49708]]
or More Services Per Day)) using only hospital-based PHP data.
Under longstanding OPPS policy, the hospital-based PHP APC per diem
payment amount is also applied as a daily mental health cap, which
serves as an upper limit on payment per day for individual OPPS mental
health services. Under the current methodology, for CY 2023, hospital-
based PHPs are paid a per diem rate of $268.22 for three or more PHP
services per day, and CMHCs are paid a per diem rate of $142.70 for
three or more PHP services per day. We refer readers to the PHP
ratesetting methodology described in section VIII.B.2 of the CY 2016
OPPS/ASC final rule with comment period (80 FR 70462 through 70466) for
information on the current calculation of geometric mean per diem costs
and payment rates for PHP APCs 5853 and 5863, and the CY 2017 OPPS/ASC
final rule with comment period (81 FR 79680 through 79687) and the CY
2022 OPPS/ASC final rule with comment period (86 FR 63665 through
63666) for information on modifications incorporated into the PHP
ratesetting methodology.
We note that under our current methodology, we have historically
prepared the data by first applying PHP-specific trims and data
exclusions and assessing CCRs. We direct the reader to the CY 2016
OPPS/ASC final rule with comment period (80 FR 70463 through 70465) for
a more complete discussion of these trims, data exclusions, and CCR
adjustments. In prior rules, we have typically included a discussion of
PHP-specific data trims, exclusions, and CCR adjustments; we are not
including that discussion in this proposed rule. These PHP-specific
data trims and exclusions addressed limitations as well as anomalies in
the PHP data. However, as discussed in the following section, we
propose for CY 2024 to calculate hospital-based PHP payment rates for 3
services per day and 4 services per day based on cost per day using the
broader OPPS data set. Accordingly, we propose not to apply PHP-
specific trims and data exclusions, but rather to apply the same trims
and data exclusions consistent with the OPPS. Additional information
about the data trims, data exclusions, and CCR adjustments applicable
to the data used for this proposed rule can be found online at https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/HospitalOutpatientPPS/index.html).\104\
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\104\ Click on the link labeled ``CY 2024 OPPS/ASC Notice of
Proposed Rulemaking'', which can be found under the heading
``Hospital Outpatient Prospective Payment System Rulemaking'' and
open the claims accounting document link at the bottom of the page,
which is labeled ``2024 NPRM OPPS Claims Accounting (PDF)''.
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3. Proposed CY 2024 Payment Rate Methodology for PHP and IOP
As noted previously, the CAA, 2023 established IOP within the
continuum of care, and the statute makes reference to weekly hour
requirements. Specifically, IOP patients are required to be certified
by a physician as needing at least 9 hours of services per week; while
PHP patients are required to be certified by a physician as needing at
least 20 hours of services per week.
While no IOP benefit existed prior to the CAA, 2023, we note that
the types of items and services included in IOP have been, and are,
paid for by Medicare either as part of the PHP benefit or under the
OPPS more generally. Additionally, prior to the CAA, 2023, CMS had
begun gathering information from interested parties on IOP under
Medicare. In the CY 2023 OPPS/ASC proposed rule (87 FR 44679), we
issued a comment solicitation on intensive outpatient mental health
treatment, including SUD treatment furnished by IOPs, to collect
information regarding whether there are any gaps in coding that may be
limiting access to needed levels of care for treatment of mental health
disorders or SUDs for Medicare beneficiaries, and specific information
about IOP services, such as the settings of care in which these
programs typically furnish services, the range of services typically
offered, and the range of practitioner types that typically furnish
these services.
Along with the requirements for IOP mandated by the CAA, 2023, we
took into consideration information we received from the comment
solicitation to construct an appropriate data set to develop proposed
rates for IOP. Since IOPs furnish the same types of services as PHP,
just at a lower intensity, we believe it is appropriate to use the same
data and methodology for calculating payment rates for both PHP and IOP
for CY 2024. At this time, although PHP claims can be specifically
identified, there is no specific identifier or billing code to indicate
IOP services. However, hospitals are permitted to furnish and bill for
many of these services as outpatient services under the OPPS. Thus, we
analyzed a broader set of data that includes both PHP and non-PHP days
with 3 or more services in order to calculate proposed payment for PHP
services. In order to establish consistent payment between PHP and IOP,
we propose to set IOP payment rates at the same rates as PHP. The
primary goal in developing the proposed payment rate methodology for
IOP and PHP services is to pay providers an appropriate amount relative
to the patients' needs, and to avoid cost inversion in future years.
For CY 2024, we propose to calculate hospital-based PHP payment
rates for 3 services per day and 4 services per day based on cost per
day using the broader OPPS data set, a change from the current
methodology of using only PHP data. We believe using the broader OPPS
data set would allow us to capture data from claims not identified as
PHP, but that include the service codes and intensity required for a
PHP day. The larger data set would expand the sample size to allow for
more precise rate calculations. In addition, we propose to calculate
the 3 services per day and 4 services per day PHP rates for CMHCs and
hospital-based programs separately. We propose to set IOP payment rates
for 3 services per day and 4 services per day equal to the PHP payment
rates.
We also propose to set payment rates for IOP APCs at amounts equal
to the payment rates for PHP APCs. We believe setting the IOP payment
rates equal to the PHP payments would be appropriate because IOP is a
newly established benefit, and we do not have definitive data on
utilization. However, both programs utilize the same services, but
furnish them at different levels of intensity, with different numbers
of services furnished per day and per week. depending on the program.
Therefore, we believe it is appropriate to pay the same per diem rates
for IOP and PHP services unless future data analysis supports
calculating rates independently.
For beneficiaries in a PHP or IOP, we propose applying the four-
service payment rate (that is, payment for PHP APCs 5854 for CMHCs and
5864 for hospitals, and IOP APCs 5852 for CMHCs and 5862 for hospitals)
for days with 4 or more services. For days with three or fewer
services, we propose to apply the three-service payment rate (that is,
payment for PHP APCs 5853 for CMHCs and 5863 for hospitals, and IOP
APCs 5851 for CMHCs and 5861 for hospitals), which we note would be a
departure from our current policy. Under our current policy, we do not
make payment for any PHP days with fewer than three services, and we
have heard from interested parties that this policy could discourage
treatment of PHP patients when, due to extenuating circumstances, they
cannot complete a full day. We believe that paying for a day with three
or fewer services would allow us to more easily monitor the actual
utilization of services, particularly IOP. Specifically, we believe
utilizing the three-service
[[Page 49709]]
payment rate (that is, payment for PHP APCs 5853 for CMHCs and 5863 for
hospitals, and IOP APCs 5851 for CMHCs and 5861 for hospitals) for days
with three or fewer service would accommodate occasional instances when
a patient is unable to complete a full day of PHP or IOP. We expect
that days with fewer than three services would be very infrequent, and
we intend to monitor the provision of these days among providers and
individual patients.
Additionally, we propose that the 3 service per day hospital-based
PHP APC per diem payment amount for APC 5863 would also be applied as
the daily mental health cap, which serves as the upper limit on payment
per day for individual OPPS mental health services. We believe setting
the 3 service per day hospital-based PHP APC per diem payment amount as
the daily mental health cap is appropriate because currently the daily
mental health cap is equal to the payment amount for hospital-based PHP
APC 5863, which is payment for 3 or more services per day. Therefore,
consistency with the current daily mental health cap would be
maintained. Additionally, PHP is meant to be the most intensive mental
health services program, requiring inpatient care if PHP is not
received, and the daily mental health cap is not expected to reach such
level of intensity. We believe applying the 3 service per day hospital-
based PHP APC per diem payment amount for APC 5863 as the daily mental
health cap would preserve the difference of intensity between PHP and
individual OPPS mental health services to not incentivize one over the
other. We note that the proposed CY 2024 payment amount for APC 5863
would be comparable to the CY 2023 payment amount for APC 5863, which
is currently applied as the daily mental health cap.
Lastly, we note that section 4124(c) of the CAA, 2023 requires that
the payment amount for intensive outpatient services furnished in FQHCs
and RHCs be equal to the payment amount that would have been paid for
the same service furnished by a hospital outpatient department, thus
establishing site-neutral payment for hospital outpatient departments,
FQHCs, and RHCs. The CAA, 2023 is silent with respect to the payment
methodology for IOP services provided by CMHCs. Based on our analysis
of CMHC costs, we continue to observe that CMHCs incur significantly
different costs than hospitals in the provision of PHP services, and we
anticipate that in the future there will be significant differences
between CMHCs' and hospitals' costs of furnishing IOP services as well.
We believe it is appropriate to continue to recognize the differences
in cost structures for different providers of PHP. This is of
particular importance not only to the Medicare program, but also for
the Medicare beneficiaries that CMHCs serve, who incur a 20 percent
copay on all PHP services under Part B. Therefore, we propose to
continue calculating CMHC payment rates based solely on CMHC claims,
but we are also considering whether establishing a site-neutral payment
for all providers of IOP using data from all providers of IOP would be
more appropriate in an effort to increase access to mental health
services. In order to inform public awareness, we have calculated
combined payment rates by using the broader OPPS data from both
hospitals and CMHCs to estimate the costs associated with providing
days with three and four services from the list of services in Table
43. These alternative cost calculations are found in Table 46 in
section VIII.D.3.b of this proposed rule. We are soliciting comments on
whether this approach would be more appropriate to consider for
establishing payment beginning in CY 2024. Specifically, we are
interested in any information from commenters on how IOPs may structure
their service days, and how the differences in cost structures of CMHCs
might affect a site-neutral payment for IOP services. We are also
soliciting comments on any ways IOP days could differ from PHP days,
and considerations that could affect payment. The following paragraphs
describe our data analysis, and proposals for PHP and IOP APCs
beginning in CY 2024.
a. Proposed PHP APC Changes and Effects on Geometric Mean Per Diem
Costs
For CY 2024 and subsequent years, we propose a revision to our
existing methodology to calculate the CMHC and hospital-based PHP
geometric mean per diem costs to incorporate the larger data set under
the OPPS, including PHP and non-PHP hospital claims for mental health
services. We propose to use the latest available CY 2022 claims data,
and CY 2021 cost data. This proposal is consistent with the overall
proposed use of cost data for the OPPS, which is discussed in section
II.A.1.a. of this proposed rule. In addition, we propose to establish
four separate PHP APC per diem payment rates: two for CMHCs (APC 5853
and APC 5854) and two for hospital-based PHPs (APC 5863 and APC 5864).
Following this proposed methodology, we propose to use the geometric
mean per diem cost of $97.59 for CMHCs providing 3-service days (APC
5853), and the geometric mean per diem cost of $153.09 for CMHCs
providing 4-service days (APC 5854), as the basis for developing the CY
2024 CMHC PHP APC per diem rates. Additionally, we propose to use the
geometric mean per diem cost of $284.00 for hospital-based providers
providing 3-service days (APC 5863), and the geometric mean per diem
cost of $368.18 for hospital-based providers providing 4-service days
(APC 5864) as the basis for developing the CY 2024 hospital-based PHP
APC per diem rates. Lastly, we propose to establish four separate IOP
APC per diem payment rates: two for CMHCs (APC 5851 and APC 5852 for 3-
service days and 4-service days, respectively) and two for hospital-
based IOPs (APC 5861 and APC 5862 for 3-service days and 4-service
days, respectively) using the same above 3-service day and 4-service
day geometric mean per diem costs proposed for the PHP APC per diem
rates.
b. Development of the PHP and IOP APC Geometric Mean Per Diem Costs
The types of items and services paid as PHP (and that will be paid
as IOP) can also be provided outside of those benefits by hospitals;
therefore, we sought to understand the costs of those services in our
preliminary analysis to consider options for the proposed payment rates
for IOP services. In preparation for CY 2024, in collaboration with
physicians, we developed a consolidated list of all HCPCS codes that
would be appropriate for identifying IOP and PHP services for analytic
purposes. We refer readers to section VIII.C of this proposed rule for
more detailed information on the proposed consolidated list of HCPCS
codes applicable for IOP and PHP services.
We conducted a preliminary ratesetting analysis of all CMHC and
hospital claims for patients that had 9 or more hours of behavioral
health services per week. We then identified IOP as weeks with between
9 and 19 hours of services, and PHP as weeks with 20 hours or more of
services. The relationship we observed between cost per day and cost
per week suggests that typical IOP days include about three services,
and typical PHP days include about four services, which as we noted
previously, is also consistent with the typical service intensity for
PHP.
Next, with this data set, we calculated the proposed payment rates
for hospital-based providers based on costs for days with three
services and days with four
[[Page 49710]]
services using the data from all OPPS claims for hospitals, and
calculated the proposed payment rates for CMHCs based on costs for days
with three services and days with four services using only the data
from CMHC claims. As discussed in section VIII.B.1.a of the CY 2022
OPPS/ASC final rule with comment period (86 FR 63666 through 63668),
the costs for CMHC service days are calculated using cost report
information from HCRIS. Although we anticipate that IOP weeks would
generally include 9-19 hours of services and PHP weeks would generally
include 20 or more hours of services, we did not restrict the data for
this analysis by weekly hours. Because IOP is a new benefit, we do not
have definitive data on utilization. However, if IOP utilization is
similar to the data we analyzed for beneficiary weeks with 9 to 19
hours of mental health services, then we expect that IOP days will
mostly include three services or fewer, but may sometimes include four
or more. Given the uncertainty about how IOPs will structure their
service days in the future, we believe it is appropriate to propose 3-
service day and 4-service day APCs for IOP with payment rates that are
the same as the rates for the 3-service day and 4-service day APCs we
propose for PHP.
We analyzed all CMHC and hospital claims data under the OPPS used
to set proposed rates for this CY 2024 proposed rule as described
earlier in this section of this proposed rule. We identified all
patient days that included three or more services from the list in
Table 43. As discussed in section VIII.D.3 of this proposed rule, we
propose to calculate PHP payment rates for days with three services and
days with four services, and we propose to utilize these proposed PHP
payment rates for the proposed IOP APCs as well. We propose to
calculate separate rates for hospitals and CMHCs.
c. Proposed CY 2024 PHP and IOP APC Geometric Mean Per Diem Costs
Following this proposed structure, the calculated CY 2024 PHP
geometric mean per diem cost for all CMHCs for providing 3 services per
day is $97.59, which we propose to use for calculating the payment rate
for the 3-service day APC, CMHC APC 5853. The calculated CY 2024
geometric mean per diem cost for all CMHCs for providing four or more
services per day is $153.09, which we propose to use for calculating
the payment rate for the 4-service day APC, CMHC APC 5854. As noted,
the calculated CY 2024 hospital-based PHP APC geometric mean per diem
cost for hospital-based PHP providers that provide 3 services per
service day is $284.00, which we propose to use for calculating the
payment rate for the 3-service day hospital-based PHP APC 5863. The
calculated CY 2024 hospital-based PHP APC geometric mean per diem cost
for hospital-based PHP providers that provide 4 services per day is
$368.18, which we propose to use for calculating the payment rate for
the 4-service day hospital-based PHP APC 5864.
Similarly, the calculated CY 2024 IOP geometric mean per diem cost
for all CMHCs for providing 3 services per day is $97.59, which we
propose to use for calculating the payment rate for the 3-service day
APC, CMHC APC 5851. The calculated CY 2024 geometric mean per diem cost
for all CMHCs for providing 4 or more services per day is $153.09,
which we propose to use for calculating the payment rate for the 4-
service day APC, CMHC APC 5852. The calculated CY 2024 hospital-based
IOP APC geometric mean per diem cost for hospital-based IOP providers
that provide 3 services per service day is $284.00, which we propose to
use for calculating the payment rate for the 3-service day hospital-
based IOP APC 5861. The calculated CY 2024 hospital-based IOP APC
geometric mean per diem cost for hospital-based IOP providers that
provide 4 services per day is $368.18, which we propose to use for
calculating the payment rate for the 4-service day hospital-based IOP
APC 5862.
We intend to monitor the provision of services in both PHP and IOP
programs to better understand utilization patterns, and propose to set
equal payment rates for PHP and IOP services until actual IOP
utilization data becomes available for CY 2026 ratesetting, at which
point we anticipate reevaluating our payment rate methodology if
necessary.
In addition, we are soliciting comments on the service mix used to
develop the per diem amounts for both PHP and IOP. We are interested in
whether the proposed approach is appropriate, and any feedback
commenters have on the service mix provided within each program.
The proposed CY 2024 PHP geometric mean per diem costs are shown in
Table 45 and are used to derive the proposed CY 2024 PHP APC per diem
rates for CMHCs and hospital-based PHPs. As stated in section VIII.D.3
of this proposed rule, we propose to use the same 3-service day and 4-
service day geometric mean per diem PHP costs for the CY 2024 CMHC and
hospital-based IOP APCs. The proposed CY 2024 PHP and IOP APC per diem
rates are included in Addendum A to this proposed rule (which is
available on our website at: https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/HospitalOutpatientPPS/Hospital-Outpatient-Regulations-and-Notices.html) and in Table 45.
[[Page 49711]]
[GRAPHIC] [TIFF OMITTED] TP31JY23.074
Alternatively, as discussed earlier in this section, we are
considering establishing combined payment rates for hospitals and CMHCs
based on the calculated costs per day for days with 3 services and 4 or
more services, using all OPPS claims. These alternative CY 2024 PHP
geometric mean per diem costs are shown in Table 46.
[GRAPHIC] [TIFF OMITTED] TP31JY23.075
E. Proposed Outlier Policy for CMHCs
For CY 2024, we propose to update the calculations of the CMHC
outlier percentage, cutoff point and percentage payment amount, outlier
reconciliation, outlier payment cap, and fixed dollar threshold
according to previously established policies to include intensive
outpatient services. These topics are discussed in more detail. We
refer readers to section II.G.1 of this proposed rule for our general
policies for hospital outpatient outlier payments.
1. Background
As discussed in the CY 2004 OPPS final rule with comment period (68
FR 63469 through 63470), we noted a significant difference in the
amount of outlier payments made to hospitals and CMHCs for PHP
services. Given the difference in PHP charges between hospitals and
CMHCs, we did not believe it was appropriate to make outlier payments
to CMHCs using the outlier percentage target amount and threshold
established for hospitals. Therefore, beginning in CY 2004, we created
a separate outlier policy specific to the estimated costs and OPPS
payments provided to CMHCs. We designated a portion of the estimated
OPPS outlier threshold specifically for CMHCs, consistent with the
percentage of projected payments to CMHCs under the OPPS each year,
excluding outlier payments, and established a separate outlier
threshold for CMHCs. This separate outlier threshold for CMHCs resulted
in $1.8 million in outlier payments to CMHCs in CY 2004 and $0.5
million in outlier payments to CMHCs in CY 2005 (82 FR 59381). In
contrast, in CY 2003, more than $30 million was paid to CMHCs in
outlier payments (82 FR 59381).
2. CMHC Outlier Percentage
In the CY 2018 OPPS/ASC final rule with comment period (82 FR 59267
through 59268), we described the current outlier policy for hospital
outpatient payments and CMHCs. We note that we also discussed our
outlier policy for CMHCs in more detail in section VIII.C of that same
final rule (82 FR 59381). We set our projected target for all OPPS
aggregate outlier payments at 1.0 percent of the estimated aggregate
total payments under the OPPS (82 FR 59267). This same policy was also
reiterated in the CY 2019 OPPS/ASC final rule with comment period (83
FR 58996), the CY 2020 OPPS/ASC final rule with comment period (84 FR
61350), and the CY 2021 OPPS/ASC final rule with comment period (85 FR
86082).
We estimated CMHC per diem payments and outlier payments for this
proposed rule by using the most recent available utilization and
charges from CMHC claims, updated CCRs, and the proposed payment rates
for PHP APCs 5853 and 5854. We recognize that
[[Page 49712]]
CMHCs would be permitted to provide and bill for IOP beginning in CY
2024, and would be paid under IOP APCs 5851 and 5852. However, we have
not included estimates of utilization for these APCs, because the
latest available claims from CY 2022 do not reflect the provision of
IOP services. For increased transparency, we are providing a more
detailed explanation of the existing calculation process for
determining the CMHC outlier percentages. To calculate the CMHC outlier
percentage, we follow three steps:
Step 1: We multiply the OPPS outlier threshold, which is
1.0 percent, by the total estimated OPPS Medicare payments (before
outliers) for the prospective year to calculate the estimated total
OPPS outlier payments:
(0.01 x Estimated Total OPPS Payments) = Estimated Total OPPS Outlier
Payments.
Step 2: We estimate CMHC outlier payments by taking each
provider's estimated costs (based on their allowable charges multiplied
by the provider's CCR) minus each provider's estimated CMHC outlier
multiplier threshold (we refer readers to section VIII.C.3 of the CY
2022 OPPS/ASC proposed rule). That threshold is determined by
multiplying the provider's estimated paid days by 3.4 times the total
of CMHC PHP APC and CMHC IOP payment rates. If the provider's costs
exceed the threshold, we multiply that excess by 50 percent, as
described in section VIII.E.3 of this proposed rule, to determine the
estimated outlier payments for that provider. CMHC outlier payments are
capped at 8 percent of the provider's estimated total per diem payments
(including the beneficiary's copayment), as described in section
VIII.E.5 of this proposed rule, so any provider's costs that exceed the
CMHC outlier cap will have its payments adjusted downward. After
accounting for the CMHC outlier cap, we sum all of the estimated
outlier payments to determine the estimated total CMHC outlier
payments.
(Each Provider's Estimated Costs--Each Provider's Estimated Multiplier
Threshold) = A. If A is greater than 0, then (A x 0.50) = Estimated
CMHC Outlier Payment (before cap) = B. If B is greater than (0.08 x
Provider's Total Estimated Per Diem Payments), then cap adjusted B =
(0.08 x Provider's Total Estimated Per Diem Payments); otherwise, B =
B. Sum (B or cap- adjusted- B) for Each Provider = Total CMHC Outlier
Payments.
Step 3: We determine the percentage of all OPPS outlier
payments that CMHCs represent by dividing the estimated CMHC outlier
payments from Step 2 by the total OPPS outlier payments from Step 1:
(Estimated CMHC Outlier Payments/Total OPPS Outlier Payments).
We propose to continue to calculate the CMHC outlier percentage
according to previously established policies. However, beginning in CY
2024, CMHCs will be permitted to provide and bill for intensive
outpatient services for Medicare patients. Therefore, we propose to
expand the calculation of the CMHC outlier percentage to include PHP
and IOP, because we anticipate that total payments will increase for
CMHCs in CY 2024. We propose to maintain our current methodology for
calculating the CMHC outlier percentage, but to apply it to payments
for IOP services as well as PHP services beginning in CY 2024.
Therefore, based on our CY 2024 payment estimates, including our
estimates of both PHP and IOP services, CMHCs are projected to receive
0.01 percent of total hospital outpatient payments in CY 2024,
excluding outlier payments. We propose to designate approximately less
than 0.01 percent of the estimated 1.0 percent hospital outpatient
outlier threshold for CMHCs. This percentage is based upon the formula
given in Step 3.
3. Cutoff Point and Percentage Payment Amount
As described in the CY 2018 OPPS/ASC final rule with comment period
(82 FR 59381), our policy has been to pay CMHCs for outliers if the
estimated cost of the day exceeds a cutoff point. In CY 2006, we set
the cutoff point for outlier payments at 3.4 times the highest CMHC PHP
APC payment rate implemented for that calendar year (70 FR 68551). For
CY 2018, the highest CMHC PHP APC payment rate was the payment rate for
CMHC PHP APC 5853. In addition, in CY 2002, the final OPPS outlier
payment percentage for costs above the multiplier threshold was set at
50 percent (66 FR 59889). In CY 2018, we continued to apply the same 50
percent outlier payment percentage that applies to hospitals to CMHCs
and continued to use the existing cutoff point (82 FR 59381).
Therefore, for CY 2018, we continued to pay for partial hospitalization
services that exceeded 3.4 times the CMHC PHP APC payment rate at 50
percent of the amount of CMHC PHP APC geometric mean per diem costs
over the cutoff point. For example, for CY 2018, if a CMHC's cost for
partial hospitalization services paid under CMHC PHP APC 5853 exceeded
3.4 times the CY 2018 payment rate for CMHC PHP APC 5853, the outlier
payment would be calculated as 50 percent of the amount by which the
cost exceeds 3.4 times the CY 2018 payment rate for CMHC PHP APC 5853
[0.50 x (CMHC Cost -(3.4 x APC 5853 rate))]. This same policy was also
reiterated in the CY 2019 OPPS/ASC final rule with comment period (83
FR 58996 through 58997), CY 2020 OPPS/ASC final rule with comment
period (84 FR 61351), the CY 2021 OPPS/ASC final rule with comment
period (85 FR 86082 through 86083), the CY 2022 OPPS/ASC final rule
with comment period (86 FR 63670), and the CY 2023 OPPS/ASC final rule
with comment period (87 FR 72004). For CY 2024, we propose to continue
to pay for partial hospitalization services that exceed 3.4 times the
proposed CMHC PHP APC payment rate at 50 percent of the CMHC PHP APC
geometric mean per diem costs over the cutoff point. In addition, we
propose to extend this policy to intensive outpatient services. That
is, for CY 2024, if a CMHC's cost for partial hospitalization services
paid under CMHC PHP APCs 5853 or 5854 exceeds 3.4 times the payment
rate for the APC (either CMHC APC 5853 or 5854), the outlier payment
would be calculated as:
[0.50 x (CMHC cost - (3.4 x (PHP APC payment)))].
Similarly, if a CMHC's cost for intensive outpatient services paid
under CMHC IOP APCs 5851 or 5852 exceeds 3.4 times the payment rate for
the APC (either CMHC APCs 5851 or 5852), the outlier payment would be
calculated as:
[0.50 x (CMHC cost - (3.4 x (IOP APC payment)))].
4. Outlier Reconciliation
In the CY 2009 OPPS/ASC final rule with comment period (73 FR 68594
through 68599), we established an outlier reconciliation policy to
address charging aberrations related to OPPS outlier payments. We
addressed vulnerabilities in the OPPS outlier payment system that led
to differences between billed charges and charges included in the
overall CCR, which are used to estimate cost and would apply to all
hospitals and CMHCs paid under the OPPS. We initiated steps to ensure
that outlier payments appropriately account for the financial risk when
providing an extraordinarily costly and complex service, but are only
being made for services that legitimately qualify for the additional
payment.
For a comprehensive description of outlier reconciliation, we refer
readers to the CY 2023 OPPS/ASC and CY 2019 OPPS/ASC final rules with
comment
[[Page 49713]]
period (83 FR 58874 through 58875 and 81 FR 79678 through 79680).
We propose to continue these policies for partial hospitalization
services provided through PHPs for CY 2024. In addition, since CMHCs
will be permitted to provide and bill for intensive outpatient services
for Medicare patients we propose to extend these policies to include
intensive outpatient services in order to encompass the full scope of
services that CMHCs will be permitted to furnish. The current outlier
reconciliation policy requires that providers whose outlier payments
meet a specified threshold and whose overall ancillary CCRs change by
plus or minus 10 percentage points or more, are subject to outlier
reconciliation, pending approval of the CMS Central Office and Regional
Office (as established in the CY 2009 OPPS/ASC final rule with comment
period (73 FR 68596 through 68599)). We note that the current threshold
for outlier reconciliation for hospitals is $500,000, and there is no
threshold for CMHCs (that is, all outlier payments are subject to
reconciliation for CMHCs whose overall ancillary CCRs change by plus or
minus 10 percentage points or more). The policy also includes
provisions related to CCRs and to calculating the time value of money
for reconciled outlier payments due to or due from Medicare, as
detailed in the CY 2009 OPPS/ASC final rule with comment period and in
the Medicare Claims Processing Manual (73 FR 68595 through 68599 and
Medicare Claims Processing internet Only Manual, Chapter 4, Section
10.7.2 and its subsections, available at: https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/clm104c04.pdf).
5. Outlier Payment Cap
In the CY 2017 OPPS/ASC final rule with comment period, we
implemented a CMHC outlier payment cap to be applied at the provider
level, such that in any given year, an individual CMHC will receive no
more than a set percentage of its CMHC total per diem payments in
outlier payments (81 FR 79692 through 79695). Our analysis of CY 2014
claims data found that CMHC outlier payments began to increase
similarly to the way they had prior to CY 2004. This was due to
inflated cost from three CMHCs that accounted for 98 percent of all
CMHC outlier payments that year and received outlier payments that
ranged from 104 percent to 713 percent of their total per diem
payments. To balance our concern about disadvantaging CMHCs with our
interest in protecting the benefit from excessive outlier payments and
to mitigate potential inappropriate outlier billing vulnerabilities, we
finalized the CMHC outlier payment cap at 8 percent of the CMHC's total
per diem payments (81 FR 79694 through 79695) to limit the impact of
inflated CMHC charges on outlier payments. This outlier payment cap
only affects CMHCs, it does not affect other provider types (that is,
hospital-based PHPs), and is in addition to and separate from the
current outlier policy and reconciliation policy in effect. In the CY
2020 OPPS/ASC final rule with comment period (84 FR 61351), we
finalized a proposal to continue this policy in CY 2020 and subsequent
years. We propose to maintain the 8 percent outlier payment cap for CY
2024 and apply it to both PHP and IOP payments. We note that the 8
percent would be calculated as 8 percent of total per diem PHP and IOP
payments for CY 2024. As discussed earlier in this proposed rule,
beginning in CY 2024, CMHCs will be permitted to provide and bill for
intensive outpatient services for Medicare patients. Therefore, we
propose to expand the calculation of the CMHC outlier cap to include
both PHP and IOP, because we anticipate that total payments will
increase for CMHCs in CY 2024. Therefore, we propose to calculate the 8
percent outlier payment cap for each CMHC in a way that would encompass
the full scope of services that CMHCs will be permitted to furnish in
CY 2024.
6. Fixed-Dollar Threshold
In the CY 2018 OPPS/ASC final rule with comment period (82 FR 59267
through 59268), for the hospital outpatient outlier payment policy, we
set a fixed-dollar threshold in addition to an APC multiplier
threshold. Fixed-dollar thresholds are typically used to drive outlier
payments for very costly items or services, such as cardiac pacemaker
insertions. Currently, for CY 2023, CMHC PHP APC 5853 is the only APC
for which CMHCs may receive payment under the OPPS, and is for
providing a defined set of services that are relatively low cost when
compared to other OPPS services. Because of the relatively low cost of
CMHC services that are used to comprise the structure of CMHC PHP APC
5853, it is not necessary to also impose a fixed-dollar threshold on
CMHCs. Therefore, in the CY 2018 OPPS/ASC final rule with comment
period, we did not set a fixed-dollar threshold for CMHC outlier
payments (82 FR 59381). This same policy was also reiterated in the CY
2020 OPPS/ASC final rule with comment period (84 FR 61351), the CY 2021
OPPS/ASC final rule with comment period (85 FR 86083), the CY 2022
OPPS/ASC final rule with comment period (86 FR 63508), and the CY 2023
OPPS/ASC final rule with comment period (87 FR 72004). We propose to
continue this policy for CY 2024 and not set a fixed-dollar threshold
for the CMHC PHP APCs (5853 or 5854) or IOP APCs (5851 or 5852).
F. Rural Health Clinics (RHCs) and Federally Qualified Health Centers
(FQHCs)
1. Background
a. Statutory Background
The Rural Health Clinic Services Act of 1977 (Pub. L. 95-210,
December 13, 1977), amended the Act by enacting section 1861(aa)(1) of
the Act to extend Medicare and Medicaid entitlement and payment for
primary and emergency care services furnished at a rural health clinic
(RHC) by physicians and certain nonphysician practitioners, and for
services and supplies incidental to their services. ``Nonphysician
practitioners'' included nurse practitioners and physician assistants.
(Subsequent legislation extended the definition of covered RHC services
to include the services of clinical psychologists, clinical social
workers, certified nurse midwives, marriage and family therapist, and
mental health counselors). The statutory payment requirements for RHC
services are set forth at section 1833(a)(3) of the Act, which states
that RHCs are paid reasonable costs, less the amount a provider may
charge as described in clause of section 1866(a)(2)(A) of the Act, but
in no case may the payment exceed 80 percent of such costs.
Section 4161 of the Omnibus Budget Reconciliation Act of 1990 (Pub.
L. 101-508, November 5, 1990) (OBRA 90) established Federally Qualified
Health Centers (FQHCs) in 1990 to be effective beginning on October 1,
1991. The law mandated that FQHCs furnish services that are typically
furnished in an outpatient setting.
Section 1861(aa)(3) of the Act extends Medicare and Medicaid
entitlement and payment for those services defined as RHC services
under section 1861(aa)(1) of the Act, preventive services defined under
section 1861(ddd)(3) of the Act, and preventive primary health services
that a center is required to provide under section 330 of the Public
Health Service Act furnished at a FQHC. Section 1861(aa)(4) of the Act
describes the statutory requirements that FQHCs must meet to qualify
for Medicare payment. Section 10501(i)(3)(A) of the
[[Page 49714]]
Affordable (Pub. L. 111-148) added section 1834(o) of the Act to
establish a new system of payment for the costs of FQHC services under
Medicare Part B (Supplemental Medical Insurance) based on prospectively
set rates. Section 1834(o)(2)(A) of the Act, the FQHC prospective
payment system (PPS) was effective beginning on October 1, 2014. In
addition, section 10501(i)(3)(B) of the Affordable Care Act added
section 1833(a)(1)(Z) to the Act to specify that Medicare payment for
FQHC services under section 1834(o) of the Act shall be 80 percent of
the lesser of the actual charge or the amount determined under section
1834(o) of the Act.
Regulations pertaining to RHC and FQHC benefits are codified at 42
CFR part 405 subpart X.
b. Medicare Part B Payment of RHC and FQHC Services
As provided in 42 CFR part 405, subpart X of our regulations, RHC
and FQHC visits generally are face-to-face encounters between a patient
and one or more RHC or FQHC practitioners during which one or more RHC
or FQHC qualifying services are furnished. RHC and FQHC practitioners
are physicians, NPs, PAs, CNMs, clinical psychologists (CPs), and
clinical social workers, and under certain conditions, a registered
nurse or licensed practical nurse furnishing care to a homebound RHC or
FQHC patient in an area with a shortage of home health agencies. We
note, effective January 1, 2024, marriage and family therapist and
mental health counselor services are considered RHC services in
accordance with section 1861(aa)(1)(B) of the Act as amended by section
4121(b) of CAA, 2023, which is incorporated into FQHC services through
section 1861(aa)(3)(A) of the Act. In the CY 2024 PFS proposed rule, we
propose to codify payment for MFTs and MHCs at Sec. 405.2411. Only
medically necessary medical, mental health, or qualified preventive
health services that require the skill level of an RHC or FQHC
practitioner are RHC or FQHC billable visits. Services furnished by
auxiliary personnel (for example, nurses, medical assistants, or other
clinical personnel acting under the supervision of the RHC or FQHC
practitioner) are considered incident to the visit and are included in
the per-visit payment.
Section 130 of the Consolidated Appropriations Act, 2021 (CAA,
2021) (Pub. L. 116-260, December 27, 2020), updated section 1833(f) of
the Act by restructuring the payment limits for RHCs beginning April 1,
2021. As of April 1, 2021, all RHCs are subject to payment limits on
the all-inclusive rate (AIR), and this limit will be determined for
each RHC in accordance with section 1833(f) of the Act. RHCs generally
are paid an AIR for all medically necessary medical and mental health
services and qualified preventive health services furnished on the same
day (with some exceptions). The AIR is subject to a payment limit,
meaning that an RHC will not receive any payment beyond the specified
limit amount.
FQHCs were paid under the same AIR methodology until October 1,
2014. Subsequently, FQHCs began to transition to the FQHC PPS system,
in which they are paid based on the lesser of the FQHC PPS rate or
their actual charges. The FQHC PPS rate is adjusted for geographic
differences in the cost of services by the FQHC PPS geographic
adjustment factor (GAF). The rate is increased by 34 percent when an
FQHC furnishes care to a patient that is new to the FQHC, or to a
beneficiary receiving an initial preventive physical examination (IPPE)
or has an annual wellness visit (AWV).
Both the RHC AIR and FQHC PPS payment rates were designed to
reflect the cost of all services and supplies that an RHC or FQHC
furnishes to a patient in a single day. The rates are not adjusted for
the complexity of the patient health care needs, the length of the
visit, or the number or type of practitioners involved in the patient's
care. RHCs and FQHCs are required to file a cost report annually to
determine their payment rate, which reflects adjustments for GME
payments, bad debt, and influenza, pneumococcal and COVID-19 vaccines
and covered monoclonal antibody products used as pre-exposure
prophylaxis prevention of COVID-19 and their administration.
There are additional payments for non-face-to-face services for
care management services including chronic care management (CCM),
principal care management (PCM), chronic pain management (CPM), general
behavior health integration (GBHI), psychiatric collaborative care
model (CoCM), and virtual communications (Sec. 405.2464(c)).
Additionally, for FQHCs, Sec. 405.2462(d) describes a
``grandfathered tribal FQHC'' as a FQHC that is operated by a tribe or
tribal organization under the ISDEAA; was billing as if it were a
provider-based to an Indian Health Service (IHS) hospital on or before
April 7, 2000 and is not currently operating as a provider-based
department of an IHS hospital. We refer to these tribal FQHCs as
``grandfathered tribal FQHCs'' to distinguish them from freestanding
tribal FQHCs that are currently being paid the lesser of their charges
or the adjusted national FQHC PPS rate, and from provider-based tribal
clinics that may have begun operations subsequent to April 7, 2000.
Under the authority in section 1834(o) of the Act to include
adjustments determined appropriate by the Secretary, we revised
Sec. Sec. 405.2462 and 405.2464 to pay these grandfathered tribal
FQHCs on the Medicare outpatient per visit rate as set annually by the
IHS, and not the FQHC PPS payment rates (80 FR 71089). Such payment
rates for outpatient medical care (also referred to as outpatient
hospital services) furnished by the IHS and tribal facilities is set
annually by the IHS under the authority of sections 321(a) and 322(b)
of the Public Health Service Act (the PHS Act) (42 U.S.C. 248 and
249(b)) (Pub. L. 83-568 (42 U.S.C. 2001(a)), and the IHCIA, based on
the previous year cost reports from Federal and tribal hospitals. The
outpatient per visit rate is only applicable for those IHS or tribal
facilities that meet the definition of a provider-based department as
described at Sec. 413.65(m), or a ``grandfathered'' tribal FQHC as
described at Sec. 405.2462(d)(1). There is a higher outpatient per
visit rate for IHS and tribal Medicare visits in Alaska and a lower
general outpatient per visit rate for IHS/tribal Medicare visits in the
lower 48 States (IHS does not operate any hospitals or facilities in
Hawaii or the territories, and thus, no rates are set in those
localities). For CY 2023, the outpatient per visit rate for Medicare
visits in Alaska is $801 and $620 in the lower 48 States.\105\
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\105\ https://www.govinfo.gov/content/pkg/FR-2023-02-27/padf/2023-03896.pdf.
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2. Establishment of Intensive Outpatient Services Benefit by Section
4124 of the CAA, 2023
a. Section 4124 of the Consolidated Appropriations Act of 2023
As discussed in section VIII.B.1 of this proposed rule, section
4124 of Division FF of the CAA, 2023, entitled ``Ensuring Adequate
Coverage of Outpatient Mental Health Services Under the Medicare
Program,'' established Medicare coverage for intensive outpatient
program (IOP) services furnished by a hospital to its outpatients, or
by a community mental health center (CMHC)), a FQHC or a RHC, as a
distinct and organized intensive ambulatory treatment service offering
less than 24-hour daily care in a location other than an individual's
home or inpatient or residential setting, effective January 1, 2024.
An IOP is a distinct and organized outpatient program of
psychiatric services provided for individuals who
[[Page 49715]]
have an acute mental illness, which includes, but is not limited to
conditions such as depression, schizophrenia, and substance use
disorders. Generally speaking, an IOP is thought to be less intensive
than a partial hospitalization program (PHP).
This new provision mandated several changes to the RHC and FQHC
policies, including scope of benefits and services, certification and
plan of care requirements, and special payment rules for IOP services
in RHCs and FQHCs, all of which are discussed in the paragraphs below.
3. IOP Scope of Benefits and Scope of Services in RHC and FQHC Settings
a. Background
As described in section 1861(aa) of the Act and codified under
Sec. Sec. 405.2411 and 405.2446, the current scope of benefits for RHC
and FQHC services are those services covered in a RHC, FQHC, or other
outpatient setting, including a patient's place of residence, or a
Medicare-covered Part A skilled nursing facility (SNF) when provided by
a physician, nurse practitioner, physician assistant, certified nurse
midwife, clinical psychologist, or a clinical social worker. RHC/FQHC
services may also be covered for individuals who have elected hospice
when provided by an RHC/FQHC physician, nurse practitioner, or
physician assistant employed or under contract with the RHC or FQHC at
the time the services are furnished, who has been designated by the
patient as his or her attending physician. Starting January 1, 2024,
services of a marriage and family therapist (MFT) or mental health
counselor (MHC) are covered under RHC/FQHC services if such MFT or MHC
is employed or under contract with the RHC or FQHC at the time the
services are furnished.
As defined in Sec. 405.2415, RHCs and FQHCs furnish physicians'
services; services and supplies ``incident to'' the services of
physicians: Nurse practitioner (NP), physician assistant (PA),
certified nurse-midwife (CNM), clinical psychologist (CP), and clinical
social worker (CSW) services; and services and supplies incident to the
services of NPs, PAs, CNMs, CPs, and CSWs. They may also furnish
diabetes self-management training and medical nutrition therapy (DSMT/
MNT), transitional care management (TCM) services, and in some cases,
visiting nurse services furnished by a registered professional nurse or
a licensed practical nurse.
Only medically necessary medical, mental health, or qualified
preventive health services that require the skill level of an RHC or
FQHC practitioner are RHC or FQHC billable visits. Services furnished
by auxiliary personnel (for example, nurses, medical assistants, or
other clinical personnel acting under the supervision of the RHC or
FQHC practitioner) are considered incident to the visit and are
included in the per-visit payment.
RHC and FQHC services also include certain preventive services when
specified in statute or when established through the National Coverage
Determination (NCD) process. RHCs and FQHCs are paid for the
professional component of allowable preventive services when all of the
program requirements are met and frequency limits (where applicable)
have not been exceeded.
Section 4124(b)(4) of the CAA, 2023, amended section 1861(aa)(1) of
the Act by adding subparagraph (D) to establish Medicare Part B
coverage for IOP services as defined in section 1861(ff)(4) of the Act
when these services are furnished by RHCs, which is incorporated for
FQHCs by reference in section 1861(aa)(3)(A) of the Act, effective
January 1, 2024. Section 1861(ff)(2) of the Act describes the items and
services available under the PHP and IOP benefits. These items and
services include: individual and group therapy with physicians or
psychologists (or other mental health professionals to the extent
authorized under State law); occupational therapy requiring the skills
of a qualified occupational therapist; services of social workers,
trained psychiatric nurses, and other staff trained to work with
psychiatric patients; drugs and biologicals furnished for therapeutic
purposes (which cannot, as determined in accordance with regulations,
be self-administered); individualized activity therapies that are not
primarily recreational or diversionary; family counseling (the primary
purpose of which is treatment of the individual's condition); patient
training and education (to the extent that training and educational
activities are closely and clearly related to individual's care and
treatment); diagnostic services; and such other items and services as
the Secretary may provide (excluding meals and transportation) that are
reasonable and necessary for the diagnosis or active treatment of the
individual's condition, reasonably expected to improve or maintain the
individual's condition and functional level and to prevent relapse or
hospitalization, and furnished pursuant to such guidelines relating to
frequency and duration of services as the Secretary shall by regulation
establish, taking into account accepted norms of medical practice and
the reasonable expectation of patient improvement.
To be consistent with the scope of benefits required for IOP
services, we propose to adopt the same standards for IOP services
furnished in RHCs and FQHCs as described in section VIII.B.2 ``IOP
Scope of Benefits'' of this proposed rule. Specifically, this would
include individual and group therapy, occupational therapy, drugs and
biologicals furnished for therapeutic purposes, which cannot be self-
administered, family counseling, beneficiary education, and diagnostic
services. In order to expand access to behavioral health treatment for
Medicare beneficiaries and to ensure continuity of care for IOP
services to best meet patient needs, we propose to make conforming
regulatory changes to applicable RHC and FQHC regulations at 42 CFR
part 405, subpart X, specifically,
At Sec. 405.2401, Scope and definitions, we propose to
amend the section to add IOP services.
At Sec. 405.2411, Scope of benefits, we propose to amend
the section to include IOP services.
At Sec. 405.2446, Scope of services, we propose to amend
this section to include IOP services.
b. Certification and Plan of Care Requirements for IOPs in RHC and FQHC
Settings
Section 4124(b)(2)(B) of the CAA, 2023 amended section 1861(ff) of
the Act to add paragraph (4) to define intensive outpatient services as
the items and services prescribed by a physician for an individual
determined (not less frequently than once every other month) by a
physician to have a need for such services for a minimum of 9 hours per
week and provided under a program described in paragraph (3) (that is,
an outpatient program of mostly mental health related services and
therapies provided by a hospital or CMHC on an outpatient basis) under
the supervision of a physician. The services must be provided pursuant
to an individualized, written plan of treatment established and
periodically reviewed by a physician (in consultation with appropriate
staff participating in such program), which sets forth the physician's
diagnosis, the type, amount, frequency, and duration of the items and
services provided under the plan, and the goals for treatment under the
plan. For patients of an IOP, section 1835(a)(2)(F)(i) of the Act does
not apply, that is, individuals receiving IOP would not require
[[Page 49716]]
inpatient psychiatric care in the absence of such services.
In order to be consistent with physician certification and plan of
care requirements required for IOP furnished in different care
settings, we propose to adopt the same standards for RHCs and FQHCs
providing such services as described in section VIII.B.3 ``IOP
Certification and Plan of Care Requirements'' of this proposed rule.
Specifically, this would require physicians to certify that an
individual needs IOP services for a minimum of 9 hours per week and no
more than 19 hours per week, as set out in section 4124 of CAA, 2023.
This certification would require documentation to include that the
individual requires such services for a minimum of 9 hours per week;
require the first certification as of the 30th day of IOP services; and
require that the certification of IOP services occur no less frequently
than every other month. Accordingly, we propose to revise our
regulations at 42 CFR part 405, subpart X to specify that for the
purpose of furnishing IOP services RHCs and FQHCs must similarly meet
the certification and plan of care requirements at proposed Sec.
424.24(d).
Lastly, we propose to establish the same patient eligibility
criteria for intensive outpatient services as described in proposed
Sec. 410.44(c). Specifically, we propose that intensive outpatient
services are intended for patients who: (1) require a minimum of 9
hours per week of therapeutic services as evidenced in their plan of
care; (2) are likely to benefit from a coordinated program of services
and require more than isolated sessions of outpatient treatment; (3) do
not require 24-hour care; (4) have an adequate support system while not
actively engaged in the program; (5) have a mental health diagnosis;
(6) are not judged to be dangerous to self or others; and (7) have the
cognitive and emotional ability to participate in the active treatment
process and can tolerate the intensity of the intensive outpatient
program.
4. Special Payment Rules for Intensive Outpatient Services
Under Medicare Part B, payment to RHCs for services (defined in
Sec. 405.2411) furnished to beneficiaries is made on the basis of an
all-inclusive payment methodology subject to a maximum payment per-
visit and annual reconciliation. Our regulations at Sec. 405.2470
provide that RHCs are required to submit cost reports to allow the
Medicare Administrative Contractor (MAC) to determine payment in
accordance with 42 CFR part 405, subpart X, and instructions issued by
CMS. The beneficiary is responsible for the Medicare Part B deductible
and coinsurance amounts. Section 1866(a)(2)(A)(ii) of the Act and
implementing regulations at Sec. 405.2410(b) establish beneficiary
coinsurance at an amount not to exceed 20 percent of the clinic's
reasonable charges for covered services.
Under Medicare Part B, FQHCs are paid under the FQHC PPS for
services (defined in Sec. 405.2446) furnished to beneficiaries. The
statutory payment requirements for FQHC services are set forth at
section 1834(o) of the Act. In addition, section 1833(a)(1)(Z) to the
Act requires Medicare payment for FQHC services, determined under
section 1834(o) of the Act, to be 80 percent of the lesser of the
actual charge or the amount determined under section 1834(o) of the
Act. Under the FQHC PPS, FQHCs are paid based on the lesser of the
FQHC's actual charge for the service or the PPS rate (Sec.
405.2462(g)(1)). The FQHC PPS rate is subsequently adjusted for certain
circumstances as described under Sec. 405.2464(b)(2). The Medicare
Part B deductible does not apply to FQHC services. The beneficiary is
responsible for a coinsurance amount of 20 percent of the lesser of the
FQHC's actual charge for the service or the adjusted PPS rate.
As we discuss in the CY 2021 PFS final rule (85 FR 84699 through
84710), the FQHC PPS base payment is annually increased by the
percentage increase in the FQHC market basket, which reflects the
operating and capital cost structures for freestanding FQHC facilities.
Beginning with CY 2017, FQHC PPS payments were updated using a 2013-
based FQHC market basket. A complete discussion of the 2013-based FQHC
market basket can be found in the CY 2017 PFS final rule (81 FR 80393
through 80403). In the CY 2021 PFS final rule, we finalized the
rebasing and revising of the FQHC market basket to reflect a 2017 base
year. The 2017-based FQHC market basket is primarily based on Medicare
cost report data for freestanding FQHCs for 2017, which are for cost
reporting periods beginning on and after October 1, 2016, and prior to
September 31, 2017. We explained that we used data from cost reports
beginning in FY 2017 because these data were the latest available,
complete data for calculating the major cost weights for the market
basket at the time of rulemaking. We also explained that CMS updates
the market basket periodically so that the cost weights reflect a
current mix of goods and services purchased in providing FQHC services.
Seven FQHCs that have been determined to be grandfathered tribal
FQHCs and due to this designation are paid based on the lesser of the
outpatient per visit rate or their actual charges, as set out at Sec.
405.2462(f). As stated above, these grandfathered tribal FQHCs are paid
the outpatient per visit rate for furnishing FQHC services.
In addition to the normal package of services, RHCs and FQHCs
receive payment for certain additional services. In the CY 2022 PFS
final rule (86 FR 65205 through 65206), we implemented section 132 of
CAA, 2021, which amended section 1834(o) of the Act and added a new
section 1834(y) to the Act, to provide statutory authority for FQHCs
and RHCs, respectively, to receive payment for hospice attending
physician services. In the CY 2023 PFS final rule (87 FR 69463, 69737
through 69739) we implemented sections 304(b) and (c) of division P of
the CAA, 2022 (Pub. L. 117-103, March 15, 2022). Those subsections
modified sections 1834(y) and 1834(o)(4) of the Act, respectively, to
delay in-person visit requirements in order to for RHCs and FQHCs to
receive payment for mental health visits furnished via
telecommunications technology.
Section 4124(c) of the CAA, 2023 further amended section 1834(o) of
the Act and section 1834(y) of the Act, to provide special payment
rules for both FQHCs and RHCs, respectively, for furnishing intensive
outpatient services. Section 4124(c)(1) of the CAA, 2023 amended
section 1834(o) of the Act to add a new paragraph (5)(A) to require
that payment for IOP services furnished by FQHCs be equal to the amount
that would have been paid under Medicare for IOP services had they been
covered outpatient department services furnished by a hospital. In
addition, section 4124(c)(2) of the CAA, 2023 amended section 1834(y)
of the Act to add a new paragraph (3)(A) to require that payment for
IOP services furnished by RHCs be equal to the amount that would have
been paid under Medicare for IOP services had they been covered
outpatient department services furnished by a hospital.
Section VIII.D.3 of this proposed rule discusses the proposed CY
2024 payment rate methodology for IOP. We propose to establish two IOP
APC per diem payment rates for hospital-based IOPs (APC 5861 and APC
5862 for 3-service days and 4-service days, respectively). We believe
that it is appropriate to provide a payment structure that supports
beneficiaries in an IOP where the utilization is typically structured
to be days with three or fewer services. Therefore, we propose that the
[[Page 49717]]
rate determined for APC 5861 (Intensive Outpatient (3 services per day)
for hospital-based IOPs) would be the payment rate for IOP services
furnished in an RHC. For IOP services furnished in FQHCs, we propose
that that payment is based on the lesser of a FQHC's actual charges or
the rate determined for APC 5861. Additionally, we propose that
grandfathered tribal FQHCs will continue to have their payment based on
the outpatient per visit rate when furnishing IOP services. That is,
payment is based on the lesser of a grandfathered tribal FQHC's actual
charges or the outpatient per visit rate. We propose to revise
Sec. Sec. 405.2410, 405.2462 and 405.2464 in the regulations to
reflect the payment amount for IOP services and how the Medicare Part B
deductible and coinsurance are applied.
We solicit comment on whether the payment rate for IOP services
furnished in RHCs and FQHCs should be adjusted to reflect the
variations in costs of furnishing services in different geographic
areas and what approaches would be appropriate for determining the
value of the adjustment. We also solicit comment on whether the
hospital-based IOP APC 5862 for 4-service days would be appropriate for
RHCs and FQHCs.
In section VIII.C of this proposed rule, we discuss coding and
billing for PHP and IOP services under the OPPS. We explain that
beginning January 1, 2024, the hospital outpatient department and CMHCs
will be able to furnish items and services of both PHPs and IOPs. We
state that we believe it is appropriate to align these programs by
using a consolidated list of HCPCS codes would identify the full range
of services that both IOPs and PHPs provide to Medicare beneficiaries
for billing purposes. We explain that those settings paid under the
OPPS and that can furnish either PHP or IOP when submitting a claim to
CMS for payment would be required to report a new condition code 92 to
differentiate between PHP and IOP.
While RHCs and FQHCs are not authorized to furnish PHP services, we
propose to also require RHCs and FQHCs to report condition code 92 to
identify intensive outpatient claims. Since RHCs and FQHCs are paid
outside of the RHC AIR methodology and FQHC PPS, respectively, for IOP
services we believe the condition code reporting approach would allow
us to operationalize a 3 service per day payment amount using the final
list of HCPCS codes used to identify the full range of services for
IOP. The list of proposed HCPCS codes is included in Table 43. In
addition, we propose to align with the requirement under the OPPS,
which is in order to qualify for IOP payment, at least one service must
be from the Intensive Outpatient Primary list. Table 44 identifies the
proposed list of intensive outpatient primary services.
Section 4124(c)(1) of the CAA, 2023 amended section 1834(o) of the
Act to add a new paragraph (5)(B) to require that costs associated with
intensive outpatient services not be used to determine the amount of
payment for FQHC services under the FQHC PPS. Likewise, section
4124(c)(2) of the CAA, 2023 amended section 1834(y) of the Act to add a
new paragraph (3)(B) to require that costs associated with intensive
outpatient services not be used to determine the amount of payment for
RHC services under the methodology for all-inclusive rates (established
by the Secretary) under section 1833(a)(3) of the Act. We propose
conforming revisions under Sec. 405.2468. In addition, conforming
revisions will be made to the cost reporting instructions to account
for these changes.
c. FQHC Supplemental Payments
As discussed in the May 2, 2014 final rule with comment period (79
FR 25461), section 1833(a)(3)(B)(i)(II) of the Act requires that FQHCs
that contract with MA organizations be paid at least the same amount
they would have received for the same service under the FQHC PPS. This
provision ensures FQHCs are paid at least the Medicare amount for FQHC
services. Therefore, if the MA organization contract rate is lower than
the amount Medicare would otherwise pay for FQHC services, FQHCs that
contract with MA organizations would receive a wrap-around payment from
Medicare to cover the difference (see Sec. 422.316). If the MA
organization contract rate is higher than the amount Medicare would
otherwise pay for FQHC services, there is no additional payment from
Medicare. We believe that the special payment rule, is also included in
the FQHC PPS rate as described in section 1834(o) of the Act and
therefore, IOP services are included in the wrap-around payment. We
propose to make revisions under Sec. 405.2469 to reflect these
changes.
5. Multiple Visits
a. Background
Currently, RHC and FQHC encounters with more than one health
professional and multiple encounters with the same health professional
that take place on the same day and a single location constitute a
single visit, with the following exceptions:
A patient has a medical visit and a mental health visit on
the same day; or
A patient has an initial preventive physical exam visit
and a separate medical or mental health visit on the same day.
Since IOP services are behavioral health services, we do not
believe it would be appropriate to pay for a mental health visit and
IOP services on the same day. In the case of a medical visit, an
encounter can include a medical visit and a mental health visit or a
medical visit and IOP services. An encounter cannot include two mental
health visits on the same day. As such, we propose to make amend Sec.
405.2463(c) in the regulations to clarify that we will permit a mental
health visit or IOP services on the same day as a medical visit.
6. Other Regulatory Updates
In addition to the regulatory changes described in this section of
the rule, we propose a revision to Sec. 405.2400 to reflect that 42
CFR part 405, subpart X is based not only on the provisions of sections
1833, 1861(aa), 1834(o) of the Act but also the provisions under
section 1834(y) of the Act. We believe we inadvertently did not revise
the regulations when the CAA, 2021 amended section 1834 of the Act to
add new paragraph (y), as we discuss in the CY 2022 PFS final rule (86
FR 65205 through 65206).
G. Modifications Related to Medicare Coverage for Opioid Use Disorder
(OUD) Treatment Services Furnished by Opioid Treatment Programs (OTPs)
1. Background
Section 2005 of the Substance Use-Disorder Prevention that Promotes
Opioid Recovery and Treatment (SUPPORT) for Patients and Communities
Act (SUPPORT Act) (Pub. L. 115-271, October 24, 2018) established a new
Medicare Part B benefit category for OUD treatment services furnished
by OTPs during an episode of care beginning on or after January 1,
2020. In the CY 2020 Physician Fee Schedule (PFS) final rule (84 FR
62630 through 62677 and 84 FR 62919 through 62926), we implemented
Medicare coverage and provider enrollment requirements and established
a methodology for determining the bundled payments for episodes of care
for the treatment of OUD furnished by OTPs. We established new codes
for and finalized bundled payments for weekly episodes of care that
include methadone, oral
[[Page 49718]]
buprenorphine, implantable buprenorphine, injectable buprenorphine or
naltrexone, and non-drug episodes of care, as well as add-on codes for
intake and periodic assessments, take-home dosages for methadone and
oral buprenorphine, and additional counseling. For CY 2024, we propose
modifications to the regulations and policies governing Medicare
coverage and payment for OUD treatment services furnished by OTPs in
both this proposed rule as well as the CY 2024 PFS proposed rule.
2. Statutory Authority for Coverage of Opioid Use Disorder Treatment
Services Provided by OTPs
Intensive outpatient programs (IOPs) [American Society of Addiction
Medicine (ASAM) Level 2.1 of Care] are diverse and flexible programs
that can provide both a step-up and step-down level of care for the
treatment of substance use disorders. IOPs may offer a step-down level
of care in cases where a patient has been stabilized in a hospital
facility or residential treatment program but continues to need
services to maintain or achieve further treatment progress. IOPs also
offer a step-up level of care in cases where a patient may need a
higher level of care that is more structured or intensive than what can
be provided in a typical outpatient treatment setting that offers care
on a less frequent basis.\106\ IOPs can be housed in an OTP, specialty
addiction treatment facility, community mental health center (CHMC), or
another setting.\107\ According to the National Substance Use and
Mental Health Services Survey, as of 2021, approximately 557 OTPs offer
IOP services nationwide (30.1 percent of SUD treatment facilities
offering OTPs).\108\ Section 4124 of the CAA, 2023, which was enacted
on December 29, 2022, provides for Medicare coverage and payment for
IOP services in HOPDs, CMHCs, RHCs, and FQHCs. However, section 4124 of
the CAA, 2023 did not address coverage for IOP services furnished in
OTP settings.
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\106\ https://www.ncbi.nlm.nih.gov/books/NBK64088/.
\107\ The ASAM National Guideline for the Treatment of Opioid
Use Disorder (2020): https://sitefinitystorage.blob.core.windows.net/sitefinity-production-blobs/docs/default-source/guidelines/npg-jam-supplement.pdf?sfvrsn=a00a52c2_2.
\108\ Substance Abuse and Mental Health Services Administration,
National Substance Use and Mental Health Services Survey (N-SUMHSS),
2021: Annual Detailed Tables. Rockville, MD: Substance Abuse and
Mental Health Services Administration, 2023. Weblink: https://www.samhsa.gov/data/sites/default/files/reports/rpt39450/2021%20N-SUMHSS%20Annual%20Detailed%20Tables_508_Compliant_2_8_2023.pdf.
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Section 1861(jjj)(1) of the Act defines Opioid Use Disorder (OUD)
treatment services as items and services that are furnished by an OTP
for the treatment of opioid use disorder, including FDA-approved opioid
agonist and antagonist medications, dispensing and administration of
such medications, substance use counseling, individual and group
therapy, toxicology testing, and other items and services that the
Secretary determines are appropriate (not including meals or
transportation). For matters related to payment for OUD treatment
services, section 1834(w) of the Act establishes that the Secretary
shall pay bundled payments to OTPs when they furnish OUD treatment
services to an individual during an episode of care. Section 1834(w)(2)
of the Act states that for purposes of making payments to OTPs, the
Secretary may establish one or more bundles based on the type of
medication provided (such as buprenorphine, methadone, naltrexone, or a
new innovative drug), the frequency of services, the scope of services
furnished, characteristics of the individuals furnished such services,
or other factors as the Secretary determine[s] appropriate. We
interpret the statutory language at sections 1861(jjj) and 1834(w) of
the Act to grant the Secretary authority to establish more than one
bundled payment to OTPs for OUD treatment services furnished during an
episode of care provided that the scope of services is medically
reasonable and necessary for the treatment of OUD. In the CY 2020 PFS
final rule (84 FR 62644), we finalized a definition of OUD treatment
services as those items and services that are specifically enumerated
in section 1861(jjj)(1) of the Act and finalized the weekly bundled
payment for an episode of care. After considering public comments,
under the discretion granted to the Secretary under section
1861(jjj)(1)(F) of the Act, we also included additional items and
services, including intake activities and periodic assessments within
the definition of OUD treatment services specified in 42 CFR 410.67(b)
(84 FR 62634). In addition, under our authority under section 1834(w)
to create one or more bundled payments, we finalized that we would
utilize add-on codes as a way to operationalize the creation of more
than one bundled payment by making payment adjustments to the weekly
bundled payment for the additional items and services.
Furthermore, CMS aims to ensure that Medicare beneficiaries have
appropriate access to high quality care for the treatment of OUD, and
that services provided to treat SUD under the Medicare OTP benefit are
consistent with the services that are available in other settings
covered under Medicare Part B. For example, when CMS first established
payment policy for OTPs under Medicare Part B in the CY 2020 PFS final
rule (84 FR 62630 through 62677 and 84 FR 62919 through 62926), we
considered the available benefits payable under Medicare at that time
in determining what items to propose to include in the bundled payment
for OUD treatment services furnished by OTPs. In light of new
legislation (CAA, 2023) granting authority for Medicare payment of IOP
services provided by other types of health care providers, we believe
it is appropriate to revisit the range of services covered under the
current benefit for OUD treatment services furnished by OTPs.
In the CY 2023 PFS proposed rule, we solicited comments on whether
there is a gap in coding under the PFS or other Medicare payment
systems that may be limiting access to needed levels of care for
treatment of mental health or substance use disorder treatment for
Medicare beneficiaries (87 FR 45943 through 45944). Specifically, we
sought information on multiple issues, including whether there is a gap
in coding under Medicare payment systems that may be limiting access to
needed levels of care for treatment of SUD; the extent to which
potential gaps would best be addressed by the creation of new codes or
billing rules; additional information related to IOP services,
including their settings, scope and types of offered services, and
practitioners involved; and, other relevant information to the extent
it would inform our ability to ensure Medicare beneficiaries have
access to this care. In response, many commenters noted that IOPs serve
as a ``step-up'' level of care for individuals in need of more
services/supports, close monitoring, and structured therapy, but who
cannot stabilize at a lower level of care provided in an office
setting. Commenters also noted that IOPs simultaneously serve as a
``step-down'' level of care for individuals who have more stabilized
biomedical conditions and may no longer need to be hospitalized, but
cannot be discharged safely. Commenters mentioned that IOPs are
tailorable to patient characteristics and are often flexible in the
length, frequency, and days of treatment, but that typically patients
receive at least 9 hours a week of care. Moreover, commenters stated
that IOPs may be provided at stand-alone IOP facilities, OTPs, partial
hospitalization
[[Page 49719]]
programs, residential treatment centers, detoxification centers, or
within a private outpatient office setting. Commenters further
encouraged CMS to allow coverage for IOP services across the full
continuum of care settings, so that patients can receive the care they
need in the setting that is most clinically appropriate. Furthermore,
several commenters emphasized the importance of ensuring access to care
for IOP services provided in OTP settings. For example, one commenter
recommended ``that CMS also consider whether the agency has regulatory
authority to extend coverage of any new IOP billing codes to OTPs.''
Other commenters also preferred the IOP payment methodology to be
amenable and complementary to the weekly bundled payment of OTPs,
including a building block methodology with drug and non-drug
components, and add-on codes for greater clinical complexity. As a
whole, commenters were very receptive to expanding access to IOP
services in multiple settings of care, including within OTPs.
Addressing the opioid crisis by expanding coverage for quality
treatment options and reducing barriers to care continues to remain a
high priority for CMS. Across the U.S, the rates of OUD have increased
more than threefold and opioid-related mortality has increased by
almost 18 percent amongst older adults in the past decade.\109\ From
2015-2019, nearly 1.7 million (3 percent of all) Medicare beneficiaries
had a SUD, though only 11 percent of those beneficiaries received
treatment for their condition in a given year.\110\ Among Medicare
beneficiaries with a SUD, one-third reported that financial barriers
were a reason for not receiving treatment. Research from ASPE indicates
that health plans that offer coverage for a greater number of IOP
services per enrollee experience higher rates of SUD treatment
initiation and continued engagement within their enrollee
populations.\111\ This suggests that IOP services could result in an
increased rate of SUD treatment initiation and continued engagement.
Therefore, expanding access to IOP services in other settings and
reducing financial barriers to access to IOP services through coverage
could potentially increase the number of Medicare beneficiaries seeking
and completing treatment for a SUD, including among Medicare
beneficiaries who are members of populations that have historically
been less likely to receive such treatment. Studies have shown that
among individuals in need of SUD treatment, Hispanic, Black, and Asian
populations are less likely to receive outpatient SUD treatment for
their condition than their White counterparts, suggesting greater
barriers to treatment access for these populations.\112\ Other evidence
indicates that Black Americans significantly underutilize specialty SUD
treatment and are also less likely to complete their SUD treatment
programs compared to White Americans, but these disparities are reduced
when Black Americans have access to health insurance.\113\ This
evidence suggests that financial barriers impede initiation and
completion of SUD treatment; in turn, providing health insurance
coverage for SUD treatment services (such as IOP services) may lessen
the impact of these financial barriers for all Medicare beneficiaries,
including those who are more likely to experience these barriers. Some
evidence also shows that zip codes in the U.S. within which there is at
least one OTP tend to have a higher proportion of residents who are
minorities (Black and Hispanic) and a lower proportion of White
residents, compared to zip codes in the U.S without any OTPs,\114\ and
surveys of services provided by OTPs demonstrate that the majority of
OTPs (82.6 percent) conduct community outreach services to those in
need of treatment for OUD.\115\ This suggests that OTPs may be uniquely
positioned to reach minority populations in need of IOP services, which
would improve their access to SUD treatment services. In addition, from
2015 to 2019 and prior to implementation of the OTP benefit, Medicare
beneficiaries younger than 65 years old were more likely to receive SUD
treatment than those aged 65 years old or greater, due to more
beneficiaries over age 65 reporting they could not afford treatment or
that the treatment was not covered by Medicare or other insurance.\116\
Even after implementation of the OTP benefit, eliminating health
disparities in access to SUD treatment for this older age bracket
remains a priority. Therefore, we believe that expanding access to
coverage and payment under Medicare for IOP services provided by OTPs
may have a meaningful and positive impact on health equity, including
for Medicare beneficiaries that may face barriers in accessing
treatment, such as racial/ethnic minorities and/or beneficiaries aged
65 or older. Lastly, CMS' Behavioral Health Strategy includes multiple
stated goals and objectives to promote person-centered behavioral
health care.\117\ Expanding access to coverage and payment under
Medicare for IOP services provided by OTPs may help strengthen access
to SUD prevention, evidence-based treatment, and recovery services, as
well as advance the equity and quality of behavioral health services,
which are consistent with the goals of CMS' Behavioral Health Strategy.
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\109\ https://www.sciencedirect.com/science/article/pii/S0749379721000921?via%3Dihub.
\110\ https://doi.org/10.15585/mmwr.mm675152e1.
\111\ https://aspe.hhs.gov/sites/default/files/private/pdf/260791/BestSUD.pdf.
\112\ https://www.samhsa.gov/data/sites/default/files/reports/rpt35326/2021NSDUHSUChartbook102221B.pdf.
\113\ https://www.sciencedirect.com/science/article/pii/S0376871619302443.
\114\ https://pubmed.ncbi.nlm.nih.gov/36645315/.
\115\ https://www.samhsa.gov/data/sites/default/files/reports/rpt39450/2021%20N-SUMHSS%20Annual%20Detailed%20Tables_508_Compliant_2_8_2023.pdf.
\116\ https://www.sciencedirect.com/science/article/pii/S0749379722001040.
\117\ https://www.cms.gov/cms-behavioral-health-strategy.
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3. Proposal To Provide Coverage of IOP Services Furnished by OTPs
a. Proposal To Include IOP Services Furnished by OTPs in the Definition
of Opioid Use Disorder Treatment Services
In recognition of the evidence provided in the discussion above, we
understand that some Medicare beneficiaries may continue to face
barriers in accessing treatment for their OUD. Additionally, we note
that many OTPs nationwide already provide IOP services and that IOP
services can be effective in promoting greater treatment initiation and
engagement, which may improve health outcomes. For these reasons, and
in order to expand access to behavioral health treatment for Medicare
beneficiaries with OUD and ensure continuity of care between different
treatment settings and levels of care, CMS is proposing to establish
payment under Part B for IOP services furnished by OTPs for the
treatment of OUD for CY 2024 and subsequent years.
As explained previously, section 1861(jjj)(1) of the Act defines
Opioid Use Disorder (OUD) treatment services as items and services that
are furnished by an OTP for the treatment of opioid use disorder,
including FDA-approved opioid agonist and antagonist medications,
dispensing and administration of such medications, substance use
counseling, individual and group therapy, toxicology testing, and other
items and services that the Secretary determines are appropriate (not
including meals or transportation). IOP services are intended to treat
individuals with an acute mental illness and/or substance use disorder,
[[Page 49720]]
including those with an OUD. We believe that IOP services are similar
to the specific services enumerated in section 1861(jjj)(1) of the Act,
and the services and intensity of care required to provide intensive
outpatient services under Level 2.1 of the ASAM continuum of care are a
step-up from the services within the existing OTP benefit. The ASAM
criteria's strength-based multidimensional assessment takes into
account a patient's needs, obstacles and liabilities, as well as their
strengths, assets, resources, and support structure; this information
is used to determine the appropriate level of care across a
continuum.\118\ OTP services that are currently covered under the OTP
benefit are at the Outpatient (Level 1) level of care, whereas IOP
services are classified as Level 2.1 on ASAM's continuum of care.
Individuals who meet the criteria for IOP services generally require
more frequent and intensive services.
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\118\ https://www.asam.org/asam-criteria/about-the-asam-criteria.
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Because the Secretary has discretion under section 1861(jjj)(1)(F)
of the Act to add other items and services furnished by an OTP for the
treatment of OUD, as appropriate, we propose to add a new paragraph
(ix) to Sec. 410.67(b) defining a new category of services called
``OTP intensive outpatient services'' and incorporate OTP intensive
outpatient services in the definition of OUD treatment services that
are covered under the Part B OTP benefit. Specifically, we propose to
define OTP intensive outpatient services as those services specified in
proposed 42 CFR 410.44(a)(4) when furnished by an OTP as part of a
distinct and organized intensive ambulatory treatment program for the
treatment of Opioid Use Disorder and that offers less than 24-hour
daily care other than in an individual's home or in an inpatient or
residential setting. OTP intensive outpatient services are services
that are reasonable and necessary for the diagnosis or active treatment
of the individual's condition; are reasonably expected to improve or
maintain the individual's condition and functional level and to prevent
relapse or hospitalization; and are furnished in accordance with a
physician certification and plan of care. We propose that in order to
qualify as ``OTP intensive outpatient services,'' a physician must
certify that the individual has a need for such services for a minimum
of 9 hours per week and requires a higher level of care intensity
compared to existing OTP services. The specific services that we
propose would be considered OTP intensive outpatient services would
include any of the following:
Individual and group therapy with physicians or
psychologists or other mental health professionals to the extent
authorized under State law.
Occupational therapy requiring the skills of a qualified
occupational therapist, provided by an occupational therapist, or under
appropriate supervision of a qualified occupational therapist by an
occupational therapy assistant as specified in part 484 of this
chapter.
Services of social workers, trained psychiatric nurses,
and other staff trained to work with psychiatric patients.
Drugs and biologicals furnished for therapeutic purposes,
subject to the limitations specified in Sec. 410.29, excluding opioid
agonist and antagonist medications that are FDA-approved for use in
treatment of OUD or opioid antagonist medications for the emergency
treatment of known or suspected opioid overdose.
Individualized activity therapies that are not primarily
recreational or diversionary.
Family counseling, the primary purpose of which is
treatment of the individual's condition.
Patient training and education, to the extent the training
and educational activities are closely and clearly related to the
individual's care and treatment.
Diagnostic services that are reasonable and necessary for
the diagnosis or active treatment of the individual's condition, with
the exception of toxicology testing.
We propose to exclude FDA-approved opioid agonist or antagonist
medications for the treatment of OUD or opioid antagonist medications
for the emergency treatment of known or suspected opioid overdose,
specifically, methadone, buprenorphine, naltrexone and naloxone, from
the definition of OTP intensive outpatient services because these
medications are already included as part of the weekly bundled payment
for an episode of care or as an adjustment to the bundled payment.
However, we are soliciting comment on the types of drugs and
biologicals that are furnished as part of an IOP program (for example,
whether IOPs furnish drugs used for emergent interventions), and the
extent to which these drugs overlap with medications included in the
existing weekly bundles described by HCPCS codes G2067 through G2073
and/or add-on codes described by G2078 (take-home supply of methadone),
G2079 (take-home supply of oral buprenorphine), G2215 (take-home supply
of nasal naloxone), G2216 (take-home supply of injectable naloxone),
and G1028 (take-home supply of nasal naloxone; 2-pack of 8mg per 0.1 mL
nasal spray). This information will help to inform our consideration of
the extent to which the drugs and biologicals furnished as part of an
IOP program would already be covered under the drug component of the
weekly bundled payment and the existing add-on payments or would need
to be reflected in the proposed IOP add-on payment adjustment discussed
in the next section. Similarly, we propose to exclude toxicology
testing from the types of diagnostic services that would be included in
the definition of OTP intensive outpatient services because toxicology
testing is already included within the definition of opioid use
disorder treatment services and paid for as part of the weekly bundled
payment for an episode of care.
b. Proposal To Establish a Weekly Payment Adjustment for IOP Services
Furnished by OTPs
Section 1834(w)(2) of the Act provides discretion to implement one
or more payment bundles based on the frequency, scope and
characteristics of the individuals, and other factors as determined
appropriate. Currently, ASAM classifies OTP services as outpatient
treatment services (under Level 1 of the continuum of care), which are
typically provided for less than 9 hours a week, or as a step down from
intensive outpatient services, whereas intensive outpatient services
(under Level 2.1 of the continuum of care) are typically provided for
more than 9 hours a week and no more than 20 hours a week for adults
with more severe needs than those for whom treatment provided according
to Level 1 of the continuum of care is clinically appropriate.\119\ In
order to appropriately reflect the more intensive treatment profile for
those individuals receiving IOP services versus OTP services, we
propose to establish a weekly payment adjustment via an add-on code for
OTP intensive outpatient services, which is consistent with the weekly
bundled payment structure under the existing Medicare OTP benefit. We
believe that a code billed on a weekly basis may allow greater
flexibility with respect to how IOP services are rendered and how
service hours may be distributed over a given week to best meet patient
needs. Under this proposal, we propose that an OTP could bill for the
weekly add-on code for OTP intensive services in the same week for the
same beneficiary as
[[Page 49721]]
the existing coding describing a weekly OTP bundle, so long as all
applicable billing requirements for each code are met. However, we note
that under this proposal, each OTP intensive outpatient service must be
medically reasonable and necessary and not duplicative of any
service(s) for which OTPs received a bundled payments for an episode of
care in a given week.
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\119\ https://americanaddictioncenters.org/rehab-guide/asam-criteria-levels-of-care.
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For OTP intensive outpatient services, we propose to permit OTPs to
bill new HCPCS code GOTP1 (Intensive outpatient services; minimum of
nine services over a 7-contiguous day period, which can include
individual and group therapy with physicians or psychologists (or other
mental health professionals to the extent authorized under State law);
occupational therapy requiring the skills of a qualified occupational
therapist; services of social workers, trained psychiatric nurses, and
other staff trained to work with psychiatric patients; individualized
activity therapies that are not primarily recreational or diversionary;
family counseling (the primary purpose of which is treatment of the
individual's condition); patient training and education (to the extent
that training and educational activities are closely and clearly
related to individual's care and treatment); diagnostic services; list
separately in addition to code for primary procedure.
We propose to value HCPCS code GOTP1 based on an assumption of a
typical case of three IOP services furnished per day for approximately
3 days per week. In response to the comment solicitation on IOP
services in the CY 2023 PFS proposed rule, many commenters stated that
a typical IOP treatment plan requires at least 9 hours of skilled
treatment services per week, which would follow both the treatment
protocol advised by SAMHSA and ASAM level placement criteria.\120\
Moreover, the definition of intensive outpatient services in section
4124(b)(2)(B) of the CAA, 2023 specifies that in community mental
health centers, hospital-based IOPs, RHCs, and FQHCs, an individual in
need of IOP services must be certified by a physician to have a need
for such services for a minimum of 9 hours per week compared to a
minimum of 20 hours per week in a partial hospitalization service
treatment program. Thus, we believe that our assumption of 9 services
rendered per week would be consistent with the minimum requirement in
other care settings and existing clinical guidance. Therefore, we
propose to calculate the payment rate for add-on code GOTP1 based on 9
services per week. We welcome comments on whether an assumption of 9
services per week is representative of the typical number of services
furnished to patients with an OUD who receive IOP services at OTPs. We
propose that by billing HCPCS code GOTP1, the OTP would be attesting to
the fact that it has furnished at least nine services for that week
that would otherwise qualify as OTP intensive outpatient services as
discussed in section VIII.G.3.a of this proposed rule. We acknowledge
that not all OTP intensive outpatient services will necessarily be 60
minutes in duration, or be a time-based service, therefore, we propose
that furnishing nine OTP intensive outpatient services, regardless of
the length of each service, would meet the threshold to bill for HCPCS
code GOTP1. We note that this aspect of our proposal differs from the
proposed requirement for physician certification, discussed in section
VIII.G.3.c., Certification and Plan of Care Requirements for IOPs in
OTP settings, of this proposed rule, pursuant to which a physician must
certify that the individual requires nine hours of OTP intensive
outpatient services, and not simply nine OTP intensive outpatient
services.
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\120\ https://www.ncbi.nlm.nih.gov/books/NBK64088/;https://store.samhsa.gov/product/TIP-47-Substance-Abuse-Clinical-Issues-in-Intensive-Outpatient-Treatment/SMA13-4182.
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Under this proposal to establish a weekly add-on payment for OTP
intensive outpatient services, no single service may be counted more
than once for the purpose of meeting the criteria for billing for any
given code. In other words, the same service could not be used to
qualify to bill both the weekly bundle and the add-on payment
adjustment for OTP intensive outpatient services. Additionally, we
recognize that some services furnished as part of OTP intensive
outpatient services may be required multiple times a week (e.g.,
occupational therapy, patient education, family counseling, activity
therapies) to meet individual patient needs and varying clinical
complexity. Such services of the same type would be allowable to meet
the minimum of 9 services per week, provided that all services are
medically reasonable and necessary.
This proposal for the calculation of the payment rate for HCPCS
code GOTP1 is similar to the payment methodology proposed for IOP
services furnished in other settings. Please see a more detailed
discussion regarding this payment methodology at section VIII.D
``Proposed Payment Rate Methodology for PHP and IOP'' of this proposed
rule. We believe that calculating the payment rate for the proposed
add-on payment adjustment for OTP intensive outpatient services based
on the rate provided in a hospital setting would promote greater
consistency, site neutrality, and parity with payment rates proposed
for IOPs in a majority of other settings, including hospital-based
IOPs, FQHCs, and RHCs.
Since IOP services have not been covered or paid under Medicare to
date, CMS does not have direct data to estimate utilization and costs
of IOP services. However, many of the items and services included in
IOP services have been and are currently paid for by Medicare as part
of the PHP benefit or under the OPPS more generally. Therefore, in our
preliminary ratesetting exercise, we identified, in consultation with
clinicians, a list of HCPCS codes for services that would be reasonably
included as part of IOP services. Please see a more comprehensive list
of these HCPCS codes used to inform the payment methodology during our
preliminary ratesetting exercise in Table 43 within section VIII.C
``Coding and Billing for PHP and IOP Services under the OPPS'' of this
proposed rule. The inclusion of many of these services was informed by
comments we received in response to comment solicitations in the CY
2023 OPPS/ASC and PFS proposed rules. For example, some of these codes
correspond to services for individual and group therapy, occupational
therapy, individualized activity therapies, family counseling, and
patient training and education.
For the majority of these identified HCPCS codes, the most recent
utilization data available was for OPPS claims paid for dates of
service in CY 2022, and the most recent cost data available was from
the cost reports in CY 2021. Based on this cost and utilization data
from CY 2021 and CY 2022, respectively, the estimated payment rate for
3-services per day based on APC 5861 (Intensive Outpatient (1-3
services) for Hospital-based IOPs) was $280.80; 3 services per day for
3 days a week would therefore be equal to $842.40. Because we are
proposing that OTP intensive outpatient services include individual and
group therapy, which are also already included in the non-drug
component of the OTP bundled payments for an episode of care, we
propose to subtract the amount that corresponds to the individual and
group therapy proposed rate in the non-drug component of the OTP
bundled payment from our estimate of $842.40 in order to establish the
amount of the OTP intensive outpatient services add-on payment.
Specifically, in the CY 2020 PFS final rule (84 FR 62658), we finalized
a
[[Page 49722]]
building block methodology to calculate the rate for the non-drug
component based on established non-facility rates for similar services
under the Medicare PFS, the Medicare CLFS, and state Medicaid programs.
For group therapy, we used CPT code 90853 (Group psychotherapy (other
than of a multiple-family group)) as a reference code, which at the
time of drafting the CY 2020 PFS final rule, in CY 2019, was assigned a
non-facility rate of $27.39. In order to account for the application of
the annual update to the non-drug component, the adjusted amount for
group psychotherapy is currently $28.36. For individual therapy, in the
CY 2023 PFS final rule (87 FR 69773), we finalized an update to the
reference code used in the non-drug component to be based on the CY
2019 non-facility rate for CPT code 90834 (Psychotherapy, 45 minutes
with patient), which was $91.18, and which we adjusted to account for
the application of the annual update in the intervening years,
resulting in $94.37. Therefore, we propose an add-on payment adjustment
of approximately $719.67 for HCPCS code GOTP1 ($842.40-($28.36 +
$94.37)). We seek comment on whether the proposed add-on payment
adjustment accurately reflects the typical resource costs involved in
furnishing IOP services at OTPs. We also seek comment on our proposal
to adjust the proposed add-on payment adjustment to account for
individual and group therapy included in the non-drug component of OTP
bundled payments for an episode of care.
In accordance with the methodology used to update the payment rate
for other services payable under the OTP benefit, we propose to apply
an annual update based on the percentage increase in the Medicare
Economic Index (MEI) to the payment rate HCPCS code GOTP1, as described
in Sec. 414.30. Additionally, consistent with the methodology used to
determine payment for non-drug services furnished under the OTP
benefit, we propose to apply a geographic adjustment to the payment for
HCPCS code GOTP1 based on the Geographic Adjustment Factor, as
described in Sec. 414.26. Furthermore, consistent with the policy that
applies for other OUD treatment services furnished by OTPs, a
beneficiary copayment amount of zero would apply for OTP intensive
outpatient services. Lastly, we are also seeking comment on the impact
this proposal may have on dually eligible individuals, specifically,
the extent to which this expanded coverage and payment may supplant
Medicaid coverage for dually eligible individuals, versus the extent to
which it would supplement Medicaid if it were fundamentally different
from what Medicaid covers in a given state.
We recognize that in this proposed rule, we propose to adopt per
diem rates for IOP services furnished in other settings, including
CMHCs, hospital-based settings, FQHCs, and RHCs, and that per diem
rates are used in the payment methodology for IOP services in some
state Medicaid programs. Therefore, we are also seeking comment on
whether a daily per diem rate based on 3 service hours per day would be
more appropriate for OTP settings, especially if one payment
methodology over the other would be less disruptive to OTPs as it
relates to coordination of benefits. Lastly, we are seeking feedback
about the experiences of furnishing IOP services within OTP settings,
including the extent to which it is similar to or different than
furnishing IOP services in other settings. We believe this additional
information may be helpful to understand the clinical complexity of
patients enrolled in OTPs who are in need of IOP services for OUD and
to compare the level of care and type of services that may supplement
and/or exceed those ordinarily provided under the existing OTP benefit,
in order to help inform potential future rulemaking on this topic.
We propose to add a new paragraph (iv) to Sec. 410.67(d)(4)(i)(F)
in order to describe the new adjustment to the bundled payment for OTP
intensive outpatient services. Additionally, we propose to amend Sec.
410.67(d)(4)(ii) to add that the payment amounts for OTP intensive
outpatient services will be geographically adjusted using the
Geographic Adjustment Factor described in Sec. 414.26. Lastly, we
propose to amend Sec. 410.67(d)(4)(iii) to add that payment for OTP
intensive outpatient services will be updated annually using the
Medicare Economic Index described in Sec. 405.504(d).
c. Certification and Plan of Care Requirements for IOPs in OTP Settings
In order to be consistent with physician certification and plan of
care requirements for IOP services furnished in other settings of care
and to ensure, to the extent possible, that IOP services are only
provided and paid for when medically necessary and appropriate for the
beneficiary, we propose to adopt the same standards set forth in Sec.
424.24(d)(1) through (3) for OTPs providing OTP intensive outpatient
services (please see more detailed discussions of these proposed
standards in section VIII.B.3, IOP Certification and Plan of Care
Requirements, of this proposed rule. Specifically, under this proposal,
a physician would be required to certify that an individual needs OTP
intensive outpatient services for a minimum of 9 hours per week, which
is consistent with treatment standards specified by SAMHSA and minimum
hour standards described by ASAM's Level 2.1 of care for IOP
services.\121\ This certification would require documentation in the
patient's medical record to include that the individual requires such
services for a minimum of 9 hours per week; require the first
recertification as of the 30th day of IOP services; and require that
the certification of IOP services occur no less frequently than every
other month. Accordingly, we propose to revise Sec. 410.67(c) of our
regulations to add a paragraph (5) to specify that OTPs must furnish
OTP intensive outpatient services consistent with the requirements
regarding content of certification, plan of treatment requirements, and
recertification requirements as set forth under proposed Sec.
424.24(d)(1) through (3).
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\121\ https://www.ncbi.nlm.nih.gov/books/NBK64088/; https://store.samhsa.gov/product/TIP-47-Substance-Abuse-Clinical-Issues-in-Intensive-Outpatient-Treatment/SMA13-4182.
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Regarding the recertification requirements, given that OTP services
are billed on a weekly basis, we propose that the required
recertification could occur any time during an episode of care in which
the 30th day from the start of IOP services (and every other month
thereafter) falls. We note that in the CY 2020 PFS final rule (84 FR
62641), we defined an episode of care as a 1-week (contiguous 7-day)
period at Sec. 410.67(b). In the CY 2021 PFS final rule (85 FR 84691),
we clarified that OTPs may choose to apply a standard billing cycle by
setting a particular day of the week to begin all episodes of care, or
they may choose to adopt weekly billing cycles that vary across
patients, and we propose to adopt the same approach here. We welcome
comments on these proposals.
We note that this proposal requires that the physician certify a
need for at least 9 hours of services per week, which differs from our
proposal that in order to bill for the add-on payment adjustment for
OTP intensive outpatient services, the OTP must attest that it provided
9 such services to the beneficiary in a week. Given that services can
vary in duration and that some services are not time-based, we believe
it would be administratively simpler for OTPs to count the number of
services furnished rather than to
[[Page 49723]]
count the number of hours for purposes of billing the add-on payment
adjustment for OTP intensive outpatient services. Additionally, as
described in Section VIII.G.3.b., our proposed payment rate is based on
the number of services furnished per day, rather than the number of
hours, consistent with the proposals for IOP payment in other settings.
In contrast, for the purposes of certification and plan of care
requirements for IOPs in OTP settings, we believe that requiring a
physician to certify that a beneficiary requires a minimum of 9 hours
of services per week is consistent with existing clinical guidance
describing the intensity of care for IOP services.\122\ Additionally, a
minimum of 9 hours of services per week is consistent with proposals
for the certification and plan of care requirements for IOPs in other
care settings. We welcome comments on both of these proposals,
including whether this distinction accurately reflects the practice
patterns of OTPs furnishing IOP services.
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d. Correction to the OTP Regulation Text
We also propose to correct a typographical error at Sec.
410.67(d)(3), which currently states ``At least one OUD treatment
service described in paragraphs (b)(1) through (5) of this section must
be furnished to bill for the bundled payment for an episode of care.''
This provision should refer to paragraphs (i) through (v) of the
definition of OUD treatment service in paragraph (b). Accordingly, we
propose to correct this sentence to read, ``At least one OUD treatment
service described in paragraphs (i) through (v) of the definition of
Opioid use disorder treatment service in paragraph (b) of this section
must be furnished to bill for the bundled payment for an episode of
care.''
H. Payment Rates Under the Medicare Physician Fee Schedule for
Nonexcepted Items and Services Furnished by Nonexcepted Off-Campus
Provider-Based Departments of a Hospital
1. Background
In the CY 2017 OPPS/ASC final rule with comment period (81 FR
79727) in the discussion of the proposed implementation of section 603
of the Bipartisan Budget Act (BBA) of 2015 (Pub. L. 114-74, November 2,
2015), we established the PHP payment rate under the Medicare Physician
Fee Schedule (MPFS) for nonexcepted off-campus PBDs as equivalent to
the level of payment made to CMHCs for furnishing three or more PHP
services per day. We noted that when a beneficiary received outpatient
services in an off-campus department of a hospital, the total Medicare
payment for those services is generally higher than when those same
services are provided in a physician's office. Similarly, when partial
hospitalization services are provided in a hospital-based PHP, Medicare
pays more than when those same services are provided by a CMHC. Our
rationale for adopting the CMHC per diem rate for APC 5853 as the MPFS
payment amount for nonexcepted PBDs providing PHP services was because
CMHCs are freestanding entities that are not part of a hospital, but
they provide the same PHP services as hospital-based PHPs. This is
similar to the differences between freestanding entities paid under the
MPFS that furnish other services also provided by hospital-based
entities. Similar to other entities currently paid for their technical
component services under the MPFS, we believe CMHCs would typically
have lower cost structures than hospital-based PHPs, largely due to
lower overhead costs and other indirect costs such as administration,
personnel, and security. We explained that we believe that paying for
nonexcepted hospital-based partial hospitalization services at the
lower CMHC per diem rate aligns with section 603 of the BBA of 2015,
while also preserving access to PHP services.
2. Proposed Payment for PHP and IOP Furnished by Nonexcepted Off-Campus
Hospital Outpatient Departments
As discussed in section VIII.D of this proposed rule, we propose to
change our methodology for calculating PHP payment rates by
establishing separate payment rates for 3-service and 4-service days.
We also propose to establish IOP payment rates for 3-service and 4-
service days beginning in CY 2024. Because CMHCs have different cost
structures than hospitals, we propose to establish separate CMHC and
hospital rates for 3-service and 4-service PHP and IOP days. We propose
to utilize the CMHC rates for PHP and IOP as the payment rates for PHP
and IOP services furnished by nonexcepted off-campus hospital
outpatient departments. Specifically, we propose to utilize the
separate CMHC rates for 3-service and 4-service PHP days as the MPFS
rates, depending upon whether a nonexcepted off-campus hospital
outpatient department furnishes 3 or 4 PHP services in a day.
Similarly, we also propose to utilize the CMHC rates for 3-service and
4-service IOP days as the MPFS rates, depending upon whether a
nonexcepted hospital outpatient department furnishes 3 or 4 IOP
services in a day.
As discussed in section VIII.D of this proposed rule, we are
soliciting comment on our proposed payment rates for PHP and IOP
services, as well as whether commenters believe it would be appropriate
to consider establishing a combined rate for 3-service days in
hospitals and CMHCs, and a combined rate for 4-service days in
hospitals and CMHCs. We are considering whether it would be appropriate
to apply a different methodology for calculating the PHP and IOP rates
for nonexcepted off-campus hospital outpatient departments and we
solicit comments on alternative methodologies commenters believe would
be appropriate. For example, we are considering whether it would be
appropriate to apply the PFS Relativity Adjuster of 40 percent, which
was established in the CY 2018 PFS rule (82 FR 53030) and which applies
to most other nonexcepted OPPS services furnished by a nonexcepted off-
campus hospital outpatient department. Depending on the comments we
receive, we may finalize an alternative methodology such as the PFS
Relativity Adjuster. We note that if we were to adopt such a
methodology, we would apply it to both PHP and IOP services.
IX. Services That Will Be Paid Only as Inpatient Services
A. Background
Established in rulemaking as part of the initial implementation of
the OPPS, the inpatient only (IPO) list identifies services for which
Medicare will only make payment when the services are furnished in the
inpatient hospital setting because of the invasive nature of the
procedure, the underlying physical condition of the patient, or the
need for at least 24 hours of postoperative recovery time or monitoring
before the patient can be safely discharged (70 FR 68695). The IPO list
was created based on the premise (rooted in the practice of medicine at
that time), that Medicare should not pay for procedures furnished as
outpatient services that are performed on an inpatient basis virtually
all of the time for the Medicare population, for the reasons described
above, because performing these procedures on an outpatient basis would
not be safe or appropriate, and therefore not reasonable and necessary
under Medicare rules (63 FR 47571). Services
[[Page 49724]]
included on the IPO list were those determined to require inpatient
care, such as those that are highly invasive, result in major blood
loss or temporary deficits of organ systems (such as neurological
impairment or respiratory insufficiency), or otherwise require
intensive or extensive postoperative care (65 FR 67826). There are some
services designated as inpatient only that, given their clinical
intensity, would not be expected to be performed in the hospital
outpatient setting. For example, we have traditionally considered
certain surgically invasive procedures on the brain, heart, and
abdomen, such as craniotomies, coronary-artery bypass grafting, and
laparotomies, to require inpatient care (65 FR 18456). Designation of a
service as inpatient only does not preclude the service from being
furnished in a hospital outpatient setting but rather means that
Medicare will not make payment for the service if it is furnished to a
Medicare beneficiary in the hospital outpatient setting (65 FR 18443).
Conversely, the fact that a procedure is not on the IPO list should not
be interpreted to mean the procedure is only appropriately performed in
the hospital outpatient setting (70 FR 68696).
As part of the annual update process, we have historically worked
with interested parties, including professional societies, hospitals,
surgeons, hospital associations, and beneficiary advocacy groups, to
evaluate the IPO list and to determine whether services should be added
to or removed from the list. Interested parties are encouraged to
request reviews for a particular code or group of codes; and we have
asked that their requests include evidence that demonstrates that the
procedure was performed on an outpatient basis in a safe and
appropriate manner in a variety of different types of hospitals--
including but not limited to--operative reports of actual cases, peer-
reviewed medical literature, community medical standards and practice,
physician comments, outcome data, and post-procedure care data (67 FR
66740).
We traditionally have used five longstanding criteria to determine
whether a procedure should be removed from the IPO list. As noted in
the CY 2012 OPPS/ASC final rule with comment period (76 FR 74353), we
assessed whether a procedure or service met these criteria to determine
whether it should be removed from the IPO list and assigned to an APC
group for payment under the OPPS when provided in the hospital
outpatient setting. We have explained that while we only require a
service to meet one criterion to be considered for removal, satisfying
only one criterion does not guarantee that the service will be removed;
instead, the case for removal is strengthened with the more criteria
the service meets. The criteria for assessing procedures for removal
from the IPO list are the following:
1. Most outpatient departments are equipped to provide the services
to the Medicare population.
2. The simplest procedure described by the code may be furnished in
most outpatient departments.
3. The procedure is related to codes that we have already removed
from the IPO list.
4. A determination is made that the procedure is being furnished in
numerous hospitals on an outpatient basis.
5. A determination is made that the procedure can be appropriately
and safely furnished in an ASC and is on the list of approved ASC
services or has been proposed by us for addition to the ASC covered
procedures list.
In the past, we have requested that interested parties submit
corresponding evidence in support of their claims that a code or group
of codes met the longstanding criteria for removal from the IPO list
and was safe to perform on the Medicare population in the hospital
outpatient setting--including, but not limited to case reports,
operative reports of actual cases, peer-reviewed medical literature,
medical professional analysis, clinical criteria sets, and patient
selection protocols. Our clinicians then thoroughly review all
information submitted within the context of the established criteria
and if, following this review, we determine that there is sufficient
evidence to confirm that the code could be safely and appropriately
performed on an outpatient basis, we assign the service to an APC and
include it as a payable procedure under the OPPS (67 FR 66740). We
determine the APC assignment for services removed from the IPO list by
evaluating the clinical similarity and resource costs of the service
compared to other services paid under the OPPS and review the Medicare
Severity Diagnosis Related Groups (MS-DRG) rate for the service under
the IPPS, though we note we would generally expect the cost to provide
a service in the outpatient setting to be less than the cost to provide
the service in the inpatient setting.
We stated in prior rulemaking that, over time, given advances in
technology and surgical technique, we would continue to evaluate
services to determine whether they should be removed from the IPO list.
Our goal is to ensure that inpatient only designations are consistent
with the current standards of practice. We have asserted in prior
rulemaking that, insofar as advances in medical practice mitigate
concerns about these procedures being performed on an outpatient basis,
we would be prepared to remove procedures from the IPO list and provide
for payment for them under the OPPS (65 FR 18443). Further, CMS has at
times had to reclassify codes as inpatient only services with the
emergence of new information.
We refer readers to the CY 2012 OPPS/ASC final rule with comment
period (76 FR 74352 through 74353) for a full discussion of our
historic policies for identifying services that are typically provided
only in an inpatient setting and that, therefore, will not be paid by
Medicare under the OPPS, as well as the criteria we have used to review
the IPO list to determine whether any services should be removed.
B. Changes to the Inpatient Only (IPO) List
As stated above, we encourage interested parties to request reviews
for a particular code or group of codes for removal from the IPO list.
For CY 2024, we received several requests from interested parties
recommending particular services to be removed from the IPO list.
Following our clinical review, we did not find sufficient evidence
that, using the five criteria listed above, these services meet the
criteria to be removed from the IPO list for CY 2024. Therefore, we are
not proposing to remove any services from the IPO list for CY 2024.
We propose to add nine services for which codes were newly created
by the AMA CPT Editorial Panel for CY 2024 to the IPO list. These new
services are described by the placeholder CPT codes X114T, 2X002,
2X003, 2X004, 619X1, 7X000, 7X001, 7X002, and 7X003, which will be
effective on January 1, 2024. After clinical review of these services,
we found that they require a hospital inpatient admission or stay and
thus, we believe they are not appropriate for payment under the OPPS.
We propose to assign these services to status indicator ``C''
(Inpatient Only) for CY 2024. Additionally, we propose to reassign CPT
code 0646T from status indicator ``E1'' (not payable by Medicare) to
``C,'' effective CY 2024. The CPT codes, long descriptors, and the
proposed CY 2024 payment indicators are displayed in Table 47.
Table 47 below contains the proposed changes to the IPO list for CY
2024. The
[[Page 49725]]
complete list of codes describing services that are proposed to be
designated as inpatient only services beginning in CY 2024 is also
included as Addendum E to this proposed rule, which is available via
the internet on the CMS website.
BILLING CODE 4120-01-P
[GRAPHIC] [TIFF OMITTED] TP31JY23.076
[[Page 49726]]
BILLING CODE 4120-01-C
C. Solicitation of Public Comments on the Services Described by CPT
Codes 43775, 43644, 43645, and 44204
We are soliciting comments regarding whether the services described
by CPT codes 43775 (Laparoscopy, surgical, gastric restrictive
procedure; longitudinal gastrectomy (i.e., sleeve gastrectomy)), 43644
(Laparoscopy, surgical, gastric restrictive procedure; with gastric
bypass and roux-en-y gastroenterostomy (roux limb 150 cm or less)),
43645 (Laparoscopy, surgical, gastric restrictive procedure; with
gastric bypass and small intestine reconstruction to limit absorption),
and 44204 (Laparoscopy, surgical; colectomy, partial, with anastomosis)
are appropriate to be removed from the IPO list. At this time, we do
not believe that we have adequate information to determine whether the
services described by CPT codes 43775, 43644, 43645, and 44204 can be
safely performed in the hospital outpatient department setting on the
Medicare population. Therefore, we are specifically requesting
information on evidence that these services can be performed safely on
the Medicare population in the outpatient setting. We are also seeking
public comments on whether the services described by CPT codes 43775,
43644, 43645, and 44204 specifically meet any of the five criteria to
be removed from the IPO list mentioned above.
X. Proposed Nonrecurring Policy Changes
A. Supervision by Nurse Practitioners, Physician Assistants, and
Clinical Nurse Specialists of Cardiac Rehabilitation, Intensive Cardiac
Rehabilitation, and Pulmonary Rehabilitation Services Furnished to
Hospital Outpatients
1. Background
Section 51008(a) of the Bipartisan Budget Act of 2018 (BBA of 2018)
(Pub. L. 115-123) amended section 1861(eee)(1) and (2) of the Act to
revise the definitions of cardiac rehabilitation (CR) program and
intensive cardiac rehabilitation (ICR) program, respectively, to
provide that services these programs furnish can be under the
supervision of a physician assistant (PA), nurse practitioner (NP), or
clinical nurse specialist (CNS). Section 51008(b) of the BBA of 2018
amended section 1861(fff)(1) of the Act similarly to revise the
definition of a pulmonary rehabilitation (PR) program to provide that
PR services can be furnished under the supervision of these same types
of practitioners. Section 51008(c) of the BBA of 2018 provides that
these amendments apply to items and services furnished on or after
January 1, 2024. Before the effective date of these amendments, only
physicians could supervise services furnished as part of CR, ICR, and
PR programs.
To implement these amendments, we propose in the CY 2024 PFS
proposed rule to revise the regulations at 42 CFR 410.47 and 410.49,
which describe the conditions of coverage for the CR, ICR and PR
programs, to provide that physician assistants, nurse practitioners,
and clinical nurse specialists can supervise CR, ICR and PR program
services. Specifically, the CY 2024 PFS proposed rule proposes to amend
Sec. Sec. 410.47 and 410.49 to provide that supervision of pulmonary
rehabilitation, cardiac rehabilitation and intensive cardiac
rehabilitation services can be provided by a physician, PA, NP, or CNS.
2. Proposed Conforming Revisions to Sec. 410.27
Correspondingly, to implement the amendments to section
1861(eee)(1) and (2) and (fff) of the Act, and to be consistent with
the proposed revisions to Sec. 410.47 and Sec. 410.49, we propose to
make conforming revisions to Sec. 410.27, which describes the
conditions for coverage for therapeutic outpatient hospital or CAH
services and supplies provided incident to a physician's or
nonphysician practitioner's service.
Currently, Sec. 410.27(a)(1)(iv)(B)(1) provides that for PR, CR,
and ICR services, direct supervision must be furnished by a doctor of
medicine or osteopathy as specified in Sec. Sec. 410.47 and 410.49. We
propose to delete the reference to a doctor of medicine or osteopathy
and retain the cross-reference to Sec. Sec. 410.47 and 410.49. As the
text remaining following this deletion would consist solely of cross-
references to the newly revised Sec. Sec. 410.47 and 410.49, this
would have the effect of expanding who may provide supervision for CR,
ICR and PR to include PAs, NPs, and CNSs for purposes of supervision of
PR, CR, and ICR services under Sec. 410.27.
In the interim final rule with comment period titled ``Policy and
Regulatory Provisions in Response to the COVID-19 Public Health
Emergency,'' published on April 6, 2020 (the April 6th COVID-19 IFC)
(85 FR 19230, 19246, 19286), we changed the regulation at 42 CFR
410.27(a)(1)(iv)(D) to provide that, during a Public Health Emergency
as defined in 42 CFR 400.200, the presence of the physician for
purposes of the direct supervision requirement for PR, CR, and ICR
services includes virtual presence through audio/video real-time
communications technology when use of such technology is indicated to
reduce exposure risks for the beneficiary or health care provider.
Specifically, the required direct physician supervision can be provided
through virtual presence using audio/video real-time communications
technology (excluding audio-only) subject to the clinical judgment of
the supervising practitioner. We further amended Sec.
410.27(a)(1)(iv)(D) in the CY 2021 OPPS/ASC final rule with comment
period to provide that this flexibility continues until the later of
the end of the calendar year in which the PHE as defined in Sec.
[thinsp]400.200 ends or December 31, 2021 (85 FR 86113 and 86299). In
the CY 2021 OPPS/ASC final rule with comment period we also clarified
that this flexibility excluded the presence of the supervising
practitioner via audio-only telecommunications technology (85 FR
86113).
In the CY 2022 PFS final rule, CMS added CPT codes 93797 (Physician
or other qualified health care professional services for outpatient
cardiac rehabilitation; without continuous ECG monitoring (per
session)) and 93798 (Physician or other qualified health care
professional services for outpatient cardiac rehabilitation; with
continuous ECG monitoring (per session)) and HCPCS codes G0422
(Intensive cardiac rehabilitation; with or without continuous ecg
monitoring with exercise, per session) and G0423 (Intensive cardiac
rehabilitation; with or without continuous ecg monitoring; without
exercise, per session) to the Medicare Telehealth Services List on a
Category 3 basis (86 FR 65055).
In order to effectuate a similar policy under the OPPS, where PR,
CR, and ICR rehabilitation services could be furnished during the PHE
to beneficiaries in hospitals under direct supervision of a physician
where the supervising practitioner is immediately available to be
present via two-way, audio/video communications technology, in the CY
2023 OPPS/ASC final rule with comment period, we finalized a policy to
extend the revised definition of direct supervision to include the
presence of the supervising practitioner through two-way, audio/video
telecommunications technology until December 31, 2023 (87 FR 72019
through 72020). Under the telehealth flexibilities extended in the CAA,
2023, these services will remain on the Medicare Telehealth Services
List through the end of CY 2024. In the interest of maintaining similar
policies for direct supervision of PR, CR, and
[[Page 49727]]
ICR under the OPPS and PFS, we propose to further revise Sec.
410.27(a)(1)(iv)(B)(1) to allow for the direct supervision requirement
for CR, ICR, and PR to include virtual presence of the physician
through audio-video real-time communications technology (excluding
audio-only) through December 31, 2024 and extend this policy to the
nonphysician practitioners, that is NPs, PAs, and CNSs, who are
eligible to supervise these services in CY 2024. We are also soliciting
comments on whether there are safety and/or quality of care concerns
regarding adopting this policy beyond the current or proposed
extensions and what policies CMS could adopt to address those concerns
if the policy were extended beyond 2023.
For the complete discussion of the proposed revisions to Sec.
410.47 and Sec. 410.49, we refer readers to the CY 2024 PFS proposed
rule that is published elsewhere in the Federal Register.
B. Payment for Intensive Cardiac Rehabilitation Services (ICR) Provided
by an Off-Campus, Non-Excepted Provider Based Department (PBD) of a
Hospital
1. Background on Intensive Cardiac Rehabilitation
Section 144(a) of the Medicare Improvements for Patients and
Providers Act of 2008 (MIPPA) (Pub. L. 110-275) made a number of
changes to the Act related to coverage and payment for pulmonary and
cardiac rehabilitation services furnished to beneficiaries with chronic
obstructive pulmonary disease and certain other conditions, effective
January 1, 2010. Specifically, section 144(a)(1)(A) of MIPPA amended
section 1861(s)(2) of the Act by adding new subparagraphs (CC) and (DD)
to provide for Medicare Part B coverage of items and services furnished
under a cardiac rehabilitation (CR) program (as defined in a new
section 1861(eee)(1) of the Act); a pulmonary rehabilitation (PR)
program (as defined in a new section 1861(fff)(1) of the Act); and an
intensive cardiac rehabilitation (ICR) program (as defined in a new
section 1861(eee)(4) of the Act). The amendments made by section 144(a)
of MIPPA provide for coverage of CR, PR, and ICR program services
provided in a physician's office, in a hospital on an outpatient basis,
and in other settings determined appropriate by the Secretary.
Section 144(a)(2) of MIPPA amended section 1848(j)(3) of the Act to
provide for payment for services furnished in an ICR program under the
PFS and also added a new paragraph (5) to section 1848(b) of the Act.
Section 1848(b)(5)(A) requires the Secretary for ICR program services
to substitute the Medicare OPD fee schedule amount established under
the OPPS for cardiac rehabilitation (under HCPCS codes 93797 and 93798
for calendar year 2007, or any succeeding HCPCS codes for cardiac
rehabilitation). For a full discussion of implementation of the MIPPA
amendments related to coverage and payment for PR, CR, and ICR programs
under the OPPS, we refer readers to the CY 2010 OPPS/ASC final rule
with comment period (74 FR 60566 through 60574).
2. Background on Section 603 of the Bipartisan Budget Act of 2015 and
the PFS Relativity Adjuster
Section 603 of the Bipartisan Budget Act of 2015 (Pub. L. 114-74)
(BBA, 2015) (hereinafter referred to as ``section 603'') amended
section 1833(t) of the Act by adding a new clause (v) to paragraph
(1)(B) and adding a new paragraph (21). As a general matter, under
sections 1833(t)(1)(B)(v) and (t)(21) of the Act, applicable items and
services furnished by certain off-campus outpatient departments of a
provider on or after January 1, 2017, are not considered covered OPD
services as defined under section 1833(t)(1)(B) of the Act for purposes
of payment under the OPPS and are instead paid ``under the applicable
payment system'' under Medicare Part B if the requirements for such
payment are otherwise met. Section 603 amended section 1833(t)(1)(B) of
the Act by adding a new clause (v), which excludes from the definition
of ``covered OPD services'' applicable items and services (defined in
paragraph (21)(A) of the section) that are furnished on or after
January 1, 2017, by an off-campus PBD, as defined in paragraph (21)(B)
of the section.
In the CY 2017 OPPS/ASC final rule with comment period (81 FR 79699
through 79719), we adopted a number of policies to implement section
603. Broadly, we: (1) defined applicable items and services in
accordance with section 1833(t)(21)(A) of the Act for purposes of
determining whether such items and services are covered OPD services
under section 1833(t)(1)(B)(v) of the Act or whether payment for such
items and services will instead be made under the applicable payment
system designated under section 1833(t)(21)(C) of the Act; (2) defined
off-campus PBD for purposes of sections 1833(t)(1)(B)(v) and (t)(21) of
the Act; and (3) established policies for payment for applicable items
and services furnished by an off-campus PBD (nonexcepted items and
services) under section 1833(t)(21)(C) of the Act. To do so, we
finalized policies that define whether certain items and services
furnished by a given off-campus PBD may be considered excepted and,
thus, continue to be paid under the OPPS; established the requirements
for the off-campus PBDs to maintain excepted status (both for the
excepted off-campus PBDs and for the items and services furnished by
such excepted off-campus PBDs); and described the applicable payment
system for nonexcepted items and services (generally, the PFS).
To effectuate payment for nonexcepted items and services, in the CY
2017 interim final rule with comment period (81 FR 79720 through
79729), we established a new set of payment rates under the PFS that
reflected the relative resource costs of furnishing the technical
component of a broad range of services to be paid under the PFS
specific to the nonexcepted off-campus PBDs of a hospital.
Specifically, we established a PFS Relativity Adjuster that is applied
to the OPPS rate for the billed nonexcepted items and services
furnished in a nonexcepted off-campus PBD in order to calculate payment
rates under the PFS. The PFS Relativity Adjuster reflects the estimated
overall difference between the payment that would otherwise be made to
a hospital under the OPPS for the nonexcepted items and services
furnished in nonexcepted off-campus PBDs and the resource-based payment
under the PFS for the technical aspect of those services with reference
to the difference between the facility and nonfacility (office) rates
and policies under the PFS. Nonexcepted items and services furnished by
nonexcepted off-campus PBDs are generally paid under the PFS at the
applicable OPPS payment rate adjusted by the PFS Relativity Adjuster of
40 percent (that is, 60 percent less than the OPPS rate) (82 FR 53030).
In the CY 2017 OPPS/ASC final rule with comment period (81 FR 79719
and 79725), we created modifier ``PN'' to collect data for purposes of
implementing section 603 but also to trigger payment under the newly
adopted PFS-equivalent rates for nonexcepted items and services.
Nonexcepted off-campus PBDs bill for nonexcepted items and services on
the institutional claim utilizing modifier ``PN'' to indicate that an
item or service is a nonexcepted item or service.
For a full discussion of our initial implementation of section 603,
we refer readers to the CY 2017 OPPS/ASC final rule with comment period
(81 FR 79699 through 79719) and the interim final rule with comment
period (79720
[[Page 49728]]
through 79729). For a detailed discussion of the current PFS Relativity
Adjuster related to payments under section 603, we refer readers to the
CY 2018 OPPS/ASC final rule with comment period (82 FR 52356 through
52637) and the CY 2019 PFS final rule with comment period (82 FR 59505
through 59513).
3. Proposal To Modify Claims Processing of HCPCs Codes G0422 and G0423
To Address an Unintended Payment Disparity Caused by Application of the
PFS Relativity Adjuster to ICR Services Furnished by Off-Campus Non-
Excepted PBDs Hospitals
Since 2010, ICR services provided in the physician's office have
been paid at 100 percent of the OPPS rate for CR services as required
by 1848(b)(5). Since 2017, ICR services provided by an off-campus, non-
excepted PBD of a hospital have been paid at the above-described ``PFS-
equivalent'' rate through application of the PFS Relativity Adjuster,
which was 50 percent of the OPPS rate in CY 2017 and 40 percent of the
OPPS rate in CY 2018 and thereafter, consistent with the above-
described implementation of section 603.
This has produced an outcome inconsistent with the text of section
1848(a)(5)(A) and at odds with the intent of section 603, which was to
remove the significant disparity in payment rates for the same services
depending on whether they were furnished in a physician's office or an
off-campus, non-excepted PBD of a hospital. When the PFS Relativity
Adjuster was implemented in 2017, payment for the ICR service provided
in a physician's office and a PBD of an off-campus, non-excepted
hospital was already the same pursuant to section 1848(b)(5)(A), which
explicitly requires ICR services provided in a physician's office to be
paid at the OPPS rate for cardiac rehabilitation. Consequently,
application of the 40 percent PFS Relativity Adjuster to payment for
ICR provided by an off-campus, non-excepted PBD has resulted in an
unintended reimbursement disparity between the two sites of the
service, as shown in Table 48.
[GRAPHIC] [TIFF OMITTED] TP31JY23.077
This disparity creates a significant barrier to beneficiary access
to an already underutilized service. To eliminate this unintended
outcome and for consistency with the requirement in section
1848(b)(5)(A) of the Act to substitute the OPPS rate for CR services
for the PFS rate for ICR services, we propose to pay for ICR services
provided by an off-campus, non-excepted provider-based department of a
hospital at 100 percent of the OPPS rate for CR services (which is also
100 percent of the PFS rate) rather than at 40 percent of the OPPS
rate. Effective January 1, 2024, we propose to exclude ICR from the 40
percent Relativity Adjuster policy at the code level by modifying the
claims processing of HCPCS codes G0422 (Intensive cardiac
rehabilitation; with or without continuous ECG monitoring with
exercise, per session) and G0423 (Intensive cardiac rehabilitation;
with or without continuous ECG monitoring without exercise, per
session) so that 100 percent of the OPPS rate for CR is paid
irrespective of the presence of the ``PN'' modifier (signifying a
service provided in a non-excepted off-campus provider-based department
of a hospital) on the claim. We solicit comment on whether there are
other services for which the OPPS rate is unconditionally used under
the PFS, such that these services should be treated similarly for
purposes of payment to off-campus, non-excepted provider-based
departments of hospitals.
C. OPPS Payment for Specimen Collection for COVID-19 Tests
In the May 8th, 2020 COVID-19 interim final rule with comment
period titled ``Additional Policy and Regulatory Revisions in Response
to the COVID-19 Public Health Emergency and Delay of Certain Reporting
Requirements for the Skilled Nursing Facility Quality Reporting
Program'', we created a new E/M code to support COVID-19 testing during
the PHE: HCPCS code C9803 (Hospital outpatient clinic visit specimen
collection for severe acute respiratory syndrome coronavirus 2 (sars-
cov-2) (coronavirus disease [covid-19]), any specimen source) (85 FR
27604). In our review of available HCPCS and CPT codes for the May 8th,
2020 COVID-19 IFC, we did not identify a prior code that explicitly
described the exact services of symptom assessment and specimen
collection that HOPDs were undertaking to facilitate widespread testing
for COVID-19. We believed that HCPCS code C9803 was necessary to meet
the resource requirements for HOPDs to provide extensive testing for
the duration of the COVID-19 PHE. This code was created only to meet
the need of the COVID-19 PHE and we stated that we expected to retire
this code at the conclusion of the COVID-19 PHE (85 FR 27604).
We assigned HCPCS code C9803 to APC 5731--Level 1 Minor Procedures
effective March 1, 2020 for the duration of the COVID-19 PHE. In
accordance with Section 1833(t)(2)(B) of the Act, APC 5731--Level 1
Minor Procedures contains services similar to HCPCS code C9803. APC
5731--Level 1 Minor Procedures has a payment rate of $24.96 for CY
2023. HCPCS code C9803 was
[[Page 49729]]
also assigned a status indicator of ``Q1.'' The Q1 status indicator
indicates that the OPPS will package services billed under HCPCS code
C9803 when billed with a separately payable primary service in the same
encounter. When HCPCS code C9803 is billed without another separately
payable primary service, we explained that we will make separate
payment for the service under the OPPS. The OPPS also makes separate
payment for HCPCS code C9803 when it is billed with a clinical
diagnostic laboratory test with a status indicator of ``A'' on Addendum
B of the OPPS. On May 11, 2023, the COVID-19 PHE concluded.\123\ As
stated above, we created HCPCS code C9803 to meet the need of the
COVID-19 PHE and the resource requirements for HOPDs during the PHE,
and planned to retire the code following the conclusion of the PHE.
While the code will remain active for the remainder of CY 2023 for
technical reasons, we do not believe it is necessary for the code
remain active in CY 2024 now that the PHE has concluded. Therefore, we
propose to delete HCPCS code C9803 effective January 1, 2024. We
solicit comment on our proposal to delete this code for CY 2024.
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D. Remote Services
1. Mental Health Services Furnished Remotely by Hospital Staff to
Beneficiaries in Their Homes
In the CY 2023 OPPS final rule with comment period (87 FR 72012
through 72017), we finalized creation of three HCPCS C-codes to
describe mental health services furnished by hospital staff to
beneficiaries in their homes through communications technology. See
Table 49 for the C-code numbers and their descriptors.
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When we created HCPCS codes C7900 through C7902, we did not specify
whether they should be used for individual or group services,
preferring to keep the coding more general while we gathered
information about the use of these new codes. However, we have heard
from interested parties that, in instances when a beneficiary is
receiving multiple units of group therapy a day, it is administratively
burdensome to report and document each unit of time using multiple
codes. Instead, interested parties requested that we create a single,
untimed code that can be reported when a beneficiary receives multiple
hours of group therapy per day. In order to reduce administrative
burden and enhance access to these services, we propose to create a
new, untimed, HCPCS C-code describing group therapy. Please see Table
50 for the proposed C-code and long descriptor.
[GRAPHIC] [TIFF OMITTED] TP31JY23.079
[[Page 49730]]
As we stated in the CY 2023 OPPS final rule with comment period,
when beneficiaries are in their homes and not physically within the
hospital, the hospital is not accruing all the costs associated with an
in-person service; and the full OPPS rate would not accurately reflect
these reduced costs. We believe that the costs associated with hospital
clinical staff remotely furnishing a mental health service to a
beneficiary who is in their home using communications technology more
closely resembles the PFS payment amount for similar services when
performed in a facility, which reflects the time and intensity of the
professional work associated with performing the mental health service
but does not reflect certain practice expense costs, such as clinical
labor, equipment, or supplies (87 FR 72015).
In keeping with that methodology, we propose to assign HCPCS code
C79XX to an APC based on the facility payment amount for a clinically
similar service, CPT code 90853 (Group psychotherapy (other than of a
multiple-family group)) under the PFS. See Table 51 for the proposed SI
and APC assignments and payment rates for HCPCS code C79XX.
[GRAPHIC] [TIFF OMITTED] TP31JY23.080
We seek comment on whether HCPCS code C79XX sufficiently describes
group psychotherapy to the extent that group psychotherapy would no
longer be reported with HCPCS codes C7900-C7902, in which case we would
need to refine the code descriptors for HCPCS codes C7900-C7902 to
stipulate that they are solely for services furnished to an individual
beneficiary. Alternatively, we are seeking comment on whether or there
are circumstances where interested parties believe it would be
appropriate to bill for group services using HCPCS codes C7900-C7902.
We also seek comment on any further refinements to the code
descriptors, valuation, or billing guidance.
We have also heard from interested parties that there is confusion
about the presence of the word ``initial'' in the descriptors for HCPCS
codes C7900 and C7901 and that this is preventing billing for remote
behavioral health services furnished subsequent to either the first 15
to 29 minutes or 30 to 60 minutes. In order to facilitate accurate
billing, regardless of whether the remote mental health service is
being furnished as an initial or subsequent service, we propose to
revise the code descriptors to remove the word ``initial.'' We also
propose to revise the descriptor for HCPCS code C7902 to limit billing
with HCPCS code C7901. See Table 52 for revised code descriptors.
[GRAPHIC] [TIFF OMITTED] TP31JY23.081
BILLING CODE 4120-01-C
2. Periodic In-Person Visits
In the CY 2023 OPPS final rule with comment period (87 FR 72017),
we finalized a requirement that payment for mental health services
furnished remotely to beneficiaries in their homes using
telecommunications technology may only be made if the beneficiary
receives an in-person service within 6 months prior to the first time
the hospital clinical staff provides the mental health services
remotely; and that there must be an in-person service without the use
of telecommunications technology within 12 months of each mental health
service furnished remotely by the hospital clinical staff. We also
finalized that we would permit exceptions to the requirement that there
be an in-person service without the use of communications technology
within 12 months of each remotely furnished mental health service when
the hospital clinical staff member and beneficiary agree that the risks
and burdens of an in-person service outweigh the benefits
[[Page 49731]]
of it. We stated that exceptions to the in-person visit requirement
should involve a clear justification documented in the beneficiary's
medical record including the clinician's professional judgement that
the patient is clinically stable and/or that an in-person visit has the
risk of worsening the person's condition, creating undue hardship on
the person or their family, or would otherwise result in disengaging
with care that has been effective in managing the person's illness. We
also finalized that hospitals must document that the patient has a
regular source of general medical care and has the ability to obtain
any needed point of care testing, including vital sign monitoring and
laboratory studies. We finalized that these requirements would not go
into effect until the 152nd day after the PHE for COVID-19 ends to
maintain consistency with similar policies implemented for professional
services paid under the PFS, and for RHCs/FQHCs (87 FR 72018).
Section 4113(d) of the Consolidated Appropriations Act (CAA), 2023,
(Pub. L. 117-328) extended the delay in implementing the in-person
visit requirements until January 1, 2025, for both professionals
billing for mental health services via Medicare telehealth and for
RHCs/FQHCs furnishing remote mental health visits. As previously
stated, we believe it is important to maintain consistent requirements
for these policies across payment systems; therefore we propose to
delay the in-person visit requirements for mental health services
furnished remotely by hospital staff to beneficiaries in their homes
until January 1, 2025.
3. Payment for Outpatient Therapy Services, Diabetes Self-Management
Training, and Medical Nutrition Therapy When Furnished by Hospital
Staff to Beneficiaries in Their Homes Through Communication Technology
The CAA, 2023 extended most flexibilities for Medicare telehealth
services, including retention of physical and occupational therapists
and speech-language pathologists as telehealth distant site
practitioners, through the end of CY 2024. In the CY 2024 PFS proposed
rule, we propose to continue to make payment for outpatient therapy
(physical therapy, occupational therapy, and speech-language pathology)
services, Diabetes Self-Management Training, and Medical Nutrition
Therapy when furnished via telehealth by qualified employed staff of
institutional providers through the end of CY 2024. We note that this
proposal includes outpatient therapy, DSMT, and MNT services furnished
via telehealth by staff of hospital outpatient departments. For further
discussion, please see the CY 2024 PFS proposed rule.
E. OPPS Payment for Dental Services
Background
Section 1862(a)(12) of the Act generally precludes payment under
Medicare Parts A or B for any expenses incurred for services in
connection with the care, treatment, filling, removal, or replacement
of teeth or structures directly supporting teeth. (Collectively here,
we will refer to ``the care, treatment, filling, removal, or
replacement of teeth or structures directly supporting teeth'' as
``dental services.'') In the CY 2023 Physician Fee Schedule (PFS) final
rule (87 FR 69663), we explained that we believe there are instances
where dental services are so integral to other medically necessary
services that they are not in connection with the care, treatment,
filling, removal, or replacement of teeth or structures directly
supporting teeth within the meaning of section 1862(a)(12) of the Act.
Rather, such dental services are inextricably linked to the clinical
success of an otherwise covered medical service, and therefore, are
instead substantially related and integral to that primary medical
service. To provide greater clarity to our current policies and respond
to issues raised by interested parties, in the CY 2023 PFS final rule,
we finalized: (1) a clarification of our interpretation of section
1862(a)(12) of the Act to permit payment for dental services that are
inextricably linked to, and substantially related and integral to the
clinical success of, other covered medical services (hereafter in this
discussion, ``inextricably linked to other covered services''); (2)
clarification and codification of certain longstanding Medicare FFS
payment policies for inextricably linked dental services; (3) that,
beginning for CY 2023, Medicare Parts A and B payment can be made for
certain dental services inextricably linked to Medicare-covered organ
transplant, cardiac valve replacement, or valvuloplasty procedures; (4)
for CY 2024, that Medicare Part A and B payment can be made for certain
dental services inextricably linked to Medicare-covered services for
treatment of head and neck cancers; and (5) beginning for CY 2023, the
establishment of a process to submit for our consideration and review
additional dental services that are inextricably linked to other
covered medical services (87 FR 69670 through 69671). The CY 2023 PFS
final rule specified that Medicare payment for these dental services
may be made regardless of whether the services are furnished in an
inpatient or outpatient setting. We direct readers to the CY 2023 PFS
final rule (87 FR 69663 through 69688) for a full discussion of these
policies as well as to the CY 2024 PFS proposed rule for proposals
related to dental services.
In the CY 2023 PFS final rule, CMS identified various examples of
HCPCS codes, mostly Current Dental Terminology (CDT[supreg]) codes,
that could be used to describe the types of dental services identified
in the CY 2023 PFS final rule for which Medicare payment can be made
when coverage and payment policy requirements are met (87 FR 69667). We
refer readers to the PFS Relative Value Files that are released
quarterly on the CMS website for a comprehensive list of HCPCS codes,
including D-codes, that may be payable under the PFS, available at
https://www.cms.gov/medicare/medicare-fee-for-service-payment/physicianfeesched/pfs-relative-value-files.
The policies adopted in the CY 2023 PFS final rule allow payment
for certain dental services performed in outpatient settings. However,
the current dental codes assigned to APCs for CY 2023 do not fully
describe the dental services that may be inextricably linked to covered
medical services and payable under Medicare Part B. Specifically, for
the OPPS for CY 2023, only 57 CDT codes are assigned to APCs and
payable under the OPPS when coverage and payment conditions are met. In
addition to the small number of CDT codes assigned to APCs for CY 2023,
there is also a limited number of CPT codes that may describe dental
services, including CPT code 41899 (Unlisted px dentalvlr strux), that
are currently assigned to APCs and payable under the OPPS.
In the CY 2023 OPPS/ASC final rule with comment period, we created
HCPCS code G0330 to describe facility services for dental
rehabilitation procedure(s) furnished to patients who require monitored
anesthesia (e.g., general, intravenous sedation (monitored anesthesia
care)) and use of an operating room. We finalized this code based on
extensive public comments expressing the need for a coding and payment
mechanism to improve access to covered dental procedures under
anesthesia, especially dental rehabilitation procedures, an issue that
commenters to the CY 2023 OPPS proposed rule explained is caused by
barriers to securing sufficient operating room time to furnish these
services. We further noted that HCPCS code G0330 must only be used to
describe facility fees for dental
[[Page 49732]]
rehabilitation services that meet Medicare payment and coverage
requirements as interpreted in the CY 2023 PFS final rule. We explained
that HCPCS code G0330 cannot be used to describe or bill the facility
fee for noncovered dental professional services. We assigned HCPCS code
G0330 to APC 5871 (Dental Procedures) for CY 2023. We direct readers to
the CY 2023 OPPS/ASC final rule with comment period for a full
discussion on HCPCS code G0330 (87 FR 71882 through 71883). For CY
2024, we do not propose to change the APC assignment for HCPCS code
G0330. However, we refer readers to the section XIII of this proposed
rule for a proposal regarding payment for HCPCS code G0330 under the
ASC payment system.
2. Proposed OPPS Payment for Additional Dental Codes Beginning in CY
2024
To ensure that dental services can be paid under the OPPS when
consistent with the policies and clarifications included in the CY 2023
PFS final rule, we propose to assign additional dental codes to APCs
for CY 2024. Specifically, for CY 2024, we propose to assign 229
additional dental codes to clinical APCs to enable them to be paid for
under the OPPS when payment and coverage requirements are met.
Assigning additional dental codes to clinical APCs would result in
greater consistency in Medicare payment for different sites of service
and help ensure patient access to dental services for which payment can
be made when performed in the hospital outpatient setting.
Prior to detailing our proposals, we note two things for readers'
awareness. First, OPPS payment will only be made for a dental code that
we propose to assign to an APC for CY 2024 if it is among the types of
dental services for which payment can be made as described in the
regulation at Sec. 411.15(i)(3)(i). As we have consistently stated in
past rules (87 FR 71879) and quarterly change requests to assign new
codes to APCs (see, e.g., Pub 100-04 Medicare Claims Processing,
Transmittal 11937), the fact that a drug, device, procedure or service
is assigned a HCPCS code and a payment rate under the OPPS does not
imply coverage by the Medicare program, but indicates only how the
product, procedure, or service may be paid if covered by the program.
Medicare Administrative Contractors (MACs) determine whether a drug,
device, procedure, or other service meets all program requirements and
conditions for coverage and payment. Accordingly, we emphasize that
HOPDs would only receive payment for a dental service assigned to an
APC when the appropriate MAC determines that the service meets the
relevant conditions for coverage and payment.
Second, we anticipate that we would continue to assess our policies
for OPPS payment for dental services in future rulemaking. We believe
that as we collect claims data, gather input from the public and
interested parties, and learn more about the services performed in the
HOPD setting, we will be able to make more informed decisions regarding
payment rates, APC assignments, and status indicators for dental
services.
The dental services for which we propose APC assignments in this
proposed rule are those dental services described in the CY 2023 PFS
final rule for which Medicare Part B payment can be made when they are
inextricably linked to other covered services. Based on the dental
services identified in that final rule, we generated a list of codes
that describe those services for which we believe we need to propose
APC assignments to ensure payment is available under the OPPS. To
generate this list, we reviewed the dental codes that were specifically
listed as examples of payable dental services in the CY 2023 PFS final
rule (87 FR 69676). We also reviewed the clinical vignettes provided in
the CY 2023 PFS final rule to identify whether there are other dental
codes in addition to the dental code examples already identified for
which we should propose APC assignments.
The CY 2023 PFS final rule amended Sec. 411.15(i)(3)(i) to allow
for payment under Medicare Part A and Part B for dental services,
furnished in an inpatient or outpatient setting, that are inextricably
linked to, and substantially related and integral to the success of,
certain other covered medical services, including, but not limited to:
(1) dental or oral examination as part of a comprehensive workup prior
to a Medicare covered organ transplant, cardiac valve replacement, or
valvuloplasty procedures; and the necessary diagnostic and treatment
services to eliminate an oral or dental infection prior to, or
contemporaneously with, the organ transplant, cardiac valve
replacement, or valvuloplasty procedure; (2) reconstruction of a dental
ridge performed as a result of, and at the same time as, the surgical
removal of a tumor; (3) the stabilization or immobilization of teeth in
connection with the reduction of a jaw fracture, and dental splints
only when used in conjunction with covered treatment of a covered
medical condition such as dislocated jaw joints; and (4) the extraction
of teeth to prepare the jaw for radiation treatment of neoplastic
disease. For CY 2024, we established that Medicare Parts A and B
payment may also be made for dental services, such as dental
examinations, including necessary treatments, performed as part of a
comprehensive workup prior to treatment for head and neck cancers. We
include a proposal in the CY 2024 PFS proposed rule to codify this
example under Sec. 411.15(i)(3)(i). We identified dental services
described in the regulation at Sec. 411.15(i)(3)(i) and those that may
be part of a comprehensive workup prior to treatment for head and neck
cancers that could be payable under the OPPS if payment and coverage
requirements are met. For example, consistent with Sec.
411.15(i)(3)(A), which describes dental or oral examinations as part of
a comprehensive workup prior to a Medicare covered organ transplant,
cardiac valve replacement, or valvuloplasty procedure, we identified
several codes describing dental examinations for which we propose APC
assignments (e.g., D0120, D0140, D0150, D0160, D0170, D0180, D0191,
D0171). Section 411.15(i)(3)(C) describes services for the
stabilization or immobilization of the teeth in connection with the
reduction of a jaw fracture, and dental splints only when used with a
covered treatment of a covered medical condition. We identified an
additional 16 dental codes (e.g., D7670-D7671; D4322; D5988) that we
believe identify these services and for which we propose APC
assignments.
While it is appropriate for CMS to assign certain dental codes to
APCs for payment under the OPPS, we do not believe that every dental
code should be assigned to an APC and made payable under the OPPS. For
instance, there are services described by CDT codes that may already be
described by existing CPT codes assigned to clinical APCs. When this is
the case, we propose that HOPDs would use the existing CPT codes to
bill for the services performed. We also are not proposing APC
assignments for all dental codes, even if they describe dental services
that are payable consistent with the policies and clarifications
included in the CY 2023 PFS final rule. This is because under our
regulation at 42 CFR 419.22, the following services are not paid under
the OPPS (except when packaged as part of a bundled payment): physician
services that meet the requirements of 42 CFR 415.102(a); nurse
practitioner or clinical nurse specialist services, as defined in
section 1861(s)(2)(K)(ii) of the Act; physician assistant services, as
[[Page 49733]]
defined in section 1861(s)(2)(K)(i) of the Act; and services of an
anesthetist as defined in Sec. 410.9. We note that dentists are
considered physicians for purposes of Medicare payment policy,
including this regulation. There are a number of existing CDT codes
that describe the professional services of dentists that could be paid
under the PFS (e.g., D9990-D9997), but that we do not believe are
appropriate for payment under the OPPS. Therefore, we do not propose to
assign CDT codes that describe professional services of dentists and
other dental professionals to clinical APCs.
Finally, there are dental codes that we believe would not meet our
current interpretation of dental services that may be inextricably
linked to other covered medical services. For instance, there are CDT
codes that describe removable prosthodontic procedures, including codes
that describe complete or partial denture procedures (e.g., D5110;
D5120; D5211-D5214). Because denture procedures are not covered medical
procedures under Medicare, we are not proposing to assign any dental
codes describing denture procedures to clinical APCs.
In sum, in consultation with medical experts, we identified 229
dental codes as appropriate for payment under the OPPS when relevant
conditions for payment and coverage are met. In addition to the dental
codes already assigned to APCs, we propose to assign the 229 additional
dental codes listed in Table 53 below to various clinical APCs for CY
2024:
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[[Page 49735]]
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[[Page 49736]]
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[[Page 49737]]
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[[Page 49738]]
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[[Page 49739]]
[GRAPHIC] [TIFF OMITTED] TP31JY23.087
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We request comments on the list of 229 dental codes that we propose
to assign to APCs for OPPS payment for CY 2024. We also request
comments on any additional dental codes that may fall within the scope
of dental services for which payment is permitted as explained in the
CY 2023 PFS final rule and provided in Sec. 411.14(i)(3)(i), and for
which payment should be made available under the OPPS when payment and
coverage requirements are met.
3. Proposed APC Assignments for Additional Dental Codes
In accordance with section 1833(t)(2)(B) of the Act, services
classified within each APC must be comparable clinically and with
respect to the use of resources. Accordingly, when considering the
appropriateness of an APC assignment for a code, we consider the
clinical characteristics and resource costs of the service described by
the code compared to other services in a clinical APC.
Consistent with our existing processes, we were able to crosswalk
many of the dental codes to existing CPT codes assigned to APCs for
purposes of assessing clinical similarity. For instance, we crosswalked
certain tissue graft procedures (e.g., D4270) to CPT code 41870 (gum
graft). Because both are surgical procedures where gum tissue near the
area of recession is used to cover and protect the exposed tooth root,
the codes are clinically similar and we believe are appropriate for
grouping within the same clinical APC (i.e., APC 5163 (Level 3 ENT
Procedures)). We also found clinical similarities between several
dental imaging services and the services assigned to the various levels
of the Imaging without Contrast APC series (i.e., APCs 5521 (Level 1,
Imaging without Contrast); 5522 (Level 2, Imaging without Contrast);
and 5523 (Level 3, Imaging without Contrast)). For example, we
crosswalked D0210 (Intraor complete film series) to CPT code 70320
(Full mouth x-ray of teeth) and therefore propose to assign D0210 to
APC 5523 based on the crosswalk analysis.
With regard to resource similarity, because the 229 dental codes we
propose to assign to APCs for CY 2024 were not previously paid under
the OPPS, we do not have existing claims information to inform proposed
APC placements based on resource costs. We considered gathering cost
information from several non-Medicare data sources to aid in assigning
the dental codes to APCs. For instance, we considered requesting cost
information from the Department of Veterans Affairs (VA). However, the
VA's dental reimbursement rates are proprietary and are not publicly
available.
We also considered requesting data from State Medicaid agencies but
found the available data too inconsistent and limited to be useful
given that payment rates vary between states. Additionally, not every
State Medicaid Agency provides the same dental benefits, so not every
state would have cost information for each of the dental codes we
propose for OPPS payment. Lastly, while many State Medicaid Agencies
provide robust information on the dental benefits covered for Medicaid
beneficiaries in their state, the fee schedules published by State
Medicaid Agencies most likely include payments to practitioners only
and would not be informative for our purposes of assigning payment
rates under the OPPS.
Finally, we considered analyzing private insurance claims from
third-party databases but determined that the cost information
available would also not be relevant for OPPS ratesetting. For example,
because most dental services covered by private insurance are provided
in the office setting, there is a very limited number of claims that
would be relevant for OPPS ratesetting purposes. Of the limited dental
claims performed in the hospital setting, we learned that many of the
dental services are performed in combination with several other
services; therefore, it would be extremely difficult to isolate the
facility fee payment for the dental services performed.
Although specific cost information is informative for making
proposed APC assignments, it is not essential. For example, each
quarter, after consultation with clinical experts, CMS assigns new CPT
codes for which no cost information is available to APCs using
crosswalk code analyses. Similar to our process for assigning new codes
to APCs, we used a crosswalk code analysis and consulted with clinical
experts to propose appropriate APC assignments for the 229 dental
codes. In our conversations with the clinical experts, we discussed the
clinical aspects of each dental service and learned about the
resources, including supplies, used to perform each dental service, in
order to more accurately identify crosswalk codes and propose APC
assignments for them. We solicit comments regarding the proposed APC
assignments for the dental codes for CY 2024. We refer readers to
Addendum B to this proposed rule for the proposed CY 2024 APC
assignments and associated payment rates for the dental codes. Addendum
B is available via the internet on the CMS website.
[[Page 49740]]
4. Proposed Packaged Payment and Associated Status Indicators for
Dental Codes
For CY 2024, we propose to package payments for dental services
when they are performed with another covered dental or medical service
to promote clinical resource efficiencies, a strategic goal of the
OPPS. Given our understanding of the nature of dental practice and in
consultation with our clinical experts, we believe packaged payments
are appropriate for dental services paid under the OPPS. We are aware
that it is common for several dental services to be performed together,
or alongside other medical services, and submitted on one claim. Unlike
medical specialties where often only one procedure is performed at a
time, it is our understanding that it is common for a patient to
undergo several surgical and non-surgical dental procedures on multiple
teeth in one day, or for dental services to be performed
contemporaneously with other medical services. For example, there are
several non-invasive, non-surgical dental services, including a dental
exam or X-ray, which would most likely be performed together with other
more invasive dental services in the HOPD setting, rather than on their
own. Because a dental exam or X-ray is likely to be performed in
addition to other more invasive dental services in the HOPD setting, we
believe packaging payment for dental codes describing dental exams and
X-rays (e.g., D0380-D0386) when performed with another service is
appropriate and would further our strategic goal of encouraging
hospitals to furnish services most efficiently and to manage their
resources with maximum flexibility. We also are aware that there are
several dental services that are performed as part of a primary
service, and therefore, we believe would also result in resource
efficiencies if paid under the OPPS as a packaged payment. For example,
CDT codes D3110 (pulp cap-direct (excluding final restoration)) and
D3120 (pulp cap-indirect (excluding final restoration)) are typically
performed as part of a restorative procedure (e.g., a crown or
amalgam). Thus, we believe it is appropriate to propose to package
payment for CDT codes D3110 and D3120 with payment for the associated
restorative procedures.
We believe our proposal to package payment for dental services
under the OPPS is consistent with existing packaging payment principles
in the OPPS. The OPPS regularly packages payments for multiple
interrelated items and services into a single payment to create
incentives for hospitals to furnish services most efficiently and to
manage their resources with maximum flexibility. We believe applying
these principles to the furnishing of dental services in the OPPS is
appropriate and would incentivize clinical resource efficiencies.
In addition to proposing to package payment for dental services to
promote clinical resource efficiencies, there are also several dental
services that would nevertheless be packaged under our regulation at 42
CFR 419.2(b). For example, payment for dental services described by
add-on codes, like CDT code D2953 (each addtnl cast post) would be
packaged under the OPPS consistent with Sec. 419.2(b)(18). Therefore,
we propose to package payment for CDT code D2953 with the procedures
with which it is performed. We refer readers to the regulation at Sec.
419.2(b) for a full list of items and services for which payment is
packaged or conditionally packaged.
For CY 2024, we propose packaging payment for dental services under
the OPPS by assigning the dental codes to packaged status indicators.
We believe there are clinical resource efficiencies to be gained by
packaging payments rather than separately paying for each dental
service performed. We refer readers to Addendum B to this proposed rule
for the proposed CY 2024 status indicators for the dental codes.
Addendum B is available via the internet on the CMS website. For more
information on all of the proposed status indicators for CY 2024,
including explanations of the payment status for each proposed status
indicator, we refer readers to Addendum D1 to this proposed rule.
5. Summary of OPPS Dental Proposal and Requests for Comments
In summary, we propose to assign an additional 229 dental codes
describing various dental services to APCs for CY 2024. We are
requesting comments on the list of codes we have identified for APC
assignment and payment under the OPPS, including whether any of the 229
dental codes do not meet the requirements for payment for dental
services included in the CY 2023 PFS final rule and regulation at Sec.
411.15(i)(3)(i). Additionally, we are requesting comments on the
proposed APC assignments for the dental codes for CY 2024. Finally, we
propose to make packaged payments for dental services under the OPPS by
assigning the dental codes describing those dental services to packaged
status indicators. We believe packaging payment for dental services
will incentivize clinical resource efficiencies, and we request
comments on our proposal.
F. Use of Claims and Cost Report Data for CY 2024 OPPS and ASC Payment
System Ratesetting Due to the PHE
As described in section I.A of this proposed rule, section 1833(t)
of the Act requires the Secretary to annually review and update the
payment rates for services payable under the Hospital OPPS.
Specifically, section 1833(t)(9)(A) of the Act requires the Secretary
to review not less often than annually and to revise the groups, the
relative payment weights, and the wage and other adjustments described
in paragraph (2) of the Act to take into account changes in medical
practice, changes in technology, the addition of new services, new cost
data, and other relevant information and factors.
When updating the OPPS payment rates and system for each rulemaking
cycle, we primarily use two sources of information: the outpatient
Medicare claims data and Healthcare Cost Report Information System
(HCRIS) cost report data. The claims data source is the Outpatient
Standard Analytic File, which includes final action Medicare outpatient
claims for services furnished in a given calendar year. For the OPPS
ratesetting process, our goal is to use the best available data for
ratesetting to accurately estimate the costs associated with furnishing
outpatient services and to set appropriate payment rates. Ordinarily,
the best available claims data are the data from 2 years prior to the
calendar year that is the subject of rulemaking. For the CY 2024 OPPS/
ASC proposed rule ratesetting, the best available claims data would
typically be the CY 2022 calendar year outpatient claims data processed
through December 31, 2022. The cost report data source is typically the
Medicare hospital cost report data files from the most recently
available quarterly HCRIS file as we begin the ratesetting process. The
best available cost report data used in developing the OPPS relative
weights would ordinarily be from cost reports beginning three fiscal
years prior to the year that is the subject of the rulemaking. For CY
2024 OPPS ratesetting, that would be cost report data from HCRIS
extracted in December 2022, which would contain many cost reports
ending in FY 2020 and 2021 based on each hospital's cost reporting
period.
As discussed in the CY 2022 OPPS/ASC final rule with comment
period, the standard hospital data we would have otherwise used for
purposes of CY 2022 ratesetting included significant effects from the
COVID-19 PHE, which
[[Page 49741]]
led to a number of concerns with using this data for CY 2022
ratesetting (86 FR 63751 through 63754). In section X.E of the CY 2022
OPPS/ASC proposed rule (86 FR 42188 through 42190), we noted a number
of changes in the CY 2020 OPPS claims data we would ordinarily have
used for ratesetting, likely as a result of the PHE. These changes
included overall aggregate decreases in claims volume (particularly
those associated with visits); significant increases in HCPCS code
Q3014 (Telehealth originating site facility fee) in the hospital
outpatient claims; and increases in certain PHE-related services, such
as HCPCS code C9803, which describes COVID-19 specimen collection, and
services assigned to APC 5801 (Ventilation Initiation and Management).
As a result of the effects we observed from COVID-19 PHE-related
factors in our claims and cost report data, as well as the increasing
number of Medicare beneficiaries vaccinated against COVID-19, which we
believed might make the CY 2022 outpatient experience closer to CY 2019
rather than CY 2020, we believed that CY 2020 data were not the best
overall approximation of expected outpatient hospital services in CY
2022. Instead, we believed that CY 2019 data, as the most recent
complete calendar year of data prior to the COVID-19 PHE, were a better
approximation of expected CY 2022 hospital outpatient services.
Therefore, in the CY 2022 OPPS/ASC final rule with comment period, we
established a policy of using CY 2019 claims data and cost reports
prior to the PHE in ratesetting for the CY 2022 OPPS with certain
limited exceptions, such as where CY 2019 data were not available (86
FR 63753 through 63754).
For the CY 2023 OPPS proposed rule ratesetting, we conducted a
review similar to the one we conducted for the CY 2022 OPPS ratesetting
to determine the degree to which the effects of the COVID-19 PHE had
continued or subsided in our claims data as well as what claims and
cost report data would be appropriate for CY 2023 OPPS ratesetting. In
general, we saw that the PHE had limited effect on the service and
aggregate levels of volume as well as changes in the site of service of
care, suggesting that, while clinical and billing patterns had not
quite returned to their pre-PHE levels, they were beginning to do so.
For the CY 2023 OPPS/ASC final rule, while the effects of the
COVID-19 PHE remained at both the aggregate and service levels for
certain services, as discussed in that final rule with comment period
(87 FR 48795 through 48798) and in FY 2023 IPPS proposed rule (87 FR
28123 through 28125), we recognized that future COVID-19 variants may
have potentially varying effects. Therefore, we explained that we
believed it was reasonable to assume that there would continue to be
some effects of the COVID-19 PHE on the outpatient claims that we use
for OPPS ratesetting, similar to the CY 2021 claims data. As a result,
we proposed and finalized the use of CY 2021 claims for CY 2023 OPPS
ratesetting.
We also used cost report data for the CY 2023 OPPS/ASC final rule
(87 FR 72021) from the same set of cost reports we originally used in
the CY 2021 OPPS/ASC final rule for ratesetting, which included cost
reporting periods beginning in CY 2018 in most cases. We typically
would have used the most updated available cost reports available in
HCRIS in determining the CY 2023 OPPS/APC relative weights, which would
have included cost reports with reporting periods that overlap with
parts of CY 2020. However, noting that we observed significant impact
at the service level when incorporating these cost reports into
ratesetting and the effects on billing/clinical patterns, we finalized
a policy to continue to use the same set of cost reports that we used
in developing CY 2022 OPPS ratesetting.
For CY 2024 OPPS rulemaking, we continue to observe some
differences at the aggregate and service level volumes in the CY 2022
claims data, relative to the pre-PHE period. However, we believe that
it is reasonable to assume that there will be minor variations as a
result of the COVID-19 PHE in claims data we use for ratesetting for
the foreseeable future. As we have found that the effects are less
pronounced, even relative to CY 2021 claims data used in CY 2023 OPPS
ratesetting, we anticipate that most of the changes we observe
represent a moderate continued return to pre-PHE volume and ongoing
changes in clinical practice. As a result, we believe the CY 2022
claims data are appropriate for setting CY 2024 OPPS rates.
For CY 2024, we also evaluated the impact of using our standard
update for cost reports. If we were to resume our typical process of
using the most updated cost reports available, we would predominantly
use cost report data from CY 2021, with some portion of the cost
reports including cost reporting periods from prior years. While there
are some differences compared to pre-PHE data, we generally observed
limited impacts. Similar to the claims data approach, we believe it is
reasonable to assume there will continue to be a limited influence of
the COVID-19 PHE on the cost report data. However, as we continue to
receive more updated cost report data, we believe that data will better
reflect changes in provider charge and cost reporting structures. Given
these factors, we believe that using the most recent cost report data
available and resuming our regular cost report update process is
appropriate for CY 2024 OPPS ratesetting.
As a result of our expectation that the CY 2022 claims that we
would typically use are appropriate for establishing the CY 2024 OPPS
rates, we propose to use the CY 2022 claims for the CY 2024 OPPS/ASC
ratesetting process. In addition, we propose to resume our typical cost
report update process of including the most recently available cost
report data (primarily including cost reports with cost reporting
periods including CY 2021). For the reasons previously discussed, we
are generally not proposing any modifications to our usual OPPS
ratesetting methodologies with regards to the use of updated claims and
cost report data to account for the impact of COVID-19 on the
ratesetting data.
G. Comment Solicitation on Payment for High-Cost Drugs Provided by
Indian Health Service and Tribally-Owned Facilities
In the CY 2000 Final Rule (65 FR 18433), CMS implemented the
prospective payment system for hospital outpatient services furnished
to Medicare beneficiaries, as set forth in section 1833(t) of the Act.
In this rule, we noted that the Outpatient Prospective Payment System
(OPPS) applies to covered hospital outpatient services furnished by all
hospitals participating in the Medicare program with a few exceptions.
We identified one of these exceptions as ``outpatient services provided
by hospitals of the Indian Health Service (IHS).'' While we stated that
these services would ``continue to be paid under separately established
rates which are published annually in the Federal Register,'' we
indicated that our intent was ``to develop a plan that will help these
facilities transition to the [O]PPS and will consult with the IHS to
develop this plan.'' In the CY 2002 Final Rule (66 FR 59855), we
finalized our revision to Sec. 419.20 (Hospitals subject to the
hospital outpatient prospective payment system) by adding paragraph
(b)(4) specifying that hospitals of the IHS are excluded from the OPPS.
However, we reiterated that this exclusion would only be in place until
we developed a plan to include IHS hospitals under the OPPS.
[[Page 49742]]
In the intervening years, IHS and tribally-owned facilities have
been paid under the separately established All-Inclusive Rate (AIR). On
an annual basis, the IHS calculates and publishes, in the Federal
Register, calendar year reimbursement rates. Due to the higher cost of
living in Alaska, separate rates are calculated for Alaska and the
lower 48 States. For CY 2023, the Medicare Outpatient per Visit Rate
for the lower 48 States is $654 and $862 for Alaska.
IHS and tribally-owned facilities have continued to expand the
breadth of services that they provide to their communities.
Increasingly, this has meant providing higher-cost drugs along with
more complex and expensive services. While the majority of IHS and
tribally-owned facilities appear to be well served by the AIR, there
are specialty facilities where the AIR might not be an adequate
representation of the Medicare share of costs. If providing a drug or
service costs a specialty facility exponentially more than the payment
they receive through the AIR, it may not be financially feasible for
these facilities to provide that drug or service. For example, the cost
of providing expensive cancer drugs or oncology services could greatly
exceed payment a specialty IHS facility receives through the AIR. We
are concerned that, if payments under the AIR are inadequate for high-
cost drugs, this could potentially threaten the viability of the few
IHS and tribally-owned hospital outpatient specialty programs currently
in operation and provide less incentive to IHS hospitals and tribally-
owned facilities not currently offering specialty services to begin
doing so.
Consequently, we seek comment on a number of potential policies to
address payment to IHS and tribally-owned facilities for certain high-
cost drugs and services. We are seeking comment on whether Medicare
should pay separately for high-cost drugs provided by IHS and tribally-
owned facilities. We would like input on:
What universe of drugs would be appropriate for separate
payment? How could CMS maintain that list and add or remove drugs from
it?
Would paying separately for all drugs over a certain cost
threshold be easier to operationalize than paying separately for a
specified list of drugs, while achieving the same policy objective? If
so, what would be an appropriate cost threshold and how should it be
updated?
What would be the appropriate payment rate for any
separately paid drugs? How should these rates be updated and should
these rates be updated on an annual basis?
Would the standard OPPS Average Sales Price (ASP) plus 6
percent payment methodology rate be too high of a payment rate if
tribal and IHS facilities are able to acquire drugs at a discounted
rate through the Federal Supply Schedule? Would a payment rate
equivalent to the acquisition cost of the drug through the Federal
Supply Schedule be a more appropriate approximation of the cost of
these drugs?
Should IHS remove the cost of any separately paid drugs
from the calculation of the AIR? If the cost of these drugs was not
removed from the AIR, would the government be paying twice for these
drugs?
How would IHS and tribally-owned facilities bill for
separately paid drugs? Could they use the UB-04 form like standard OPPS
hospitals?
The OPPS provides outlier payments to hospitals to help mitigate
the financial risk associated with high-cost and complex procedures,
where a very costly service could present a hospital with significant
financial loss. We seek comment on whether an outlier policy might be
an appropriate mechanism for addressing high-cost drugs and services
provided by IHS and tribally-owned facilities.
We welcome input from interested parties on these policy ideas and
any additional payment approaches that would enhance our ability to
provide equitable payment for high-cost drugs and services provided by
IHS and tribally-owned facilities.
XI. Proposed CY 2024 OPPS Payment Status and Comment Indicators
A. Proposed CY 2024 OPPS Payment Status Indicator Definitions
Payment status indicators (SIs) that we assign to HCPCS codes and
APCs serve an important role in determining payment for services under
the OPPS. They indicate whether a service represented by a HCPCS code
is payable under the OPPS or another payment system and whether
particular OPPS policies apply to the code.
For CY 2024, we propose to change the definition of status
indicator ``P'' from ``Partial Hospitalization'' to ``Partial
Hospitalization or Intensive Outpatient Program'' in order to account
for the proposed payment of intensive outpatient services beginning
January 1, 2024, as discussed in section VIII.B of this proposed rule.
We are not proposing to make any other changes to the existing
definitions of status indicators that were listed in Addendum D1 to the
CY 2023 OPPS/ASC final rule with comment period, which is available on
the CMS website at: https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/HospitalOutpatientPPS/Hospital-Outpatient-Regulations-and-Notices.
We solicit public comments on the proposed definitions of the OPPS
payment status indicators for 2024.
The complete list of proposed CY 2024 payment status indicators and
their definitions is displayed in Addendum D1 to this proposed rule,
which is available on the CMS website at: https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/HospitalOutpatientPPS/Hospital-Outpatient-Regulations-and-Notices.
The proposed CY 2024 payment status indicator assignments for APCs
and HCPCS codes are shown in Addendum A and Addendum B, respectively,
to this proposed rule, which are available on the CMS website at:
https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/HospitalOutpatientPPS/index.html.
B. Proposed CY 2024 Comment Indicator Definitions
We propose to use four comment indicators for the CY 2024 OPPS.
These comment indicators, ``CH,'' ``NC,'' ``NI,'' and ``NP,'' are in
effect for CY 2023; and we propose to continue their use in CY 2024.
The proposed CY 2024 OPPS comment indicators are as follows:
``CH''--Active HCPCS code in current and next calendar
year, status indicator and/or APC assignment has changed; or active
HCPCS code that will be discontinued at the end of the current calendar
year.
``NC''--New code for the next calendar year or existing
code with substantial revision to its code descriptor in the next
calendar year, as compared to current calendar year for which we
request comments in the proposed rule, final APC assignment; comments
will not be accepted on the final APC assignment for the new code.
``NI''--New code for the next calendar year or existing
code with substantial revision to its code descriptor in the next
calendar year, as compared to current calendar year, interim APC
assignment; comments will be accepted on the interim APC assignment for
the new code.
``NP''--New code for the next calendar year or existing
code with substantial revision to its code descriptor in the next
calendar year, as compared to current calendar year, proposed APC
assignment; comments will be accepted on the proposed APC assignment
for the new code.
The definitions of the proposed OPPS comment indicators for CY 2024
are
[[Page 49743]]
listed in Addendum D2 to this proposed rule, which is available on the
CMS website at: https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/HospitalOutpatientPPS/index.html.
We solicit public comments on our proposed definitions of the OPPS
comment indicators for 2024.
XII. MedPAC Recommendations
The Medicare Payment Advisory Commission (MedPAC) was established
under section 1805 of the Act in large part to advise the U.S. Congress
on issues affecting the Medicare program. As required under the
statute, MedPAC submits reports to the Congress no later than March and
June of each year that present its Medicare payment policy
recommendations. The March report typically provides discussion of
Medicare payment policy across different payment systems and the June
report typically discusses selected Medicare issues. We are including
this section to make stakeholders aware of certain MedPAC
recommendations for the OPPS and ASC payment systems as discussed in
its March 2023 report.
A. OPPS Payment Rates Update
The March 2023 MedPAC ``Report to the Congress: Medicare Payment
Policy,'' recommended that Congress update Medicare OPPS payment rates
by the amount specified in current law plus 1 percent. We refer readers
to the March 2023 report for a complete discussion of this
recommendation.\124\ We appreciate MedPAC's recommendation and, as
discussed further in section II.B of this proposed rule, we propose to
increase the OPPS payment rates by the amount specified in current law.
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\124\ Medicare Payment Advisory Committee. March 2023 Report to
the Congress. Chapter 3: Hospital inpatient and outpatient services,
p. 57. Available at: https://www.medpac.gov.
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B. Medicare Safety Net Index
The March 2023 MedPAC ``Report to the Congress: Medicare Payment
Policy,'' recommended that Congress should begin a transition to
redistribute disproportionate share hospital and uncompensated care
payments through the Medicare Safety-Net Index (MSNI). Additionally,
MedPAC recommended that Congress add $2 billion to the MSNI pool of
funds and distribute such funds through a percentage add-on to payments
under the IPPS and OPPS.
In light of these recommendations, and in particular those
concerning safety net hospitals, we look forward to working with
Congress and seek comments on approaches CMS could take.
C. ASC Cost Data
In the March 2023 MedPAC ``Report to the Congress: Medicare Payment
Policy,'' MedPAC reiterated its longstanding recommendation that
Congress require ASCs to report cost data to enable the Commission to
examine the growth of ASCs' costs over time and analyze Medicare
payments relative to the costs of efficient providers. MedPAC suggested
that such cost data would allow CMS to examine whether an existing
Medicare price index is an appropriate proxy for ASC costs or whether
an ASC-specific market basket should be developed, stating both the
CPI-U and hospital market basket update likely do not reflect an ASC's
cost structure. MedPAC contended that it is feasible for small
facilities, such as ASCs, to provide cost information since other small
facilities, such as home health agencies, hospices, and rural health
clinics, currently furnish cost data to CMS. Further, ASCs in
Pennsylvania submit cost and revenue data annually to a state agency to
estimate margins for those ASCs, and that, as businesses, ASCs keep
records of their costs for filing taxes and other purposes.\125\
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\125\ Medicare Payment Advisory Committee. March 2023 Report to
the Congress. Chapter 5: Ambulatory surgical center services, p.
163. Available at: https://www.medpac.gov/wp-content/uploads/2023/03/Ch5_Mar23_MedPAC_Report_To_Congress_SEC.pdf.
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While we recognize that the submission of cost data could place
additional administrative burden on most ASCs, and we are not proposing
any cost reporting requirements for ASCs in this proposed rule, we
continue to seek public comment on methods that would mitigate the
burden of reporting costs on ASCs while also collecting enough data to
reliably use such data in the determination of ASC costs. Such cost
data would be beneficial in establishing an ASC-specific market basket
index for updating payment rates under the ASC payment system.
XIII. Proposed Updates to the Ambulatory Surgical Center (ASC) Payment
System
A. Background, Legislative History, Statutory Authority, and Prior
Rulemaking for the ASC Payment System
For a detailed discussion of the legislative history and statutory
authority related to payments to ASCs under Medicare, we refer readers
to the CY 2012 OPPS/ASC final rule with comment period (76 FR 74377
through 74378) and the June 12, 1998 proposed rule (63 FR 32291 through
32292). For a discussion of prior rulemaking on the ASC payment system,
we refer readers to the CYs 2012 to 2023 OPPS/ASC final rules with
comment period (76 FR 74378 through 74379; 77 FR 68434 through 68467;
78 FR 75064 through 75090; 79 FR 66915 through 66940; 80 FR 70474
through 70502; 81 FR 79732 through 79753; 82 FR 59401 through 59424; 83
FR 59028 through 59080; 84 FR 61370 through 61410; 85 FR 86121 through
86179; 86 FR 63761 through 63815; and 87 FR 72054 through 72096).
B. Proposed ASC Treatment of New and Revised Codes
1. Background on Process for New and Revised HCPCS Codes
We update the lists and payment rates for covered surgical
procedures and covered ancillary services in ASCs in conjunction with
the annual proposed and final rulemaking process to update the OPPS and
the ASC payment systems (Sec. 416.173; 72 FR 42535). We base ASC
payment and policies for most covered surgical procedures, drugs,
biologicals, and certain other covered ancillary services on the OPPS
payment policies and we use quarterly change requests (CRs) to update
services paid for under the OPPS. We also provide quarterly update CRs
for ASC covered surgical procedures and covered ancillary services
throughout the year (January, April, July, and October). We release new
and revised Level II HCPCS codes and recognize the release of new and
revised CPT codes by the American Medical Association (AMA) and make
these codes effective (that is, the codes are recognized on Medicare
claims) via these ASC quarterly update CRs. We recognize the release of
new and revised Category III CPT codes in the July and January CRs.
These updates implement newly created and revised Level II HCPCS and
Category III CPT codes for ASC payments and update the payment rates
for separately paid drugs and biologicals based on the most recently
submitted ASP data. New and revised Category I CPT codes, except
vaccine codes, are released only once a year, and are implemented only
through the January quarterly CR update. New and revised Category I CPT
vaccine codes are released twice a year and are implemented through the
January and July quarterly CR updates. We refer readers to Table 41 in
the CY 2012 OPPS/ASC proposed rule for an example of how this process
is used to update HCPCS and CPT codes, which we finalized in the CY
2012 OPPS/ASC
[[Page 49744]]
final rule with comment period (76 FR 42291; 76 FR 74380 through
74384).
In our annual updates to the ASC list of, and payment rates for,
covered surgical procedures and covered ancillary services, we
undertake a review of excluded surgical procedures, new codes, and
codes with revised descriptors, to identify any that we believe meet
the criteria for designation as ASC covered surgical procedures or
covered ancillary services. Updating the lists of ASC covered surgical
procedures and covered ancillary services, as well as their payment
rates, in association with the annual OPPS rulemaking cycle, is
particularly important because the OPPS relative payment weights and,
in some cases, payment rates, are used as the basis for the payment of
many covered surgical procedures and covered ancillary services under
the revised ASC payment system. This joint update process ensures that
the ASC updates occur in a regular, predictable, and timely manner.
Payment for ASC procedures, services, and items are generally based
on medical billing codes, specifically, HCPCS codes, that are reported
on ASC claims. The HCPCS is divided into two principal subsystems,
referred to as Level I and Level II. Level I is comprised of CPT
(Current Procedural Terminology) codes, a numeric and alphanumeric
coding system maintained by the AMA, and includes Category I, II, and
III CPT codes. Level II of the HCPCS, which is maintained by CMS, is a
standardized coding system that is used primarily to identify products,
supplies, and services not included in the CPT codes. Together, Level I
and II HCPCS codes are used to report procedures, services, items, and
supplies under the ASC payment system. Specifically, we recognize the
following codes on ASC claims:
Category I CPT codes, which describe surgical procedures,
diagnostic and therapeutic services, and vaccine codes;
Category III CPT codes, which describe new and emerging
technologies, services, and procedures; and
Level II HCPCS codes (also known as alpha-numeric codes),
which are used primarily to identify drugs, devices, supplies,
temporary procedures, and services not described by CPT codes.
We finalized a policy in the August 2, 2007 final rule (72 FR 42533
through 42535) to evaluate each year all new and revised Category I and
Category III CPT codes and Level II HCPCS codes that describe surgical
procedures, and to make preliminary determinations during the annual
OPPS/ASC rulemaking process regarding whether or not they meet the
criteria for payment in the ASC setting as covered surgical procedures
and, if so, whether or not they are office-based procedures. In
addition, we identify new and revised codes as ASC covered ancillary
services based upon the final payment policies of the revised ASC
payment system. In prior rulemakings, we refer to this process as
recognizing new codes. However, this process has always involved the
recognition of new and revised codes. We consider revised codes to be
new when they have substantial revision to their code descriptors that
necessitate a change in the current ASC payment indicator. To clarify,
we refer to these codes as new and revised in this CY 2024 OPPS/ASC
proposed rule.
We have separated our discussion below based on when the codes are
released and whether we propose to solicit public comments in this
proposed rule (and respond to those comments in the CY 2024 OPPS/ASC
final rule with comment period) or whether we will be soliciting public
comments in the CY 2024 OPPS/ASC final rule with comment period (and
responding to those comments in the CY 2025 OPPS/ASC final rule with
comment period).
2. April 2023 HCPCS Codes Proposed Rule Comment Solicitation
For the April 2023 update, there were no new CPT codes; however,
there were several new Level II HCPCS codes. In the April 2023 ASC
quarterly update (Transmittal 11927, dated March 24, 2023, CR 13143),
we added several new Level II HCPCS codes to the list of covered
ancillary services. Table 54 (New Level II HCPCS Codes for Ancillary
Services Effective April 1, 2023) of this proposed rule, lists the new
Level II HCPCS codes that were implemented April 1, 2023. The proposed
comment indicators, payment indicators and payment rates, where
applicable, for these April codes can be found in Addendum BB to this
proposed rule. The list of ASC payment indicators and corresponding
definitions can be found in Addendum DD1 to this proposed rule. These
new codes that are effective April 1, 2023, are assigned to comment
indicator ``NP'' in Addendum BB to this proposed rule to indicate that
the codes are assigned to an interim APC assignment and that comments
will be accepted on their interim APC assignments. The list of comment
indicators and definitions used under the ASC payment system can be
found in Addendum DD2 to this proposed rule. We note that the following
ASC addenda are available via the internet on the CMS website.
ASC Addendum AA: Proposed ASC Covered Surgical Procedures
for CY 2024 (Including Surgical Procedures for Which Payment is
Packaged),
ASC Addendum BB: Proposed ASC Covered Ancillary Services
Integral to Covered Surgical Procedures for CY 2024 (Including
Ancillary Services for Which Payment is Packaged),
ASC Addendum DD1: Proposed ASC Payment Indicators (PI) for
CY 2024,
ASC Addendum DD2: Proposed ASC Comment Indicators (CI) for
CY 2024,
ASC Addendum EE: Proposed Surgical Procedures to be
Excluded from Payment in ASC for CY 2024, and
ASC Addendum FF: Proposed ASC Device Offset Percentages
for CY 2024
Addendum O: Long Descriptors for New Category I CPT Codes,
Category III CPT Codes, C-codes, and G-Codes Effective January 1, 2024
We are inviting public comments on the proposed payment indicators
for the new HCPCS codes that were recognized as ASC covered ancillary
services in April 2023 through the quarterly update CRs, as listed in
Table 54 (New Level II HCPCS Codes for Ancillary Services Effective
April 1, 2023) of this proposed rule. We propose to finalize their
payment indicators in the CY 2024 OPPS/ASC final rule with comment
period.
BILLING CODE 4120-01-P
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3. July 2023 HCPCS Codes Proposed Rule Comment Solicitation
In the July 2023 ASC quarterly update (Transmittal 12099, Change
Request 13216, dated June 22, 2023), we added several separately
payable CPT and Level II HCPCS codes to the list of covered surgical
procedures and covered ancillary services. Table 55 (New HCPCS Codes
for Covered Surgical Procedures and Covered Ancillary Services
Effective July 1, 2023) of this proposed rule, lists the new HCPCS
codes that are effective July 1, 2023. The proposed comment indicators,
payment indicators, and payment rates for the codes can be found in
Addendum AA and Addendum BB to this proposed rule. The list of ASC
payment indicators and corresponding definitions can be found in
Addendum DD1 to this proposed rule. These new codes that are effective
July 1, 2023, are assigned to comment indicator ``NP'' in Addendum AA
and BB to this proposed rule to indicate that the codes are assigned to
an interim APC assignment and that comments will be accepted on their
interim APC assignments. The list of comment indicators and definitions
used under the ASC payment system can be found in Addendum DD2 to this
proposed rule. We note that ASC Addenda AA, BB, DD1, and DD2 are
available via the internet on the CMS website.
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[GRAPHIC] [TIFF OMITTED] TP31JY23.090
We are inviting public comments on the proposed payment indicators
for the new HCPCS codes newly recognized as ASC covered surgical
procedures and covered ancillary services effective April 1, 2023, and
July 1, 2023, through the quarterly update CRs, as listed in Tables 54
and 55. We propose to finalize the payment indicators in the CY 2024
OPPS/ASC final rule with comment period.
4. October 2023 HCPCS Codes Final Rule Comment Solicitation
For CY 2024, consistent with our established policy, we propose
that the Level II HCPCS codes that will be effective October 1, 2023,
would be flagged with comment indicator ``NI'' in Addendum BB to the CY
2024 OPPS/ASC final rule with comment period to indicate that we have
assigned the codes an interim ASC payment status for CY 2023. We will
invite public comments in the CY 2024 OPPS/ASC final rule with comment
period on the interim payment indicators, which would then be finalized
in the CY 2025 OPPS/ASC final rule with comment period.
5. January 2024 HCPCS Codes
a. Level II HCPCS Codes Final Rule Comment Solicitation
As has been our practice in the past, we incorporate those new
Level II HCPCS codes that are effective January 1 in the final rule
with comment period, thereby updating the ASC payment system for the
calendar year. We note that unlike the CPT codes that are effective
January 1 and are included in the OPPS/ASC proposed rules, and except
for the G-codes listed in Addendum O to this proposed rule, most Level
II HCPCS codes are not released until sometime around November to be
effective January 1. Because these codes are not available until
November, we are unable to include them in the OPPS/ASC proposed rules.
Therefore, these Level II HCPCS codes will be released to the public
through the CY 2024 OPPS/ASC final rule with comment period, January
2024 ASC Update CR, and the CMS HCPCS website.
In addition, for CY 2024, we propose to continue our established
policy of assigning comment indicator ``NI'' in Addendum AA and
Addendum BB to the OPPS/ASC final rule with comment period to the new
Level II HCPCS codes that will be effective January 1, 2024, to
indicate that we are assigning them an interim payment indicator, which
is subject to public comment. We will be inviting public comments in
the CY 2024 OPPS/ASC final rule with comment period on the payment
indicator assignments, which would then be finalized in the CY 2025
OPPS/ASC final rule with comment period.
b. CPT Codes Proposed Rule Comment Solicitation
For the CY 2024 ASC update, we received the CPT codes that will be
effective January 1, 2024, from the AMA in time to be included in this
proposed rule. The new, revised, and deleted CPT codes can be found in
ASC Addendum AA and Addendum BB to this proposed rule (which are
available via the internet on the CMS website). We note that the new
and revised CPT codes are assigned to comment indicator ``NP'' in ASC
Addendum AA and Addendum BB of this proposed rule to indicate that the
code is new for the next calendar year or the code is an existing code
with substantial revision to its code descriptor in the next calendar
year as compared to the current calendar year with a proposed payment
indicator assignment. We will accept comments and finalize the payment
indicators in the CY 2024 OPPS/ASC final rule with comment period.
Further, we remind readers that the CPT code descriptors that appear in
Addendum AA and Addendum BB are short descriptors and do not describe
the complete procedure, service, or item described by the CPT code.
Therefore, we include the 5-digit placeholder codes and their long
descriptors for the new CY 2024 CPT codes in Addendum O to this
proposed rule (which is available via the internet on the CMS website)
so that the public can comment on our proposed payment indicator
assignments. The 5-digit placeholder codes can be found in Addendum O
to this proposed rule, specifically under the column labeled ``CY 2024
OPPS/ASC Proposed Rule 5-Digit AMA/CMS Placeholder Code.'' We intend to
include the final CPT code numbers the CY 2024 OPPS/ASC final rule with
comment period.
In summary, we are soliciting public comments on the proposed CY
2024 payment indicators for the new Category I and III CPT codes that
will be effective January 1, 2024. Because these codes are listed in
Addendum AA and Addendum BB with short descriptors only, we are listing
them again in Addendum O with the long descriptors. We also propose to
finalize the payment indicator for these codes (with their final CPT
code numbers) in the CY 2024 OPPS/ASC final rule with comment period.
The proposed payment indicators and comment indicators for these codes
can be found in Addendum AA and BB to this proposed rule. The list of
ASC payment indicators and corresponding definitions can be found in
Addendum DD1 to this proposed rule. The new CPT codes that will be
effective January 1, 2024, are assigned to comment indicator ``NP'' in
Addendum AA and BB to this proposed rule to indicate that the codes are
assigned to an interim payment indicator and that comments will be
accepted on their interim ASC payment assignments. The list of comment
indicators and definitions used under the ASC payment system can be
found in Addendum DD2 to this proposed rule. We note that ASC Addenda
AA, BB, DD1, and DD2 are available via the internet on the CMS website.
Finally, in Table 56, we summarize our process for updating codes
through our ASC quarterly update CRs, seeking public comments, and
finalizing the treatment of these new codes under the ASC payment
system.
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6. ASC Payment and Comment Indicators
a. Background
In addition to the payment indicators that we introduced in the
August 2, 2007 ASC final rule, we created final comment indicators for
the ASC payment system in the CY 2008 OPPS/ASC final rule with comment
period (72 FR 66855). We created Addendum DD1 to define ASC payment
indicators that we use in Addenda AA and BB to provide payment
information regarding covered surgical procedures and covered ancillary
services, respectively, under the revised ASC payment system. The ASC
payment indicators in Addendum DD1 are intended to capture policy-
relevant characteristics of HCPCS codes that may receive packaged or
separate payment in ASCs, such as whether they were on the ASC CPL
prior to CY 2008; payment designation, such as device-intensive or
office-based, and the corresponding ASC payment methodology; and their
classification as separately payable ancillary services, including
radiology services, brachytherapy sources, OPPS pass-through devices,
corneal tissue acquisition services, drugs or biologicals, or NTIOLs.
We also created Addendum DD2 that lists the ASC comment indicators.
The ASC comment indicators included in Addenda AA and BB to the
proposed rules and final rules with comment period serve to identify,
for the revised ASC payment system, the status of a specific HCPCS code
and its payment indicator with respect to the timeframe when comments
will be accepted. The comment indicator ``NI'' is used in the OPPS/ASC
final rule with comment period to indicate new codes for the next
calendar year for which the interim payment indicator assigned is
subject to comment. The comment indicator ``NI'' also is assigned to
existing codes with substantial revisions to their descriptors such
that we consider them to be describing new services, and the interim
payment indicator assigned is subject to comment, as discussed in the
CY 2010 OPPS/ASC final rule with comment period (74 FR 60622).
The comment indicator ``NP'' is used in the OPPS/ASC proposed rule
to indicate new codes for the next calendar year for which the proposed
payment indicator assigned is subject to comment. The comment indicator
``NP'' also is assigned to existing codes with substantial revisions to
their descriptors, such that we consider them to be describing new
services, and the proposed payment indicator assigned is subject to
comment, as discussed in the CY 2016 OPPS/ASC final rule with comment
period (80 FR 70497).
The ``CH'' comment indicator is used in Addenda AA and BB to the
proposed rule (these addenda are available via the internet on the CMS
website) to indicate that the payment indicator assignment has changed
for an active HCPCS code in the current year and the next calendar
year, for example, if an active HCPCS code is newly recognized as
payable in ASCs or an active HCPCS code is discontinued at the end of
the current calendar year. The ``CH'' comment indicators that are
published in the final rule are provided to alert readers that a change
has been made from one calendar year to the next, but do not indicate
that the change is subject to comment.
[[Page 49749]]
In the CY 2021 OPPS/ASC final rule with comment period, we
finalized the addition of ASC payment indicator ``K5''--Items, Codes,
and Services for which pricing information and claims data are not
available. No payment made.--to ASC Addendum DD1 (which is available
via the internet on the CMS website) to indicate those services and
procedures that CMS anticipates will become payable when claims data or
payment information becomes available.
b. Proposed ASC Payment and Comment Indicators for CY 2024
For CY 2024, we propose new and revised Category I and III CPT
codes as well as new and revised Level II HCPCS codes. Proposed
Category I and III CPT codes that are new and revised for CY 2024 and
any new and existing Level II HCPCS codes with substantial revisions to
the code descriptors for CY 2024, compared to the CY 2023 descriptors,
are included in ASC Addenda AA and BB to this proposed rule and labeled
with comment indicator ``NP'' to indicate that these CPT and Level II
HCPCS codes are open for comment as part of this CY 2024 OPPS/ASC
proposed rule.
For CY 2024, we propose to add two ASC payment indicators for new
proposed dental codes. Section XIII.D of this proposed rule describes
the proposed addition of dental codes to the ASC CPL and ancillary
services list for CY 2024. We propose to add specific dental payment
indicators for more streamlined claims processing of the new dental
codes, as these codes would require different billing mechanisms than
non-dental procedures currently on the CPL. Separate payment indicators
would allow MACs to more quickly and easily distinguish how these codes
need to be processed. Proposed ASC payment indicators ``D1'' and ``D2''
are for the new dental codes that would be paid in CY 2024 and
subsequent calendar years and would be added to Addendum DD1 (which is
available via the internet on the CMS website) to indicate potentially
payable dental services and procedures in the ASC setting. The first
proposed payment indicator is ``D1''--``Ancillary dental service/item;
no separate payment made.'' The ``D1'' indicator would indicate an
ancillary dental procedure that would be performed integral to a
separately payable dental surgical procedure with a payment indicator
of ``D2.'' The second proposed payment indicator is ``D2''--``Non
office-based dental procedure added in CY 2024 or later.'' The ``D2''
payment indicator would indicate a separately payable dental surgical
procedure that would be subject to the multiple procedure reduction,
but would not be designated as an office-based covered surgical
procedure. Section XIII.D.2 of this proposed rule describes how these
payment indicators would be used in claims processing for dental
services. We solicit comment on these proposed new payment indicators,
including whether their descriptors are appropriate and any
considerations interested parties believe we should take into account
when structuring payment for the procedures for which we propose to use
payment indicators D1 and D2.
We refer readers to Addenda DD1 and DD2 of this proposed rule
(these addenda are available via the internet on the CMS website) for
the complete list of ASC payment and comment indicators proposed for
the CY 2024 update.
C. Payment Policies Under the ASC Payment System
1. Proposed ASC Payment for Covered Surgical Procedures
a. Background
Our ASC payment policies for covered surgical procedures under the
revised ASC payment system are described in the CY 2008 OPPS/ASC final
rule with comment period (72 FR 66828 through 66831). Under our
established policy, we use the ASC standard ratesetting methodology of
multiplying the ASC relative payment weight for the procedure by the
ASC conversion factor for that same year to calculate the national
unadjusted payment rates for procedures with payment indicators ``G2''
and ``A2.'' Payment indicator ``A2'' was developed to identify
procedures that were included on the list of ASC covered surgical
procedures in CY 2007 and, therefore, were subject to transitional
payment prior to CY 2011. Although the 4-year transitional period has
ended and payment indicator ``A2'' is no longer required to identify
surgical procedures subject to transitional payment, we have retained
payment indicator ``A2'' because it is used to identify procedures that
are exempted from the application of the office-based designation.
Payment rates for office-based procedures (payment indicators
``P2,'' ``P3,'' and ``R2'') are the lower of the PFS nonfacility PE
RVU-based amount or the amount calculated using the ASC standard rate
setting methodology for the procedure. As detailed in section
XIII.C.3.b of this CY 2024 OPPS/ASC proposed rule, we update the
payment amounts for office-based procedures (payment indicators ``P2,''
``P3,'' and ``R2'') using the most recent available MPFS and OPPS data.
We compare the estimated current year rate for each of the office-based
procedures, calculated according to the ASC standard rate setting
methodology, to the PFS nonfacility PE RVU-based amount to determine
which is lower and, therefore, would be the current year payment rate
for the procedure under our final policy for the revised ASC payment
system (Sec. 416.171(d)).
The rate calculation established for device-intensive procedures
(payment indicator ``J8'') is structured so only the service (non-
device) portion of the rate is subject to the ASC conversion factor. We
update the payment rates for device-intensive procedures to incorporate
the most recent device offset percentages calculated under the ASC
standard ratesetting methodology, as discussed in section XIII.C.4 of
this proposed rule.
In the CY 2014 OPPS/ASC final rule with comment period (78 FR
75081), we finalized our proposal to calculate the CY 2014 payment
rates for ASC covered surgical procedures according to our established
methodologies, with the exception of device removal procedures. For CY
2014, we finalized a policy to conditionally package payment for device
removal procedures under the OPPS. Under the OPPS, a conditionally
packaged procedure (status indicators ``Q1'' and ``Q2'') describes a
HCPCS code where the payment is packaged when it is provided with a
significant procedure but is separately paid when the service appears
on the claim without a significant procedure. Because ASC services
always include a covered surgical procedure, HCPCS codes that are
conditionally packaged under the OPPS are always packaged (payment
indicator ``N1'') under the ASC payment system. Under the OPPS, device
removal procedures are conditionally packaged and, therefore, would be
packaged under the ASC payment system. There is no Medicare payment
made when a device removal procedure is performed in an ASC without
another surgical procedure included on the claim; therefore, no
Medicare payment would be made if a device was removed but not
replaced. To ensure that the ASC payment system provides separate
payment for surgical procedures that only involve device removal--
conditionally packaged in the OPPS (status indicator ``Q2'')--we have
continued to provide separate payment since CY 2014 and assign the
current ASC payment indicators associated with these procedures.
[[Page 49750]]
b. Update to ASC Covered Surgical Procedure Payment Rates for CY 2024
We propose to update ASC payment rates for CY 2024 and subsequent
years using the established rate calculation methodologies under Sec.
416.171 and using our definition of device-intensive procedures, as
discussed in section XIII.C.4 of this proposed rule. As the proposed
OPPS relative payment weights are generally based on geometric mean
costs, we propose that the ASC payment system will generally use the
geometric mean cost to determine proposed relative payment weights
under the ASC standard methodology. We propose to continue to use the
amount calculated under the ASC standard ratesetting methodology for
procedures assigned payment indicators ``A2'' and ``G2.''
We propose to calculate payment rates for office-based procedures
(payment indicators ``P2,'' ``P3,'' and ``R2'') and device-intensive
procedures (payment indicator ``J8'') according to our established
policies and to identify device-intensive procedures using the
methodology discussed in section XIII.C.4 of this proposed rule.
Therefore, we propose to update the payment amount for the service
portion (the non-device portion) of the device-intensive procedures
using the standard ASC ratesetting methodology and the payment amount
for the device portion based on the proposed CY 2024 device offset
percentages that have been calculated using the standard OPPS APC
ratesetting methodology. We propose that payment for office-based
procedures would be at the lesser of the proposed CY 2024 MPFS
nonfacility PE RVU-based amount or the proposed CY 2024 ASC payment
amount calculated according to the ASC standard ratesetting
methodology.
As we did for CYs 2014 through 2023, for CY 2024, we propose to
continue our policy for device removal procedures, such that device
removal procedures that are conditionally packaged in the OPPS (status
indicators ``Q1'' and ``Q2'') will be assigned the current ASC payment
indicators associated with those procedures and will continue to be
paid separately under the ASC payment system.
c. Proposed Payment for ASC Add-On Procedures Eligible for Complexity
Adjustments Under the OPPS
In this section, we discuss the policy to provide increased payment
under the ASC payment system for combinations of certain ``J1'' service
codes and add-on procedure codes that are eligible for a complexity
adjustment under the OPPS.
(1) OPPS C-APC Complexity Adjustment Policy
Under the OPPS, complexity adjustments are utilized to provide
increased payment for certain comprehensive services. As discussed in
section II.A.2.b of this proposed rule, we apply a complexity
adjustment by promoting qualifying paired ``J1'' service code
combinations or paired code combinations of ``J1'' services and add-on
codes from the originating Comprehensive APC (C-APC) (the C-APC to
which the designated primary service is first assigned) to the next
higher paying C-APC in the same clinical family of C-APCs. A ``J1''
status indicator refers to a hospital outpatient service paid through a
C-APC. We package payment for all add-on codes, which are codes that
describe a procedure or service always performed in addition to a
primary service or procedure, into the payment for the C-APC. However,
certain combinations of primary service codes and add-on codes may
qualify for a complexity adjustment.
We apply complexity adjustments when the paired code combination
represents a complex, costly form or version of the primary service
when the frequency and cost thresholds are met. The frequency threshold
is met when there are 25 or more claims reporting the code combination,
and the cost threshold is met when there is a violation of the 2 times
rule, as specified in section 1833(t)(2) of the Act and described in
section III.A.2.b of this proposed rule, in the originating C-APC.
These paired code combinations that meet the frequency and cost
threshold criteria represent those that exhibit materially greater
resource requirements than the primary service. After designating a
single primary service for a claim, we evaluate that service in
combination with each of the other procedure codes reported on the
claim that are either assigned to status indicator ``J1'' or add-on
codes to determine if there are paired code combinations that meet the
complexity adjustment criteria. Once we have determined that a
particular combination of ``J1'' services, or combinations of a ``J1''
service and add-on code, represents a complex version of the primary
service because it is sufficiently costly, frequent, and a subset of
the primary comprehensive service overall according to the criteria
described above, we promote the claim to the next higher cost C-APC
within the clinical family unless the primary service is already
assigned to the highest cost APC within the C-APC clinical family or
assigned to the only C-APC in a clinical family. We do not create new
C-APCs with a comprehensive geometric mean cost that is higher than the
highest geometric mean cost (or only) C-APC in a clinical family just
to accommodate potential complexity adjustments. Therefore, the highest
payment for any claim including a code combination for services
assigned to a C-APC would be the highest paying C-APC in the clinical
family (79 FR 66802).
As previously stated, we package payment for add-on codes into the
C-APC payment rate. If any add-on code reported in conjunction with the
``J1'' primary service code does not qualify for a complexity
adjustment, payment for the add-on service continues to be packaged
into the payment for the primary service and the primary service code
reported with the add-on code is not reassigned to the next higher cost
C-APC. We list the proposed complexity adjustments for ``J1'' and add-
on code combinations for CY 2024, along with all of the other proposed
complexity adjustments, in Addendum J to this proposed rule (which is
available via the internet on the CMS website at https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/HospitalOutpatientPPS/Hospital-Outpatient-Regulations-and-Notices).
(2) CY 2023 ASC Special Payment Policy for OPPS Complexity-Adjusted C-
APCs
Comprehensive APCs cannot be adopted in the ASC payment system due
to limitations of the ASC claims processing systems. Thus, we do not
use the OPPS comprehensive services ratesetting methodology in the ASC
payment system. Under the standard ratesetting methodology used for the
ASC payment system, comprehensive ``J1'' claims that exist under the
OPPS are treated the same as other claims that contain separately
payable procedure codes. As comprehensive APCs do not exist under the
ASC payment system, there is not a process similar to the OPPS
complexity adjustment policy in the ASC payment system to provide
higher payment for more complex code combinations. In the ASC payment
system, when multiple procedures are performed together in a single
operative session, most covered surgical procedures are subject to a
50-percent reduction for the lower-paying procedure (72 FR 66830). This
multiple procedure reduction gives providers additional payment when
they perform multiple procedures during the same session, while still
encouraging providers to provide necessary services
[[Page 49751]]
as efficiently as possible. Add-on procedure codes are not separately
payable under the ASC payment system and are always packaged into the
ASC payment rate for the procedure. Unlike the multiple procedure
discounting process used for other surgical procedures in the ASC
payment system, providers do not receive any additional payment when
they perform a primary service with a service corresponding to an add-
on code in the ASC payment system.
Before CY 2023 rulemaking, we received suggestions from commenters
requesting that we explore ways to increase payment to ASCs when
services corresponding to add-on codes are performed with procedures,
as certain code combinations may represent increased procedure
complexity or resource intensity when performed together. For example,
in the CY 2022 OPPS/ASC final rule with comment period, one commenter
suggested that we modify the device-intensive criteria to allow
packaged procedures that trigger a complexity adjustment under the OPPS
to be eligible for device-intensive status under the ASC payment system
(86 FR 63775). Based on our internal data review and assessment at that
time, our response to that comment noted that we did not believe any
changes were warranted to our packaging policies under the ASC payment
system but that we would consider it in future rulemaking.
In the CY 2023 OPPS/ASC final rule, we evaluated the differences in
payment in the OPPS and ASC settings for code pairs that included a
primary procedure and add-on codes that were eligible for complexity
adjustments under the OPPS and also performed in the ASC setting. When
we compared the OPPS complexity-adjusted payment rate of these primary
procedure and add-on code combinations to the ASC payment rate for the
same code combinations, we found that the average rate of ASC payment
as a percent of OPPS payment for these code combinations was
significantly lower than 55 percent. We recognized that this payment
differential between the C-APC-assigned code combinations eligible for
complexity adjustments under the OPPS and the same code combinations
under the ASC payment system could potentially create financial
disincentives for providers to offer these services in the ASC setting,
which could potentially result in Medicare beneficiaries encountering
difficulties accessing these combinations of services in ASC settings.
As noted above, our policy did not include additional payment for
services corresponding to add-on codes, unlike our payment policy for
multiple surgical procedures performed together, for which we provide
additional payment under the multiple procedure reduction. However,
these primary procedure and add-on code combinations that would be
eligible for a complexity adjustment under the OPPS represented a more
complex and costly version of the service, and we believed that
providers not receiving additional payment under the ASC payment system
to compensate for that increased complexity could lead to providers not
being able to provide these services in the ASC setting, which could
result in barriers to beneficiary access.
In order to address this issue, in the CY 2023 OPPS/ASC final rule
(87 FR 72079 to 72080), we finalized a new ASC payment policy that
would apply to certain code combinations in the ASC payment system
where CMS would pay for those code combinations at a higher payment
rate to reflect that the code combination is a more complex and
costlier version of the procedure performed, similar to the way in
which the OPPS APC complexity adjustment is applied to certain paired
code combinations that exhibit materially greater resource requirements
than the primary service. We finalized adding new regulatory text at
Sec. 416.172(h) to codify this policy.
We finalized that combinations of a primary procedure code and add-
on codes that are eligible for a complexity adjustment under the OPPS
(as listed in OPPS Addendum J) would be eligible for this payment
policy in the ASC setting. Specifically, we finalized that the ASC
payment system code combinations eligible for additional payment under
this policy would consist of a separately payable surgical procedure
code and one or more packaged add-on codes from the ASC Covered
Procedures List (CPL) and ancillary services list. Add-on codes were
assigned payment indicator ``N1'' (Packaged service/item; no separate
payment made), as listed in the ASC addenda.
Regarding eligibility for this special payment policy, we finalized
that we would assign each eligible code combination a new C-code, which
we will refer to as an ``ASC complexity adjustment code,'' that
describes the primary and the add-on procedure(s) performed. C-codes
are unique temporary codes and are only valid for claims for HOPD and
ASC services and procedures. Under our policy, we add these ASC
complexity adjustment codes to the ASC CPL and the ancillary services
list, and when ASCs bill an ASC complexity adjustment code, they
receive a higher payment rate that reflects that the code combination
is a more complex and costlier version of the primary procedure
performed. We anticipated that the ASC complexity adjustment codes
eligible for this payment policy would change slightly each year, as
the complexity adjustment assignments change under the OPPS; and we
expect we would add new ASC complexity adjustment codes each year
accordingly. In the CY 2023 OPPS/ASC final rule with comment period (87
FR 72079 to 72080), we finalized new ASC complexity adjustment codes to
add to the ASC CPL, which were listed in the ASC addenda. We also
finalized adding new regulatory text at Sec. 416.172(h)(1), titled
``Eligibility,'' to codify this policy.
We finalized the following payment methodology for this policy,
which we reflected in new Sec. 416.172(h)(2), titled ``Calculation of
Payment.'' The ASC complexity adjustment codes are subject to all ASC
payment policies, including the standard ASC payment system ratesetting
methodology, meaning, they are treated the same way as other procedure
codes in the ASC setting. For example, the multiple procedure
discounting rules would apply to the primary procedure in cases where
the services corresponding to the ASC complexity adjustment code are
performed with another separately payable covered surgical procedure in
the ASC setting. We finalized using the OPPS complexity-adjusted C-APC
rate to determine the ASC payment rate for qualifying code
combinations, similar to how we use OPPS APC relative weights in the
standard ASC payment system ratesetting methodology. Under the ASC
payment system, we used the OPPS APC relative payment weights to update
the ASC relative payment weights for covered surgical procedures since
ASCs do not submit cost reports. We then scaled those ASC relative
weights for the ASC payment system to ensure budget neutrality. To
calculate the ASC payment rates for most ASC covered surgical
procedures, we multiplied the ASC conversion factor by the ASC relative
payment weight. A more detailed discussion of this methodology is
provided in the in the CY 2008 OPPS/ASC final rule with comment period
(72 FR 66828 through 66831).
We also finalized using the OPPS complexity-adjusted C-APC rate for
each corresponding code combination to calculate the OPPS relative
weight for each corresponding ASC complexity adjustment code, which we
believed would appropriately reflect the complexity and resource
intensity of
[[Page 49752]]
these ASC procedures being performed together. For ASC complexity
adjustment codes that are not assigned device-intensive status
(discussed below), we multiply the OPPS relative weight by the ASC
budget neutrality adjustment (or ASC weight scalar) to determine the
ASC relative weight. We then multiply the ASC relative weight by the
ASC conversion factor to determine the ASC payment rate for each ASC
complexity adjustment code. In short, we apply the standard ASC
ratesetting process to the ASC complexity adjustment codes. We
finalized adding new Sec. 416.172(h)(2)(i) to codify this policy.
As discussed in section XIII.C.1.b of the CY 2023 OPPS/ASC final
rule with comment period (87 FR 44708), certain ASC complexity
adjustment codes under our policy may include a primary procedure that
also qualifies for device-intensive status under the ASC payment
system. For primary procedures assigned device-intensive status that
are a component of an ASC complexity adjustment code created under this
proposal, we believe it is appropriate for the ASC complexity
adjustment code to retain the device-intensive status of the primary
procedure as well as the device portion (or device offset amount) of
the primary procedure and not the device offset percentage. For
example, if the primary procedure has a device offset percentage of 31
percent (a device offset percentage of greater than 30 percent would be
needed to qualify for device-intensive status) and a device portion (or
device offset amount) of $3,000, ASC complexity adjustment codes that
included this primary procedure would be assigned device-intensive
status and a device portion of $3,000 to be held constant with the
OPPS. We apply our standard ASC payment system ratesetting methodology
to the non-device portion of the OPPS complexity-adjusted APC rate of
the ASC complexity adjustment codes; that is, we apply the ASC budget
neutrality adjustment and ASC conversion factor. We believe assigning
device-intensive status and transferring the device portion from the
primary procedure's ASC payment rate to the ASC complexity adjustment
code's ASC payment rate calculation is consistent with our treatment of
device costs and determining device-intensive status under the ASC
payment system and is an appropriate methodology for determining the
ASC payment rate. The non-device portion would be the difference
between the device portion of the primary procedure and the OPPS
complexity-adjusted APC payment rate for the ASC complexity adjustment
code based on the ASC standard ratesetting methodology. Although this
may yield results where the device offset percentage is not greater
than 30 percent of the OPPS complexity-adjusted APC payment rate, we
believe this is an appropriate methodology to apply where primary
procedures assigned device-intensive status are a component of an ASC
complexity adjustment code. As is the case for all device-intensive
procedures, we apply the ASC standard ratesetting methodology to the
OPPS relative weights of the non-device portion for any ASC complexity
adjustment code eligible for payment under this proposal. That is, we
would multiply the OPPS relative weight by the ASC budget neutrality
adjustment and the ASC conversion factor and sum that amount with the
device portion to calculate the ASC payment rate. We finalized adding
new Sec. 416.172(h)(2)(ii) to codify this policy.
In order to include these ASC complexity adjustment codes in the
budget neutrality calculations for the ASC payment system, we estimated
the potential utilization for these ASC complexity adjustment codes. We
do not have claims data for packaged codes in the ASC setting because
ASCs do not report packaged codes under the ASC payment system.
Therefore, we finalized estimating CY 2023 ASC utilization based upon
how often these combinations are performed in the HOPD setting.
Specifically, we used the ratio of the primary procedure volume to add-
on procedure volume from CY 2021 OPPS claims and applied that ratio
against ASC primary procedure utilization to estimate the increased
spending as a result of our proposal for budget neutrality purposes. We
believed this method would provide a reasonable estimate of the
utilization of these code combinations in the ASC setting, as it is
based on the specific code combination utilization in the OPPS. We
anticipated that we would continue this estimation process until we
have sufficient claims data for the ASC complexity adjustment codes
that can be used to more accurately calculate code combination
utilization in ASCs, likely for the CY 2025 rulemaking.
For CY 2024, we propose to continue the special payment policy and
methodology for OPPS complexity-adjusted C-APCs that was finalized in
the CY 2023 OPPS/ASC final rule with comment period (87 FR 72078
through 72080). The full list of the proposed ASC complexity adjustment
codes for CY 2024 can be found in the ASC addenda and the supplemental
policy file, which also includes both the existing ASC complexity
adjustment codes and proposed additions, is published with the proposed
rule on the CMS website at https://www.cms.gov/medicare/medicare-fee-for-service-payment/ascpayment/asc-regulations-and-notices. Because the
complexity adjustment assignments change each year under the OPPS, the
proposed list of ASC complexity adjustment codes eligible for this
proposed payment policy has changed slightly from the previous year.
d. Proposed Low Volume APCs and Limit on ASC Payment Rates for
Procedures Assigned to Low Volume APCs
As stated in section XIII.D.1.b of this proposed rule, the ASC
payment system generally uses OPPS geometric mean costs under the
standard methodology to determine proposed relative payment weights
under the standard ASC ratesetting methodology. In the CY 2022 OPPS/ASC
final rule with comment period (86 FR 63743 through 63747), we adopted
a universal Low Volume APC policy for CY 2022 and subsequent calendar
years. Under our policy, we expanded the low volume adjustment policy
that is applied to procedures assigned to New Technology APCs to also
apply to clinical and brachytherapy APCs. Specifically, a clinical APC
or brachytherapy APC with fewer than 100 claims per year would be
designated as a Low Volume APC. For items or services assigned to a Low
Volume APC, we use up to four years of claims data to establish a
payment rate for the APC as we currently do for low volume services
assigned to New Technology APCs. The payment rate for a Low Volume APC
or a low volume New Technology procedure would be based on the highest
of the median cost, arithmetic mean cost, or geometric mean cost
calculated using multiple years of claims data.
Based on claims data available for this proposed rule, we propose
to designate four clinical APCs and five brachytherapy APCs as Low
Volume APCs under the ASC payment system. The four clinical APCs and
five brachytherapy APCs shown in Table 57 of this proposed rule met our
criteria of having fewer than 100 single claims in the claims year (CY
2022 for this proposed rule) and therefore, we propose that they would
be subject to our universal Low Volume APC policy and the APC cost
metric would be based on the greater of the median cost, arithmetic
mean cost, or geometric mean cost using up to 4 years of claims data.
Eight of the nine APCs were designated as low volume APCs in CY 2023.
In
[[Page 49753]]
addition, based on data for this CY 2024 OPPS/ASC proposed rule, APC
2642 (Brachytx, stranded, C-131) meets our criteria to be designated a
Low Volume APC, and we propose to designate it as such for CY 2024.
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2. Payment for Covered Ancillary Services
a. Background
Our payment policies under the ASC payment system for covered
ancillary services generally vary according to the particular type of
service and its payment policy under the OPPS. Our overall policy
provides separate ASC payment for certain ancillary items and services
integrally related to the provision of ASC covered surgical procedures
that are paid separately under the OPPS and provides packaged ASC
payment for other ancillary items and services that are packaged or
conditionally packaged (status indicators ``N,'' ``Q1,'' and ``Q2'')
under the OPPS.
In the CY 2013 OPPS/ASC rulemaking (77 FR 45169 and 77 FR 68457
through 68458), we further clarified our policy regarding the payment
indicator assignment for procedures that are conditionally packaged in
the OPPS (status indicators ``Q1'' and ``Q2''). Under the OPPS, a
conditionally packaged procedure describes a HCPCS code where the
payment is packaged when it is provided with a significant procedure
but is separately paid when the service appears on the claim without a
significant procedure. Because ASC services always include a surgical
procedure, HCPCS codes that are conditionally packaged under the OPPS
are generally packaged (payment indictor ``N1'') under the ASC payment
system (except for device removal procedures, as discussed in the CY
2022 OPPS/ASC proposed rule (86 FR 42083)). Thus, our policy generally
aligns ASC payment bundles with those under the OPPS (72 FR 42495). In
all cases, in order for ancillary items and services also to be paid,
the ancillary items and services must be provided integral to the
performance of ASC covered surgical procedures for which the ASC bills
Medicare.
Our ASC payment policies generally provide separate payment for
drugs and biologicals that are separately paid under the OPPS at the
OPPS rates and package payment for drugs and biologicals for which
payment is packaged under the OPPS. However, as discussed in the CY
2022 OPPS/ASC final rule with comment period, for CY 2022, we finalized
a policy to unpackage and pay separately at ASP plus 6 percent for the
cost of non-opioid pain management drugs and biologicals that function
as a supply when used in a surgical procedure as determined by CMS
under Sec. 416.174 (86 FR 63483).
We generally pay for separately payable radiology services at the
lower
[[Page 49754]]
of the PFS nonfacility PE RVU-based (or technical component) amount or
the rate calculated according to the ASC standard ratesetting
methodology (72 FR 42497). However, as finalized in the CY 2011 OPPS/
ASC final rule with comment period (75 FR 72050), payment indicators
for all nuclear medicine procedures (defined as CPT codes in the range
of 78000 through 78999) that are designated as radiology services that
are paid separately when provided integral to a surgical procedure on
the ASC list are set to ``Z2'' so that payment is made based on the ASC
standard ratesetting methodology rather than the MPFS nonfacility PE
RVU amount (``Z3''), regardless of which is lower (Sec.
416.171(d)(1)).
Similarly, we also finalized our policy to set the payment
indicator to ``Z2'' for radiology services that use contrast agents so
that payment for these procedures will be based on the OPPS relative
payment weight using the ASC standard ratesetting methodology and,
therefore, will include the cost for the contrast agent (Sec.
416.171(d)(2)).
ASC payment policy for brachytherapy sources mirrors the payment
policy under the OPPS. ASCs are paid for brachytherapy sources provided
integral to ASC covered surgical procedures at prospective rates
adopted under the OPPS or, if OPPS rates are unavailable, at
contractor-priced rates (72 FR 42499). Since December 31, 2009, ASCs
have been paid for brachytherapy sources provided integral to ASC
covered surgical procedures at prospective rates adopted under the
OPPS.
Our ASC policies also provide separate payment for: (1) certain
items and services that CMS designates as contractor-priced, including,
but not limited to, the procurement of corneal tissue; and (2) certain
implantable items that have pass-through payment status under the OPPS.
These categories do not have prospectively established ASC payment
rates according to ASC payment system policies (72 FR 42502 and 42508
through 42509; Sec. 416.164(b)). Under the ASC payment system, we have
designated corneal tissue acquisition and hepatitis B vaccines as
contractor-priced. Corneal tissue acquisition is contractor-priced
based on the invoiced costs for acquiring the corneal tissue for
transplantation. Hepatitis B vaccines are contractor-priced based on
invoiced costs for the vaccine.
Devices that are eligible for pass-through payment under the OPPS
are separately paid under the ASC payment system and are contractor-
priced. Under the revised ASC payment system (72 FR 42502), payment for
the surgical procedure associated with the pass-through device is made
according to our standard methodology for the ASC payment system, based
on only the service (non-device) portion of the procedure's OPPS
relative payment weight if the APC weight for the procedure includes
other packaged device costs. We also refer to this methodology as
applying a ``device offset'' to the ASC payment for the associated
surgical procedure. This ensures that duplicate payment is not provided
for any portion of an implanted device with OPPS pass-through payment
status.
In the CY 2015 OPPS/ASC final rule with comment period (79 FR 66933
through 66934), we finalized that, beginning in CY 2015, certain
diagnostic tests within the medicine range of CPT codes for which
separate payment is allowed under the OPPS are covered ancillary
services when they are integral to an ASC covered surgical procedure.
We finalized that diagnostic tests within the medicine range of CPT
codes include all Category I CPT codes in the medicine range
established by CPT, from 90000 to 99999, and Category III CPT codes and
Level II HCPCS codes that describe diagnostic tests that crosswalk or
are clinically similar to procedures in the medicine range established
by CPT. In the CY 2015 OPPS/ASC final rule with comment period, we also
finalized our policy to pay for these tests at the lower of the PFS
nonfacility PE RVU-based (or technical component) amount or the rate
calculated according to the ASC standard ratesetting methodology (79 FR
66933 through 66934). We finalized that the diagnostic tests for which
the payment is based on the ASC standard ratesetting methodology be
assigned to payment indicator ``Z2'' and revised the definition of
payment indicator ``Z2'' to include a reference to diagnostic services
and those for which the payment is based on the PFS nonfacility PE RVU-
based amount be assigned payment indicator ``Z3,'' and revised the
definition of payment indicator ``Z3'' to include a reference to
diagnostic services.
b. Proposed Payment for Covered Ancillary Services for CY 2024
We propose to update the ASC payment rates and to make changes to
ASC payment indicators, as necessary, to maintain consistency between
the OPPS and ASC payment system regarding the packaged or separately
payable status of services and the proposed CY 2024 OPPS and ASC
payment rates and subsequent years' payment rates. We also propose to
continue to set the CY 2024 ASC payment rates and subsequent years'
payment rates for brachytherapy sources and separately payable drugs
and biologicals equal to the OPPS payment rates for CY 2024 and
subsequent years' payment rates.
Covered ancillary services and their proposed payment indicators
for CY 2024 are listed in Addendum BB of this proposed rule (which is
available via the internet on the CMS website). For those covered
ancillary services where the payment rate is the lower of the rate
under the ASC standard rate setting methodology and the PFS proposed
rates (similar to our office-based payment policy), the proposed
payment indicators and rates set forth in this proposed rule are based
on a comparison using the proposed PFS rates effective January 1, 2024.
For a discussion of the PFS rates, we refer readers to the CY 2024 PFS
proposed rule, which is available on the CMS website at: https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/PhysicianFeeSched/PFS-Federal-Regulation-Notices.html.
3. Covered Surgical Procedures Designated as Office-Based Procedures
a. Background
In the August 2, 2007 ASC final rule, we finalized our policy to
designate as ``office-based'' those procedures that are added to the
ASC Covered Procedures List (CPL) in CY 2008 or later years that we
determine are furnished predominantly (more than 50 percent of the
time) in physicians' offices based on consideration of the most recent
available volume and utilization data for each individual procedure
code and/or, if appropriate, the clinical characteristics, utilization,
and volume of related codes. In that rule, we also finalized our policy
to exempt all procedures on the CY 2007 ASC list from application of
the office-based classification (72 FR 42512). The procedures that were
added to the ASC CPL beginning in CY 2008 that we determined were
office-based were identified in Addendum AA to that rule with payment
indicator ``P2'' (Office-based surgical procedure added to ASC list in
CY 2008 or later with MPFS nonfacility PE RVUs; payment based on OPPS
relative payment weight); ``P3'' (Office-based surgical procedures
added to ASC list in CY 2008 or later with MPFS nonfacility PE RVUs;
payment based on MPFS nonfacility PE RVUs); or ``R2'' (Office-based
surgical procedure added to ASC list in CY 2008 or later
[[Page 49755]]
without MPFS nonfacility PE RVUs; payment based on OPPS relative
payment weight), depending on whether we estimated the procedure would
be paid according to the ASC standard ratesetting methodology based on
its OPPS relative payment weight or at the MPFS nonfacility PE RVU-
based amount.
Consistent with our final policy to annually review and update the
ASC CPL to include all covered surgical procedures eligible for payment
in ASCs, each year we identify covered surgical procedures as either
temporarily office-based (these are new procedure codes with little or
no utilization data that we have determined are clinically similar to
other procedures that are permanently office-based), permanently
office-based, or nonoffice-based, after taking into account updated
volume and utilization data.
b. CY 2024 Proposed Office-Based Procedures
In developing this CY 2024 OPPS/ASC proposed rule, we followed our
policy to annually review and update the covered surgical procedures
for which ASC payment is made and to identify new procedures that may
be appropriate for ASC payment (described in detail in section
XIII.C.1.d of this proposed rule), including their potential
designation as office-based. Historically, we would also review the
most recent claims volume and utilization data (CY 2022 claims) and the
clinical characteristics for all covered surgical procedures that are
currently assigned a payment indicator in CY 2023 of ``G2'' (Non
office-based surgical procedure added in CY 2008 or later; payment
based on OPPS relative payment weight) as well as for those procedures
assigned one of the temporary office-based payment indicators,
specifically ``P2,'' ``P3,'' or ``R2'' in the CY 2022 OPPS/ASC final
rule with comment period (86 FR 63769 through 63773).
In our CY 2022 OPPS/ASC final rule with comment period (86 FR
63770), we discussed that we, historically, review the most recent
claims volume and utilization data and clinical characteristics for all
covered surgical procedures that were assigned a payment indicator of
``G2'' for CY 2021. For the CY 2022 OPPS/ASC final rule with comment
period, the most recent claims volume and utilization data was CY 2020
claims. However, given our concerns with the use of CY 2020 claims data
as a result of the COVID-19 PHE as further discussed in the CY 2022
OPPS/ASC final rule with comment period (86 FR 63751 through 63754), we
adopted a policy to not review CY 2020 claims data and did not assign
permanent office-based designations to covered surgical procedures that
were assigned a payment indicator of ``G2'' in CY 2021 (86 FR 63770
through 63771).
As discussed further in section X.D of the CY 2023 OPPS/ASC
proposed rule (87 FR 44680 through 44682), in our review of the CY 2021
outpatient claims available for ratesetting for this CY 2023 OPPS
proposed rule, we observed that many outpatient service volumes have
partially returned to their pre-PHE levels; and it is reasonable to
assume that there will continue to be some effects of the COVID-19 PHE
on the outpatient claims that we use for OPPS ratesetting. As a result,
we proposed to use the CY 2021 claims for CY 2023 OPPS ratesetting.
Similarly, in the CY 2023 OPPS/ASC proposed rule (87 FR 44705 through
44708), we proposed to resume our historical practice and review the
most recent claims and utilization data, in this case data from CY 2021
claims, for determining office-based assignments under the ASC payment
system.
Our review of the CY 2022 volume and utilization data of covered
surgical procedures currently assigned a payment indicator of ``G2''
(Non office-based surgical procedure added in CY 2008 or later; payment
based on OPPS relative payment weight) resulted in the identification
of two surgical procedures that we believed met the criteria for
designation as permanently office-based. The data indicate that these
procedures are performed more than 50 percent of the time in
physicians' offices, and the services are of a level of complexity
consistent with other procedures performed routinely in physicians'
offices. The CPT codes that we propose to permanently designate as
office-based for CY 2024 are listed in Table 58.
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As discussed in the August 2, 2007 ASC final rule (72 FR 42533
through 42535), we finalized our policy to designate certain new
surgical procedures as temporarily office-based until adequate claims
data are available to assess their predominant sites of service,
whereupon if we confirm their office-based nature, the procedures are
[[Page 49756]]
permanently assigned to the list of office-based procedures. In the
absence of claims data, we use other available information, including
our clinical advisors' judgment, predecessor CPT and Level II HCPCS
codes, information submitted by representatives of specialty societies
and professional associations, and information submitted by commenters
during the public comment period.
We reviewed CY 2022 volume and utilization data for nine surgical
procedures designated as temporarily office-based in the CY 2023 OPPS/
ASC final rule with comment period and temporarily assigned one of the
office-based payment indicators, specifically ``P2,'' ``P3,'' or
``R2.'' As shown in Table 59, for four of the nine surgical procedures,
there were greater than 50 claims available and the volume and
utilization data indicated these four procedures were performed
predominantly in the office setting. Therefore, we propose to no longer
designate the four procedures as temporarily office-based but to
permanently designate these procedures as office-based and assign one
of the office-based payment indicators, specifically ``P2,'' ``P3,'' or
``R2.''
Additionally, for one of the nine surgical procedures, there were
greater than 50 claims available; and the volume and utilization data
indicated that this procedure--CPT code 64454 (Injection(s), anesthetic
agent(s) and/or steroid; genicular nerve branches, including imaging
guidance, when performed)--is not performed predominantly in the office
setting. Therefore, as shown in Table 59, we propose to no longer
designate this procedure as temporarily office-based. For CY 2024, we
propose to assign this procedure a payment indicator of ``G2'' (Non
office-based surgical procedure added in CY 2008 or later; payment
based on OPPS relative payment weight).
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For four of the nine procedures that were designated as temporarily
office-based in the CY 2023 OPPS/ASC final rule with comment period and
temporarily assigned one of the office-based payment indicators,
specifically ``P2,'' ``P3,'' or ``R2,'' there were fewer than 50
claims; therefore, there was an insufficient amount to determine if the
office setting was the predominant setting of care for these
procedures. Therefore, as shown in Table 60, we propose to continue to
designate such procedures as temporarily office-based for CY 2024 and
assign one of the office-based payment indicators.
For CY 2024, we propose to designate three new CY 2024 CPT codes
for ASC covered surgical procedures as temporarily office-based--CPT
placeholder codes 6X000, 64XX4, and X170T. After reviewing the clinical
characteristics, utilization, and volume of related procedure codes or
predecessor codes, we determined that the predecessor code for CPT
placeholder code 6X000 (Suprachoroidal space injection of pharmacologic
agent (separate procedure)) is CPT code 0465T (Suprachoroidal injection
of a pharmacologic agent (does not include supply of medication)),
which was
[[Page 49757]]
designated as an office-based procedure. Additionally, CPT placeholder
code 64XX4 (Revision or removal of neurostimulator electrode array,
peripheral nerve, with integrated neurostimulator) is most similar to
CPT code 0588T (Revision or removal of integrated single device
neurostimulation system including electrode array and receiver or pulse
generator, including analysis, programming, and imaging guidance when
performed, posterior tibial nerve), which is also designated as
temporarily office-based. Lastly, CPT placeholder code X170T (Low-
intensity extracorporeal shock wave therapy involving corpus
cavernosum, low energy) is most similar to CPT code 0101T
(Extracorporeal shock wave involving musculoskeletal system, not
otherwise specified) which is designated as an office-based surgical
procedure. Therefore, as shown in Table 60, we propose to designate
these three new CPT codes as temporarily office-based for CY 2024.
The procedures for which the proposed office-based designation for
CY 2024 is temporary are indicated by an asterisk in Addendum AA to
this proposed rule (which is available via the internet on the CMS
website at https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/ASCPayment/ASC-Regulations-and-Notices).
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[[Page 49758]]
4. Device-Intensive ASC Covered Surgical Procedures
a. Background
We refer readers to the CY 2019 OPPS/ASC final rule with comment
period (83 FR 59040 through 59041), for a summary of our existing
policies regarding ASC covered surgical procedures that are designated
as device-intensive.
b. CY 2024 Proposed Device Intensive Procedures
In the CY 2019 OPPS/ASC final rule with comment period (83 FR 59040
through 59043), for CY 2019, we modified our criteria for device-
intensive procedures to better capture costs for procedures with
significant device costs. We adopted a policy to allow procedures that
involve surgically inserted or implanted, high-cost, single-use devices
to qualify as device-intensive procedures. In addition, we modified our
criteria to lower the device offset percentage threshold from 40
percent to 30 percent. The device offset percentage is the percentage
of device costs within a procedure's total costs. Specifically, for CY
2019 and subsequent years, we adopted a policy that device-intensive
procedures would be subject to the following criteria:
All procedures must involve implantable or insertable
devices assigned a CPT or HCPCS code;
The required devices (including single-use devices) must
be surgically inserted or implanted; and
The device offset amount must be significant, which is
defined as exceeding 30 percent of the procedure's mean cost.
Corresponding to this change in the cost criterion, we adopted a policy
that the default device offset for new codes that describe procedures
that involve the implantation of medical devices will be 31 percent
beginning in CY 2019. For new codes describing procedures that are
payable when furnished in an ASC and involve the implantation of a
medical device, we adopted a policy that the default device offset
would be applied in the same manner as the policy we adopted in section
IV.B.2 of the CY 2019 OPPS/ASC final rule with comment period (83 FR
58944 through 58948). We amended Sec. 416.171(b)(2) of the regulations
to reflect these new device criteria.
In addition, as also adopted in section IV.B.2 of the CY 2019 OPPS/
ASC final rule with comment period, to further align the device-
intensive policy with the criteria used for device pass-through status,
we specified, for CY 2019 and subsequent years, that for purposes of
satisfying the device-intensive criteria, a device-intensive procedure
must involve a device that:
Has received FDA marketing authorization, has received an
FDA investigational device exemption (IDE) and has been classified as a
Category B device by FDA in accordance with 42 CFR 405.203 through
405.207 and 405.211 through 405.215, or meets another appropriate FDA
exemption from premarket review;
Is an integral part of the service furnished;
Is used for one patient only;
Comes in contact with human tissue;
Is surgically implanted or inserted (either permanently or
temporarily); and
Is not any of the following:
++ Equipment, an instrument, apparatus, implement, or item of this
type for which depreciation and financing expenses are recovered as
depreciable assets as defined in Chapter 1 of the Medicare Provider
Reimbursement Manual (CMS Pub. 15-1); or
++ A material or supply furnished incident to a service (for
example, a suture, customized surgical kit, scalpel, or clip, other
than a radiological site marker).
In the CY 2022 OPPS/ASC final rule with comment period (86 FR 63773
through 63775), we modified our approach to assigning device-intensive
status to surgical procedures under the ASC payment system. First, we
adopted a policy of assigning device-intensive status to procedures
that involve surgically inserted or implanted, high-cost, single-use
devices if their device offset percentage exceeds 30 percent under the
ASC standard ratesetting methodology, even if the procedure is not
designated as device-intensive under the OPPS. Second, we adopted a
policy that if a procedure is assigned device-intensive status under
the OPPS, but has a device offset percentage below the device-intensive
threshold under the standard ASC ratesetting methodology, the procedure
will be assigned device-intensive status under the ASC payment system
with a default device offset percentage of 31 percent. The policies
were adopted to provide consistency between the OPPS and ASC payment
system and provide a more appropriate payment rate for surgical
procedures with significant device costs under the ASC payment system.
In the CY 2023 OPPS/ASC final rule with comment period (87 FR 72078
through 72080), we finalized our policy to create certain C-codes, or
ASC complexity adjustment codes that describe certain combinations of a
primary covered surgical procedure as well as a packaged (payment
indicator = ``N1'') procedure that are otherwise eligible for a
complexity adjustment under the OPPS (as listed in Addendum J). Each
ASC complexity adjustment code's APC assignment is based on its
corresponding OPPS complexity adjustment code's APC assignment. In the
CY 2023 OPPS/ASC final rule with comment period, we stated our belief
that it would be appropriate for these ASC complexity adjustment codes
to qualify for device-intensive status under the ASC payment system if
the primary procedure of the code was also designated as device-
intensive. Under our current policy, the ASC complexity adjustment code
would retain the device portion of the primary procedure (also called
the ``device offset amount'') and not the device offset percentage.
Therefore, for device-intensive ASC complexity adjustment codes, we set
the device portion of the combined procedure equal to the device
portion of the primary procedure and calculate the device offset
percentage by dividing the device portion by the ASC complexity
adjustment code's APC payment rate. Further, we apply our standard ASC
payment system ratesetting methodology to the non-device portion of the
ASC complexity adjustment code's APC payment rate; that is, we multiply
the OPPS relative weight by the ASC budget neutrality adjustment and
the ASC conversion factor and sum that amount with the device portion
to calculate the ASC payment rate.
We are not proposing any changes related to designating surgical
procedures as device-intensive under the ASC payment system for CY
2024.
c. Adjustment to ASC Payments for No Cost/Full Credit and Partial
Credit Devices
Our ASC payment policy for costly devices implanted or inserted in
ASCs at no cost/full credit or partial credit is set forth in Sec.
416.179 of our regulations, and is consistent with the OPPS policy that
was in effect until CY 2014. We refer readers to the CY 2008 OPPS/ASC
final rule with comment period (72 FR 66845 through 66848) for a full
discussion of the ASC payment adjustment policy for no cost/full credit
and partial credit devices. ASC payment is reduced by 100 percent of
the device offset amount when a hospital furnishes a specified device
without cost or with a full credit and by 50 percent of the device
offset amount when the hospital receives partial credit in the amount
of 50 percent or more of the cost for the specified device.
Effective CY 2014, under the OPPS, we finalized our proposal to
reduce
[[Page 49759]]
OPPS payment for applicable APCs by the full or partial credit a
provider receives for a device, capped at the device offset amount.
Although we finalized our proposal to modify the policy of reducing
payments when a hospital furnishes a specified device without cost or
with full or partial credit under the OPPS, in the CY 2014 OPPS/ASC
final rule with comment period (78 FR 75076 through 75080), we
finalized our proposal to maintain our ASC policy for reducing payments
to ASCs for specified device-intensive procedures when the ASC
furnishes a device without cost or with full or partial credit. Unlike
the OPPS, there is currently no mechanism within the ASC claims
processing system for ASCs to submit to CMS the amount of the actual
credit received when furnishing a specified device at full or partial
credit. Therefore, under the ASC payment system, we finalized our
proposal for CY 2014 to continue to reduce ASC payments by 100 percent
or 50 percent of the device offset amount when an ASC furnishes a
device without cost or with full or partial credit, respectively.
Under current ASC policy, all ASC device-intensive covered surgical
procedures are subject to the no cost/full credit and partial credit
device adjustment policy. Specifically, when a device-intensive
procedure is performed to implant or insert a device that is furnished
at no cost or with full credit from the manufacturer, the ASC appends
the HCPCS ``FB'' modifier on the line in the claim with the procedure
to implant or insert the device. The contractor reduces payment to the
ASC by the device offset amount that we estimate represents the cost of
the device when the necessary device is furnished without cost or with
full credit to the ASC. We continue to believe that the reduction of
ASC payment in these circumstances is necessary to pay appropriately
for the covered surgical procedure furnished by the ASC.
In the CY 2019 OPPS/ASC final rule with comment period (83 FR 59043
through 59044) we adopted a policy to reduce the payment for a device-
intensive procedure for which the ASC receives partial credit by one-
half of the device offset amount that would be applied if a device was
provided at no cost or with full credit if the credit to the ASC is 50
percent or more (but less than 100 percent) of the cost of the new
device. The ASC will append the HCPCS ``FC'' modifier to the HCPCS code
for the device-intensive surgical procedure when the facility receives
a partial credit of 50 percent or more (but less than 100 percent) of
the cost of a device. To report that the ASC received a partial credit
of 50 percent or more (but less than 100 percent) of the cost of a new
device, ASCs have the option of either: (1) submitting the claim for
the device-intensive procedure to their Medicare contractor after the
procedure's performance, but prior to manufacturer acknowledgment of
credit for the device, and subsequently contacting the contractor
regarding a claim adjustment, once the credit determination is made; or
(2) holding the claim for the device implantation or insertion
procedure until a determination is made by the manufacturer on the
partial credit and submitting the claim with the ``FC'' modifier
appended to the implantation procedure HCPCS code if the partial credit
is 50 percent or more (but less than 100 percent) of the cost of the
device. Beneficiary coinsurance would be based on the reduced payment
amount. As finalized in the CY 2015 OPPS/ASC final rule with comment
period (79 FR 66926), to ensure our policy covers any situation
involving a device-intensive procedure where an ASC may receive a
device at no cost or receive full credit or partial credit for the
device, we apply our ``FB''/``FC'' modifier policy to all device-
intensive procedures.
In the CY 2019 OPPS/ASC final rule with comment period (83 FR 59043
through 59044) we stated we would reduce the payment for a device-
intensive procedure for which the ASC receives partial credit by one-
half of the device offset amount that would be applied if a device was
provided at no cost or with full credit, if the credit to the ASC is 50
percent or more (but less than 100 percent) of the cost of the device.
In the CY 2020 OPPS/ASC final rule with comment period, we finalized
continuing our existing policies for CY 2020. We note that we
inadvertently omitted language that this policy would apply not just in
CY 2019 but also in subsequent calendar years. We intended to apply
this policy in CY 2019 and subsequent calendar years. Therefore, we
finalized our proposal to apply our policy for partial credits
specified in the CY 2019 OPPS/ASC final rule with comment period (83 FR
59043 through 59044) in CY 2022 and subsequent calendar years (86 FR
63775 through 63776). Specifically, for CY 2022 and subsequent calendar
years, we would reduce the payment for a device-intensive procedure for
which the ASC receives partial credit by one-half of the device offset
amount that would be applied if a device was provided at no cost or
with full credit, if the credit to the ASC is 50 percent or more (but
less than 100 percent) of the cost of the device. To report that the
ASC received a partial credit of 50 percent or more (but less than 100
percent) of the cost of a device, ASCs have the option of either: (1)
submitting the claim for the device intensive procedure to their
Medicare contractor after the procedure's performance, but prior to
manufacturer acknowledgment of credit for the device, and subsequently
contacting the contractor regarding a claim adjustment, once the credit
determination is made; or (2) holding the claim for the device
implantation or insertion procedure until a determination is made by
the manufacturer on the partial credit and submitting the claim with
the ``FC'' modifier appended to the implantation procedure HCPCS code
if the partial credit is 50 percent or more (but less than 100 percent)
of the cost of the device. Beneficiary coinsurance would be based on
the reduced payment amount. We are not proposing any changes to our
policies related to no/cost full credit or partial credit devices for
CY 2024.
5. Requirement in the Physician Fee Schedule CY 2024 Proposed Rule for
HOPDs and ASCs To Report Discarded Amounts of Certain Single-Dose or
Single-Use Package Drugs
Section 90004 of the Infrastructure Investment and Jobs Act (Pub.
L. 117-9, November 15, 2021) (``the Infrastructure Act'') amended
section 1847A of the Act to re-designate subsection (h) as subsection
(i) and insert a new subsection (h), which requires manufacturers to
provide a refund to CMS for certain discarded amounts from a refundable
single-dose container or single-use package drug. The CY 2024 PFS
proposed rule includes proposals to operationalize section 90004 of the
Infrastructure Act, including a proposal that impacts hospital
outpatient departments (HOPDs) and ambulatory surgical centers (ASCs).
Similar to our CY 2023 notice in the OPPS/ASC proposed rule (87 FR
71988), we wanted to ensure interested parties were aware of these
proposals and knew to refer to the CY 2024 Physician Fee Schedule
proposed rule for a full description of the proposed policy. Interested
parties are asked to submit comments on any proposals to implement
Section 90004 of the Infrastructure Act to the CY 2024 PFS proposed
rule. Public comments on these proposals will be addressed in the CY
2024 PFS final rule with comment period. We note that this same notice
appears in section V.C of this proposed rule.
[[Page 49760]]
6. Payment Amount and Beneficiary Coinsurance for Part B Rebatable
Drugs
On August 16, 2022, the Inflation Reduction Act of 2022 (IRA) (Pub.
L. 117-169) was signed into law. Section 11101 of the IRA requires a
Part B inflation rebate for a Part B rebatable drug if the Medicare
payment amount, which is generally ASP plus 6 percent, if the drug
rises at a rate that is faster than the rate of inflation. It also
establishes changes to the Medicare payment rate and beneficiary
coinsurance for such drugs under the ASC payment system. We refer the
reader to the discussion of this proposed policy and proposed changes
to the regulatory text, which are discussed in further detail in
section II.H.I of this proposed rule.
D. Proposed Additions to ASC Covered Surgical Procedures and Covered
Ancillary Services Lists
1. Additions to the List of ASC Covered Surgical Procedures
Section 1833(i)(1) of the Act requires us, in part, to specify, in
consultation with appropriate medical organizations, surgical
procedures that are appropriately performed on an inpatient basis in a
hospital but that can also be safely performed in an ASC, a CAH, or an
HOPD, and to review and update the list of ASC covered surgical
procedures at least every 2 years. We evaluate the ASC covered
procedures list (ASC CPL) each year to determine whether procedures
should be added to or removed from the list, and changes to the list
are often made in response to specific concerns raised by stakeholders.
Under our regulations at Sec. Sec. 416.2 and 416.166, covered
surgical procedures furnished on or after January 1, 2022, are surgical
procedures that meet the general standards specified in Sec.
416.166(b) and are not excluded under the general exclusion criteria
specified in Sec. 416.166(c). Specifically, under Sec. 416.166(b),
the general standards provide that covered surgical procedures are
surgical procedures specified by the Secretary and published in the
Federal Register and/or via the internet on the CMS website that are
separately paid under the OPPS, that would not be expected to pose a
significant safety risk to a Medicare beneficiary when performed in an
ASC, and for which standard medical practice dictates that the
beneficiary would not typically be expected to require active medical
monitoring and care at midnight following the procedure.
Section 416.166(c) sets out the general exclusion criteria used
under the ASC payment system to evaluate the safety of procedures for
performance in an ASC. The general exclusion criteria provide that
covered surgical procedures do not include those surgical procedures
that: (1) generally result in extensive blood loss; (2) require major
or prolonged invasion of body cavities; (3) directly involve major
blood vessels; (4) are generally emergent or life-threatening in
nature; (5) commonly require systemic thrombolytic therapy; (6) are
designated as requiring inpatient care under Sec. 419.22(n); (7) can
only be reported using a CPT unlisted surgical procedure code; or (8)
are otherwise excluded under Sec. 411.15.
In the CY 2019 OPPS/ASC final rule with comment period (83 FR 59029
through 59030), we defined a surgical procedure under the ASC payment
system as any procedure described within the range of Category I CPT
codes that the CPT Editorial Panel of the AMA defines as ``surgery''
(CPT codes 10000 through 69999) (72 FR 42476), as well as procedures
that are described by Level II HCPCS codes or by Category I CPT codes
or by Category III CPT codes that directly crosswalk or are clinically
similar to procedures in the CPT surgical range that we determined met
the general standards established in previous years for addition to the
ASC CPL.
For a detailed discussion of the history of our policies for adding
surgical procedures to the ASC CPL, we refer readers to the CY 2021, CY
2022, and CY 2023 OPPS/ASC final rules with comment period (85 FR 86143
through 86145; 86 FR 63777 through 63805, 87 FR 72068 through 72076).
2. Proposed Changes to the List of ASC Covered Surgical Procedures for
CY 2024
Our current policy, which includes consideration of the general
standards and exclusion criteria we have historically used to determine
whether a surgical procedure should be added to the ASC CPL, is
intended to ensure that surgical procedures added to the ASC CPL can be
performed safely in the ASC setting on the typical Medicare
beneficiary. In the CY 2023 OPPS/ASC final rule with comment period, we
received requests to add dental surgeries furnished in the ASC setting
to the ASC CPL (87 FR 71882). In response to these public comments, we
noted that if a dental service is covered under Medicare Part B and
meets the criteria for the ASC CPL (set forth at 42 CFR 416.166), then
it could be added to the ASC CPL, and that we would take additional
dental procedures into consideration for future rulemaking. For CY
2024, we conducted a review of procedures that currently are paid under
the OPPS and not included on the ASC CPL. We also assessed procedures
against our regulatory safety criteria at Sec. 416.166. Based upon
this review, we propose to update the ASC CPL by adding 26 dental
surgical procedures to the list for CY 2024, as shown in Table 61
below.
After reviewing the clinical characteristics of these procedures,
as well as consulting with stakeholders and multiple clinical advisors,
we determined that these procedures are separately paid under the OPPS,
would not be expected to pose a significant risk to beneficiary safety
when performed in an ASC, and would not be expected to require active
medical monitoring and care of the beneficiary at midnight following
the procedure. These procedures are clinically similar to procedures in
the CPT surgical range that we determined met the general standards for
addition to the ASC CPL. These procedures are not excluded from being
included on the ASC CPL because they do not generally result in
extensive blood loss, require major or prolonged invasion of body
cavities, commonly require systemic thrombolytic therapy, or directly
involve major blood vessels; are not generally emergent or life-
threatening in nature or designated as requiring inpatient care; or can
only be reported using a CPT unlisted surgical procedure code or are
otherwise excluded under Medicare. Therefore, we believe these
procedures may all be appropriately performed in an ASC and propose to
include them on the ASC CPL for CY 2024.
We note that there are statutory and regulatory limitations
regarding Medicare coverage and payment for dental services. Section
1862(a)(12) of the Act generally precludes Medicare Part A or Part B
payment for services in connection with the care, treatment, filling,
removal, or replacement of teeth or structures directly supporting
teeth (collectively referred to in this section as ``dental
services''). The regulation at Sec. 411.15(i) similarly prohibits
payment for dental services. In the CY 2023 PFS final rule (87 FR
69663), we explained that there are certain instances where dental
services are so integral to other medically necessary services that
they are not in connection with dental services within the meaning of
section 1862(a)(12) of the Act. Rather, such dental services are
inextricably linked to, and substantially related to the clinical
success of, other covered services (hereafter in this section,
``inextricably linked''). To provide greater clarity to current
policies, the CY
[[Page 49761]]
2023 PFS final rule finalized: (1) a clarification of our
interpretation of section 1862(a)(12) of the Act to permit payment for
dental services that are inextricably linked to other covered services;
(2) clarification and codification of certain longstanding Medicare FFS
payment policies for dental services that are inextricably linked to
other covered services; (3) that, beginning for CY 2023, Medicare Parts
A and B payment can be made for certain dental services inextricably
linked to Medicare-covered organ transplant, cardiac valve replacement,
or valvuloplasty procedures; and, (4) beginning for CY 2024, that
Medicare Parts A and B payment can be made for certain dental services
inextricably linked to Medicare-covered services for treatment of head
and neck cancers (87 FR 69670 through 69671). For the ASC setting,
services must meet all applicable Medicare conditions for coverage and
payment to be paid by Medicare, including those as specified under the
CY 2023 PFS final rule (87 FR 69687 through 69688) and Sec.
411.15(i)(3). Medicare payment may be made in the ASC setting for
dental services for which payment may be made under Medicare Part B,
paid under the OPPS, and that meet the ASC CPL criteria. The fact that
a drug, device, procedure, or service is assigned a HCPCS code and a
payment rate under the ASC payment system indicates only how the
product, procedure, or service may be paid if covered by the program.
MACs will be involved in the final decision regarding whether a drug,
device, procedure, or other service meets all program requirements and
conditions for coverage and payment. Therefore, even if a code
describing a dental service has an associated payment rate on the ASC
CPL, Medicare will only make payment for the service if it meets
applicable requirements. We also clarify that adding dental procedures
to the ASC CPL does not serve as a coverage determination for dental
services under general anesthesia. We direct readers to the CY 2024 PFS
proposed rule for additional discussion of Medicare coverage and
payment for dental services, which is available on the CMS website at:
https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/PhysicianFeeSched/PFS-Federal-Regulation-Notices.html.
HCPCS code G0330 covers facility services for dental rehabilitation
procedure(s) performed on a patient who requires monitored anesthesia
(e.g., general, intravenous sedation (monitored anesthesia care)) and
use of an operating room. While G0330 has a broader code descriptor
than most of the dental codes proposed to be added to the ASC CPL, we
propose to add G0330 to the ASC CPL. We also propose that it can only
be billed when accompanied by at least one covered ancillary dental
service on a specific and definitive list of CDT codes, which can be
found in ASC Addendum BB with payment indicator ``D1.'' \126\
Performance of at least one of these covered ancillary services is
integral to each of the surgical procedures that correspond to G0330.
For example, if a patient requires a full mouth debridement to enable a
comprehensive periodontal evaluation and diagnosis on a subsequent
visit, as described by covered ancillary code CDT code D4355, or to
enable excision of a gum lesion, as described by CPT 41827, and this
procedure needs to be performed under anesthesia due to patient-
specific circumstances, the ASC would bill G0330 with covered ancillary
code D4355 to perform the debridement under anesthesia or G0330 with
covered ancillary code 41827 to perform the excision service under
anesthesia. Additionally, as previously noted, when G0330 is billed on
a claim, MACs would determine whether payment can be made for the
procedure under Sec. 411.15(i)(3), and whether the procedure was
reasonable and medically necessary before providing payment for the
procedure. This claims processing mechanism is discussed in further
detail in the covered ancillary services section (section XIII.D.2 of
this proposed rule). Procedures assigned to payment indicator ``D2'',
other than HCPCS code G0330, are not required to be billed with a
covered ancillary procedure assigned to payment indicator ``D1'' in
order to receive payment for the procedure.
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\126\ See section XIII.B.6.b for a detailed discussion of
payment indicators ``D1'' and ``D2.''
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We continue to focus on maximizing patient access to care by adding
procedures to the ASC CPL when appropriate. While expanding the ASC CPL
offers benefits, such as preserving the capacity of hospitals to treat
more acute patients and promoting site neutrality, we also believe that
any additions to the CPL should be added in a carefully calibrated
fashion to ensure that the procedure is safe to be performed in the ASC
setting for a typical Medicare beneficiary. We expect to continue to
gradually expand the ASC CPL, as medical practice and technology
continue to evolve and advance in future years. We encourage
stakeholders to submit procedure recommendations to be added to the ASC
CPL, particularly if there is evidence that these procedures meet our
criteria and can be safely performed in the ASC setting.
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3. Covered Ancillary Services
Covered ancillary services are specified in Sec. 416.164(b) and,
as stated previously, are eligible for separate ASC payment. As
provided at Sec. 416.164(b), we make separate ASC payments for
ancillary items and services when they are provided integral to ASC
covered surgical procedures that include the following: (1)
brachytherapy sources; (2) certain implantable items that have pass-
through payment status under the OPPS; (3) certain items and services
that we designate as contractor-priced, including, but not limited to,
procurement of corneal tissue; (4) certain drugs and biologicals for
which separate payment is allowed under the OPPS; (5) certain radiology
services for which separate payment is allowed under the OPPS; and (6)
non-opioid pain management drugs that function as a supply when used in
a surgical procedure. Payment for ancillary items and services that are
not paid separately under the ASC payment system is packaged into the
ASC payment for the covered surgical procedure.
In the CY 2019 OPPS/ASC final rule with comment period (83 FR 59062
through 59063), consistent with the established ASC payment system
policy (72 FR 42497), we finalized the policy to update the ASC list of
covered ancillary services to reflect the payment status for the
services under the OPPS and to continue this reconciliation of packaged
status for subsequent calendar years. As discussed in prior rulemaking,
maintaining consistency with the OPPS
[[Page 49763]]
may result in changes to ASC payment indicators for some covered
ancillary services. For example, if a covered ancillary service was
separately paid under the ASC payment system in CY 2023, but will be
packaged under the CY 2024 OPPS, we would also package the ancillary
service under the ASC payment system for CY 2024 to maintain
consistency with the OPPS. Comment indicator ``CH'' is used in Addendum
BB (which is available via the internet on the CMS website) to indicate
covered ancillary services for which we proposed a change in the ASC
payment indicator to reflect a proposed change in the OPPS treatment of
the service for CY 2024.
In the CY 2022 OPPS/ASC final rule with comment period, we
finalized our proposal to revise 42 CFR 416.164(b)(6) to include, as
ancillary items that are integral to a covered surgical procedure and
for which separate payment is allowed, non-opioid pain management drugs
and biologicals that function as a supply when used in a surgical
procedure as determined by CMS (86 FR 63490).
New CPT and HCPCS codes for covered ancillary services for CY 2024
can be found in section XIII.B of this proposed rule. All ASC covered
ancillary services and their proposed payment indicators for CY 2024
are also included in Addendum BB to this proposed rule (which is
available via the internet on the CMS website).
Claims Processing Limitations for Covered Ancillary Procedures
Performed With G0330
HCPCS code G0330 (Facility services for dental rehabilitation
procedure(s) performed on a patient who requires monitored anesthesia
(e.g., general, intravenous sedation (monitored anesthesia care) and
use of an operating room)) is a proposed addition to the ASC CPL for CY
2024, as discussed in section XIII.D.1 of this proposed rule. In ASC
Addendum BB, there is a specific and definitive list of covered
ancillary dental services with proposed payment indicator of ``D1.''
For CY 2024, we propose that G0330 could only be billed with a covered
ancillary procedure that has the proposed payment indicator of ``D1,''
indicating an ancillary dental service or item with no separate payment
made. This limitation would ensure that only covered ancillary services
we have evaluated for safety in the ASC setting can be performed with
G0330. While HCPCS code G0330 must be billed with a covered ancillary
procedure with a proposed payment indicator of ``D1'', these covered
ancillary procedures can be billed with procedures other than G0330.
When billed with procedures other than G0330, these procedures would be
packaged in accordance with our policy for covered ancillary
procedures. The fact that a drug, device, procedure, or service is
assigned a HCPCS code and a payment rate under the ASC payment system
indicates only how the product, procedure, or service may be paid if
covered by the program. MACs will be involved in the final decision
regarding whether a drug, device, procedure, or other service meets all
program requirements and conditions for coverage and payment.
Therefore, even if a code describing a dental service has an associated
payment rate on the ASC CPL, Medicare will only make payment for the
service if it meets applicable requirements. More detail on the
proposed ASC dental indicators can be found in section XIII.B.6 of this
proposed rule.
E. ASC Payment Policy for Non-Opioid Post-Surgery Pain Management
Drugs, Biologicals, and Devices
1. Background on OPPS/ASC Non-Opioid Pain Management Packaging Policies
On October 24, 2018, the Substance Use-Disorder Prevention that
Promotes Opioid Recovery and Treatment for Patients and Communities
(SUPPORT) Act (Pub. L. 115-271) was enacted. Section 1833(t)(22)(A)(i)
of the Act, as added by section 6082(a) of the SUPPORT Act, states that
the Secretary must review payments under the OPPS for opioids and
evidence based non-opioid alternatives for pain management (including
drugs and devices, nerve blocks, surgical injections, and
neuromodulation) with a goal of ensuring that there are not financial
incentives to use opioids instead of non-opioid alternatives. As part
of this review, under section 1833(t)(22)(A)(iii) of the Act, the
Secretary must consider the extent to which revisions to such payments
(such as the creation of additional groups of covered outpatient
department (OPD) services to separately classify those procedures that
utilize opioids and non-opioid alternatives for pain management) would
reduce the payment incentives for using opioids instead of non-opioid
alternatives for pain management. In conducting this review and
considering any revisions, the Secretary must focus on covered OPD
services (or groups of services) assigned to C-APCs, APCs that include
surgical services, or services determined by the Secretary that
generally involve treatment for pain management. If the Secretary
identifies revisions to payments pursuant to section
1833(t)(22)(A)(iii) of the Act, section 1833(t)(22)(C) of the Act
requires the Secretary to, as determined appropriate, begin making
revisions for services furnished on or after January 1, 2020. Revisions
under this paragraph are required to be treated as adjustments for
purposes of paragraph (9)(B) of the Act, which requires any adjustments
to be made in a budget neutral manner. Section 1833(i)(8) of the Act,
as added by section 6082(b) of the SUPPORT Act, requires the Secretary
to conduct a similar type of review as required for the OPPS and to
make revisions to the ASC payment system in an appropriate manner, as
determined by the Secretary.
For a detailed discussion of rulemaking on non-opioid alternatives
prior to CY 2020, we refer readers to the CYs 2018 and 2019 OPPS/ASC
final rules with comment period (82 FR 59345; 83 FR 58855 through
58860).
For the CY 2020 OPPS/ASC proposed rule (84 FR 39423 through 39427),
as required by section 1833(t)(22)(A)(i) of the Act, we reviewed
payments under the OPPS for opioids and evidence-based non-opioid
alternatives for pain management (including drugs and devices, nerve
blocks, surgical injections, and neuromodulation) with a goal of
ensuring that there are not financial incentives to use opioids instead
of non-opioid alternatives. For the CY 2020 OPPS/ASC proposed rule (84
FR 39423 through 39427), we proposed to continue our policy to pay
separately at ASP plus 6 percent for non-opioid pain management drugs
that function as surgical supplies in the performance of surgical
procedures when they are furnished in the ASC setting and to continue
to package payment for non-opioid pain management drugs that function
as surgical supplies in the performance of surgical procedures in the
hospital outpatient department setting.
In the CY 2020 OPPS/ASC final rule with comment period (84 FR 61173
through 61180), after reviewing data from stakeholders and Medicare
claims data, we did not find compelling evidence to suggest that
revisions to our OPPS payment policies for non-opioid pain management
alternatives were necessary for CY 2020. We finalized our proposal to
continue to unpackage and pay separately at ASP plus 6 percent for non-
opioid pain management drugs that function as surgical supplies when
furnished in the ASC setting for CY 2020. Under this policy, for CY
2020, the only drug that qualified for separate payment in the ASC
setting as a non-opioid pain management drug that
[[Page 49764]]
functions as a surgical supply was Exparel.
In the CY 2021 OPPS/ASC final rule with comment period (85 FR 85896
through 85899), we continued the policy to pay separately at ASP plus 6
percent for non-opioid pain management drugs that function as surgical
supplies in the performance of surgical procedures when they were
furnished in the ASC setting and to continue to package payment for
non-opioid pain management drugs that function as surgical supplies in
the performance of surgical procedures in the hospital outpatient
department setting for CY 2021. For CY 2021, only Exparel and Omidria
met the criteria as non-opioid pain management drugs that function as
surgical supplies in the ASC setting, and received separate payment
under the ASC payment system.
In the CY 2022 OPPS/ASC final rule with comment period (86 FR
63483), we finalized a policy to unpackage and pay separately at ASP
plus 6 percent for non-opioid pain management drugs that function as
surgical supplies when they are furnished in the ASC setting, are FDA-
approved, have an FDA-approved indication for pain management or as an
analgesic, and have a per-day cost above the OPPS/ASC drug packaging
threshold; and we finalized our proposed regulation text changes at 42
CFR 416.164(a)(4) and (b)(6), 416.171(b)(1), and 416.174 as proposed.
In the CY 2023 OPPS/ASC final rule with comment period (87 FR
72089), we determined that five products were eligible for separate
payment in the ASC setting under our final policy for CY 2022. We noted
that future products, or products not discussed in that rulemaking that
may be eligible for separate payment under this policy, would be
evaluated in future rulemaking (86 FR 63496). Table 62 lists the five
drugs that met our finalized criteria established in CY 2022 to receive
separate payment under the ASC payment system when furnished in the ASC
setting for CY 2023 as described in the CY 2023 final rule with comment
period (86 FR 63496).
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2. Proposed CY 2024 Qualification Evaluation for Separate Payment of
Non-Opioid Pain Management Drugs and Biologicals That Function as a
Surgical Supply
As noted above, in the CY 2022 OPPS/ASC final rule with comment
period, we finalized a policy to unpackage and pay separately at ASP
plus 6 percent for non-opioid pain management drugs that function as
surgical supplies when they are furnished in the ASC setting, are FDA-
approved, have an FDA-approved indication for pain management or as an
analgesic, and have a per-day cost above the OPPS drug packaging
threshold beginning on or after January 1, 2022. For CY 2024, the OPPS
drug packaging threshold is proposed to be $140. For more information
on the drug packaging threshold, see section V.B.1.a of this CY 2024
OPPS/ASC proposed rule.
In the CY 2023 OPPS/ASC final rule, we finalized a clarification of
our policy by codifying the two additional criteria for separate
payment for non-opioid pain management drugs and biologicals that
function as surgical supplies in the regulatory text at Sec. 416.174
as a technical change. First, we finalized at
[[Page 49765]]
new Sec. 416.174(a)(3) that non-opioid pain management drugs or
biologicals that function as a supply in a surgical procedure are
eligible for separate payment if the drug or biological does not have
transitional pass-through payment status under Sec. 419.64. In the
case where a drug or biological otherwise meets the requirements under
Sec. 416.174 and has transitional pass-through payment status that
will expire during the calendar year, the drug or biological would
qualify for separate payment under Sec. 416.174 during such calendar
year on the first day of the next calendar year quarter after its pass-
through status expires. Second, we finalized that new Sec.
416.174(a)(4) would reflect that the drug or biological must not
already be separately payable in the OPPS or ASC payment system under a
policy other than the one specified in Sec. 416.174.
The following sections include the non-opioid alternatives of which
we are aware and our evaluations of whether these non-opioid
alternatives meet the criteria established at Sec. 416.174. We welcome
stakeholder comment on these evaluations.
(a) Proposed Annual Eligibility Re-Evaluations of Non-Opioid
Alternatives That Were Separately Paid in the ASC Setting During CY
2023
In the CY 2023 final rule with comment period, we finalized that
five drugs would receive separate payment in the ASC setting for CY
2023 under the policy for non-opioid pain management drugs and
biologicals that function as surgical supplies (86 FR 63496). These
drugs are described by HCPCS code C9290 (Injection, bupivacaine
liposome, 1 mg), J1096 (Dexamethasone, lacrimal ophthalmic insert, 0.
mg), HCPCS code J1097 (Phenylephrine 10.16 mg/ml and ketorolac 2.88 mg/
ml ophthalmic irrigation solution, 1 ml), HCPCS code C9089
(Bupivacaine, collagen-matrix implant, 1 mg), and HCPCS code C9144
(Injection, bupivacaine (posimir), 1 mg)).
We re-evaluated these products outlined in the previous paragraph
against the criteria specified in Sec. 416.174, including the
technical clarifications we proposed to that section, to determine
whether they continue to qualify for separate payment in CY 2024. Based
on our evaluation, we propose that the drugs described by HCPCS codes
C9290, J1096, J1097, and C9089 continue to meet the required criteria
and should receive separate payment in the ASC setting. We propose that
the drug described by HCPCS code C9144 would not receive separate
payment in the ASC setting under this policy, as this drug will be
separately payable during CY 2024 under OPPS transitional pass-through
status. Please see section V.A (OPPS Transitional Pass-Through Payment
for Additional Costs of Drugs, Biologicals, and Radiopharmaceuticals)
of this CY 2024 OPPS/ASC proposed rule for additional details on the
pass-through status of HCPCS code C9144. We welcome comment on our
evaluations below.
(b) Proposed Eligibility Evaluation for the Separate Payment of Exparel
Based on our internal review, we believe that Exparel, described by
HCPCS code C9290 (Injection, bupivacaine liposome, 1 mg), meets the
criteria described at Sec. 416.174; and we propose to continue paying
separately for it under the ASC payment system for CY 2024. Exparel was
approved by the FDA with a New Drug Application (NDA #022496) under
section 505(c) of the Federal Food, Drug, and Cosmetic Act on October
28, 2011.\127\ Exparel's FDA-approved indication is ``in patients 6
years of age and older for single-dose infiltration to produce
postsurgical local analgesia'' and ``in adults as an interscalene
brachial plexus nerve block to produce postsurgical regional
analgesia.'' \128\ No component of Exparel is opioid-based.
Accordingly, we propose that Exparel meets the criterion described at
Sec. 416.174(a)(1). Under the methodology described at V.B.1.a. of
this proposed rule, the per-day cost of Exparel exceeds the proposed
$140 per-day cost threshold. Therefore, we propose that Exparel meets
the criterion described at Sec. 416.174(a)(2). Additionally, Exparel
will not have transitional pass-through payment status under Sec.
419.64 in CY 2024, nor will it be otherwise separately payable in the
OPPS or ASC payment system in CY 2024 under a policy other than the one
specified in Sec. 416.174. Therefore, we propose that Exparel meets
the criteria in the regulation text at Sec. 416.174(a)(3) and (4).
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\127\ Exparel. FDA Letter. 28 October 2011. https://www.accessdata.fda.gov/drugsatfda_docs/appletter/2011/022496s000ltr.pdf.
\128\ Exparel. FDA Package Insert. 22 March 2021. https://www.accessdata.fda.gov/drugsatfda_docs/label/2021/022496s035lbl.pdf.
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Based on the above discussion, we believe that Exparel meets the
criteria described at Sec. 416.174; and we propose to continue making
separate payment for it as a non-opioid pain management drug that
functions as a supply in a surgical procedure under the ASC payment
system for CY 2024.
(c) Proposed Eligibility Evaluation for the Separate Payment of Omidria
Based on our internal review, we believe that Omidria, described by
HCPCS code J1097 (Phenylephrine 10.16 mg/ml and ketorolac 2.88 mg/ml
ophthalmic irrigation solution, 1 ml), meets the criteria described at
Sec. 416.174(a), and we propose to continue paying separately for it
under the ASC payment system for CY 2024. Omidria was approved by the
FDA with a New Drug Application (NDA #205388) under section 505(c) of
the Federal Food, Drug, and Cosmetic Act on May 30, 2014.\129\
Omidria's FDA-approved indication is as ``an alpha 1-adrenergic
receptor agonist and nonselective cyclooxygenase inhibitor indicated
for: Maintaining pupil size by preventing intraoperative miosis;
Reducing postoperative pain.'' \130\ No component of Omidria is opioid-
based. Accordingly, we propose that Omidria meets the criterion
described at Sec. 416.174(a)(1). Under the methodology described at
V.B.1.a. of this proposed rule, the per-day cost of Omidria exceeds the
proposed $140 per-day cost threshold. Therefore, we propose that
Omidria meets the criterion described at Sec. 416.174(a)(2).
Additionally, we believe that Omidria will not have transitional pass-
through payment status under Sec. 419.64 in CY 2024, nor will it be
otherwise separately payable in the OPPS or ASC payment system in CY
2024 under a policy other than the one specified in Sec. 416.174.
Therefore, we propose that Omidria meets the criteria in the regulation
text at Sec. 416.174(a)(3) and (4).
---------------------------------------------------------------------------
\129\ Omidria. FDA Letter. 30 May 2014. https://www.accessdata.fda.gov/drugsatfda_docs/appletter/2014/205388Orig1s000ltr.pdf.
\130\ Omidria. FDA Package Insert. December 2017. https://www.accessdata.fda.gov/drugsatfda_docs/label/2017/205388s006lbl.pdf.
---------------------------------------------------------------------------
Based on the above discussion, we propose that Omidria meets the
criteria described at Sec. 416.174 and should receive separate payment
as a non-opioid pain management drug that functions as a supply in a
surgical procedure under the ASC payment system for CY 2024.
(d) Proposed Eligibility Evaluation for the Separate Payment of
Xaracoll
Based on our internal review, we believe Xaracoll, described by
C9089 (Bupivacaine, collagen-matrix implant, 1 mg), meets the criteria
described at Sec. 416.174(a), and we propose to continue paying
separately for it under the ASC payment system for CY 2023. Xaracoll
was approved by the FDA with a New Drug Application (NDA #
[[Page 49766]]
209511) under section 505(c) of the Federal Food, Drug, and Cosmetic
Act on August 28, 2020.\131\ Xaracoll is ``indicated in adults for
placement into the surgical site to produce postsurgical analgesia for
up to 24 hours following open inguinal hernia repair.'' \132\ No
component of Xaracoll is opioid-based. Accordingly, we propose that
Xaracoll meets the criterion described at Sec. 416.174(a)(1). Under
the methodology described at V.B.1.a. of this proposed rule, the per-
day cost of Xaracoll exceeds the proposed $140 per-day cost threshold.
Therefore, we propose that Xaracoll meets the criterion described at
Sec. 416.174(a)(2). Additionally, at this time we do not believe that
Xaracoll will have transitional pass-through payment status under Sec.
419.64 in CY 2024, nor do we believe it will otherwise be separately
payable in the OPPS or ASC payment system under a policy other than the
one specified in Sec. 416.174. Therefore, we propose that Xaracoll
meets the criteria in the regulation text at Sec. 416.174(a)(3) and
(4).
---------------------------------------------------------------------------
\131\ Xaracoll. FDA Letter. August 2020. https://www.accessdata.fda.gov/drugsatfda_docs/appletter/2020/209511Orig1s000ltr.pdf.
\132\ Xaracoll. FDA Labeling. August 2020. https://www.accessdata.fda.gov/drugsatfda_docs/label/2020/209511s000lbl.pdf.
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Based on the above discussion, we propose that Xaracoll meets the
criteria described at Sec. 416.174 and should receive separate payment
as a non-opioid pain management drug that functions as a supply in a
surgical procedure under the ASC payment system for CY 2024.
(e) Proposed Eligibility Evaluation for the Separate Payment of
Dextenza
Based on our internal review, we believe Dextenza, described by
HCPCS code J1096 (Dexamethasone, lacrimal ophthalmic insert, 0.1 mg),
meets the criteria described at Sec. 416.174; and we propose to
provide separate payment for it under the ASC payment system for CY
2024. Dextenza was approved by the FDA with a New Drug Application (NDA
# 208742) under section 505(c) of the Federal Food, Drug, and Cosmetic
Act on November 30, 2018.\133\ Dextenza's FDA-approved indication is as
``a corticosteroid indicated for the treatment of ocular pain following
ophthalmic surgery'' and ``the treatment of ocular itching associated
with allergic conjunctivitis.'' \134\ No component of Dextenza is
opioid-based. Accordingly, we propose that Dextenza meets the criterion
described at Sec. 416.174(a)(1). Under the methodology described at
V.B.1.a. of this proposed rule, the per-day cost of Dextenza exceeds
the proposed $140 per-day cost threshold. Therefore, we propose that
Dextenza meets the criterion described at Sec. 416.174(a)(2).
Additionally, we believe that Dextenza will not have transitional pass-
through payment status under Sec. 419.64 in CY 2024, nor do we believe
it will otherwise be separately payable in the OPPS or ASC payment
system under a policy other than the one specified in Sec. 416.174.
Therefore, we propose that Dextenza meets the criteria in the
regulation text at Sec. 416.174(a)(3) and (4).
---------------------------------------------------------------------------
\133\ Dextenza. FDA Letter. November 2018. https://www.accessdata.fda.gov/drugsatfda_docs/nda/2018/208742Orig1s000Approv.pdf.
\134\ Dextenza. FDA Labeling. October 2021. https://www.accessdata.fda.gov/drugsatfda_docs/label/2021/208742s007lbl.pdf.
---------------------------------------------------------------------------
Based on the above discussion, we propose that Dextenza meets the
criteria described at Sec. 416.174 and should receive separate payment
as a non-opioid pain management drug that functions as a supply in a
surgical procedure under the ASC payment system for CY 2024.
(f) Proposed Eligibility Evaluation for the Separate Payment of Posimir
Based on our internal review, we do not believe that Posimir,
described by HCPCS code C9144 (Injection, bupivacaine (Posimir), 1 mg),
meets the criteria described at Sec. 416.174(a); and we do not propose
to continue paying separately for it under the ASC payment system for
CY 2024. Posimir was approved by the FDA with a New Drug Application
(NDA # 204803) under section 505(c) of the Federal Food, Drug, and
Cosmetic Act on February 1, 2021.\135\ Posimir contains an amide local
anesthetic and is indicated in adults for administration into the
subacromial space under direct arthroscopic visualization to produce
post-surgical analgesia for up to 72 hours following arthroscopic
subacromial decompression.'' \136\
---------------------------------------------------------------------------
\135\ Posimir. FDA Approval Letter. https://www.accessdata.fda.gov/drugsatfda_docs/appletter/2021/204803Orig1s000ltr.pdf.
\136\ [thinsp]Posimir. FDA Package Insert. https://www.accessdata.fda.gov/drugsatfda_docs/label/2022/204803Orig1s001lbl.pdf.
---------------------------------------------------------------------------
No component of Posimir is opioid-based. Accordingly, we propose
that Posimir meets the criterion described at Sec. 416.174(a)(1).
Under the methodology described at V.B.1.a. of this proposed rule, the
per-day cost of Posimir exceeds the proposed $140 per-day cost
threshold. Therefore, we propose that Posimir meets the criterion
described at Sec. 416.174(a)(2). However, Posimir will have
transitional pass-through payment status under Sec. 419.64 in CY 2024,
and it will be otherwise separately payable in the OPPS or ASC payment
system in CY 2024 under a policy other than the one specified in Sec.
416.174. Therefore, we propose that Posimir does not meet the criteria
at the regulation text at Sec. 416.174(a)(3) and (4).
Based on the above discussion, we propose that Posimir does not
meet the criteria in the regulation text at Sec. 416.174(a)(3) and
(4), and should not receive separate payment as a non-opioid pain
management drug that functions as a supply in a surgical procedure
under the ASC payment system for CY 2024. However, HCPCS code C9144
will continue to receive separate payment under its pass-through status
as outlined in section V of this proposed rule.
Table 63 below lists the four drugs that we propose as eligible to
receive separate payment as a non-opioid pain management drug that
functions as a supply in a surgical procedure under the ASC payment
system for CY 2024.
[[Page 49767]]
[GRAPHIC] [TIFF OMITTED] TP31JY23.099
3. Comment Solicitation on New Products That Meet the Criteria
We solicit comment on additional non-opioid pain management drugs
and biologicals that function as surgical supplies that may meet the
criteria specified in Sec. 416.174 and qualify for separate payment
under the ASC payment system. We encouraged commenters to include an
explanation of how the drug or biological meets the eligibility
criteria in Sec. 416.174. If we find that any additional drugs or
biologicals described by commenters do satisfy the criteria established
at Sec. 416.174, we will finalize their separate payment status for CY
2024 in the ASC setting in the CY 2024 OPPS/ASC final rule with comment
period.
F. Comment Solicitation on Access to Non-Opioid Treatments for Pain
Relief Under the OPPS and ASC Payment System
1. Background on Access to Non-Opioid Treatments for Pain Relief
The Consolidated Appropriations Act (CAA), 2023 (Pub. L. 117-328),
was signed into law on December 29, 2022. Section 4135(a) and (b) of
the CAA, 2023, titled Access to Non-Opioid Treatments for Pain Relief,
amended section 1833(t)(16) and section 1833(i) of the Social Security
Act, respectively, to provide for temporary additional payments for
non-opioid treatments for pain relief (as that term is defined in
section 1833(t)(16)(G)(i) of the Act). In particular, section
1833(t)(16)(G) provides that with respect to a non-opioid treatment for
pain relief furnished on or after January 1, 2025, and before January
1, 2028, the Secretary shall not package payment for the non-opioid
treatment for pain relief into payment for a covered OPD service (or
group of services) and shall make an additional payment for the non-
opioid treatment for pain relief as specified in clause (ii) of that
section. Clauses (ii) and (iii) of section 1833(t)(16)(G) of the Act
provide for the amount of additional payment and set a limitation on
that amount.
Paragraph (10) of section 1833(i) of the Act cross-references the
OPPS provisions about the additional payment amount and payment
limitation for non-opioid treatments for pain relief and applies them
to payment under the ASC payment system. In particular, subparagraph
(A) of paragraph (10) of section 1833(i) of the Act, as added by
section 4135(b) of the CAA, 2023, provides that in the case of surgical
services furnished on or after January 1, 2025, and before January 1,
2028, additional payments shall be made under the ASC payment system
for non-opioid treatments for pain relief in the same amount provided
in clause (ii) and subject to the limitation in clause (iii) of section
1833(t)(16)(G) of the Act for the OPPS. Subparagraph (B) of section
1833(i)(10) of the Act provides that a drug or biological that meets
the requirements of 42 CFR 416.174 and is a non-opioid treatment for
pain relief shall also receive additional payment in the amount
provided in clause (ii) and subject to the limitation in clause (iii)
of section 1833(t)(16)(G) of the Act.
Because the additional payments are required to begin on January 1,
2025, we plan to include our proposals to implement the section 4135
amendments in the CY 2025 OPPS/ASC proposed rule. We specifically seek
comment on the issues discussed in the following sections as well as
comments on the implementation of all facets of this provision.
2. CY 2025 Comment Solicitation
a. Potential Qualifying Drugs, Biologicals, and Devices
In preparation for implementing section 4135 of the CAA, 2023, for
CY 2025, we seek comment on any drug, biological, or medical device
that a commenter believes would meet the definition of a non-opioid
treatment for pain relief under section
[[Page 49768]]
1833(t)(16)(G)(iv) of the Act. We encourage commenters to submit
appropriate FDA documentation, published peer-reviewed literature, or
other evidence-based support, if applicable, to illustrate why the
commenters believe the drug, biological, or medical device meets the
definition of a non-opioid treatment for pain relief. For these
products, we also solicit comment on appropriate codes and descriptors
if no HCPCS codes currently exist for the product. We note that we will
evaluate these products, including the information submitted by
commenters, and propose additional payments, subject to the payment
limitation, for those that meet the definition of a non-opioid
treatment for pain relief in the CY 2025 OPPS/ASC rulemaking cycle,
rather than during the CY 2024 OPPS/ASC final rule with comment period.
b. Evidence Requirement for Medical Devices
Section 1833(t)(16)(G)(iv)(II)(bb) of the Act specifies an
additional requirement for medical devices to meet the definition of
non-opioid treatment for pain relief. This section requires that a
medical device demonstrate the ability to replace, reduce, or avoid
intraoperative or postoperative opioid use or the quantity of opioids
prescribed in a clinical trial or through data published in a peer-
reviewed journal.
As the statute requires information from a clinical trial or data
published in a peer-reviewed journal, we seek comment on the best way
to obtain and evaluate that information. We also seek comment on how we
should assess information from a clinical trial or data published in a
peer-reviewed journal, including how to assess for conflicts of
interest or integrity concerns, whether to focus on outcomes rather
than surrogate endpoints, and whether to require that all decreases in
opioid use be statistically and clinically significant compared to the
usual standard of care (rather than placebo).
c. Amount of Payment
Section 1833(t)(16)(G)(ii)(I) of the Act states that, subject to
the limitation in clause (iii), the amount of payment for a non-opioid
treatment for pain relief that is a drug or biological product is the
amount of payment for such drug or biological determined under section
1847A of the Act that exceeds the portion of the otherwise applicable
Medicare OPD fee schedule that the Secretary determines is associated
with the drug or biological. As this language is very similar to the
transitional pass-through language at section 1833(t)(6)(D)(i) of the
Act, we anticipate implementing a similar payment methodology for drugs
and biologicals under this future policy.
Section 1833(t)(16)(G)(ii)(II) of the Act states that the amount of
payment for a non-opioid treatment for pain relief that is a medical
device is the amount of the hospital's charges for the device, adjusted
to cost, that exceeds the portion of the otherwise applicable Medicare
OPD fee schedule that the Secretary determines is associated with the
device. As this language is very similar to the transitional pass-
through language at section 1833(t)(6)(D)(ii) of the Act, we anticipate
implementing a similar payment methodology for medical devices under
this future policy.
Section 1833(i)(10) of the Act provides that the same payment rate
shall apply in the ASC setting as the rates described in section
1833(t)(16)(G)(ii) of the Act for hospital outpatient departments,
subject to the limitation in section 1833(t)(16)(G)(iii) of the Act.
d. Payment Limitation
Section 1833(t)(16)(G)(iii) of the Act states that the additional
payment amount specified in clause (ii), and as described in the
previous section, shall not exceed the estimated average of 18 percent
of the OPD fee schedule amount for the OPD service (or group of
services) with which the non-opioid treatment for pain relief is
furnished, as determined by the Secretary. We are seeking comment on
how we should determine the OPD service or groups of services with
which non-opioid treatments for pain relief are furnished for purposes
of calculating the payment limitation for each treatment. Specifically,
we seek comment on the scenarios outlined below.
Additionally, we welcome other recommendations from interested
parties consistent with the statutory requirements.
Scenario 1: Payment Limitation Based on the Top Five Services by Volume
With Known Claims Data
As demonstrated in this example (Table 64), one possible approach
is to use the top five services associated with a hypothetical drug,
biological, or medical device, to determine the volume-weighted payment
rate and the payment limit, based on the most recent claims data
available. For the non-opioids that are currently separately paid, we
predict that the majority of utilization is focused in the top five
mostly frequently performed services, thus using the top five services
would provide a representative estimate for the payment limit. However,
we solicit comment on this prediction and welcome input from commenters
if they believe another number of procedures, or another metric, would
be appropriate to determine the list of procedures in which the payment
limitation would be calculated.
For this example, we would begin by identifying the top five
services by volume that package this drug, biological, or device into
their payment rate. Second, we would calculate the volume-weighted
payment rate per claim, which would be $700 in the example below.
Third, we would apply the 18 percent payment limit per clinical dose,
rather than per HCPCS dosage unit, which is $126 in the case below. We
would apply this payment limit to the clinical dose received by the
beneficiary as the payment limit applies to the total amount of
payment, rather than the HCPCS dosage unit payment, which may only
represent a small fraction of the total amount of payment. This means
that even if the non-opioid treatment for pain relief had an amount of
additional payment under section 1833(t)(16)(G)(ii) of the Act that was
greater than $126 per dose, it would be limited to $126 by
1833(t)(16)(G)(iii) of the Act. In this example, this non-opioid
treatment for pain relief would not be subject to the threshold
packaging policy in section V.B.1.a. of this proposed rule even though
its payment falls below the proposed CY 2024 drug packaging threshold
of $140, per section 1833(t)(16)(G)(i) of the Act, and would also be
separately paid when used during a comprehensive APC (C-APC) procedure
in the HOPD setting.
[[Page 49769]]
[GRAPHIC] [TIFF OMITTED] TP31JY23.100
We welcome comments on this approach. We seek comment on whether
utilizing the top five services by volume is an appropriate method by
which to establish this payment limit. We also seek comment on
additional methodologies, such as determining the payment limit based
on the top 10 services by volume, by total payment rather than volume,
or any number of services with more than a certain percentage of
overall utilization, such as 10 percent.
Scenario 2: Payment Limit Without Claims Data
Additionally, we seek comment on the best approach for determining
a payment limit, pursuant to section 1833(t)(16)(G)(iii) of the Act for
drugs, biologicals, and devices when there are no known claims data,
such as for newly FDA-approved and marketed products. CMS could propose
the services with which a product would be expected to be furnished and
would typically be packaged absent this policy during calendar year
rulemaking, based on expected clinical use patterns. Determining the
service, or group of services, to use to calculate the payment limit
could be accomplished through engagement with interested parties and a
review by CMS Medical Officers and clinical staff. Absent engagement
from interested parties, CMS could make its determination of the
service, or group of services, to use to calculate the payment limit
based on expected clinical use patterns. CMS could then adjust the
services that are used to calculate the payment limit as claims data
becomes available in subsequent years. We seek comment on this approach
as well as other approaches of interest to commenters.
We welcome comment from interested parties on the implementation of
all facets of section 4135. We will include proposals to implement the
section 4135 amendments in the CY 2025 OPPS/ASC proposed rule.
G. Proposed New Technology Intraocular Lenses (NTIOLs)
New Technology Intraocular Lenses (NTIOLs) are intraocular lenses
that replace a patient's natural lens that has been removed in cataract
surgery and that also meet the requirements listed in Sec. 416.195.
1. NTIOL Application Cycle
Our process for reviewing applications to establish new classes of
NTIOLs is as follows:
Applicants submit their NTIOL requests for review to CMS
by the annual deadline. For a request to be considered complete, we
require submission of the information requested in the guidance
document titled ``Application Process and Information Requirements for
Requests for a New Class of New Technology Intraocular Lenses (NTIOLs)
or Inclusion of an IOL in an Existing NTIOL Class'' posted on the CMS
website at: https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/ASCPayment/NTIOLs.html.
We announce annually, in the proposed rule updating the
ASC and OPPS payment rates for the following calendar year, a list of
all requests to establish new NTIOL classes accepted for review during
the calendar year in which the proposal is published. In accordance
with section 141(b)(3) of Public Law 103-432 and our regulations at
Sec. 416.185(b), the deadline for receipt of public comments is 30
days following publication of the list of requests in the proposed
rule.
In the final rule with comment period updating the ASC and
OPPS payment rates for the following calendar year, we--
++ Provide a list of determinations made as a result of our review
of all new NTIOL class requests and public comments.
++ When a new NTIOL class is created, identify the predominant
characteristic of NTIOLs in that class that sets them apart from other
IOLs (including those previously approved as members of other expired
or active NTIOL classes) and that is associated with an improved
clinical outcome.
++ Set the date of implementation of a payment adjustment in the
case of approval of an IOL as a member of a new NTIOL class
prospectively as of 30 days after publication of the ASC payment update
final rule, consistent with the statutory requirement.
++ Announce the deadline for submitting requests for review of an
application for a new NTIOL class for the following calendar year.
2. Requests To Establish New NTIOL Classes for CY 2024
We did not receive any requests for review to establish a new NTIOL
class for CY 2024 by March 1, 2023, the due date published in the CY
2023 OPPS/ASC final rule with comment period (87 FR 72091).
[[Page 49770]]
3. Payment Adjustment
The current payment adjustment for a 5-year period from the
implementation date of a new NTIOL class is $50 per lens. Since
implementation of the process for adjustment of payment amounts for
NTIOLs in 1999, we have not revised the payment adjustment amount, and
we do not propose to revise the payment adjustment amount for CY 2024.
H. Proposed Calculation of the ASC Payment Rates and the ASC Conversion
Factor
1. Background
In the August 2, 2007 ASC final rule (72 FR 42493), we established
our policy to base ASC relative payment weights and payment rates under
the revised ASC payment system on APC groups and the OPPS relative
payment weights. Consistent with that policy and the requirement at
section 1833(i)(2)(D)(ii) of the Act that the revised payment system be
implemented so that it would be budget neutral, the initial ASC
conversion factor (CY 2008) was calculated so that estimated total
Medicare payments under the revised ASC payment system in the first
year would be budget neutral to estimated total Medicare payments under
the prior (CY 2007) ASC payment system (the ASC conversion factor is
multiplied by the relative payment weights calculated for many ASC
services in order to establish payment rates). That is, application of
the ASC conversion factor was designed to result in aggregate Medicare
expenditures under the revised ASC payment system in CY 2008 being
equal to aggregate Medicare expenditures that would have occurred in CY
2008 in the absence of the revised system, taking into consideration
the cap on ASC payments in CY 2007, as required under section
1833(i)(2)(E) of the Act (72 FR 42522). We adopted a policy to make the
system budget neutral in subsequent calendar years (72 FR 42532 through
42533; Sec. 416.171(e)).
We note that we consider the term ``expenditures'' in the context
of the budget neutrality requirement under section 1833(i)(2)(D)(ii) of
the Act to mean expenditures from the Medicare Part B Trust Fund. We do
not consider expenditures to include beneficiary coinsurance and
copayments. This distinction was important for the CY 2008 ASC budget
neutrality model that considered payments across the OPPS, ASC, and
MPFS payment systems. However, because coinsurance is almost always 20
percent for ASC services, this interpretation of expenditures has
minimal impact for subsequent budget neutrality adjustments calculated
within the revised ASC payment system.
In the CY 2008 OPPS/ASC final rule with comment period (72 FR 66857
through 66858), we set out a step-by-step illustration of the final
budget neutrality adjustment calculation based on the methodology
finalized in the August 2, 2007 ASC final rule (72 FR 42521 through
42531) and as applied to updated data available for the CY 2008 OPPS/
ASC final rule with comment period. The application of that methodology
to the data available for the CY 2008 OPPS/ASC final rule with comment
period resulted in a budget neutrality adjustment of 0.65.
For CY 2008, we adopted the OPPS relative payment weights as the
ASC relative payment weights for most services and, consistent with the
final policy, we calculated the CY 2008 ASC payment rates by
multiplying the ASC relative payment weights by the final CY 2008 ASC
conversion factor of $41.401. For covered office-based surgical
procedures, covered ancillary radiology services (excluding covered
ancillary radiology services involving certain nuclear medicine
procedures or involving the use of contrast agents, as discussed in
section XIII.D.2 of the CY 2023 OPPS/ASC proposed rule (87 FR 44715
through 44716)), and certain diagnostic tests within the medicine range
that are covered ancillary services, the established policy is to set
the payment rate at the lower of the MPFS unadjusted nonfacility PE
RVU-based amount or the amount calculated using the ASC standard
ratesetting methodology. Further, as discussed in the CY 2008 OPPS/ASC
final rule with comment period (72 FR 66841 through 66843), we also
adopted alternative ratesetting methodologies for specific types of
services (for example, device-intensive procedures).
As discussed in the August 2, 2007 ASC final rule (72 FR 42517
through 42518) and as codified at Sec. 416.172(c) of the regulations,
the revised ASC payment system accounts for geographic wage variation
when calculating individual ASC payments by applying the pre-floor and
pre-reclassified IPPS hospital wage indexes to the labor-related share,
which is 50 percent of the ASC payment amount based on a GAO report of
ASC costs using 2004 survey data. Beginning in CY 2008, CMS accounted
for geographic wage variation in labor costs when calculating
individual ASC payments by applying the pre-floor and pre-reclassified
hospital wage index values that CMS calculates for payment under the
IPPS, using updated Core Based Statistical Areas (CBSAs) issued by OMB
in June 2003.
The reclassification provision in section 1886(d)(10) of the Act is
specific to hospitals. We believe that using the most recently
available pre-floor and pre-reclassified IPPS hospital wage indexes
results in the most appropriate adjustment to the labor portion of ASC
costs. We continue to believe that the unadjusted hospital wage
indexes, which are updated yearly and are used by many other Medicare
payment systems, appropriately account for geographic variation in
labor costs for ASCs. Therefore, the wage index for an ASC is the pre-
floor and pre-reclassified hospital wage index under the IPPS of the
CBSA that maps to the CBSA where the ASC is located.
Generally, OMB issues major revisions to statistical areas every 10
years, based on the results of the decennial census. On February 28,
2013, OMB issued OMB Bulletin No. 13-01, which provides the
delineations of all Metropolitan Statistical Areas, Metropolitan
Divisions, Micropolitan Statistical Areas, Combined Statistical Areas,
and New England City and Town Areas in the United States and Puerto
Rico based on the standards published on June 28, 2010, in the Federal
Register (75 FR 37246 through 37252) and 2010 Census Bureau data. (A
copy of this bulletin may be obtained at: https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/bulletins/2013/b13-01.pdf.) In the FY
2015 IPPS/LTCH PPS final rule (79 FR 49951 through 49963), we
implemented the use of the CBSA delineations issued by OMB in OMB
Bulletin 13-01 for the IPPS hospital wage index beginning in FY 2015.
OMB occasionally issues minor updates and revisions to statistical
areas in the years between the decennial censuses. On July 15, 2015,
OMB issued OMB Bulletin No. 15-01, which provides updates to and
supersedes OMB Bulletin No. 13-01 that was issued on February 28, 2013.
OMB Bulletin No. 15-01 made changes that are relevant to the IPPS and
ASC wage index. We refer readers to the CY 2017 OPPS/ASC final rule
with comment period (81 FR 79750) for a discussion of these changes and
our implementation of these revisions. (A copy of this bulletin may be
obtained at https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/bulletins/2015/15-01.pdf.)
On August 15, 2017, OMB issued OMB Bulletin No. 17-01, which
provided updates to and superseded OMB Bulletin No. 15-01 that was
issued on July 15, 2015. We refer readers to the
[[Page 49771]]
CY 2019 OPPS/ASC final rule with comment period (83 FR 58864 through
58865) for a discussion of these changes and our implementation of
these revisions. (A copy of this bulletin may be obtained at https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/bulletins/2017/b-17-01.pdf.)
On April 10, 2018, OMB issued OMB Bulletin No. 18-03, which
superseded the August 15, 2017 OMB Bulletin No. 17-01. On September 14,
2018, OMB issued OMB Bulletin 18-04, which superseded the April 10,
2018 OMB Bulletin No. 18-03. A copy of OMB Bulletin No. 18-03 may be
obtained at https://www.whitehouse.gov/wp-content/uploads/2018/04/OMB-BULLETIN-NO.-18-03-Final.pdf. A copy of OMB Bulletin No. 18-04 may be
obtained at https://www.whitehouse.gov/wpcontent/uploads/2018/90/Bulletin-18-04.pdf.
On March 6, 2020, OMB issued Bulletin No. 20-01, which provided
updates to and superseded OMB Bulletin No. 18-04 that was issued on
September 14, 2018. (For a copy of this bulletin, we refer readers to
the following website: https://www.whitehouse.gov/wp-content/uploads/2020/03/Bulletin-20-01.pdf.)
The proposed CY 2024 ASC wage indexes fully reflect the OMB labor
market area delineations (including the revisions to the OMB labor
market delineations discussed above, as set forth in OMB Bulletin Nos.
13-01, 15-01, 17-01, 18-03, 18-04, and 20-01). We note that, in certain
instances, there might be urban or rural areas for which there is no
IPPS hospital that has wage index data that could be used to set the
wage index for that area. For these areas, our policy has been to use
the average of the wage indexes for CBSAs (or metropolitan divisions as
applicable) that are contiguous to the area that has no wage index
(where ``contiguous'' is defined as sharing a border). For example, for
CY 2024, we are applying a proxy wage index based on this methodology
to ASCs located in CBSA 25980 (Hinesville-Fort Stewart, GA).
When all of the areas contiguous to the urban CBSA of interest are
rural and there is no IPPS hospital that has wage index data that could
be used to set the wage index for that area, we determine the ASC wage
index by calculating the average of all wage indexes for urban areas in
the State (75 FR 72058 through 72059). In other situations, where there
are no IPPS hospitals located in a relevant labor market area, we apply
our current policy of calculating an urban or rural area's wage index
by calculating the average of the wage indexes for CBSAs (or
metropolitan divisions where applicable) that are contiguous to the
area with no wage index.
2. Calculation of the ASC Payment Rates
a. Updating the ASC Relative Payment Weights for CY 2024 and Future
Years
We update the ASC relative payment weights each year using the
national OPPS relative payment weights (and PFS nonfacility PE RVU-
based amounts, as applicable) for that same calendar year and uniformly
scale the ASC relative payment weights for each update year to make
them budget neutral (72 FR 42533). The OPPS relative payment weights
are scaled to maintain budget neutrality for the OPPS. We then scale
the OPPS relative payment weights again to establish the ASC relative
payment weights. To accomplish this, we hold estimated total ASC
payment levels constant between calendar years for purposes of
maintaining budget neutrality in the ASC payment system. That is, we
apply the weight scalar to ensure that projected expenditures from the
updated ASC payment weights in the ASC payment system are equal to what
would be the current expenditures based on the scaled ASC payment
weights. In this way, we ensure budget neutrality and that the only
changes to total payments to ASCs result from increases or decreases in
the ASC payment update factor.
Where the estimated ASC expenditures for an upcoming year are
higher than the estimated ASC expenditures for the current year, the
ASC weight scalar is reduced, in order to bring the estimated ASC
expenditures in line with the expenditures for the baseline year. This
frequently results in ASC relative payment weights for surgical
procedures that are lower than the OPPS relative payment weights for
the same procedures for the upcoming year. Therefore, over time, even
if procedures performed in the HOPD and ASC receive the same update
factor under the OPPS and ASC payment system, payment rates under the
ASC payment system would increase at a lower rate than payment for the
same procedures performed in the HOPD as a result of applying the ASC
weight scalar to ensure budget neutrality.
As discussed in section II.A.1.a of this proposed rule, we are
using the CY 2022 claims data to be consistent with the OPPS claims
data for this proposed rule. Consistent with our established policy, we
propose to scale the CY 2024 relative payment weights for ASCs
according to the following method. Holding ASC utilization, the ASC
conversion factor, and the mix of services constant from CY 2022, we
propose to compare the estimated total payment using the CY 2023 ASC
relative payment weights with the estimated total payment using the CY
2024 ASC relative payment weights to take into account the changes in
the OPPS relative payment weights between CY 2023 and CY 2024.
Additionally, in light of our policy to provide a higher ASC
payment rate through the use of ASC complexity adjustment codes for
certain primary procedures when performed with add-on packaged
services, we incorporate estimated total spending and estimated
utilization for these codes in our budget neutrality calculation. We
estimated in the CY 2023 OPPS/ASC final rule with comment period (87 FR
72094) that the impact on CY 2023 estimated total payments from our
proposed CY 2023 ASC complexity adjustment codes would be $5 million in
spending and we propose to incorporate this $5 million in estimated CY
2023 total payments for the budget neutrality calculation of this
proposed rule. For estimated CY 2024 total payments, we propose to
incorporate the estimated total spending and estimated utilization
related to our proposed CY 2024 ASC complexity adjustment codes. In
this proposed rule, we estimate the additional CY 2024 spending related
to our proposed ASC complexity adjustment codes will be $5 million.
We propose to use the ratio of estimated CY 2023 to estimated CY
2024 total payments (the weight scalar) to scale the ASC relative
payment weights for CY 2024. The proposed CY 2024 ASC weight scalar is
0.8649. Consistent with historical practice, we propose to scale, using
this method, the ASC relative payment weights of covered surgical
procedures, covered ancillary radiology services, and certain
diagnostic tests within the medicine range of CPT codes, which are
covered ancillary services for which the ASC payment rates are based on
OPPS relative payment weights.
We propose that we would not scale ASC payment for separately
payable covered ancillary services that have a predetermined national
payment amount (that is, their national ASC payment amounts are not
based on OPPS relative payment weights), such as drugs and biologicals
that are separately paid or services that are contractor-priced or paid
at reasonable cost in ASCs. Any service with a predetermined national
payment amount would be included in the ASC budget neutrality
comparison, but scaling of the ASC relative payment weights would not
apply to those
[[Page 49772]]
services. The ASC payment weights for those services without
predetermined national payment amounts (that is, those services with
national payment amounts that would be based on OPPS relative payment
weights) would be scaled to eliminate any difference in the total
payment between the current year and the update year.
For any given year's ratesetting, we typically use the most recent
full calendar year of claims data to model budget neutrality
adjustments. We propose to use the CY 2022 claims data to model our
budget neutrality adjustment for CY 2024.
b. Updating the ASC Conversion Factor
Under the OPPS, we typically apply a budget neutrality adjustment
for provider-level changes, most notably a change in the wage index
values for the upcoming year, to the conversion factor. Consistent with
our final ASC payment policy, for the CY 2017 ASC payment system and
subsequent years, in the CY 2017 OPPS/ASC final rule with comment
period (81 FR 79751 through 79753), we finalized our policy to
calculate and apply a budget neutrality adjustment to the ASC
conversion factor for supplier-level changes in wage index values for
the upcoming year, just as the OPPS wage index budget neutrality
adjustment is calculated and applied to the OPPS conversion factor. For
CY 2024, we calculated the proposed adjustment for the ASC payment
system by using the most recent CY 2022 claims data available and
estimating the difference in total payment that would be created by
introducing the proposed CY 2024 ASC wage indexes. Specifically,
holding CY 2022 ASC utilization, service-mix, and the proposed CY 2024
national payment rates after application of the weight scalar constant,
we calculated the total adjusted payment using the CY 2023 ASC wage
indexes and the total adjusted payment using the proposed CY 2024 ASC
wage indexes. We used the 50 percent labor-related share for both total
adjusted payment calculations. We then compared the total adjusted
payment calculated with the CY 2023 ASC wage indexes to the total
adjusted payment calculated with the proposed CY 2024 ASC wage indexes
and applied the resulting ratio of 1.0017 (the proposed CY 2024 ASC
wage index budget neutrality adjustment) to the CY 2023 ASC conversion
factor to calculate the proposed CY 2024 ASC conversion factor.
Section 1833(i)(2)(D)(v) of the Act requires that the ASC
conversion factor be reduced by a productivity adjustment in each
calendar year. Section 1886(b)(3)(B)(xi)(II) of the Act defines the
productivity adjustment to be equal to the 10-year moving average of
changes in annual economy-wide private nonfarm business multifactor
productivity (MFP). We finalized the methodology for calculating the
productivity adjustment in the CY 2011 PFS final rule with comment
period (75 FR 73394 through 73396) and revised it in the CY 2012 PFS
final rule with comment period (76 FR 73300 through 73301) and the CY
2016 OPPS/ASC final rule with comment period (80 FR 70500 through
70501). The proposed productivity adjustment for CY 2024 was projected
to be 0.2 percentage point, as published in the FY 2024 IPPS/LTCH PPS
proposed rule (88 FR 27005) based on IGI's 2022 fourth quarter
forecast.
Section 1833(i)(2)(C)(i) of the Act requires that, if the Secretary
has not updated amounts established under the revised ASC payment
system in a calendar year, the payment amounts shall be increased by
the percentage increase in the Consumer Price Index for all urban
consumers (CPI-U), U.S. city average, as estimated by the Secretary for
the 12-month period ending with the midpoint of the year involved. The
statute does not mandate the adoption of any particular update
mechanism, but it requires the payment amounts to be increased by the
CPI-U in the absence of any update. Because the Secretary updates the
ASC payment amounts annually, we adopted a policy, which we codified at
Sec. 416.171(a)(2)(ii), to update the ASC conversion factor using the
CPI-U for CY 2010 and subsequent calendar years.
In the CY 2019 OPPS/ASC final rule with comment period (83 FR 59075
through 59080), we finalized a policy to apply the productivity-
adjusted hospital market basket update to ASC payment system rates for
an interim period of 5 years (CY 2019 through CY 2023), during which we
would assess whether there is a migration of the performance of
procedures from the hospital setting to the ASC setting as a result of
the use of a productivity-adjusted hospital market basket update, as
well as whether there are any unintended consequences, such as less
than expected migration of the performance of procedures from the
hospital setting to the ASC setting. The most recent available full
year of claims data to assess the expected migration applying the
hospital market basket update during the interim period would fall
within the period from CY 2019 through CY 2022. However, the impact of
the COVID-19 PHE on health care utilization, in particular in CY 2020,
was tremendously profound, particularly for elective surgeries, because
many beneficiaries avoided healthcare settings when possible to avoid
possible infection from the SARS-CoV-2 virus. As a result, it is nearly
impossible to disentangle the effects from the COVID-19 PHE in our
analysis of whether the higher update factor for the ASC payment system
caused increased migration to the ASC setting. To analyze whether
procedures migrated from the hospital setting to the ASC setting, we
need to use claims data from a period during which the COVID-19 PHE had
less of an impact on health care utilization. Therefore, for this CY
2024 OPPS/ASC proposed rule, we propose to extend the 5-year interim
period an additional 2 years, that is, through CY 2024 and CY 2025. We
believe hospital outpatient and ASC utilization data from CYs 2023 and
2024 will enable us to more accurately analyze whether the application
of the hospital market basket update to the ASC payment system had an
effect on the migration of services from the hospital setting to the
ASC setting. We propose to revise our regulations at 42 CFR
416.171(a)(2)(iii) and (iv), which establish the annual update to the
ASC conversion factor, to reflect this 2-year extension. We also
propose to revise our regulations at Sec. 416.171(a)(2)(vi) and (vii),
which establish the 2.0 percentage point reduction for ASCs that fail
to meet the standards for reporting ASC quality measures, and Sec.
416.171(a)(2)(viii)(B) and (C), which establish the productivity
adjustment, to reflect this 2-year extension.
For CY 2024, in accordance with our proposed revisions to Sec.
416.171(a)(2)(iii), (vi), and (viii)(B), we propose to utilize the
hospital market basket update of 3.0 percent reduced by the
productivity adjustment of 0.2 percentage point, resulting in a
proposed productivity-adjusted hospital market basket update factor of
2.8 percent for ASCs meeting the quality reporting requirements.
Therefore, we propose to apply a 2.8 percent productivity-adjusted
hospital market basket update factor to the CY 2023 ASC conversion
factor for ASCs meeting the quality reporting requirements to determine
the CY 2024 ASC payment amounts. The ASCQR Program affected payment
rates beginning in CY 2014 and, under this program, there is a 2.0
percentage point reduction to the update factor for ASCs that fail to
meet the ASCQR Program requirements. We refer readers to section XIV.E
of the CY 2019 OPPS/ASC final rule with
[[Page 49773]]
comment period (83 FR 59138 through 59139) and section XIV.E of this
proposed rule for a detailed discussion of our policies regarding
payment reduction for ASCs that fail to meet ASCQR Program
requirements. We propose to utilize the inpatient hospital market
basket percentage increase of 3.0 percent reduced by 2.0 percentage
points for ASCs that do not meet the quality reporting requirements and
then reduced by the 0.2 percentage point productivity adjustment.
Therefore, we propose to apply a 0.8 percent productivity-adjusted
hospital market basket update factor to the CY 2023 ASC conversion
factor for ASCs not meeting the quality reporting requirements. We also
propose that if more recent data are subsequently available (for
example, a more recent estimate of the inpatient hospital market basket
percentage increase or productivity adjustment), we would use such
data, if appropriate, to determine the CY 2024 ASC update for the CY
2024 OPPS/ASC final rule with comment period.
For CY 2024, we propose to adjust the CY 2023 ASC conversion factor
($51.854) by the proposed wage index budget neutrality factor of 1.0017
in addition to the productivity-adjusted hospital market basket update
of 2.8 percent discussed above, which results in a proposed CY 2024 ASC
conversion factor of $53.397 for ASCs meeting the quality reporting
requirements. For ASCs not meeting the quality reporting requirements,
we propose to adjust the CY 2023 ASC conversion factor ($51.854) by the
proposed wage index budget neutrality factor of 1.0017 in addition to
the quality reporting/productivity-adjusted hospital market basket
update of 0.8 percent discussed above, which results in a proposed CY
2024 ASC conversion factor of $52.358.
3. Display of the Proposed CY 2024 ASC Payment Rates
Addenda AA and BB to this proposed rule (which are available on the
CMS website) display the proposed ASC payment rates for CY 2024 for
covered surgical procedures and covered ancillary services,
respectively. The proposed payment rates included in Addenda AA and BB
to this proposed rule reflect the full ASC proposed payment update and
not the reduced payment update used to calculate payment rates for ASCs
not meeting the quality reporting requirements under the ASCQR Program.
These Addenda contain several types of information related to the
proposed CY 2024 payment rates. Specifically, in Addendum AA, a ``Y''
in the column titled ``To be Subject to Multiple Procedure
Discounting'' indicates that the surgical procedure would be subject to
the multiple procedure payment reduction policy. As discussed in the CY
2008 OPPS/ASC final rule with comment period (72 FR 66829 through
66830), most covered surgical procedures are subject to a 50 percent
reduction in the ASC payment for the lower-paying procedure when more
than one procedure is performed in a single operative session.
For CY 2021, we finalized adding a new column to ASC Addendum BB
titled ``Drug Pass-Through Expiration during Calendar Year'' where we
flag through the use of an asterisk each drug for which pass-through
payment is expiring during the calendar year (that is, on a date other
than December 31st).
The values displayed in the column titled ``Proposed CY 2024
Payment Weight'' are the proposed relative payment weights for each of
the listed services for CY 2024. The proposed relative payment weights
for all covered surgical procedures and covered ancillary services
where the ASC payment rates are based on OPPS relative payment weights
were scaled for budget neutrality. Therefore, scaling was not applied
to the device portion of the device-intensive procedures; services that
are paid at the MPFS nonfacility PE RVU-based amount; separately
payable covered ancillary services that have a predetermined national
payment amount, such as drugs and biologicals and brachytherapy sources
that are separately paid under the OPPS; or services that are
contractor-priced or paid at reasonable cost in ASCs. This includes
separate payment for non-opioid pain management drugs.
To derive the proposed CY 2024 payment rate displayed in the
``Proposed CY 2024 Payment Rate'' column, each ASC payment weight in
the ``Proposed CY 2024 Payment Weight'' column was multiplied by the
proposed CY 2024 conversion factor. The conversion factor includes a
budget neutrality adjustment for changes in the wage index values and
the annual update factor as reduced by the productivity adjustment. The
proposed CY 2024 ASC conversion factor uses the CY 2024 productivity-
adjusted hospital market basket update factor of 2.8 percent (which is
equal to the proposed inpatient hospital market basket percentage
increase of 3.0 percent reduced by the proposed productivity adjustment
of 0.2 percentage point).
In Addendum BB, there are no relative payment weights displayed in
the ``Proposed CY 2024 Payment Weight'' column for items and services
with predetermined national payment amounts, such as separately payable
drugs and biologicals. The ``Proposed CY 2024 Payment'' column displays
the proposed CY 2024 national unadjusted ASC payment rates for all
items and services. The proposed CY 2024 ASC payment rates listed in
Addendum BB for separately payable drugs and biologicals are based on
the most recently available data used for payment in physicians'
offices.
Addendum EE to this proposed rule provides the HCPCS codes and
short descriptors for surgical procedures that are finalized to be
excluded from payment in ASCs for CY 2024.
Addendum FF to this proposed rule displays the OPPS payment rate
(based on the standard ratesetting methodology), the device offset
percentage for determining device-intensive status (based on the
standard ratesetting methodology), and the device portion of the ASC
payment rate for CY 2024 for covered surgical procedures.
XIV. Hospital Outpatient Quality Reporting (OQR) Program Requirements,
Proposals, and Requests for Comment
A. Background
We seek to promote higher quality, more efficient, and equitable
healthcare for patients. Consistent with these goals, we have
implemented quality reporting programs for multiple care settings,
including the Hospital Outpatient Quality Reporting (OQR) Program for
hospital outpatient care.
We refer readers to the CY 2011 Outpatient Prospective Payment
System (OPPS) and Ambulatory Surgical Center (ASC) payment system final
rule (75 FR 72064 through 72065) for a detailed discussion of the
statutory history of the Hospital OQR Program. We refer readers to the
CYs 2008 through 2023 OPPS/ASC final rules for detailed discussions of
the regulatory history of the Hospital OQR Program (72 FR 66860 through
66875; 73 FR 68758 through 68779; 74 FR 60629 through 60656; 75 FR
72064 through 72110; 76 FR 74451 through 74492; 77 FR 68467 through
68492; 78 FR 75090 through 75120; 79 FR 66940 through 66966; 80 FR
70502 through 70526; 81 FR 79753 through 79797; 82 FR 59424 through
59445; 83 FR 59080 through 59110; 84 FR 61410 through 61420; 85 FR
86179 through 86187; 86 FR 63822 through 63875; and 87 FR 72096 through
72117).
We have codified certain requirements under the Hospital OQR
Program at 42 CFR[thinsp]419.46. We refer readers to section XIV.F of
this proposed rule for a detailed discussion
[[Page 49774]]
of the payment reduction for hospitals that fail to meet Hospital OQR
Program requirements.
B. Hospital OQR Program Quality Measures
1. Retention, Removal, Replacement, or Suspension of Quality Measures
From the Hospital OQR Program Measure Set
We refer readers to Sec. 419.46(i) for our policies regarding: (1)
measure retention; (2) immediate measure removal; and (3) measure
removal, suspension, or replacement through the rulemaking process. We
propose to amend our immediate measure removal policy codified at Sec.
419.46(i)(2) to replace references to ``QualityNet'' with ``CMS-
designated information system'' or ``CMS website,'' and to make other
conforming technical edits, to accommodate recent and future systems
requirements and mitigate confusion for program participants.
We invite public comment on this proposal.
a. Proposed Removal of the Left Without Being Seen Measure Beginning
With the CY 2024 Hospital OQR Reporting Period
We refer readers to the CY 2011 OPPS/ASC final rule (75 FR 72088
through 72089) where we adopted the Left Without Being Seen (LWBS)
measure beginning with the CY 2013 payment determination. The LWBS
measure was initially endorsed by a consensus-based entity (CBE) in
2008. This process measure assesses the percent of patients who leave
the emergency department (ED) without being evaluated by a physician,
advanced practice nurse, or physician's assistant. Our rationale for
adopting the LWBS measure was that patients leaving without being seen
was an indicator of ED overcrowding (75 FR 72089).
Endorsement of the measure was removed in 2012 because the measure
steward did not choose to resubmit the measure to maintain endorsement.
We continued to retain the LWBS measure because our data showed
variation/gap in performance and improvement. However, over the last
few years, our routine measure monitoring and evaluation indicated: (1)
limited evidence linking the measure to improved patient outcomes; (2)
that increased LWBS rates may reflect poor access to timely clinic-
based care rather than intrinsic systemic issues within the ED; \137\
and (3) unintended effects on LWBS rates caused by other policies,
programs, and initiatives may lead to skewed measure
performance.138 139 140
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\137\ Li DR, Brennan JJ, Kreshak AA, et al. (2019). Patients who
leave the emergency department without being seen and their follow-
up behavior: a retrospective descriptive analysis. J Emerg Med,
57(1), 106-13. https://doi.org/10.1016/j.jemermed.2019.03.051.
\138\ Allen L, Cong TG, & Kosali S. (2022). The Impact of
Medicaid Expansion on Emergency Department Wait Times. Health
Services Research, 57(2), 294-99. https://doi.org/10.1111/1475-6773.13892.
\139\ Roby N, Smith H, Hurdelbrink J, et al. (2022).
Characteristics and Retention of Emergency Department Patients Who
Left without Being Seen (LWBS). Internal and Emergency Medicine,
17(2), 551-58. https://doi.org/10.1007/S11739-021-02775-Z.
\140\ Yoo MJ, Schauer SG, & Trueblood WE. (2022). `Swab and Go'
Impact on Emergency Department Left without Being Seen Rates.'' The
American Journal of Emergency Medicine, 57(July): 164-65. https://doi.org/10.1016/J.AJEM.2021.11.043.
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We recognize that LWBS performance issues could be due to
inefficient patient flow in the ED for a variety of reasons or due to
insufficient community resources, which result in higher ED patient
volumes that lead to long wait times and patients deciding to leave
without being seen. These patients' reasoning for visiting the ED is
often not severe enough that they would want to wait if the ED is
crowded. Additionally, we do not believe that the LWBS measure provides
enough specificity to give value because it does not provide
granularity for actionable meaningful data toward quality improvement.
We believe, based on these findings, that this measure meets the
measure removal factor 2 (that is, performance or improvement on a
measure does not result in better patient outcomes), as codified under
Sec. 419.46(i)(3)(i)(B).
ED performance and care continues to be an important topic area of
the Hospital OQR Program. We believe the Median Time from ED Arrival to
ED Departure for Discharged ED Patients measure (Median Time for
Discharged ED Patients measure) is better for measuring ED performance
and care. The Median Time for Discharged ED Patients measure, adopted
for reporting in the Hospital OQR Program, provides more meaningful
data compared to the LWBS measure because the measure presents more
granular data on length of time of ED throughput. Additionally, the
Median Time for Discharged ED Patients measure provides useful
information to facilities for improvement efforts because the measure
is stratified, showing the median time from ED departure for discharged
ED patients in four different strata in the Hospital Outpatient
Department (HOPD) setting. These improvement efforts by facilities
could ultimately reduce the number of patients who leave without being
seen.
Based on the above assessment and rationale, we believe the LWBS
measure does not provide enough evidence to promote quality of care and
improved patient outcomes to justify retaining the measure in the
Hospital OQR Program. Therefore, we propose to remove the LWBS measure
from the program beginning with the CY 2024 reporting period/CY 2026
payment determination.
We invite public comment on our proposal.
2. Modifications to Previously Adopted Measures
In this proposed rule, we propose to modify three previously
adopted measures beginning with CY 2024 reporting period/CY 2026
payment determination: (1) COVID-19 Vaccination Coverage Among
Healthcare Personnel (HCP) measure; (2) Cataracts: Improvement in
Patient's Visual Function Within 90 Days Following Cataract Surgery
measure; and (3) Appropriate Follow-Up Interval for Normal Colonoscopy
in Average Risk Patients measure.
a. Proposed Modification of the COVID-19 Vaccination Coverage Among
Health Care Personnel (HCP) Measure Beginning With the CY 2024
Reporting Period/CY 2026 Payment Determination
(1) Background
On January 31, 2020, the Secretary of the Department of Health and
Human Services (HHS) declared a public health emergency (PHE) for the
United States in response to the global outbreak of SARS-COV-2, a then
novel coronavirus that causes a disease named ``coronavirus disease
2019'' (COVID-19).\141\ Subsequently, the COVID-19 Vaccination Coverage
Among Health Care Personnel (HCP) measure was adopted across multiple
quality reporting programs, including the Hospital OQR Program (86 FR
63824 through 63833).\142\ COVID-19 has continued to spread
domestically and around the world with more than 102.7 million cases
and 1.1 million deaths in the United States alone as of February
[[Page 49775]]
13, 2023.\143\ The Secretary renewed the PHE on April 21, 2020, and
then every three months thereafter, with the final renewal on February
9, 2023.\144\ The PHE expired on May 11, 2023; however, the public
health response to COVID-19 remains a public health priority including
vaccination efforts.\145\
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\141\ U.S. Dept. of Health and Human Services, Office of the
Assistant Secretary for Preparedness and Response. (2020).
Determination that a Public Health Emergency Exists. Available at:
https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx
\142\ The ASCQR Program (86 FR 63875 through 63833), the
Hospital IQR Program (86 FR 45374 through 45382), the Inpatient
Psychiatric Facility Quality Reporting Program (86 FR 42633 through
42640), the PPS-Exempt Cancer Hospital Quality Reporting Program (86
FR 45428 through 45434), the Long-Term Care Hospital Quality
Reporting Program (86 FR 45438 through 45446), the Skilled Nursing
Facility Quality Reporting Program (86 FR 42480 through 42489), the
End-Stage Renal Disease Quality Incentive Program (87 FR 67244
through 67248), and the Inpatient Rehabilitation Facility Quality
Reporting Program (86 FR 42385 through 42396).
\143\ Centers for Disease Control and Prevention. COVID Data
Tracker. Accessed February 13, 2023. Available at: https://covid.cdc.gov/covid-data-tracker/#datatracker-home.
\144\ U.S. Dept. of Health and Human Services. Office of the
Assistant Secretary for Preparedness and Response. (2023). Renewal
of Determination that a Public Health Emergency Exists. Available
at: https://aspr.hhs.gov/legal/PHE/Pages/COVID19-9Feb2023.aspx.
\145\ U.S. Dept. of Health and Human Services. Fact Sheet:
COVID-19 Public Health Emergency Transition Roadmap. February 9,
2023. Available at: https://www.hhs.gov/about/news/2023/02/09/fact-sheet-covid-19-public-health-emergency-transition-roadmap.html.
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We stated in the CY 2022 OPPS/ASC final rule (86 FR 63825), and in
our ``Revised Guidance for Staff Vaccination Requirements,'' that
vaccination is a critical part of the nation's strategy to effectively
counter the spread of COVID-19.146 147 148 We continue to
believe it is important to incentivize and track HCP vaccination
through quality measurement across care settings, including the HOPD
setting, to protect health care workers, patients, and caregivers, and
to help sustain the ability of HCP in each of these care settings to
continue serving their communities. Studies indicate higher levels of
population-level vaccine effectiveness in preventing COVID-19 infection
among HCP and other frontline workers in multiple industries, with
vaccines having a 90 percent effectiveness in preventing symptomatic
and asymptomatic infection from December 2020 through August 2021.\149\
Since the Food and Drug Administration (FDA) issued emergency use
authorizations (EUAs) for selected initial and primary vaccines for
adults, vaccines have been highly effective in real-world conditions at
preventing COVID-19 in HCP with up to 96 percent efficacy for fully
vaccinated HCP, including those at risk for severe infection and those
in racial and ethnic groups disproportionately affected by COVID-
19.150 151 152 153 Overall, data demonstrate that COVID-19
vaccines are effective and prevent severe disease, hospitalization, and
death from COVID-19 infection.\154\
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\146\ Centers for Medicare and Medicaid Services. (October 26,
2022). Revised Guidance for Staff Vaccination Requirements.
Available at: https://www.cms.gov/files/document/qs0-23-02-all.pdf.
\147\ Centers for Disease Control and Prevention. (September 24,
2021). Morbidity and Mortality Weekly Report (MMWR). Comparative
Effectiveness of Moderna, Pfizer-BioNTech, and Janssen (Johnson &
Johnson) Vaccines in Preventing COVID-19 Hospitalizations Among
Adults Without Immunocompromising Conditions--United States, March-
August 2021. Available at: https://cdc.gov/mmwr/volumes/70/wr/mm7038e1.htm?s_cid=mm7038e1_w.
\148\ Centers for Medicare and Medicaid Services. (October 26,
2022). Revised Guidance for Staff Vaccination Requirements.
Available at: https://www.cms.gov/files/document/qs0-23-02-all.pdf.
\149\ Centers for Disease Control and Prevention. (August 27,
2021). Morbidity and Mortality Weekly Report (MMWR). Effectiveness
of COVID-19 Vaccines in Preventing SARS-COV-2 Infection Among
Frontline Workers Before and During B.1.617.2 (Delta) Variant
Predominance--Eight U.S. Locations, December 2020-August 2021.
Available at: https://www.cdc.gov/mmwr/volumes/70/wr/mm7034e4.htm.
\150\ Pilishivi T, Gierke R, Fleming-Dutra KE, et al. (2022).
Effectiveness of mRNA Covid-19 Vaccine among U.S. Health Care
Personnel. New England Journal of Medicine, 385(25), e90. https://doi.org/10.1056/NEJMoa2106599.
\151\ Centers for Disease Control and Prevention. (2021).
Morbidity and Mortality Weekly Report (MMWR). Monitoring Incidence
of COVID-19 Cases, Hospitalizations, and Deaths, by Vaccination
Status--13 U.S. Jurisdictions, April 4-July 17, 2021. Available at:
https://www.cdc.gov/mmwr/volumes/70/wr/mm7037e1.htm.
\152\ Centers for Medicare and Medicaid Services. (October 26,
2022). Revised Guidance for Staff Vaccination Requirements.
Available at: https://www.cms.gov/files/document/qs0-23-02-all.pdf.
\153\ Food and Drug Administration. (2020). FDA Takes Key Action
in Fight Against COVID-19 By Issuing Emergency Use Authorization for
First COVID-19 Vaccine. Available at: https://www.fda.gov/news-events/press-announcements/fda-takes-key-action-fight-against-covid-19-issuing-emergency-use-authorization-first-covid-19.
\154\ McGarry BE, Barnett ML, Grabowski DC, et al. (2022).
Nursing Home Staff Vaccination and Covid-19 Outcomes. New England
Journal of Medicine, 386(4), 397-398. https://doi.org/10.1056/NEJMc2115674.
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When we adopted the COVID-19 Vaccination Coverage Among HCP measure
in the CY 2022 OPPS/ASC final rule (86 FR 63875 through 63883), we
acknowledged that the measure did not address booster shots for COVID-
19 vaccination (86 FR 63881) though the FDA authorized, and the Centers
for Disease Control and Prevention (CDC) recommended, additional doses
and booster doses of the COVID-19 vaccine for certain individuals,
particularly those who are immunocompromised due to age or condition or
who are living or working in high-risk settings, such as HCP (86 FR
63881). However, we also stated that we believed the numerator of the
measure was sufficiently broad to include potential future boosters as
part of a ``complete vaccination course'' (86 FR 63881).
Since then, new variants of SARS-COV-2 have emerged around the
world and within the United States. Specifically, the Omicron variant
(and its related subvariants) is listed as a variant of concern by the
CDC because it spreads more easily than earlier variants.\155\ Vaccine
manufacturers have responded to the Omicron variant by developing
bivalent COVID-19 vaccines, which include a component of the original
virus strain to provide broad protection against COVID-19 and a
component of the Omicron variant to provide better protection against
COVID-19 caused by the Omicron variant.\156\ Booster doses of the
bivalent COVID-19 vaccine have proven effective at increasing immune
response to SARS-COV-2 variants, including Omicron, particularly in
individuals who are more than 6 months removed from receipt of their
primary series.\157\ These booster doses are associated with a greater
reduction in infections among HCP and their patients relative to those
who only received primary series vaccination, with a rate of
breakthrough infections among HCP who received only the two-dose
regimen of 21.4 percent compared to a rate of 0.7 percent among boosted
HCP.158 159 160 Data from the existing COVID-19 Vaccination
Coverage Among HCP measure demonstrate clinically significant variation
in booster dose vaccination rates across HOPDs.
---------------------------------------------------------------------------
\155\ Centers for Disease Control and Prevention. (2021).
Variants of the Virus. Available at: https://www.cdc.gov/coronavirus/2019-ncov/variants/.
\156\ Food and Drug Administration. (2022). COVID-19 Bivalent
Vaccine Boosters. Available at: https://www.fda.gov/emergency-preparedness-and-response/coronavirus-disease-2019-covid-19/covid-19-bivalent-vaccines.
\157\ Chalkias S, Harper C, Vrbicky K, et al. (2022). A Bivalent
Omicron-Containing Booster Vaccine against Covid-19. New England
Journal of Medicine, 387(14), 1279-1291. https://doi.org/10.1056/NEJMoa2208343.
\158\ Prasad N, Derado G, Nanduri SA, et al. (May 2022).
Effectiveness of a COVID-19 Additional Primary or Booster Vaccine
Dose in Preventing SARS-CoV-2 Infection Among Nursing Home Residents
During Widespread Circulation of the Omicron Variant--United States,
February 14-March 27, 2022. Morbidity and Mortality Weekly Report
(MMWR). 71(18), 633-637. Available online at: https://www.cdc.gov/mmwr/volumes/71/wr/mm7118a4.htm.
\159\ Oster Y, Benenson S, Nir-Paz R, et al. (2022). The effect
of a third BNT162b2 vaccine on breakthrough infections in health
care workers: a cohort analysis. Clinical Microbiology and
Infection, 28(5), 735.e1-735.e3. https://doi.org/10.1016/j.cmi.2022.01.019.
\160\ Ibid.
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We believe that vaccination remains the most effective means to
prevent the worst consequences of COVID-19, including severe illness,
hospitalization, and death. Given the availability of vaccine efficacy
data, EUAs issued by the FDA for bivalent boosters, continued presence
of SARS-COV-2 in the United States, and variance among rates of booster
dose vaccination, it is important to modify the COVID-19 Vaccination
Coverage Among HCP measure for HCP
[[Page 49776]]
to receive primary series and booster vaccine doses in a timely manner
per CDC's recommendation that bivalent COVID-19 vaccine booster doses
might improve protection against SARS-CoV-2 Omicron sublineages.\161\
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\161\ Centers for Medicare and Medicaid Services. (October 26,
2022). Revised Guidance for Staff Vaccination Requirements.
Available at: https://www.cms.gov/files/document/qs0-23-02-all.pdf.
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We propose to modify the COVID-19 Vaccination Coverage Among HCP
measure to utilize the term ``up to date'' in the HCP vaccination
definition. We also propose to update the numerator to specify the
timeframes within which an HCP is considered up to date with CDC
recommended COVID-19 vaccines, including booster doses, beginning with
CY 2024 reporting period/CY 2026 payment determination for the Hospital
OQR Program.
We note that as we stated in the CY 2022 OPPS/ASC final rule (86 FR
63877), the COVID-19 Vaccination Coverage Among HCP measure is a
process measure that assesses HCP vaccination coverage rates and not an
outcome measure for which hospitals are held responsible for a
particular outcome. We propose to adopt the same modification to
versions of the measure that we have adopted for other quality
reporting programs.\162\
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\162\ The Hospital Inpatient Quality Reporting Program, the
Long-Term Care Hospital Quality Reporting Program and the PPS-Exempt
Cancer Hospital Quality Reporting Program (88 FR 27074) as well as
the Inpatient Psychiatric Facility Quality Reporting Program (88 FR
21290), the Skilled Nursing Facility Quality Reporting Program (88
FR 21332), the End-Stage Renal Disease Quality Incentive Program (87
FR 67244), and the Inpatient Rehabilitation Facility Quality
Reporting Program (88 FR 20985).
---------------------------------------------------------------------------
(2) Overview of Measure
The COVID-19 Vaccination Coverage Among HCP measure is a process
measure developed by the CDC to track COVID-19 vaccination coverage
among HCPs in various settings and are reported via the CDC's National
Healthcare Safety Network (NHSN). We refer readers to the CY 2022 OPPS/
ASC final rule with comment period (86 FR 63827 through 63828) for more
information on the initial review of the measure by the Measure
Applications Partnership (MAP).\163\ We included an updated version of
the measure on the Measures Under Consideration (MUC) list for the
2022-2023 pre-rulemaking cycle for consideration by the MAP. In
December 2022, during the MAP's Hospital Workgroup discussion, the
workgroup stated that the revision of the current measure captures up
to date vaccination information in accordance with the CDC's updated
recommendations for additional and booster doses since the measure's
initial development. Additionally, the Hospital Workgroup appreciated
that the re-specified measure's target population is broader and
simplified from seven categories of HCP to four.\164\ During the MAP's
Health Equity Advisory Group review, the group highlighted the
importance of COVID-19 vaccination measures and questioned whether the
proposed revised measure excludes individuals with contraindications to
FDA authorized or approved COVID-19 vaccines, and if the measure would
be stratified by demographic factors. The measure developer confirmed
that HCP with contraindications to the vaccines are excluded from the
measure denominator but stated that the measure would not be stratified
since the data are submitted at an aggregate rather than an individual
level. The MAP Rural Health Advisory Group expressed concerns about
data collection burden, citing that collection is performed
manually.\165\ We note that when reviewed by the MAP, reporting for
contract personnel providing care or services not specifically included
in the measure denominator was fully optional, whereas this reporting
is now required to complete NHSN data entry, but is not included in the
measure calculation.
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\163\ Interested parties convened by the consensus-based entity
will provide input and recommendations on the Measures under
Consideration (MUC) list as part of the pre-rulemaking process
required by section 1890A of the Act. We refer readers to https://p4qm.org/PRMR-MSR for more information.
\164\ Centers for Medicare & Medicaid Services. Pre-rulemaking
MUC lists and map reports. The Measures Management System. Available
at: https://mmshub.cms.gov/measure-lifecycle/measure-implementation/pre-rulemaking/lists-and-reports.
\165\ Ibid.
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The developer also noted that the model used for this measure is
based on the Influenza Vaccination Coverage Among HCP measure (CBE
#0431).\166\ We refer readers to sections XXIV.B and XXVI of this
proposed rule for additional detail on the burden and impact of this
proposal.
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\166\ In previous years, we referred to the consensus-based
entity (CBE) by corporate name. We have updated this language to
refer to the CBE more generally.
---------------------------------------------------------------------------
The proposed revised measure received conditional support for
rulemaking from the MAP pending (1) testing indicating the measure is
reliable and valid, and (2) endorsement by the CBE. The MAP noted that
the previous version of the measure received endorsement from the CBE
(CBE #3636) \167\ and that the measure steward (CDC) intends to submit
the updated measure for endorsement.\168\
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\167\ Centers for Medicare and Medicaid Services. Measures
Inventory Tool. Available at: https://cmit.cms.gov/cmit/#/MeasureView?variantId=11670§ionNumber=1.
\168\ The measure steward owns and maintains a measure while a
measure developer develops, implements, and maintains a measure. In
this case, the CDC serves as both the measure steward and measure
developer. For more information on measure development, we refer
readers to: Centers for Medicare and Medicaid Services (2023). Roles
in Measure Development. Available at: https://mmshub.cms.gov/about-quality/new-to-measures/roles.
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(a) Measure Specifications
This measure is calculated quarterly by averaging the hospital's
most recently submitted and self-selected 1 week of data. The measure
includes at least 1 week of data collection a month for each of the 3
months in a quarter. The denominator is calculated as the aggregated
number of HCP eligible to work in the hospital for at least 1 day
during the week of data collection, excluding denominator-eligible
individuals with contraindications as defined by the CDC for all 3
months in a quarter.\169\ Facilities report the following four
categories of HCP to the NHSN:
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\169\ Centers for Disease Control and Prevention. (2022).
Contraindications and precautions. Available at: https://www.cdc.gov/vaccines/covid-19/clinical-considerations/interim-considerations-us.html#contraindications.
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Employees: This includes all persons who receive a direct
paycheck from the reporting facility (that is, on the facility's
payroll), regardless of clinical responsibility or patient contact.)
Licensed independent practitioners (LIPs): This includes
only physicians (MD, DO), advanced practice nurses, and physician
assistants who are affiliated with the reporting facility but are not
directly employed by it (that is, they do not receive a paycheck from
the reporting facility), regardless of clinical responsibility or
patient contact. Post-residency fellows are also included in this
category if they are not on the facility's payroll.
Adult students/trainees and volunteers: This includes
medical, nursing, or other health professional students, interns,
medical residents, or volunteers aged 18 or older who are affiliated
with the facility but are not directly employed by it (that is, they do
not receive a paycheck from the facility), regardless of clinical
responsibility or patient contact.
Other contract personnel: Contract personnel are defined
as persons providing care, treatment, or services at the facility
through a contract who do not fall into any of the previously discussed
denominator categories. This
[[Page 49777]]
also includes vendors providing care, treatment, or services at the
facility who may or may not be paid through a contract. Facilities are
required to enter data on other contract personnel for submission in
the NHSN application, but data for this category are not included in
the HCP COVID-19 Vaccine measure.\170\
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\170\ For more details on the reporting of other contract
personnel, we refer readers to the NHSN COVID-19 Vaccination
Protocol, Weekly COVID-19 Vaccination Module for Healthcare
Personnel available at: https://www.cdc.gov/nhsn/pdfs/hps/covidvax/protocol-hcp-508.pdf.
---------------------------------------------------------------------------
We are not proposing to modify the denominator exclusions. The
numerator is calculated as the cumulative number of HCP in the
denominator population who are considered up to date with CDC
recommended COVID-19 vaccine. Guidance issued by the CDC defines the
term ``up to date'' as meeting the CDC's criteria on the first day of
the applicable reporting quarter. The current definition of ``up to
date'' can be found at: https://www.cdc.gov/nhsn/pdfs/hps/covidvax/UpToDateGuidance-508.pdf.
We propose that public reporting of the modified version of the
COVID-19 Vaccination Coverage Among HCP for the Hospital OQR Program
would begin with the Fall 2024 Care Compare refresh, or as soon as
technically feasible.
(b) CBE Endorsement
The current version of the measure in the Hospital OQR Program
received CBE endorsement (CBE #3636) on July 26, 2022.\171\ The measure
steward (CDC) is pursuing endorsement for the modified version of this
measure.
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\171\ Centers for Medicare & Medicaid Services. Measure
Specifications for Hospital Workgroup for the 2022 MUC List.
Available at: https://mmshub.cms.gov/sites/default/files/map-hospital-measure-specifications-manual-2022.pdf.
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(3) Data Submission and Reporting
We refer readers to the CY 2022 OPPS/ASC final rule (86 FR 63879
through 63883) for information on data submission and reporting of this
measure. While we are not proposing any changes to the data submission
or reporting process, we propose that reporting of the updated,
modified version of this measure would begin with the CY 2024 reporting
period for the Hospital OQR Program. Under the data submission and
reporting process, hospitals would collect the numerator and
denominator for the COVID-19 Vaccination Coverage Among HCP measure for
at least one self-selected week during each month of the reporting
quarter and submit the data to the NHSN Healthcare Personnel Safety
(HPS) Component before the quarterly deadline to meet Hospital OQR
Program requirements. If a hospital submits more than one week of data
in a month, the most recent week's data would be used to calculate the
measure. For example, if first and third week data are submitted, the
third week data would be used. Each quarter, the CDC would calculate a
single quarterly COVID-19 HCP vaccination coverage rate for each
hospital, which would be calculated by taking the average of the data
from the three weekly rates submitted by the hospital for that quarter.
CMS would publicly report each quarterly COVID-19 HCP vaccination
coverage rate as calculated by the CDC (86 FR 63878). We refer readers
to section XV.B of this proposed rule for the same proposal for the
Ambulatory Surgical Center Quality Reporting (ASCQR) Program.
We invite public comment on this proposal.
b. Proposed Modification of Survey Instrument Use for the Cataracts:
Improvement in Patient's Visual Function Within 90 Days Following
Cataract Surgery Measure Beginning With the Voluntary CY 2024 Reporting
Period
(1) Background
In the CY 2014 OPPS/ASC final rule (78 FR 75102 through 75103), we
finalized the adoption of the Cataracts: Improvement in Patient's
Visual Function Within 90 Days Following Cataract Surgery (the
Cataracts Visual Function) measure, beginning with the CY 2014
reporting period/CY 2016 payment determination. This measure assesses
the percentage of patients aged 18 years and older who had cataract
surgery and had improvement in visual function within 90 days following
the cataract surgery via the administration of pre-operative and post-
operative survey instruments (78 FR 75102). A ``survey instrument'' is
an assessment tool that has been appropriately validated for the
population for which it being used.\172\ For purposes of this proposed
modification to the Cataracts Visual Function measure, the survey
instruments we considered and propose assess the visual function of a
patient pre- and post-operatively to determine whether the patient's
visual function changed within 90 days of cataract surgery. Currently,
examples of survey instruments assessing visual function include, but
are not limited to, the National Eye Institute Visual Function
Questionnaire (NEI-VFQ), the Visual Function (VF-14), the modified (VF-
8), the Activities of Daily Vision Scale (ADVS), the Catquest, and the
modified Catquest-9. While the measure has been available for voluntary
reporting in the Hospital OQR Program since the CY 2015 reporting
period, a number of facilities have reported data consistently using
the survey instrument-collection method of their choice (87 FR 72098).
We refer readers to the Cataracts Visual Function measure's Measure
Information Form (MIF) and the Hospital OQR Program Specifications
Manual for additional detail, which is available at: https://qualitynet.cms.gov/outpatient/specifications-manuals.
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\172\ Centers for Medicare & Medicaid Services. (2023). Hospital
OQR Specification Manual Version 16.0. Available at: https://qualitynet.cms.gov/outpatient/specifications-manuals#tab1.
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In the CY 2015 OPPS/ASC final rule (79 FR 66947), we expressed
concerns that clinicians' use of varying survey instruments would lead
to inconsistent measure results. However, a comparison study conducted
of the 16 survey instruments that are currently accepted for use in
collecting data for this measure by HOPDs found them to be
scientifically valid, able to detect clinically important changes, and
provide comparable results.\173\ While all 16 survey instruments
demonstrate usefulness for detecting clinically important changes in
cataract patients, some survey instrument's detection sensitivity
scored higher than others.\174\
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\173\ McAlinden C, Gothwal VK, Khadka J, et al. (2011). A head-
to-head comparison of 16 cataract surgery outcome questionnaires.
Ophthalmology, 118(12), 2374-81. https://doi.org/10.1016/j.ophtha.2011.06.008.
\174\ Ibid.
---------------------------------------------------------------------------
Several commenters responding to the CY 2022 OPPS/ASC proposed rule
(86 FR 63846) requested additional guidance from CMS regarding measure
specifications and survey instruments. We agree that the use of survey
instruments for the assessment of visual function pre- and post-
cataract surgery should be clarified. The use of survey instruments
should be standardized across HOPDs to minimize collection and
reporting burden, as well as to improve measure reliability. We propose
to clarify which specific survey instruments may be used for the
assessment of visual function pre- and post- cataract surgery for the
Cataracts Visual Function measure in both the Hospital OQR Program and
the ASCQR Program, to ensure alignment of this measure's specifications
across our quality reporting programs. Thus, we propose to limit the
allowable survey instruments that an HOPD may use to assess changes in
patient's visual function for the purposes of the Cataracts Visual
Function measure to those listed below:
[[Page 49778]]
The National Eye Institute Visual Function Questionnaire-25 (NEI VFQ-
25)
The Visual Functioning Patient Questionnaire (VF-14)
The Visual Functioning Index Patient Questionnaire (VF-8R)
(2) Considerations for the Standardization of Survey Instruments
Assessing Improvement in Patient's Visual Function Within 90 Days
Following Cataract Surgery
We took into consideration several factors when identifying which
specific survey instruments would be acceptable for HOPDs to use when
collecting data for the Cataracts Visual Function measure, such as
comprehensiveness, validity, reliability, length, and burden. We
believe that these three proposed survey instruments will allow HOPDs
to select the length of the survey to be administered while ensuring
adequate validity and reliability.175 176 177 All three of
these proposed surveys are based upon the 51-item National Eye
Institute Visual Function Questionnaire (NEI VFQ-51) survey instrument,
which was the first survey instrument originally developed for
assessing a patient's visual function before and after cataract
surgery. Each of the three proposed survey instruments have
progressively fewer numbers of questions than the NEI VFQ-51: 25
questions for the NEI VFQ-25, 14 questions for the VF-14, and 8
questions for the VF-8R. Even with fewer numbers of questions, all
three of the proposed survey instruments have been validated as
providing results comparable to the NEI VFQ-51. In addition, all three
of the proposed survey instruments are readily available for hospitals
to access and use.
---------------------------------------------------------------------------
\175\ Sivaprasad S., Tschosik E., Kapre A., et al. (2018).
Reliability and construct validity of the NEI VFQ-25 in a subset of
patients with geographic atrophy from the Phase 2 mahalo study.
American Journal of Ophthalmology, 190, 1-8. https://doi.org/10.1016/j.ajo.2018.03.006.
\176\ Hecht I., Kanclerz P., & Tuuminen R. (2022). Secondary
outcomes of Lens and cataract surgery: More than just ``best-
corrected visual acuity''. Progress in Retinal and Eye Research,
101150. https://doi.org/10.1016/j.preteyeres.2022.101150.
\177\ Orizonartstudios. (2023). 2023 MIPS measure #303:
Cataracts: Improvement in patient's visual function within 90 days
following cataract surgery. Mdinteractive. Available at: https://mdinteractive.com/mips_quality_measure/2023-mips-quality-measure-303.
---------------------------------------------------------------------------
We propose to allow HOPDs to use the NEI VFQ-25 for administering
and calculating the Cataracts Visual Function measure due to its
comprehensiveness, its adequate validity and reliability, as well as
its potential to reduce language barriers for patients. The NEI VFQ-25
is a shorter version of the NEI VFQ-51, being comprised of 25 items
across 12 vision-specific domains (general health, general vision,
ocular pain, near activities, distance activities, social functioning,
mental health, role difficulties, dependency, driving, color vision,
and peripheral vision).\178\
---------------------------------------------------------------------------
\178\ U.S. Department of Health and Human Services. Visual
function questionnaire 25. National Eye Institute. Available at:
https://www.nei.nih.gov/learn-about-eye-health/outreach-campaigns-and-resources/outreach-materials/visual-function-questionnaire-25.
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The NEI VFQ-25, similar to the VF-14 and VF-8R, displays adequate
reliability and validity.\179\ The NEI VFQ-25 composite, near
activities, and distance activities subscales demonstrated good
internal consistency reliability, test-retest reliability, convergent
validity, and known-groups validity.\180\ Furthermore, the NEI VFQ-25's
high internal consistency, indicates that items of the NEI VFQ-25 are
highly related to each other and to the scale as a whole.\181\
---------------------------------------------------------------------------
\179\ Sivaprasad S., Tschosik E., Kapre A., et al. (2018).
Reliability and construct validity of the NEI VFQ-25 in a subset of
patients with geographic atrophy from the Phase 2 mahalo study.
American Journal of Ophthalmology, 190, 1-8. https://doi.org/10.1016/j.ajo.2018.03.006.
\180\ Ibid.
\181\ Ibid.
---------------------------------------------------------------------------
In addition, the survey instrument is publicly available on the
RAND website at no cost and has been translated to many languages,
which is a valuable benefit for patients with limited English
proficiency. The NEI VFQ-25 was chosen over other survey instruments to
reduce potential language barriers, as, for example, the currently
available Activities of Daily Vision Scale (ADVS) is dependent on
English language skills.\182\ More information on the NEI VFQ-25 can be
found at: https://www.rand.org/health-care/surveys_tools/vfq.html.
---------------------------------------------------------------------------
\182\ Mangione C.M., Phillips R.S., Seddon J.M., et al. (1992).
Development of the `Activities of Daily Vision Scale'. A measure of
visual functional status. Med Care, 30(12), 1111-1126. https://doi.org/10.1097/00005650-199212000-00004.
---------------------------------------------------------------------------
While the NEI VFQ-25 was shortened significantly from the original
NEI VFQ-51, it has been criticized for its still lengthy test-time.
However, our proposal to include this survey instrument in this
measure's specifications allows for a more detailed assessment of
cataract surgery outcomes, as it was designed to include questions
which are most important for persons who have chronic eye
diseases.\183\ Further, if a hospital finds the NEI VFQ-25 particularly
burdensome to administer, the hospital may choose from the other two
survey instruments we propose for inclusion in this measure's
specifications, as both of these have even fewer survey questions to
administer.
---------------------------------------------------------------------------
\183\ Hecht I., Kanclerz P., & Tuuminen R. (2022). Secondary
outcomes of Lens and cataract surgery: More than just ``best-
corrected visual acuity.'' Progress in Retinal and Eye Research,
101150. https://doi.org/10.1016/j.preteyeres.2022.101150.
---------------------------------------------------------------------------
We also propose to allow HOPDs to use the 14-item VF-14 and the 8-
item VF-8R for administering and calculating the Cataracts Visual
Function measure, which each can be administered in a shorter timeframe
than the NEI VFQ-25 with high precision.184 185 Thus, the
succinct formats of the VF-14 and VF-8R may ease HOPD's burden in
administering the survey instruments and potentially increase the rate
of patient responses for this measure, as compared with other survey
instrument options we considered. Therefore, we propose the VF-14 and
VF-8R for this measure's data collection specifications because we
believe these survey instruments achieve comparable results with the
longer NEI VFQ-25 and NEI VFQ-51 survey instruments with substantially
fewer questions to administer.
---------------------------------------------------------------------------
\184\ Ibid.
\185\ Orizonartstudios. (2023). 2023 MIPS measure #303:
Cataracts: Improvement in patient's visual function within 90 days
following cataract surgery. MDinteractive. Available at: https://mdinteractive.com/mips_quality_measure/2023-mips-quality-measure-303.
---------------------------------------------------------------------------
Furthermore, we propose inclusion of the VF-14 because currently it
is the most commonly used survey instrument and we believe it would be
beneficial to allow the majority of physicians who have already been
using VF-14 to continue to have the option to do so.\186\ The VF-14 is
comprised of 14 items relating to daily living activities and function,
such as reading, writing, seeing steps, stairs or curbs, and operating
a motor vehicle.\187\ Studies using this survey instrument generally
report significant and clinically important improvement following
cataract surgery.\188\ The VF-14 additionally has achieved adequate
reliability and validity, proving it to be a dependable survey
instrument for cataract outcomes.189 190
---------------------------------------------------------------------------
\186\ Hecht, I., Kanclerz, P., &; Tuuminen, R. (2022). Secondary
outcomes of Lens and cataract surgery: More than just ``best-
corrected visual acuity.'' Progress in Retinal and Eye Research,
101150. https://doi.org/10.1016/j.preteyeres.2022.101150.
\187\ Ibid.
\188\ Ibid.
\189\ Ibid.
\190\ Orizonartstudios. (2023). 2023 MIPS measure #303:
Cataracts: Improvement in patient's visual function within 90 days
following cataract surgery. MDinteractive. Retrieved March 13, 2023,
from https://mdinteractive.com/mips_quality_measure/2023-mips-quality-measure-303.
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[[Page 49779]]
We propose the VF-8R as it is the most concise of the three survey
instruments, while still achieving adequate validity and
reliability.\191\ The VF-8R consists of questions related to reading,
fine handwork, writing, playing board games, and watching
television.\192\ Given its conciseness compared to the majority of
currently available survey instruments and its adequate psychometric
properties, we believe that the VF-8R would be beneficial for measuring
cataract surgery outcomes without prompting further patient survey
fatigue.\193\
---------------------------------------------------------------------------
\191\ Ibid.
\192\ Pre[hyphen]Cataract Surgery--Visual Functioning Index (VF-
8R) patient. (n.d.). https://eyecaresite.com/wp-content/uploads/2020/02/Visual-Functioning-Index-Pre-Cat-SX.pdf.
\193\ Ibid.
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For these reasons, we believe that the NEI VFQ-25, VF-14, and VF-8R
are the most appropriate survey instruments for HOPDs to use to assess
a patient's visual function pre- and post-cataract surgery for purposes
of calculating and submitting data for the Cataracts Visual Function
measure in the Hospital OQR Program.
In response to commenters' concerns as summarized in the CY 2023
OPPS/ASC final rule (87 FR 72097 through 72099) regarding the lack of
specificity around survey instrument administration for the Cataracts
Visual Function measure, we propose to limit the survey instruments
that can be used to administer this measure, beginning with the
voluntary CY 2024 reporting period, to these three survey instruments:
(1) NEI VFQ-25; (2) VF-14; and (3) VF-8R. We believe the use of these
three survey instruments to report data on the Cataracts Visual
Function measure would allow for a more standardized approach to data
collection. Having a limited number of allowable survey instruments
would also address commenters' requests for additional guidance on
survey instruments as well as improve measure reliability.
(3) Considerations for Data Collection Modes for the Cataracts:
Improvement in Patient's Visual Function Within 90 Days Following
Cataract Surgery Measure Beginning With the Voluntary CY 2024 Reporting
Period
As summarized in the CY 2023 OPPS/ASC final rule (87 FR 72104
through 72105), many commenters expressed concern about the high
administrative burden of reporting the Cataracts Visual Function
measure, as the measure uniquely requires coordination among clinicians
of different specialties (that is, opticians and ophthalmologists). In
an effort to decrease administrative burden surrounding in-office time
constraints, we reiterate that, while we recommend the patient's
physician or optometrist administer, collect, and report the survey
instrument results to the HOPD, the survey instruments required for
this measure can be administered by the HOPD itself via phone, by the
patient via regular or electronic mail, or during clinician follow-up.
Scientific literature supports the conclusion that self-
administered survey instruments produce statistically reliable
results.194 195 Furthermore, scientific literature indicates
that regular mail and electronic mail surveys respectively, are
preferred by varying subgroups of patients. The inclusion of both
options ensures that patients will be able to respond to surveys in
their preferred format.196 197 These findings support the
inclusion of varying survey instrument-collection methods for patient
and provider convenience.
---------------------------------------------------------------------------
\194\ Bhandari N.R., Kathe N., Hayes C., & Payakachat N. (2018).
Reliability and validity of SF-12V2 among adults with self-reported
cancer. Research in Social and Administrative Pharmacy, 14(11),
1080-1084. https://doi.org/10.1016/j.sapharm.2018.01.007.
\195\ Stolwijk C., van Tubergen A., Ramiro S., et al. (2014).
Aspects of validity of the self-administered comorbidity
questionnaire in patients with ankylosing spondylitis. Rheumatology,
53(6), 1054-1064. https://doi.org/10.1093/rheumatology/ket354.
\196\ Kelfve S., Kivi M., Johansson B., & Lindwall M. (2020).
Going web or staying paper? the use of web-surveys among older
people. BMC Medical Research Methodology, 20(1), 252. https://doi.org/10.1186/s12874-020-01138-0.
\197\ Meyer V.M., Benjamens S., Moumni M.E., et al. (2020).
Global overview of response rates in patient and health care
professional surveys in surgery. Annals of Surgery, 275(1). https://doi.org/10.1097/sla.0000000000004078.
---------------------------------------------------------------------------
We invite public comment on this proposal.
c. Proposed Modification of the Appropriate Follow-Up Interval for
Normal Colonoscopy in Average Risk Patients Measure Denominator Change
To Align With Current Clinical Guidelines Beginning With the CY 2024
Reporting Period/CY 2026 Payment Determination
(1) Background
In 2019, colorectal cancer (CRC) accounted for the 4th highest rate
of new cancer cases and the 4th highest rate of cancer deaths in the
United States.\198\ The American Cancer Society (ACS) estimates that in
2023, 153,020 individuals will be newly diagnosed with CRC and 52,550
individuals will die from CRC in the United States.\199\ The CDC
advises, ``[c]olorectal cancer almost always develops from precancerous
polyps (abnormal growths) in the colon or rectum. Screening tests can
find precancerous polyps, so that they can be removed before they turn
into cancer. Screening tests can also find colorectal cancer early,
when treatment works best. Regular screening, beginning at age 45, is
the key to preventing colorectal cancer and finding it early.'' \200\
---------------------------------------------------------------------------
\198\ Centers for Disease Control and Prevention. (2022).
Colorectal Cancer Statistics. Available at: https://gis.cdc.gov/Cancer/USCS/#/AtAGlance/.
\199\ American Cancer Society. (2023). Cancer Facts & Figures
2023. Available at: https://www.cancer.org/research/cancer-facts-statistics/all-cancer-facts-figures/2023-cancer-facts-figures.html.
\200\ Centers for Disease Control and Prevention. (2022). What
Should I Know About Screening? Available at: https://www.cdc.gov/cancer/colorectal/basic_info/screening/index.htm.
---------------------------------------------------------------------------
In May 2021, the United States Preventive Services Task Force
(USPSTF) issued a revised Final Recommendation Statement on CRC
Screening.\201\ This replaced the prior USPSTF 2016 Final
Recommendation Statement and included a number of updated policy
recommendations based on new evidence and understandings of CRC and CRC
screening. The USPSTF recommended that adults who do not have signs or
symptoms of CRC and who are at average risk for CRC begin screening at
age 45 instead of the previous recommendation of age 50.\202\ In
addition, multiple professional organizations, including the ACS,
American Society of Colon and Rectal Surgeons, and the U.S. Multi-
Society Task Force on Colorectal Cancer (which represents the American
College of Gastroenterology, the American Gastroenterological
Association, and the American Society for Gastrointestinal Endoscopy),
recommend that people of average risk of CRC start regular screening at
age 45.203 204 205 Based on the recent changes in clinical
guidelines
[[Page 49780]]
to begin CRC screening at age 45 instead of age 50, we propose to
modify the Appropriate Follow-Up Interval for Normal Colonoscopy in
Average Risk Patients (the Colonoscopy Follow-Up Interval) measure to
follow these clinical guideline changes.
---------------------------------------------------------------------------
\201\ US Preventive Services Task Force. (2021). Screening for
Colorectal Cancer. JAMA, 325(19), 1965-1977. https://doi.org/10.1001/jama.2021.6238.
\202\ Ibid.
\203\ Wolf A., Fontham E.T.H., Church T.R., et al. (2018).
Colorectal cancer screening for average-risk adults: 2018 guideline
update from the American Cancer Society. CA. Cancer J. Clin.,
2018(68), 250-281. https://doi.org/10.3322/caac.21457.
\204\ American Society of Colon & Rectal Surgeons. Colorectal
Cancer Screening and Surveillance Recommendations of U.S.
Multisociety Task Force. Available at: https://fascrs.org/healthcare-providers/education/clinical-practice-guidelines/colorectal-cancer-screening-and-surveillance-recom.
\205\ Patel SG, May FP, Anderson JC, Burke CA, et al. (2022).
Updates on Age to Start and Stop Colorectal Cancer Screening:
Recommendations From the U.S. Multi-Society Task Force on Colorectal
Cancer. The American Journal of Gastroenterology, 117(1), 57-69.
https://doi.org/10.14309/ajg.0000000000001548.
---------------------------------------------------------------------------
(2) Overview of Measure
We refer readers to the CMS Measures Inventory Tool and the
Hospital OQR Program specification manual for more information on the
Colonoscopy Follow-Up Interval measure, including background on the
measure and a complete summary of measure
specifications.206 207 Currently, the Colonoscopy Follow-Up
Interval measure assesses the ``percentage of patients aged 50 years to
75 years receiving a screening colonoscopy without biopsy or
polypectomy who had a recommended follow-up interval of at least 10
years for repeat colonoscopy documented in their colonoscopy report.''
\208\ We propose to amend the measure's denominator language by
replacing the phrase ``aged 50 years'' with the phrase ``aged 45
years.'' The measure denominator would be modified to ``all patients
aged 45 years to 75 years receiving screening colonoscopy without
biopsy or polypectomy'' from ``all patients aged 50 years to 75 years
receiving screening colonoscopy without biopsy or polypectomy.'' \209\
We are not proposing any changes to the measure numerator, other
measure specifications, exclusions, or data collection for the
Colonoscopy Follow-Up Interval measure.
---------------------------------------------------------------------------
\206\ Centers for Medicare & Medicaid Services. (2023). Measures
Inventory Tool. Available at: https://cmit.cms.gov/cmit/#/MeasureView?variantId=793§ionNumber=1.
\207\ Centers for Medicare & Medicaid Services. Qualitynet Home.
Available at: https://qualitynet.cms.gov/outpatient/specifications-manuals.
\208\ Centers for Medicare & Medicaid Services. (2023). Measures
Inventory Tool. Available at: https://cmit.cms.gov/cmit/#/MeasureView?variantId=793§ionNumber=1.
\209\ Ibid.
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In the CY 2023 Physician Fee Schedule final rule (87 FR 69760
through 69767), we adopted the modified Colonoscopy Follow-Up Interval
measure (which we propose here for the Hospital OQR Program) for the
Merit-based Incentive Payment System (MIPS). We have considered the
importance of aligning the minimum age requirement for CRC screening
across quality reporting programs and clinical guidelines. As a result,
we propose to modify the Colonoscopy Follow-Up Interval measure
denominator to ``all patients aged 45 to 75 years'' for the Hospital
OQR Program. We propose the modification of the Colonoscopy Follow-Up
Interval measure beginning with the CY 2024 reporting period/CY 2026
payment determination.
We invite public comment on this proposal.
3. Proposed Adoption of New Measures for the Hospital OQR Program
Measure Set
Section 1833(t)(17)(C)(i) of the Act requires the Secretary to
develop measures appropriate for the measurement of the quality of care
(including medication errors) furnished by hospitals in outpatient
settings, that these measures reflect consensus among affected parties
and, to the extent feasible and practicable, that these measures
include measures set forth by one or more national consensus-based
entities. We have noted in previous rulemaking, the requirement that
measures reflect consensus among affected parties can be achieved in
other ways aside from CBE endorsement, including through the measure
development process, through broad acceptance, use of the measure(s),
and through public comment (75 FR 72064).
Section 1890A of the Act requires that we establish and follow a
pre-rulemaking process for selecting quality and efficiency measures
for our programs, including taking into consideration input from multi-
stakeholder groups. As part of this pre-rulemaking process, the CBE,
with which we contract under section 1890 of the Act, convened these
groups under the Measure Applications Partnership (MAP). The MAP is a
public-private partnership created for the primary purpose of providing
input to HHS on the selection of measures as required by section
1890(b)(7)(B) of the Act. We followed this pre-rulemaking process for
the measures we propose for adoption for the Hospital OQR Program under
this section of the proposed rule, as further detailed below.
In this proposed rule, we propose to: (1) re-adopt the original
Hospital Outpatient Department Volume Data on Selected Outpatient
Surgical Procedures with modification, beginning with the voluntary CY
2025 reporting period followed by mandatory reporting beginning with
the CY 2026 reporting period/CY 2028 payment determination; (2) adopt
the Risk-Standardized Patient-Reported Outcome-Based Performance
Measure (PRO-PM) Following Elective Primary Total Hip Arthroplasty
(THA) and/or Total Knee Arthroplasty (TKA) in the HOPD Setting (THA/TKA
PRO-PM), beginning with the voluntary CYs 2025 and 2026 reporting
periods followed by mandatory reporting beginning with the CY 2027
reporting period/CY 2030 payment determination; and (3) adopt the
Excessive Radiation Dose or Inadequate Image Quality for Diagnostic
Computed Tomography (CT) in Adults measure, beginning with the
voluntary CY 2025 reporting period and mandatory reporting beginning
with the CY 2026 reporting period/CY 2028 payment determination. In
this section of the proposed rule, we provide additional information on
these measure adoption proposals.
a. Proposed Re-Adoption With Modification of the Hospital Outpatient
Department Volume Data on Selected Outpatient Surgical Procedures
Measure Beginning With the Voluntary CY 2025 Reporting Period Followed
by Mandatory Reporting Beginning With the CY 2026 Reporting Period/CY
2028 Payment Determination
(1) Background
Hospital care has been gradually shifting from inpatient to
outpatient settings.\210\ Research indicates that volume of services
performed in HOPDs will continue to grow, with some estimates
projecting a 19 percent increase in patients between 2019 and
2029.\211\ In light of this trend, it has become even more important to
track volume within HOPDs. Larger facility surgical procedure volume
may be associated with better outcomes due to having characteristics
that improve care, such as efficient team work and increased surgical
experience, discussed in more detail below.\212\ Given the association
between volume and outcomes, this information could provide valuable
insight to patients when choosing a HOPD.
---------------------------------------------------------------------------
\210\ Medicare Payment Advisory Commission. March 2021 Report to
the Congress: Medicare Payment Policy. Chapter 3. Available at:
https://www.medpac.gov/wp-content/uploads/2021/10/mar21_medpac_report_ch3_sec.pdf.
\211\ Sg2. (2021). Sg2 Impact of Change Forecast Predicts
Enormous Disruption in Health Care Provider Landscape by 2029.
Available at: https://www.sg2.com/media-center/press-releases/sg2-impact-forecast-predicts-disruption-health-care-provider-landscape-2029/.
\212\ Jha AK. (2015) Back to the Future: Volume as a Quality
Metric. JAMA Forum Archive. Published online June 10, 2015. https://jamanetwork.com/channels/health-forum/fullarticle/2760155.
---------------------------------------------------------------------------
Although measuring the volume of procedures and other services has
a long history as a quality metric, quality measurement efforts had
moved away from collecting and analyzing data on volume because some
considered volume simply a proxy for quality compared to directly
measuring
[[Page 49781]]
outcomes.\213\ However, experts on quality and safety have recently
suggested that while volume alone may not indicate or lead to better
outcomes, it is still an important component of
quality.214 215 216 Specifically, larger facility surgical
procedure volume may be associated with better outcomes due to having
characteristics that improve care.\217\ For example, high-volume
facilities may have teams that work more effectively together, or have
superior systems or programs for identifying and responding to
complications.\218\ This association between volume and patient
outcomes may be attributable to greater experience or surgical skill,
greater comfort with and, hence, likelihood of application of
standardized best practices, and increased experience in monitoring and
management of surgical patients for the particular procedure.
---------------------------------------------------------------------------
\213\ Ibid.
\214\ Ibid.
\215\ Shang M, Mori M, Gan G, et al. (2022). Widening volume and
persistent outcome disparity in Valve Operations: New York Statewide
Analysis, 2005-2016. The Journal of Thoracic and Cardiovascular
Surgery, 164(6). https://doi.org/10.1016/j.jtcvs.2020.11.098.
\216\ Iwatsuki M, Yamamoto H, Miyata H, et al. (2018). Effect of
hospital and surgeon volume on postoperative outcomes after distal
gastrectomy for gastric cancer based on data from 145,523 Japanese
patients collected from a nationwide web-based data entry system.
Gastric Cancer, 22(1), 190-201. https://doi.org/10.1007/s10120-018-0883-1.
\217\ Jha AK. (2015) Back to the Future: Volume as a Quality
Metric. JAMA Forum Archive. Published online June 10, 2015. https://jamanetwork.com/channels/health-forum/fullarticle/2760155.
\218\ Ibid.
---------------------------------------------------------------------------
The Hospital OQR Program does not currently include a quality
measure for facility-level volume data, including surgical procedure
volume data, but it did so previously. We refer readers to the CY 2012
OPPS/ASC final rule (76 FR 74466 through 74468) where we adopted the
Hospital Outpatient Department Volume Data on Selected Outpatient
Surgical Procedures (HOPD Procedure Volume) measure beginning with the
CY 2014 payment determination. This structural measure of facility
capacity collected surgical procedure volume data on nine categories of
procedures frequently performed in the hospital outpatient setting:
Cardiovascular, Eye, Gastrointestinal, Genitourinary, Musculoskeletal,
Nervous System, Respiratory, Skin, and Other.\219\ We adopted the HOPD
Procedure Volume measure based on evidence that the volume of surgical
procedures, particularly of high-risk surgical procedures, is related
to better patient outcomes, including decreased mortality (76 FR
74466).220 221 We further stated our belief that publicly
reporting volume data would provide patients with beneficial
information to use when selecting a care provider (76 FR 74467).
---------------------------------------------------------------------------
\219\ Centers for Medicare & Medicaid Services. (2016). Hospital
Outpatient Specifications Manuals version 9.1. Available at: https://qualitynet.cms.gov/outpatient/specifications-manuals#tab9.
\220\ Saito Y, Tateishi K, Kanda M, et al. (2022).
Volume[hyphen]outcome relationships for percutaneous coronary
intervention in acute myocardial infarction. Journal of the American
Heart Association, 11(6). https://doi.org/10.1161/jaha.121.023805.
\221\ Vemulapalli S, Carroll J, Mack, M, et al. (2019)
Procedural Volume and Outcomes for Transcatheter Aortic-Valve
Replacement. The New England Journal of Medicine, 380(26), 2541-
2550. https://doi.org/10.1056/NEJMsa1901109.
---------------------------------------------------------------------------
In the CY 2018 OPPS/ASC final rule with comment period (82 FR 59429
through 59430), we removed the HOPD Procedure Volume measure, stating
our belief at that time that there is a lack of evidence to support
this specific measure's link to improved clinical quality. Although
there is currently increased evidence of a link between patient volume
and better patient outcomes, we previously stated that we believed that
there was a lack of evidence that this link was reflected in the HOPD
Procedure Volume measure. At the time, we stated that measuring the
number of surgical procedures does not offer insight into the
facilities' overall performance or quality improvement in regard to
surgical procedures (82 FR 59429). Thus, we removed the HOPD Procedure
Volume measure beginning with the CY 2020 payment determination based
on measure removal factor 2 (that is, performance or improvement on a
measure does not result in better patient outcomes), as codified under
Sec. 419.46(i)(3)(i)(B).
In the CY 2023 OPPS/ASC proposed rule (87 FR 44730 through 44732),
we stated that we have been considering re-adopting the HOPD Procedure
Volume measure with modification for two reasons. First, since the
removal of the HOPD Procedure Volume measure, scientific literature has
concluded that volume metrics serve as an indicator of which facilities
are experienced with certain outpatient procedures and can assist
consumers in making informed decisions about where they receive
care.\222\ Further supporting this position that volume metrics are an
indicator of quality, one study found an inverse volume-mortality
relationship related to transfemoral transcatheter aortic-valve
replacement (TAVR) procedures performed from 2015 through 2017.\223\
Second, as discussed above, the recent shift of more surgical
procedures being performed in outpatient settings has placed greater
importance on tracking the volume of outpatient procedures in different
settings, including HOPDs. Given these developments, we believe that
patients may benefit from the public reporting of facility-level volume
measure data that reflect the procedures performed across hospitals,
provide the ability to track volume changes by facility and procedure
category, and can serve as an indicator for patients of which
facilities are experienced with certain outpatient procedures.
---------------------------------------------------------------------------
\222\ Ogola GO, Crandall ML, Richter KM, & Shafi S. (2018).
High-volume hospitals are associated with lower mortality among
high-risk emergency general surgery patients. Journal of Trauma and
Acute Care Surgery, 85(3), 560-565. https://doi.org/10.1097/TA.0000000000001985.
\223\ Vemulapalli S, Carroll J, Mack M, et al. (2019).
Procedural Volume and Outcomes for Transcatheter Aortic-Valve
Replacement. The New England Journal of Medicine, 380(26), 2541-
2550. https://doi.org/10.1056/NEJMsa1901109.
---------------------------------------------------------------------------
In response to our request for comment in the CY 2023 OPPS/ASC
proposed rule (87 FR 44730 through 44732), regarding the potential re-
adoption of the Hospital Outpatient Surgical measure, several
commenters expressed concern that the burden of collecting and
reporting data for the measure outweighs its value (87 FR 72104 through
72105). Before its removal from the Hospital OQR Program, the HOPD
Procedure Volume measure was the only measure that captured facility-
level volume within HOPDs and volume for Medicare and non-Medicare
patients. As a result, the Hospital OQR Program currently does not
capture surgical procedure volume in HOPDs. We recognize that we can
determine facility volumes for procedures performed using Medicare Fee-
For-Service (FFS) claims. However, the specifications for the HOPD
Procedure Volume measure also include reporting data for non-Medicare
patients; thus, relying solely on the use of Medicare FFS claims data
to simplify reporting would limit a future volume measure to only the
Medicare program payer, leading to an incomplete representation of
procedural volume.\224\
---------------------------------------------------------------------------
\224\ The specifications for the removed HOPD Procedure Volume
measure are available in the Hospital Outpatient Specifications
Manuals version 9.1 available at https://qualitynet.cms.gov/outpatient/specifications-manuals#tab9.
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[[Page 49782]]
In addition, in response to our request for comment in the CY 2023
OPPS/ASC proposed rule (87 FR 44730 through 44732), some commenters
expressed their belief that volume is not a clear indicator of care
quality and therefore procedure volume data would not be useful to
consumers (87 FR 72104 through 72105). However, many studies in recent
years have shown that volume does serve as an indicator of quality of
care.225 226 For example, studies published since the CY
2018 OPPS/ASC final rule found that patients at high volume hospitals
for a specific procedure had lower rates of surgical site infections,
complications, and mortality compared to patients at low-volume
hospitals.227 228 We reiterate our belief, grounded in this
published scientific literature, that volume metrics serve as an
indicator of which facilities have experience with certain outpatient
procedures and assist consumers in making informed decisions about
where they receive care, acknowledging that many studies in recent
years have shown that volume does serve as an indicator of quality of
care.229 230
---------------------------------------------------------------------------
\225\ Ogola, GO, Crandall, ML, Richter, KM, & Shafi, S. (2018).
High-volume hospitals are associated with lower mortality among
high-risk emergency general surgery patients. Journal of Trauma and
Acute Care Surgery, 85(3), 560-565. https://doi.org/10.1097/TA.0000000000001985.
\226\ Vemulapalli S, Carroll J, Mack M, et al. (2019) Procedural
Volume and Outcomes for Transcatheter Aortic-Valve Replacement. The
New England Journal of Medicine, 380(26), 2541-2550. https://doi.org/10.1056/NEJMsa1901109.
\227\ Mufarrih SH, Ghani MOA, Martins RS, et al. (2019) Effect
of hospital volume on outcomes of total hip arthroplasty: a
systematic review and metaanalysis. J Orthop Surg Res 14, 468.
https://doi.org/10.1186/s13018-019-1531-0.
\228\ Saito Y, Tateishi K, Kanda M, et al. (2022).
Volume[hyphen]outcome relationships for percutaneous coronary
intervention in acute myocardial infarction. Journal of the American
Heart Association, 11(6). https://doi.org/10.1161/jaha.121.023805.
\229\ Ogola GO, Crandall ML, Richter KM, Shafi, S. (2018). High-
volume hospitals are associated with lower mortality among high-risk
emergency general surgery patients. Journal of Trauma and Acute Care
Surgery, 85(3), 560-565. https://doi.org/10.1097/TA.0000000000001985.
\230\ Vemulapalli S, Carroll J, Mack M, et al. (2019).
Procedural Volume and Outcomes for Transcatheter Aortic-Valve
Replacement. The New England Journal of Medicine, 380(26), 2541-
2550. https://doi.org/10.1056/NEJMsa1901109.
---------------------------------------------------------------------------
(2) Overview of Measure
(a) Data Collection, Submission, Reporting, and Measure Specifications
The proposed HOPD Procedure Volume measure collects data regarding
the aggregate count of selected surgical procedures. Most frequent
outpatient procedures fall into one of eight categories:
Cardiovascular, Eye, Gastrointestinal, Genitourinary, Musculoskeletal,
Nervous System, Respiratory, and Skin.\231\ For this proposed measure,
data surrounding the top five most frequently performed procedures
among HOPDs in each category would be collected and publicly displayed.
The top five procedures in each category would be assessed and updated
annually as needed to ensure data collection of most accurate and
frequently performed procedures.\232\
---------------------------------------------------------------------------
\231\ Centers for Medicare & Medicaid Services. (2016). Hospital
Outpatient Specifications Manuals version 9.1. Available at: https://qualitynet.cms.gov/outpatient/specifications-manuals#tab9.
\232\ Data source: Part A and B claims for Outpatient Hospitals
for services January 1, 2022-December 31, 2022.
---------------------------------------------------------------------------
We propose that hospitals would submit aggregate-level data through
the CMS Web-based tool (currently, the Hospital Quality Reporting (HQR)
system), consistent with what was required during the measure's initial
adoption (76 FR 74467). Data received through the HQR system would then
be publicly displayed on Care Compare or another CMS website. We refer
readers to the CY 2009, CY 2014, and CY 2017 OPPS/ASC final rules (73
FR 68777 through 68779, 78 FR 75092, and 81 FR 79791, respectively) for
our previously finalized policies regarding public display of quality
measures.
We propose to re-adopt the HOPD Procedure Volume measure with
modification, with voluntary reporting beginning with the CY 2025
reporting period and mandatory reporting beginning with the CY 2026
reporting period/CY 2028 payment determination. At the time of this
measure's initial adoption in the CY 2012 OPPS/ASC final rule, (76 FR
74468) we finalized that HOPDs would report all-patient volume data
with respect to the eight categories mentioned prior. In response to
commenter concerns regarding potential difficulty detecting procedural
volume differentiation among these broad based categories (76 FR
74467), the sole modification to this measure is that instead of
collecting and publicly displaying data surrounding these eight broad
categories, we would more granularly collect and publicly display data
reported for the top five most frequently performed procedures among
HOPDs within each category. We refer readers to the Center for Medicare
and Medicaid Services Inventory Tool for more information on this
measure: https://cmit.cms.gov/cmit/#/.
We also propose that HOPDs submit these data to CMS during the time
period of January 1 through May 15 in the year prior to the affected
payment determination year. For example, for the CY 2028 payment
determination, the data submission period would be January 1, 2027 to
May 15, 2027, covering the performance period of January 1, 2026 to
December 31, 2026. We refer readers to section XIV.E.5 of this proposed
rule for a more detailed discussion of the requirements for data
submitted via a CMS Web-based tool. We previously codified our existing
policies regarding data collection and submission under the Hospital
OQR Program at Sec. 419.46.
(b) Review by the Measure Applications Partnership (MAP)
The MAP conditionally supported the HOPD Procedure Volume measure
for rulemaking, pending testing indicating that the measure is reliable
and valid, and endorsement by the CBE.\233\ The MAP acknowledged that
the measure reports the volume of procedures performed at HOPDs in
select categories reflecting typical high-volume categories of
procedures and stated that the measure would capture the volume for
many procedures not currently monitored by the Hospital OQR Program
measure set. Furthermore, the MAP expressed its belief that measuring
the volume of procedures would relate to the program's goals of
improving the safety and quality of outpatient procedures in
HOPDs.\234\ The MAP added that electronic reporting of procedure
volumes based on code lists should not be overly burdensome to
hospitals, and the public reporting of specific procedure volumes may
be useful to patients.\235\
---------------------------------------------------------------------------
\233\ Centers for Medicare & Medicaid Services. Pre-Rulemaking
MUC Lists and MAP Reports. The Measures Management System. Available
at: https://mmshub.cms.gov/measure-lifecycle/measure-implementation/pre-rulemaking/lists-and-reports.
\234\ Ibid.
\235\ Ibid.
---------------------------------------------------------------------------
The MAP described that there is a well-established positive
correlation between the volume of procedures performed at a facility
and the clinical outcomes resulting from that procedure. One systematic
review highlighted by the MAP found a significant volume-outcome
relationship in the vast majority (87 percent) of the 403 included
studies.\236\ Furthermore, the MAP included a similar review in their
analysis of the HOPD Procedure Volume measure that also focused on
outpatient surgeries, which found a significant
[[Page 49783]]
volume-outcome relationship across eight studies.\237\
---------------------------------------------------------------------------
\236\ Levaillant M, Marcilly R, Levaillant L, et al. (2021).
Assessing the hospital volume-outcome relationship in surgery: A
scoping review. BMC Medical Research Methodology, 21(1). https://doi.org/10.1186/s12874-021-01396-6.
\237\ Stanak M, & Strohmaier C. (2020). Minimum volume standards
in day surgery: A systematic review. BMC Health Services Research,
20(1). https://doi.org/10.1186/s12913-020-05724-2.
---------------------------------------------------------------------------
The MAP stated that this measure addresses a national trend where
even complex surgeries are moving from inpatient to outpatient
settings, and that public reporting of this measure could help CMS and
the public better understand possible quality differences between
settings.\238\ The MAP reported that the HOPD Procedure Volume measure
data from 2015 and 2016 demonstrates that the number of procedures
performed by facilities in the 25th and 75th percentiles varied across
the condition categories.\239\ These findings support our belief that
volume metrics serve as an indicator of which facilities are
experienced with certain outpatient procedures and can assist consumers
in making informed decisions about where they receive
care.240 241
---------------------------------------------------------------------------
\238\ Medicare Payment Advisory Commission. March 2021 Report to
the Congress: Medicare Payment Policy. Available at: https://www.medpac.gov/document/march-2021-report-to-the-congress-medicare-payment-policy/.
\239\ Centers for Medicare & Medicaid Services. Pre-Rulemaking
MUC Lists and MAP Reports. The Measures Management System. Available
at: https://mmshub.cms.gov/measure-lifecycle/measure-implementation/pre-rulemaking/lists-and-reports.
\240\ Ogola GO, Crandall ML, Richter KM, & Shafi S. (2018).
High-volume hospitals are associated with lower mortality among
high-risk emergency general surgery patients. Journal of Trauma and
Acute Care Surgery, 85(3), 560-565. https://doi.org/10.1097/TA.0000000000001985.
\241\ Saito Y, Tateishi K, Kanda M, et al. (2022).
Volume[hyphen]outcome relationships for percutaneous coronary
intervention in acute myocardial infarction. Journal of the American
Heart Association, 11(6). https://doi.org/10.1161/jaha.121.023805.
---------------------------------------------------------------------------
In addition, the MAP noted the concurrent submission of MUC 2022-
028: ASC Facility Volume Data on Selected Surgical Procedures for
inclusion in the ASCQR Program. The MAP highlighted that the
specifications of the volume measure proposal for the ASCQR Program are
aligned with the volume measure we propose for the Hospital OQR Program
and, therefore would facilitate comparisons of equivalent procedure
volumes across ambulatory surgical centers (ASCs) and HOPDs, one of the
key goals of the programs.\242\
---------------------------------------------------------------------------
\242\ Centers for Medicare & Medicaid Services. Pre-Rulemaking
MUC Lists and MAP Reports. The Measures Management System. Available
at: https://mmshub.cms.gov/measure-lifecycle/measure-implementation/pre-rulemaking/lists-and-reports.
---------------------------------------------------------------------------
(c) Measure Endorsement
As discussed in the previous subsection of the proposed rule, the
MAP reviewed and conditionally supported the HOPD Procedure Volume
measure pending testing indicating the measure is reliable and valid,
and endorsement by a national consensus-based entity as the measure was
not submitted for endorsement. As we noted in previous rulemaking (75
FR 72064), the requirement that measures reflect consensus among
affected parties can be achieved in ways other than from endorsement by
a national consensus-based entity, including the measure development
process, broad acceptance of the measure(s), use of the measure(s), and
public comment.
We considered the MAPs recommendation and propose to adopt the
measure because we did not find any other measures of procedure volume.
Additionally, this measure was previously in the program with
supporters of its use. Given the support from the MAP and feedback from
public comment, as well as the increasing shift from inpatient to
outpatient surgical procedures and evidence that volume metrics can
promote higher quality healthcare for patients, we propose adoption of
this measure in the Hospital OQR Program pending endorsement by a
national consensus-based entity.
We invite public comment on this proposal.
b. Proposed Adoption of the Risk-Standardized Patient-Reported Outcome-
Based Performance Measure (PRO-PM) Following Elective Primary Total Hip
Arthroplasty (THA) and/or Total Knee Arthroplasty (TKA) in the HOPD
Setting (THA/TKA PRO-PM) Beginning With Voluntary CYs 2025 and 2026
Reporting Periods Followed by Mandatory Reporting Beginning With the CY
2027 Reporting Period/CY 2030 Payment Determination
(1) Background
In the FY 2023 IPPS/LTCH PPS final rule (87 FR 49246 through
49257), we adopted the THA/TKA PRO-PM in the Hospital Inpatient Quality
Reporting (IQR) Program beginning with voluntary FY 2025 and FY 2026
reporting periods, followed by mandatory reporting for eligible
elective procedures occurring July 1, 2024 through June 30, 2025 for
the FY 2028 payment determination. In this proposed rule, we propose
the adoption of the THA/TKA PRO-PM into the Hospital OQR Program using
the same specifications as finalized for the hospital-level measure
adopted into the Hospital IQR Program (87 FR 49246 through 49257), with
modifications to include procedures performed in the HOPD setting.
Approximately six million adults aged 65 or older suffer from
osteoarthritis in the United States.\243\ In 2013, there were
approximately 568,000 hospitalizations billed to Medicare for
osteoarthritis.\244\ Hip and knee osteoarthritis is one of the leading
causes of disability among non-institutionalized
adults,245 246 and roughly 80 percent of patients with
osteoarthritis have some limitation in mobility.247 248
Elective THA and TKA are most commonly performed for degenerative joint
disease or osteoarthritis, which affects more than 30 million
Americans.\249\ THA and TKA offer the potential for significant
improvement in quality of life by decreasing pain and improving
function in a majority of patients, without resulting in a high risk of
complications or death.250 251 252 However, not all
[[Page 49784]]
patients experience benefit from these procedures.\253\ Many patients
note that their pre-operative expectations for functional improvement
have not been met.254 255 256 257 In addition, clinical
practice variation has been well documented in the United
States,258 259 260 261 262 readmission and complication
rates vary across hospitals,\263\ and international experience
documents wide hospital-level variation in patient-reported outcome
measure results following THA and TKA.\264\
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\243\ Arthritis Foundation. (2018). Arthritis By the Numbers
Book of Trusted Facts and Figures. Accessed March 8, 2019. Available
at: https://www.arthritis.org/getmedia/e1256607-fa87-4593-aa8a-8db4f291072a/2019-abtn-final-march2019.pdf.
\244\ Torio CM, & Moore BJ. (2016). National inpatient hospital
costs: the most expensive conditions by payer, 2013. HCUP
statistical brief #204. Healthcare Cost and Utilization Project
(HCUP) Statistical Briefs. Rockville, MD, Agency for Healthcare
Research and Quality. Available at: https://www.ncbi.nlm.nih.gov/books/NBK368492/.
\245\ Guccione AA, Felson DT, Anderson JJ, et al. (1994). The
effects of specific medical conditions on the functional limitations
of elders in the Framingham Study. American journal of public
health, 84(3), 351-358. https://doi.org/10.2105/AJPH.84.3.351.
\246\ Barbour KE, Helmick CG, Boring M, & Brady TJ. (2017).
Vital Signs: Prevalence of Doctor-Diagnosed Arthritis and Arthritis-
Attributable Activity Limitation--United States, 2013-2015. MMWR
Morbidity and mortality weekly report, 66(9), 246-253. https://doi.org/10.15585/mmwr.mm6609e1.
\247\ Michaud CM, McKenna MT, Begg S, et al. (2006). The burden
of disease and injury in the United States 1996. Population health
metrics, 4, 11. https://doi.org/10.1186/1478-7954-4-11.
\248\ Theis KA, Murphy LB, Baker NA, & Hootman JM. (2019). When
you can't walk a mile: Walking limitation prevalence and
associations among middle-aged and older US adults with Arthritis: A
cross-sectional, population-based study. ACR Open Rheumatol, 1(6),
350-358. https://doi.org/10.1002/acr2.11046.
\249\ Centers for Disease Control and Prevention (CDC).
Osteoarthritis (OA). Accessed March 8, 2019. Available at: https://www.cdc.gov/arthritis/basics/osteoarthritis.htm.
\250\ Rissanen P, Aro S, Slatis P, et al. (1995). Health and
quality of life before and after hip or knee arthroplasty. The
Journal of arthroplasty, 10(2), 169-175. https://doi.org/10.1016/s0883-5403(05)801238.
\251\ Ritter MA, Albohm MJ, Keating EM, et al. (1995).
Comparative outcomes of total joint arthroplasty. The Journal of
arthroplasty, 10(6), 737-741. https://doi.org/10.1016/s0883-5403(05)80068-3.
\252\ Sayah SM, Karunaratne S, Beckenkamp PR, et al. (2021).
Clinical Course of Pain and Function Following Total Knee
Arthroplasty: A Systematic Review and Meta-Regression. J
Arthroplasty, 36(12), 3993-4002.e37. https://doi.org/10.1016/j.arth.2021.06.019.
\253\ National Joint Registry. National Joint Registry for
England and Wales 9th Annual Report 2012. Available at: https://www.hqip.org.uk/resource/national-joint-registry-9th-annual-report-2012/.
\254\ Suda AJ, Seeger JB, Bitsch RG, et al. (2010). Are
patients' expectations of hip and knee arthroplasty fulfilled? A
prospective study of 130 patients. Orthopedics, 33(2), 76-80.
https://doi.org/10.3928/01477447-20100104-07.
\255\ Ghomrawi HM, Franco Ferrando N, Mandl LA, et al. (2011).
How Often are Patient and Surgeon Recovery Expectations for Total
Joint Arthroplasty Aligned? Results of a Pilot Study. HSS journal:
The musculoskeletal journal of Hospital for Special Surgery, 7(3),
229-234. https://doi.org/10.1007/s11420-011-9203-6.
\256\ Harris IA, Harris AM, Naylor JM, et al. (2013).
Discordance between patient and surgeon satisfaction after total
joint arthroplasty. The Journal of arthroplasty, 28(5), 722-727.
https://doi.org/10.1016/j.arth.2012.07.044.
\257\ Jourdan C, Poiraudeau S, Descamps S, et al. (2012).
Comparison of patient and surgeon expectations of total hip
arthroplasty. PloS one, 7(1), e30195. https://doi.org/10.1371/journal.pone.0030195.
\258\ Roos EM. (2003). Effectiveness and practice variation of
rehabilitation after joint replacement. Current opinion in
rheumatology, 15(2), 160-162. https://doi.org/10.1097/00002281-200303000-00014.
\259\ Anderson FA, Huang W, Friedman RJ, et al. (2012).
Prevention of venous thromboembolism after hip or knee arthroplasty:
findings from a 2008 survey of US orthopedic surgeons. The Journal
of arthroplasty, 27(5), 659-666 e655. https://doi.org/10.1016/j.arth.2011.09.001.
\260\ American Academy of Orthopaedic Surgeons. (2011).
Preventing Venous Thromboembolic Disease in Patients Undergoing
Elective Hip and Knee Arthroplasty: Evidence-Based Guideline and
Evidence Report. https://www.aaos.org/globalassets/quality-and-practice-resources/vte/vte_full_guideline_10.31.16.pdf.
\261\ Pincus D, et al. (2020). Association Between Surgical
Approach and Major Surgical Complications in Patients Undergoing
Total Hip Arthroplasty. JAMA, 323(11), 1070-1076. https://doi.org/10.1001/jama.2020.0785.
\262\ Siebens HC, Sharkey P, Aronow HU, et al. (2016). Variation
in Rehabilitation Treatment Patterns for Hip Fracture Treated With
Arthroplasty. PM&R, 8(3), 191-207. https://doi.org/10.1016/j.pmrj.2015.07.005.
\263\ Suter LG, Parzynski CS, Grady JN, et al. 2013 Measures
Update and Specifications: Elective Primary Total Hip Arthroplasty
(THA) AND/OR Total Knee Arthroplasty (TKA) Risk-Standardized
Complication Measure (Version 2.0). March 2013. Available at: https://qualitynet.org/.
\264\ Rolfson O. (2010). Patient-reported Outcome Measures and
Health-economic Aspects of Total Hip Arthroplasty: A study of the
Swedish Hip Arthroplasty Register. Accessed July 20, 2013. Available
at: https://gupea.ub.gu.se/bitstream/handle/2077/23722/gupea_2077_23722_1.pdf?sequence=1.
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Due to the absence of recently conducted large scale and uniformly
collected patient-reported outcome (PRO) data available from patients
undergoing elective primary THA/TKA, we established an incentivized,
voluntary PRO data collection opportunity within the Comprehensive Care
for Joint Replacement (CJR) model to support measure development.\265\
Elective THA/TKAs are important, effective procedures performed on a
broad population, and the patient outcomes for these procedures (such
as pain, mobility, and quality of life) can be measured in a
scientifically sound way,266 267 are influenced by a range
of improvements in care,\268\ and demonstrate hospital-level variation
even after patient case mix adjustment. 269 270 Further,
THA/TKA procedures are specifically intended to improve function and
reduce pain, making PROs a meaningful outcome metric to assess.\271\
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\265\ Centers for Medicare & Medicaid Services. Comprehensive
Care for Joint Replacement Model. Available at: https://innovation.cms.gov/innovation-models/cjr
\266\ Liebs TR, Herzberg W, Ruther W, et al. (2016). Quality-
adjusted life years gained by hip and knee replacement surgery and
its aftercare. Archives of physical medicine and rehabilitation,
97(5), 691-700. https://doi.org/10.1016/j.apmr.2015.12.021.
\267\ White D, & Master H. (2016). Patient Reported Measures of
Physical Function in Knee Osteoarthritis. Rheum Dis Clin North Am,
42(2), 239-252. Available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4853650/.
\268\ Kim K, Anoushiravani A, Chen K, et al. (2019).
Perioperative Orthopedic Surgical Home: Optimizing Total Joint
Arthroplasty Candidates and Preventing Readmission. Journal of
Arthroplasty, 34(7), S91-S96. https://doi.org/10.1016/j.arth.2019.01.020.
\269\ Bozic KJ, Grosso LM, Lin Z, et al. (2014). Variation in
hospital-level risk-standardized complication rates following
elective primary total hip and knee arthroplasty. The Journal of
Bone and Joint Surgery, 96(8), 640-647. https://doi.org/10.2106/JBJS.L.01639.
\270\ Makela KT, Peltola M, Sund R, et al. (2011). Regional and
hospital variance in performance of total hip and knee replacements:
A national population-based study. Annals of medicine, 43(sup1),
S31-S38. https://doi.org/10.3109/07853890.2011.586362.
\271\ Liebs T, Herzberg W, Gluth J, et al. (2013). Using the
patient's perspective to develop function short forms specific to
total hip and knee replacement based on WOMAC function items. The
Bone & Joint Journal, 95(B), 239-243. https://doi.org/10.1302/0301-620X.95B2.28383.
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In the CY 2021 OPPS/ASC final rule (85 FR 86146), we announced that
THA and TKA procedures were removed from the Inpatient Only Procedures
(IPO) list and added to the ASC covered procedures list (CPL).\272\ As
a result, the volume of THA and TKA procedures for Medicare
beneficiaries aged 65 years and older have been increasing in
outpatient settings.
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\272\ Centers for Medicare & Medicaid Services. Ambulatory
Surgical Center (ASC) Payment. Available at: https://www.cms.gov/medicare/medicare-fee-for-service-payment/ascpayment.
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We analyzed Part B Medicare FFS claims data for the number of HOPD
claims with THA/TKA procedures during CY 2020, 2021, and 2022 (Table
65).
BILLING CODE 4120-01-P
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[GRAPHIC] [TIFF OMITTED] TP31JY23.101
BILLING CODE 4120-01-C
In CY 2022 OPPS/ASC proposed rule (86 FR 42251 through 42252), we
requested comment on the potential future adoption of the THA/TKA PRO-
PM into the Hospital OQR Program. We refer readers to the CY 2022 OPPS/
ASC final rule (86 FR 63896 through 63898) for a complete summary of
feedback from interested parties.
Many commenters supported inclusion of the THA/TKA PRO-PM to the
Hospital OQR Program as procedures move from inpatient to outpatient
settings. Commenters noted it was important to monitor quality outcomes
and publicly report results. Additionally, commenters stated that the
measure is aligned with patient values, being presented in a manner
that is easy to understand.
Other commenters did not support expansion of the measure to the
Hospital OQR Program, and expressed concern with data collection
burden, patient survey fatigue, and reporting thresholds. While we
recognize that PRO based performance measures require providers to
integrate data collection into clinical workflows, this integration
provides opportunity for PROs to inform clinical decision-making and
benefits patients by engaging them in discussions about potential
outcomes. Furthermore, we do not expect this measure to contribute to
survey fatigue as the PRO instruments used to calculate pre- and post-
operative scores for this THA/TKA PRO-PM were carefully selected, with
extensive input from interested parties, to be low burden for patients.
We refer readers to the CY 2022 OPPS/ASC final rule (86 FR 63851
through 63854) for a complete summary of feedback.
We propose to adopt the THA/TKA PRO-PM into the Hospital OQR
Program beginning with two voluntary reporting periods, followed by
mandatory reporting. The first voluntary reporting period would begin
with the CY 2025 reporting period for eligible elective outpatient
procedures between January 1, 2025 through December 31, 2025, and the
second would begin with the CY 2026 reporting period for eligible
elective outpatient procedures between January 1, 2026 through December
31, 2026. Mandatory reporting would begin with the CY 2027 reporting
period/CY 2030 payment determination for eligible elective outpatient
procedures occurring January 1, 2027 through December 31, 2027,
impacting the CY 2030 payment determination and subsequent years.
Because this proposed measure requires collection of data during the 3-
month pre-operative period and the greater than 1-year post-operative
period, there is a delay between when the elective THA/TKA procedures
actually occur, when the results would be reported under the Hospital
OQR Program, and when payment determinations occur. Therefore, we
propose a 3-year gap between the reporting period and the payment
determination year (for example, CY 2027 reporting period for the CY
2030 payment determination) for the Hospital OQR Program. We refer
readers to section XIV.E.7.a of this
[[Page 49786]]
proposed rule for more information on the reporting requirements.
(2) Overview of Measure
(a) Data Collection, Submission, Reporting, and Measure Specifications
This measure reports the facility-level risk-standardized
improvement rate (RSIR) in PROs following elective primary THA/TKA for
Medicare FFS beneficiaries aged 65 years and older who were enrolled in
Medicare FFS Part A and B for the 12 months prior to the date of the
procedure and in Medicare Part A and B during the procedure. The
measure includes only elective primary outpatient THA/TKA procedures
(patients with fractures and revisions are not included) performed in
HOPDs and does not include any inpatient procedures. The measure
excludes patients with staged procedures (multiple elective primary THA
or TKA procedures performed on the same patient during distinct
encounter) that occur during the measurement period and excludes
discontinued procedures (that is, procedures that were started but not
completed).\273\
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\273\ U.S. Department of Health and Human Services. (2021).
Hospital Outpatient Prospective Payment System (OPPS): Use of
Modifiers -52, -73, and -74 for Reduced or Discontinued Services.
Available at: https://www.hhs.gov/guidance/document/hospital-outpatient-prospective-payment-system-opps-use-modifiers-52-73-and-74-reduced-or.
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Substantial clinical improvement is measured by achieving a pre-
defined improvement in score on one of the two validated joint-specific
PRO instruments measuring hip or knee pain and functioning: (1) The Hip
Dysfunction and Osteoarthritis Outcome Score for Joint Replacement
(HOOS, JR) for completion by THA recipients; or (2) the Knee Injury and
Osteoarthritis Outcome Score for Joint Replacement (KOOS, JR) for
completion by TKA recipients. Improvement is measured from the pre-
operative assessment (data collected 90 to 0 days before surgery) to
the post-operative assessment (data collected 300 to 425 days following
surgery). Improvement scores are risk-adjusted to account for
differences in patient case-mix. The measure, as proposed, accounts for
potential non-response bias through inverse probability weighting based
on likelihood of response.
We refer readers to the FY 2023 IPPS/LTCH PPS final rule (FR 87
49246 through 49257), for more information on the development of the
hospital-level THA/TKA PRO-PM, including background on the measure and
a complete summary of measure specifications, data sources, and measure
calculation.
For additional details regarding the measure specifications, we
also refer readers to the Hip and Knee Arthroplasty Patient-Reported
Outcomes file, available at https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/HospitalQualityInits/Measure-Methodology.
(i) Data Sources
The THA/TKA PRO-PM uses four sources of data for the calculation of
the measure: (1) PRO data; (2) claims data; (3) Medicare enrollment and
beneficiary data; and (4) U.S. Census Bureau survey data. As described
in section XIV.B.3.b(1) of this proposed rule, the measure uses PRO
data directly reported by the patient regarding their health, quality
of life, or functional status associated with health care or treatment.
These patient-reported data are collected by facilities pre-operatively
and post-operatively, and limited patient-level risk factor data are
collected with PRO data and identified in claims as detailed in this
section of the proposed rule.\274\ The measure includes PRO data
collected with the PRO instruments described in this section of the
proposed rule, among them are two joint-specific PRO instruments--the
HOOS, JR for completion by THA recipients and the KOOS, JR for
completion by TKA recipients--from which scores are used to assess
substantial clinical improvement. For risk-adjustment by pre-operative
mental health score, HOPDs would submit one of two additional PRO
instruments, all of the items in either the: (1) Patient-Reported
Outcomes Measurement Information System (PROMIS)-Global Mental Health
subscale; or (2) Veterans RAND 12-Item Health Survey (VR-12) Mental
Health subscale. The risk model also includes a one-question patient-
reported assessment of health literacy--the Single Item Literacy
Screener questionnaire.
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\274\ Higgins JP, Thomas J, Chandler J, et al. (2019). Cochrane
handbook for systematic reviews of interventions. John Wiley & Sons.
https://doi.org/10.1002/9781119536604.
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Furthermore, the following data would be collected for
identification of the measure cohort, for risk-adjustment purposes, and
for the statistical approach to potential non-response bias. Claims
data billed under OPPS would be used to identify eligible elective
primary outpatient THA/TKA procedures for the measure cohort to which
submitted PRO data can be matched, and to identify additional variables
for risk-adjustment and in the statistical approach to account for
response bias, including patient demographics and clinical co-
morbidities up to 12 months prior to surgery. The Medicare Enrollment
Database (EDB) identifies Medicare FFS enrollment and patient-
identified race, and the Master Beneficiary Summary File allows for
determination of Medicare and Medicaid dual eligibility enrollment
status. Demographic information from the U.S. Census Bureau's American
Community Survey allows for derivation of the Agency for Healthcare
Research and Quality (AHRQ) Socioeconomic Status (SES) Index score.
Race, dual eligibility, and AHRQ SES Index score are used in the
statistical approach to account for potential non-response bias in the
outcome calculation. We refer readers to section XIV.B.3.b(2)(a)(iii)
of this proposed rule for further details regarding the variables
required for data collection and submission.
(ii) Measure Calculation
The HOPD facility-level THA/TKA PRO-PM result is calculated by
aggregating all patient-level results across the facility. This measure
would be calculated and presented as a RSIR, producing a performance
measure per facility which accounts for patient case-mix, addresses
potential non-response bias, and represents a measure of quality of
care following elective primary outpatient THA/TKA. Response rates for
PRO data would be calculated as the percentage of elective primary THA
or TKA procedures performed at HOPDs for which complete and matched
pre- and post-operative PRO data have been submitted, divided by the
total number of eligible THA or TKA procedures performed at each
facility.
(iii) Data Submission and Reporting
In response to feedback received from interested parties in the
requests for comments (RFCs) on this measure in the FY 2022 IPPS/LTCH
PPS final rule (86 FR 45408 through 45414) and the CY 2022 OPPS/ASC
proposed rule (FR 86 42251 through 42252) and the adoption of the
measure in the Hospital IQR Program in the FY 2023 IPPS/LTCH PPS final
rule (87 FR 49246 through 49257), we propose to adopt the THA/TKA PRO-
PM in the Hospital OQR Program utilizing flexible data submission
approaches.
[[Page 49787]]
HOPDs would submit the following variables collected pre-
operatively between 90 and zero days prior to the THA/TKA procedure for
each patient: Medicare provider number; Medicare health insurance claim
(HIC) number/Medicare beneficiary identifier (MBI); date of birth; date
of procedure; date of PRO data collection; procedure type; mode of
collection; person completing the survey; facility admission date;
patient reported outcome measure version; PROMIS Global (mental health
subscale items) or VR-12 (mental health subscale items); HOOS, JR (for
THA patients) or KOOS, JR (for TKA patients); Single-Item Health
Literacy Screening (SILS2) questionnaire; BMI or weight (kg)/height
(cm); chronic (>=90 day) narcotic use; total painful joint count
(patient reported in non-operative lower extremity joint); and
quantified spinal pain (patient-reported back pain, Oswestry index
question 275 276).
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\275\ Fairbank JC, & Pynsent PB. (2000). The Oswestry Disability
Index. Spine. 25(22), 2940-52. https://doi.org/10.1097/00007632-200011150-00017.
\276\ The Oswestry Disability Index is in the public domain and
available for all hospitals to use.
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HOPDs would submit the following variables collected post-
operatively between 300 and 425 days following the THA/TKA procedure
for each patient: Medicare provider number; Medicare HIC number/MBI;
date of birth; procedure date, date of PRO data collection; procedure
type; mode of collection; person completing the survey; facility
admission date; KOOS, JR (TKA patients) or HOOS, JR (THA patients). The
data submission period for the THA/TKA PRO-PM would also serve as the
review and correction period. Data would not be able to be corrected
following the submission deadline.
We propose a phased implementation approach for adoption of this
measure to the Hospital OQR Program, with voluntary reporting periods
in CYs 2025 and 2026 followed by mandatory reporting beginning with the
CY 2027 reporting period/CY 2030 payment determination.
Voluntary reporting prior to mandatory reporting would allow time
for facilities to incorporate the THA/TKA PRO-PM data collection into
their clinical workflows and is responsive to comments from interested
parties, as summarized in the FY 2022 IPPS/LTCH PPS final rule (86 FR
45408 through 45414) and FY 2023 IPPS/LTCH PPS final rule (FR 87 49246
through 49257). Following the two voluntary reporting periods, we
propose mandatory reporting of the THA/TKA PRO-PM beginning with the CY
2027 reporting period/CY 2030 payment determination. For each voluntary
and subsequent mandatory reporting period, we would collect data on the
THA/TKA PRO-PM in accordance with the Health Insurance Portability and
Accountability Act of 1996 (HIPAA), Privacy and Security Rules (45 CFR
parts 160 and 164, subparts A, C, and E), and other applicable law.
(b) Review by Measure Applications Partnership (MAP)
We included the THA/TKA PRO-PM for the Hospital OQR in the publicly
available ``2022 Measures Under Consideration List'' (MUC 2022-
026).\277\ The MAP Coordinating Committee supported the measure, as
referenced in the 2022-2023 Final Recommendations report to HHS and
CMS.\278\
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\277\ Centers for Medicare & Medicaid Services. 2022 Measures
Under Consideration List. Available at: https://mmshub.cms.gov/sites/default/files/2022-MUC-List.xlsx.
\278\ MAP MUC Preliminary Recommendations 2022-2023. Available
at https://mmshub.cms.gov/sites/default/files/2022-2023-MAP-Final-Recommendations-508.xlsx.
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The MAP members noted that a similar version of this measure has
been adopted for use in the Hospital IQR Program, however, there
currently is no measure that assesses PROs among THA/TKA patients in
HOPDs for the Hospital OQR Program. The MAP highlighted that the key
strategy for the Hospital OQR Program is to ensure that procedures done
in any type of facility, including HOPDs, have equivalent quality. As
such, the MAP members agreed that measures of quality of procedures in
hospital settings should extend to HOPDs, to the extent feasible and
appropriate, so that consumers can compare quality of a specific
procedure across different facility types.\279\
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\279\ Ibid.
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In addition, the MAP members stated that the goal of the PRO-PM is
to capture the full spectrum of care to incentivize collaboration and
shared responsibility for improving patient health and reducing the
burden of their disease. They agreed that this measure aligns with the
goal of patient-centered approaches to health care quality improvement
and addresses the high priority areas of patient and family engagement
and communication/care coordination for the Hospital OQR program.\280\
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\280\ Ibid.
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(c) Measure Endorsement
The CBE endorsed the hospital-level version of the THA/TKA PRO-PM
(CBE #3559) in November 2020.\281\ We note that the HOPD version of the
THA/TKA PRO-PM would use the same specifications as the CBE-endorsed
hospital-level THA/TKA PRO-PM that is currently implemented in the
Hospital IQR program with modifications to capture procedures for the
HOPDs. We intend to seek CBE endorsement for the HOPD version of the
THA/TKA PRO-PM in a future endorsement cycle.
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\281\ Centers for Medicaid & Medicare Services. Hospital-Level,
Risk-Standardized Improvement Rate in Patient-Reported Outcomes
Following Elective Primary Total Hip and/or Total Knee Arthroplasty
(THA/TKA). Available at: https://cmit.cms.gov/cmit/#/FamilyView?familyId=1618.
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We have noted in previous rulemaking (75 FR 72064) the requirement
that measures reflect consensus among affected parties can be achieved
in other ways aside from CBE endorsement, including through the measure
development process, through broad acceptance, use of the measure(s),
and through public comment. We propose this measure without CBE
endorsement based upon strong MAP and public support combined with the
importance of the measure for Medicare beneficiaries. In addition,
there are two existing, CBE-endorsed versions of this measure, one at
the clinician-group level (CBE #3639) and one for the hospital level
(CBE #3559). We expect that the measure will perform similarly in the
HOPD setting, and we intend on submitting the measures for CBE
endorsement following data collection during voluntary reporting.
We refer readers to section XIV.E.7.a of this proposed rule for a
discussion on the proposed THA/TKA PRO-PM form, manner, and timing
submission requirements.
We invite public comment on this proposal.
c. Proposed Adoption of the Excessive Radiation Dose or Inadequate
Image Quality for Diagnostic Computed Tomography (CT) in Adults
(Hospital Level--Outpatient) Measure Beginning With the Voluntary CY
2025 Reporting Period Followed by Mandatory Reporting Beginning With
the CY 2026 Reporting Period/CY 2028 Payment Determination
(1) Background
The use of computed tomography (CT) scans has greatly improved the
diagnosis and treatment of many conditions, and as such, over 80
million CT scans are performed each year in the US.\282\ Most CT scans
are performed as
[[Page 49788]]
outpatient procedures.\283\ CT scans expose patients to low-dose
ionizing radiation which is known to contribute to the development of
cancer.\284\ The Biological Effects of Ionizing Radiation (BEIR) VII
report by the United States National Academy of Sciences defined low-
dose radiation as doses up to 100 millisieverts (mSv).\285\ A low dose
CT scan of the chest delivers 1.5 mSv of radiation, while a regular-
dose CT chest scan delivers 7 mSv of radiation.\286\ In comparison, a
conventional chest x-ray delivers about 0.1 mSv of radiation.\287\
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\282\ Harvard Health Publishing. (2021). Radiation Risk from
Medical Imaging. Available at: https://www.health.harvard.edu/cancer/radiation-risk-from-medical-imaging.
\283\ Food and Drug Administration. Computed Tomography.
Available at: https://www.fda.gov/radiation-emitting-products/medical-x-ray-imaging/computed-tomography-ct.
\284\ Harvard Health Publishing. (2021). Radiation Risk from
Medical Imaging. Available at: https://www.health.harvard.edu/cancer/radiation-risk-from-medical-imaging.
\285\ Siegel JA, Greenspan BS, Maurer AH, et al. (2018). The
BEIR VII Estimates of Low-Dose Radiation Health Risks Are Based on
Faulty Assumptions and Data Analyses: A Call for Reassessment.
Journal of Nuclear Medicine, 59 (7) 1017-1019. https://doi.org/10.2967/jnumed.117.206219.
\286\ Ibid.
\287\ Environmental Protection Agency. Radiation Sources and
Doses. Available at: https://www.epa.gov/radiation/radiation-sources-and-doses.
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There is a large body of research that suggests that exposure to
ionizing radiation within the same range that is routinely delivered by
CT scans increases a person's risk of developing
cancer.288 289 290 291 One study found that patients who
received CT scans, particularly women and adults aged 45 years or
younger, had an elevated risk of developing thyroid cancer and
leukemia.\292\ Another study found that patients who received CT scans
had a 0.7 percent higher risk of developing cancer in their lifetime
compared to the general United States population.\293\ Cancer risk
increased for patients who underwent multiple CT scans, ranging from
2.7 to 12 percent.\294\ While the likelihood of developing cancer from
a CT scan is small on an individual level, it has been estimated that
the percentage of cancers attributable to CT scans in the United States
may be as high as two percent.\295\
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\288\ Berrington de Gonzalez A, Daniels RD, Cardis E, et al.
(2020). Epidemiological Studies of Low-Dose Ionizing Radiation and
Cancer: Rationale and Framework for the Monograph and Overview of
Eligible Studies. J Natl Cancer Inst Monogr, 2020(56), 97-113.
https://doi.org/10.1093/jncimonographs/lgaa009.
\289\ Cao CF, Ma KL, Shan H, et al. (2022). CT Scans and Cancer
Risks: A Systematic Review and Dose-response Meta-analysis. BMC
Cancer, 22, 1238. https://doi.org/10.1186/s12885-022-10310-2.
\290\ Hauptmann M, Daniels R, Cardis E, et al. (2020).
Epidemiological Studies of Low-Dose Ionizing Radiation and Cancer:
Summary Bias Assessment and Meta-Analysis. J Natl Cancer Inst
Monogr, 2020(56), 188-200. https://doi.org/10.1093/jncimonographs/lgaa010.
\291\ Shao YH, Tsai K, Kim S, Wu YJ, Demissie K. (2020).
Exposure to Tomographic Scans and Cancer Risks. JNCI Cancer Spectr,
4(1). https://doi.org/10.1093/jncics/pkz072.
\292\ Ibid.
\293\ Harvard Health Publishing. (2021). Radiation Risk from
Medical Imaging. Available at: https://www.health.harvard.edu/cancer/radiation-risk-from-medical-imaging.
\294\ Ibid.
\295\ Berrington de Gonz[aacute]lez A, Mahesh M, Kim KP, et al.
(2009). Projected cancer risks from computed tomographic scans
performed in the United States in 2007. Archives of internal
medicine, 169(22), 2071-2077. https://doi.org/10.1001/archinternmed.2009.440.
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CT image quality and radiation dose are related; as radiation dose
increases, image quality increases until a diagnostic threshold is
reached, at which point no further diagnostic benefit from image
quality occurs.296 297 Conversely, too little radiation dose
can produce inadequate image quality. Research suggests that current
radiation doses utilized for CT scans may be lowered between 50 percent
and 90 percent without impacting image diagnostic utility.
298 299 300 301 302 Based on the evidence of harm from
excessive radiation and evidence that radiation doses could be lowered
in many patients' situation without deteriorating image diagnostic
utility to the point of rendering exams unacceptable, we believe it is
important to promote patient safety by ensuring that patients are
exposed to the lowest possible level of radiation while preserving
image quality.
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\296\ Goldman LW. (2007). Principles of CT: Radiation Dose and
Image Quality. Journal of Nuclear Medicine Technology, 35(4), 213-
225. https://doi.org/10.2967/jnmt.106.037846.
\297\ Smith-Bindman R, Chu P, Wang Y, Chung R, et al. (2020).
Comparison of the Effectiveness of Single-Component and
Multicomponent Interventions for Reducing Radiation Doses in
Patients Undergoing Computed Tomography: A Randomized Clinical
Trial. JAMA Intern Med, 180(5), 666-675. https://doi.org/10.1001/jamainternmed.2020.0064.
\298\ Greffier J, Hamard A, Pereira F, et al. (2020). Image
quality and dose reduction opportunity of deep learning image
reconstruction algorithm for CT: a phantom study. Eur Radiol, 30(7),
3951-3959. https://doi.org/10.1007/s00330-020-06724-w.
\299\ Gottumukkala RV, Kalra MK, Tabari A, Otrakji A, Gee MS.
(2019). Advanced CT Techniques for Decreasing Radiation Dose,
Reducing Sedation Requirements, and Optimizing Image Quality in
Children. Radiographics, 39(3), 709-726. https://doi.org/10.1148/rg.2019180082.
\300\ Den Harder AM, Willemink MJ, van Doormaal PJ, et al.
(2018). Radiation dose reduction for CT assessment of urolithiasis
using iterative reconstruction: A prospective intra-individual
study. Eur Radiol, 28(1), 143-150. https://doi.org/10.1007/s00330-017-4929-2.
\301\ Rob S, Bryant T, Wilson I, Somani BK. (2017). Ultra-low-
dose, low-dose, and standard-dose CT of the kidney, ureters, and
bladder: is there a difference? Results from a systematic review of
the literature. Clin Radiol, 72(1), 11-15. https://doi.org/10.1016/j.crad.2016.10.005.
\302\ Konda SR, Goch AM, Leucht P, et al. (2016). The use of
ultra-low-dose CT scans for the evaluation of limb fractures: is the
reduced effective dose using CT in orthopaedic injury (REDUCTION)
protocol effective? Bone Joint J, 98-B(12), 1668-1673. https://doi.org/10.1302/0301-620X.98B12.BJJ-2016-0336.R1.
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(2) Overview of Measure
The Excessive Radiation Dose or Inadequate Image Quality for
Diagnostic Computed Tomography (CT) in Adults (Hospital Level--
Outpatient) electronic clinical quality measure (eCQM) (the Excessive
Radiation eCQM), which was developed by the University of California
San Francisco and is stewarded by Alara Imaging, Inc., provides a
standardized method for monitoring the performance of diagnostic CT to
discourage unnecessarily high radiation doses while preserving image
quality. The measure calculates the percentage of eligible CT scans
that are out-of-range based on having either excessive radiation dose
or inadequate image quality, relative to evidence-based thresholds
based on the clinical indication for the exam.\303\ This measure
provides a metric toward reducing unintentional harm to patients from
CT scans. Setting a standard for diagnostic CT scans to prevent
unnecessarily high radiation doses while preserving image quality would
provide hospitals with a reliable method to assess harm reduction
efforts and modify their improvement efforts. This measure also
addresses high priority areas as stated in our Meaningful Measures
Framework, including the transition to digital quality measures and the
adoption of high-quality measures that improve patient outcomes and
safety.\304\ Additionally, the Excessive Radiation eCQM supports the
National Quality Strategy goal of promoting safety because it works to
reduce preventable harm to patients.\305\ The measure was developed
according to evidence and consensus-based clinical guidelines for
optimizing CT radiation doses, including guidelines developed by the
American College of Radiology, American College of Cardiology, Image
Wisely 2020, and the
[[Page 49789]]
American Association of Physicists in Medicine.
306 307 308 309
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\303\ Centers for Medicare & Medicaid Services. Pre-Rulemaking
MUC Lists and MAP Reports. The Measures Management System. Available
at: https://mmshub.cms.gov/measure-lifecycle/measure-implementation/pre-rulemaking/lists-and-reports.
\304\ Centers for Medicare & Medicaid Services. Meaningful
Measures Framework. Available at: https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/QualityInitiativesGenInfo/CMS-Quality-Strategy.
\305\ Centers for Medicare & Medicaid Services. CMS Quality
Strategy. Available at: https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/Value-Based-Programs/CMS-Quality-Strategy.
\306\ American College of Radiology. (2015). Development and
Revision Handbook. Available at: https://www.acr.org/-/media/ACR/Files/Practice-Parameters/DevelopmentHandbook.pdf.
\307\ Hirshfeld JW, Ferrari VA, Bengel FM, et al. (2018). 2018
ACC/HRS/NASCI/SCAI/SCCT Expert Consensus Document on Optimal Use of
Ionizing Radiation in Cardiovascular Imaging: Best Practices for
Safety and Effectiveness. Catheter Cardiovasc Interv, 2018(92), E35-
E97. https://doi.org/10.1002/ccd.27659.
\308\ Image Wisely 2020. Available at: https://www.imagewisely.org/Imaging-Modalities/Computed-Tomography/Diagnostic-Reference-Levels.
\309\ American Association of Physicists in Medicine. The
Alliance For Quality Computed Tomography. Available at: https://www.aapm.org/pubs/CTProtocols/.
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Measure testing by the measure developer across a total of 16
inpatient and outpatient hospitals and a large system of outpatient
radiology practices revealed that availability, accuracy, validity, and
reproducibility were high for all of the measure's required data
elements and the variables that were calculated by the translation
software. The measure developer further assessed the reporting burden
by administering surveys to each of the participating hospitals and
outpatient groups. The measure developer found the burden to be small
to moderate, comparable to the burden of measure reporting for other
measures. Additionally, the measure developer noted that the burden of
reporting the Excessive Radiation eCQM fell to information technology
personnel rather than physicians.
Measure testing found that assessing radiation doses and providing
audit feedback to radiologists resulted in significant reductions in
dose levels. The testing sites also noted that the assessment of their
doses as specified in the measure was helpful for identifying areas for
quality improvement. According to the measure developer, over 40
letters were submitted in support of the measure, including several
from radiologists and medical physicists who serve as leaders of the
testing sites, that confirmed the measure was feasible and that data
assembly would not pose a large burden.
The Excessive Radiation eCQM was submitted to the CBE for
endorsement review in the Fall 2021 cycle (CBE #3663e) and was endorsed
on August 2, 2022. The measure was also included in the 2022 MUC
List.\311\ The MAP Hospital Workgroup reviewed the MUC List on December
13-14, 2022. The Workgroup noted that the Hospital OQR Program
currently does not have any measures assessing the risk of radiation
exposure from CT scans. The Workgroup also noted that the measure
addresses the ``Safety'' Meaningful Measures 2.0 Healthcare Priority
and would encourage shared decision-making between providers and
patients.\312\ The MAP's Final Report on February 1, 2023 supported the
Excessive Radiation eCQM for rulemaking in the Hospital OQR
Program.\313\
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\311\ Centers for Medicare & Medicaid Services. Pre-Rulemaking
MUC Lists and MAP Reports. The Measures Management System. Available
at: https://mmshub.cms.gov/measure-lifecycle/measure-implementation/pre-rulemaking/lists-and-reports.
\312\ Ibid.
\313\ Ibid.
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(3) Data Sources
The Excessive Radiation eCQM uses hospitals' electronic health
record (EHR) data and radiology electronic clinical data systems,
including the Radiology Information System (RIS) and the Picture
Archiving and Communication System (PACS). Medical imaging information
such as Radiation Dose Structured Reports and image pixel data are
stored according to the universally adopted Digital Imaging and
Communications in Medicine (DICOM) standard. Currently, eCQMs cannot
access and process data elements in their original DICOM formats.
Hospitals may choose to use any available software that performs
the necessary functions to comply with measure requirements. One such
example is the Alara Imaging software,\314\ which fulfills these
requirements by linking primary data elements, assessing CT scans for
eligibility for inclusion in the measure, and generating three data
elements mapped to clinical terminology for EHR consumption (CT Dose
and Image Quality Category, Calculated CT Size-Adjusted Dose, and
Calculated CT Global Noise) within the hospital's firewall.\315\ While
the Alara Imaging software and the necessary updates to the software
are proprietary, these would be available to all reporting entities
free of charge and accessible by creating a secure account through the
measure steward's website. Alara Imaging Inc. would also provide free
of charge necessary education materials including step-by-step
instructions on creating an account and linking their EHR and PACS data
to the software. Hospitals and their vendors would be able to use the
data elements created by this software to calculate the eCQM and to
submit results to the Hospital OQR Program via Quality Reporting
Document Architecture (QRDA) Category I files as they do for all other
eCQMs.
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\314\ Alara Imaging. Available at: https://www.alaracare.com/.
\315\ Additional information on measure software security and
processes is available at https://www.alaracare.com/our-solutions.
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(4) Measure Specifications
The measure numerator is diagnostic CT scans that have a size-
adjusted radiation dose greater than the threshold defined for the
specific CT category. The threshold is determined by the body region
being imaged and the reason for the exam, which affects the radiation
dose and image quality required for that exam. The numerator also
includes CT scans with a noise value greater than a threshold specific
to the CT category.\316\
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\316\ Centers for Medicare & Medicaid Services. Pre-Rulemaking
MUC Lists and MAP Reports. The Measures Management System. Available
at: https://mmshub.cms.gov/measure-lifecycle/measure-implementation/pre-rulemaking/lists-and-reports.
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The measure denominator is all diagnostic CT scans performed on
patients ages 18 and older during the one-year measurement period which
have an assigned CT category, a size-adjusted radiation dose value, and
a global noise value.\317\
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\317\ Ibid.
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The measure excludes CT scans that cannot be categorized by the
area of the body being imaged or reason for imaging. These include
scans that are simultaneous exams of multiple body regions outside of
four commonly performed multiple region exams defined by the measure,
or scans that cannot be classified based on diagnosis and procedure
codes. Exams that cannot be classified are specified as LOINC code
96914-7, CT Dose and Image Quality Category, Full Body. The measure
also has technical exclusions for CT scans missing information on the
patient's age, Calculated CT Size-Adjusted Dose, or Calculated CT
Global Noise. We refer readers to the eCQI Resource Center (https://ecqi.healthit.gov/ecqm/oqr/pre-rulemaking/2024/cms1206v1#quicktabs-tab-tabs_pre_rule_measure-0) for more details on the measure
specifications.
(5) Data Submission and Reporting
We propose the adoption of the Excessive Radiation eCQM as a
voluntary measure for the CY 2025 reporting period followed by
mandatory reporting beginning with the CY 2026 reporting period/CY 2028
payment determination. We would utilize the voluntary period to monitor
the implementation and operationalization of the measure. We refer
readers to section XIV.E.6.b of this proposed rule for a discussion of
the Excessive Radiation eCQM reporting and data
[[Page 49790]]
submission requirements. We also refer readers to section XIV.E.6 of
this proposed rule for a discussion of our previously finalized eCQM
reporting and submission policies.
We invite public comment on this proposal.
4. Previously Finalized and Proposed Hospital OQR Program Measure Sets
a. Summary of Previously Finalized and Newly Proposed Hospital OQR
Program Measure Set for the CY 2026 Payment Determination
We refer readers to the CY 2023 OPPS/ASC final rule (87 FR 72100
through 72102) for a summary of the previously finalized Hospital OQR
Program measure set for the CY 2025 payment determination. Table 66
summarizes the previously finalized and newly proposed Hospital OQR
Program measures for the CY 2026 payment determination:
BILLING CODE 4120-01-P
[GRAPHIC] [TIFF OMITTED] TP31JY23.102
[[Page 49791]]
b. Summary of Previously Finalized and Newly Proposed Hospital OQR
Program Measure Set for the CY 2027 Payment Determination and
Subsequent Years
Table 67 summarizes the previously finalized and newly proposed
Hospital OQR Program measures beginning with the CY 2027 payment
determination and subsequent years:
[GRAPHIC] [TIFF OMITTED] TP31JY23.103
BILLING CODE 4120-01-C
[[Page 49792]]
5. Maintenance of Technical Specifications for Quality Measures
We refer readers to the CY 2019 OPPS/ASC final rule (83 FR 59104
and 59105) and the CY 2022 OPPS/ASC final rule (86 FR 63861) for our
policies regarding maintenance of technical specifications for quality
measures. We maintain technical specification manuals that can be found
on the CMS website at: https://qualitynet.cms.gov/outpatient/specifications-manuals. Technical specifications for eCQMs used in the
Hospital OQR Program are contained in the CMS Annual Update for the
Hospital Quality Reporting Programs (Annual Update), which are
available, along with implementation guidance documents, on the eCQI
Resource Center website at: https://ecqi.healthit.gov/.
We are not proposing any changes to these policies in this proposed
rule.
6. Public Display of Quality Measures
We refer readers to the CY 2009, CY 2014, CY 2017, and CY 2021
OPPS/ASC final rules (73 FR 68777 through 68779, 78 FR 75092, 81 FR
79791, and 85 FR 86193 through 86236 respectively) for our previously
finalized policies regarding public display of quality measures.
We are not proposing any changes to these policies in this proposed
rule.
a. Public Reporting Median Time for Discharged ED Patients--Transfer
Patients and Median Time for Discharged ED Patients--Overall Rate
The Median Time from Emergency Department (ED) Arrival to ED
Departure for Discharged ED Patients (Median Time for Discharged ED
Patients) measure was adopted for reporting in the Hospital OQR Program
beginning with the CY 2013 payment determination (75 FR 72086). The
Median Time for Discharged ED Patients measure is a chart-abstracted
measure that evaluates the time between the arrival to and departure
from the ED, also known as ED throughput time. The Median Time for
Discharged ED Patients measure is calculated in stratified subsections
for certain types of patients: Median Time for Discharged ED Patients--
Reported Measure, which excludes psychiatric/mental health and
transferred patients; Median Time for Discharged ED Patients-
Psychiatric/Mental Health Patients, which includes information only for
psychiatric/mental health patients; and Median Time for Discharged ED
Patients--Transfer Patients, which includes information only for
patients transferred from the ED; along with the Median Time for
Discharged ED Patients-Overall Rate. The measure excludes patients who
expired in the ED, left against medical advice, or whose discharge was
not documented or unable to be determined.
In the CY 2011 OPPS/ASC final rule (75 FR 72086), we considered
publicly displaying all strata; however, due to input from interested
parties, we did not finalize public display of Median Time for
Discharged ED Patients--Transfer Patients and Median Time for
Discharged ED Patients--Overall Rate. Currently, measure data for the
Median Time for Discharged ED Patients--Transfer Patients and Median
Time for Discharged ED Patients--Overall Rate are not reported publicly
on the Care Compare site. Measure data for the Median Time for
Discharged ED Patients--Reported Measure is currently publicly
displayed on the Care Compare site and in the corresponding
downloadable data file for the Hospital OQR Program. We also collect
and report Median Time for Discharged ED Patients--Psychiatric/Mental
Health Patients for public awareness of behavioral health gaps in the
transfer of such patients, and per the CY 2018 OPPS/ASC final rule (82
FR 59437), we adopted a policy to publicly report these stratified
behavioral health data beginning in July 2018 using data from patient
encounters during the third quarter of 2017. We now believe displaying
all strata will highlight and prioritize various issues in the health
care system, specifically behavioral health and continuum of care.
We propose publicly reporting measure data for Median Time for
Discharged ED Patients--Transfer Patients and Median Time for
Discharged ED Patients--Overall Rate. Publicly reporting these measure
stratifications can elucidate ED throughput performance gaps for
patients requiring higher levels of specialized care above what a
facility is able to or provide. Data for these measure stratifications
are not currently being reported publicly on the Care Compare site.
Beginning with the CY 2024, we propose to make data publicly
available on our Care Compare website and in downloadable data files
found at https://data.cms.gov">data.cms.gov for the following chart-abstracted measure
strata: Median Time for Discharged ED Patients--Transfer Patients and
the Median Time for Discharged ED Patients--Overall Rate which contains
data for all patients.
We invite public comment on this proposal.
b. Overall Hospital Star Ratings
In the CY 2021 OPPS/ASC final rule (85 FR 86193 through 86236), we
finalized a methodology to calculate the Overall Hospital Quality Star
Rating (Overall Star Ratings). The Overall Star Ratings utilizes data
collected on hospital inpatient and outpatient measures that are
publicly reported on a CMS website. We refer readers to the CY 2021
OPPS/ASC final rule (85 FR 86193 through 86236) for our previously
finalized policies regarding the Overall Star Ratings.
We are not proposing any changes to these policies in this proposed
rule.
C. Hospital OQR Program Quality Measure Topics for Potential Future
Consideration
1. Summary
We seek public comment on potential measurement topic areas for the
Hospital OQR Program. This request for comment (RFC) seeks input on
innovative measurement approaches and data sources for use in quality
measurement to inform our work and, more specifically, the focus of
measure development within the Hospital OQR Program. We identified
three potential priority areas and we encourage the public to review
and provide comment.
2. Background
We are seeking public comment to address: (1) quality measurement
gaps in the HOPD setting, including the ED; (2) changes in outpatient
care (such as shifts in volume, technology use, and case complexity);
(3) growth of concerns around workforce and patient safety; (4) the
transition to digital quality measurement; and (5) interest in patient-
reported outcomes.
Specifically, we seek comment on quality measurement topics for the
Hospital OQR Program that include:
Promoting Safety (Patient and Workforce);
Behavioral Health; and
Telehealth.
We seek input on the specific questions posed in this RFC.
3. Solicitation of Comments on Patient and Workforce Safety as a
Measurement Topic Area in the Hospital OQR Program
Launched in April 2022, the CMS National Quality Strategy outlines
CMS' aim to shape a resilient, high-value healthcare system through
quality outcomes, safety, equity, and accessibility for all.\318\
Improving safety
[[Page 49793]]
through levers such as quality measurement is a critical objective of
the National Quality Strategy. We acknowledge that promoting safety in
order to achieve zero preventable harm requires developing measures
that assess and hold healthcare systems accountable to keep individuals
safe through preventative and treatment processes. Therefore, in this
proposed rule, we are seeking public comment on patient and workforce
safety measures. We are particularly interested in sepsis care for
potential future inclusion in the Hospital OQR Program as a patient
safety measure.
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\318\ Schreiber M, Richards AC, Moody-Williams J, et al. (2022).
The CMS National Quality Strategy: A Person-Centered Approach to
Improving Quality. Available at: https://www.cms.gov/blog/cms-national-quality-strategy-person-centered-approach-improving-quality.
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Sepsis is a life-threatening condition which can arise from simple
infections (such as pneumonia or a urinary tract infection) and
requires prompt recognition and early intervention, which can often
occur in an ED.319 320 Although sepsis can affect anyone at
any age, it is more common in infants, older adults, and patients with
chronic health conditions such as diabetes and immunosuppressive
disorders.\321\ The Centers for Disease Control and Prevention (CDC)
estimates annually that there are approximately 1.7 million adults
diagnosed with sepsis with 270,000 resulting deaths.\322\ Therefore,
preventing, diagnosing, and treating sepsis effectively has been a
focus of patient safety in recent years.323 324
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\319\ McVeigh SE. (2020). Sepsis Management in the Emergency
Department. The Nursing clinics of North America, 55(1), 71-79.
https://doi.org/10.1016/j.cnur.2019.10.009.
\320\ Seymour CW, Gesten F, Prescott HC, et al. (2017). Time to
Treatment and Mortality during Mandated Emergency Care for Sepsis.
The New England journal of medicine, 376(23), 2235-2244. https://doi.org/10.1056/NEJMoa1703058.
\321\ National Institute of General Medical Sciences. (2021).
Sepsis. Available at: https://nigms.nih.gov/education/fact-sheets/Pages/sepsis.aspx.
\322\ Centers for Disease Control and Prevention. (2022). What
is Sepsis? Available at: https://www.cdc.gov/sepsis/what-is-sepsis.html.
\323\ Rhee C, Dantes RB, Epstein L, & Klompas M. (2019). Using
Objective Clinical Data to Track Progress on Preventing and Treating
Sepsis: CDC's New `Adult Sepsis Event' Surveillance Strategy. BMJ
Qual Saf, 28(4), 305-309. https://doi.org/10.1136/bmjqs-2018-008331.
\324\ Fay K, Sapiano MRP, Gokhale R, et al. (2020). Assessment
of Health Care Exposures and Outcomes in Adult Patients with Sepsis
and Septic Shock. JAMA Netw Open, 3(7), e206004. https://doi.org/10.1001/jamanetworkopen.2020.6004.
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HOPDs may play a critical role in the initial assessment and
evaluation of suspected sepsis patients through lab tests, diagnostic
imaging, and collection of sepsis biomarkers.\325\ Timely and accurate
sepsis diagnosis is essential to effective care. Research shows that
performance of evidence-based time-sensitive therapies in EDs can lower
the risk of organ dysfunction, reduce mortality, and mitigate the need
for mechanical ventilation.326 327 328 In addition, using an
interdisciplinary sepsis-response team to coordinate care in the ED
shows potential in improving sepsis care management and enhancing
patient outcomes.\329\ These findings highlight the role of HOPDs and
EDs in the timely diagnosis and treatment of sepsis. Therefore, we
believe the Hospital OQR Program may benefit from quality measures
centered around sepsis care.
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\325\ Gauer R, Forbes D, & Boyer N. (2020). Sepsis: Diagnosis
And Management. American Family Physician, 101(7), 409-418. https://www.aafp.org/pubs/afp/issues/2020/0401/p409.html.
\326\ Arabi YM, Al-Dorzi HM, Alamry A, et al. (2017). The Impact
of a Multifaceted Intervention Including Sepsis Electronic Alert
System and Sepsis Response Team on the Outcomes of Patients with
Sepsis and Septic Shock. Annals of intensive care, 7(1), 57. https://doi.org/10.1186/s13613-017-0280-7.
\327\ Whiles BB, Deis AS, & Simpson SQ. (2017). Increased Time
to Initial Antimicrobial Administration is Associated With
Progression to Septic Shock in Severe Sepsis Patients. Critical care
medicine, 45(4), 623-629. https://doi.org/10.1097/CCM.0000000000002262.
\328\ Gavelli F, Castello LM, & Avanzi GC. (2021). Management of
Sepsis and Septic Shock in the Emergency Department. Internal and
emergency medicine. 16(6), 1649-1661. https://doi.org/10.1007/s11739-021-02735-7.
\329\ Delawder JM, & Hulton L. (2020). An Interdisciplinary Code
Sepsis Team to Improve Sepsis-Bundle Compliance: A Quality
Improvement Project. Journal of emergency nursing, 46(1), 91-98.
https://doi.org/10.1016/j.jen.2019.07.001.
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We also believe quality measures should align, to the extent
possible, across CMS programs to minimize reporting burden. In the FY
2015 IPPS/LTCH PPS final rule (79 FR 50236 through 50241), we adopted
the Severe Sepsis and Septic Shock: Management Bundle measure (CBE
#0500 \330\) (the Sepsis measure) into the Hospital Inpatient Quality
Reporting (IQR) Program beginning with the FY 2015 reporting period/FY
2017 payment determination. In the FY 2024 IPPS/LTCH PPS proposed rule
(88 FR 27027 through 27030), we proposed to adopt the Sepsis measure
into the Hospital Value-Based Purchasing (HVBP) Program beginning with
the FY 2026 program year. The Sepsis measure supports the efficient,
effective, and timely delivery of high-quality sepsis care by providing
a standard operating procedure for the early risk stratification and
management of a patient with severe infection. When the care
interventions in the measure are provided as a composite, health
systems observe significant reductions in hospital length of stay, re-
admission rates, and mortality.331 332
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\330\ In previous years, we referred to the consensus-based
entity by corporate name. We have updated this language to refer to
the consensus-based entity more generally.
\331\ Levy MM, Gesten FC, Phillips GS, et al. (2018). Mortality
Changes Associated with Mandated Public Reporting for Sepsis: The
Results of the New York State Initiative. Am J Respir Crit Care Med,
198(11), 1406-1412. https://doi.org/10.1164/rccm.201712-2545OC.
\332\ Bauer SR, Han X, Wang XF, et al. (2020). Association
Between Compliance with the Sepsis Quality Measure (SEP-1) and
Hospital Readmission. Chest, 158(2), 608-611. https://doi.org/10.1016/j.chest.2020.02.042.
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We request comment on whether this measure would be appropriate and
feasible for use in the Hospital OQR Program, as well as whether CMS
should consider adopting an alternative measure that assesses the
quality of sepsis care in the hospital outpatient setting.\333\
---------------------------------------------------------------------------
\333\ Centers for Medicare & Medicaid Services. (2023). Sepsis
Bundle Project (SEP) National Hospital Inpatient Quality Measures.
Available at: https://qualitynet.cms.gov/files/6391e95676962e0016ad9199?filename=2a-b_SEP-List_v5.14.pdf.
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Additional safety measures may be needed to adequately monitor and
maintain safety in the Hospital OQR Program, such as measurement of
system-wide all-cause harm, in addition to the safety of observation
care, procedures and services, medication errors, technology, and
workforce. Patient and workforce safety are interconnected, as the
safety of healthcare workers is critical to maintaining a safe and
effective healthcare environment.\334\
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\334\ McGaffigan P, Gerwig K, & Kingston MB. (2020). Workforce
Safety Key to Patient Safety. Healthcare Executive. 35(6), 48-50.
https://www.ihi.org/resources/Pages/Publications/workforce-safety-key-to-patient-safety.aspx.
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We are requesting input from interested parties on the following
topics: (1) safety outcome priorities specific to settings, services,
transitions and transfers, and access to care; (2) general cross-
outpatient setting outcomes; (3) individual harms, including
methodological approaches to patient identification and data
collection, technological-derived harm, and use of electronic resources
to mitigate potential for harm; and (4) workforce safety. Specifically,
we are requesting comment on the following questions:
What are interested parties' highest priority outcomes for
ensuring safety in the outpatient setting, not limited to the
following: overall priorities; priorities for specific settings (for
example, EDs, HOPDs) and services (for example, observation care,
emergent and non-emergent surgeries, procedures, and imaging); safety
related to transitions between care settings; and safety around access
to care (for example, a patient who lacks access to life-saving
[[Page 49794]]
medications such as insulin, epinephrine, albuterol)?
What outcomes should be measured across all settings
within the Hospital OQR Program?
Individual harms (such as wrong-site surgery) occur at low
frequencies, presenting a challenge for the development of risk-
adjusted quality measures that can be used to compare facilities.
Existing measures in the Hospital OQR Program have used approaches such
as the capture of utilization (for example, the Hospital Visits After
Hospital Outpatient Surgery Measure (CBE #2687)) to indicate potential
harm and longer measurement periods to improve measurement reliability.
++ Are there other methodological approaches or data that we could
use to identify harm to patients receiving care in the outpatient
setting?
++ What approaches could we use to capture harms associated with
outpatient services (HOPD procedures, ED visits, outpatient clinic
visits, outpatient imaging)?
++ How could electronic data sources or monitoring systems be
leveraged to gather timely data on such errors?
What aspects of workforce safety are important for us to
consider for the Hospital OQR Program?
As new technology becomes available and is used more
widely (such as artificial intelligence (AI) for diagnoses, robotic
surgery, and electronic health records (EHRs)), there is a potential
for these technologies or their application to cause harm to patients.
For example, AI algorithms trained on data that is under representative
of certain racial, ethnic, or gender groups may misdiagnosis these same
populations.\335\ At the same time, technology could also be leveraged
to mitigate AI risks, improve safety, or facilitate quality
measurement.
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\335\ Thomas, LB, Mastorides, SM, Viswanadhan, NA, et al.
(2021). Artificial Intelligence: Review of Current and Future
Applications in Medicine. Federal practitioner: for the health care
professionals of the VA, DoD, and PHS, 38(11), 527-538. https://doi.org/10.12788/fp.0174.
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++ Which technologies are of the most concern in terms of potential
for harm?
++ What measurable safety-related outcomes should CMS consider for
the Hospital OQR Program?
++ What technologies could be leveraged to improve safety or
facilitate its measurement?
4. Solicitation of Comments on Behavioral Health and Suicide Prevention
in the Hospital OQR Program
Behavioral healthcare in the outpatient setting comprises a vast
array of services for patients with a wide range of conditions.
Behavioral health services are delivered in multiple settings by
multiple types of providers, including but not limited to HOPDs,
through partial observation, and in the ED.
Quality gaps in the area of hospital outpatient behavioral health
include care coordination across settings, availability of services,
and barriers to accessing services. In this RFC, we are seeking comment
from interested parties on behavioral health topics based in part on
work by the National Quality Forum (NQF), The National Committee for
Quality Assurance (NCQA), and the CMS Behavioral Health
Strategy.336 337 338 Behavioral health topics under
consideration for measure development in the hospital outpatient
setting include: availability and access, coordination of care, patient
experience, patient-centered clinical care, prevention and treatment of
chronic conditions, prevention of iatrogenic harm (that is, harm
resulting from medical care), equity across all domains, and suicide
prevention. We are particularly interested in measuring suicide
screening in the hospital outpatient setting to improve early risk
detection and facilitate appropriate behavioral health treatment.
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\336\ National Quality Forum. (2022). Opioid-Related Outcomes
Among Individuals with Co-occurring Behavioral Health Conditions.
Available at: https://www.qualityforum.org/Projects/n-r/Opioids_and_Behavioral_Health_Committee/2022_Final_Report.aspx#onclick=%E2%80%9D_gaq.push([%E2%80%98_trackEve
nt%E2%80%99,%E2%80%99Download%E2%80%99,%E2%80%99PDF%E2%80%99,this.hre
f]);%E2%80%9D Using Measurement to Promote Joint Accountability and
Whole-Person Care.
\337\ The National Committee for Quality Assurance. (2021).
Behavioral Health Quality Framework: A Roadmap for Using Measurement
to Promote Joint Accountability and Whole-Person Care. Available at:
https://www.ncqa.org/wp-content/uploads/2021/07/20210701_Behavioral_Health_Quality_Framework_NCQA_White_Paper.pdf.
\338\ Centers for Medicare and Medicaid Services. (2022). CMS
Behavioral Health Strategy. Available at: https://www.cms.gov/cms-behavioral-health-strategy.
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Suicide is a serious but preventable public health threat and is
one of the leading causes of death in the United States (US).\339\ In
2020, about 46,000 Americans died as a result of suicide and 12.2
million adults experienced suicidal ideation.\340\ Individuals with a
recorded depressive disorder are about five times more likely to die by
suicide after adjusting for sociodemographic factors and other mental
health diagnoses than individuals without a recorded mental health
condition.\341\ Many factors contribute to suicide risk, including
Major Depressive Disorder (MDD) diagnosis.342 343 MDD is a
significant risk factor for suicide, indicating that patients with MDD
are a critical population for intervention efforts.\344\
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\339\ Centers for Disease Control and Prevention. (2022). Facts
About Suicide. Available at: https://www.cdc.gov/suicide/facts/.
\340\ Centers for Disease Control and Prevention. (2022).
Suicide Prevention. Available at: https://www.cdc.gov/suicide/.
\341\ Yeh HH, Westphal J, Hu Y, et al. (2019). Diagnosed Mental
Health Conditions and Risk of Suicide Mortality. Psychiatric
services (Washington, DC), 70(9), 750-757. https://doi.org/10.1176/appi.ps.201800346.
\342\ Ibid.
\343\ Cai H, Xie XM, Zhang Q, et al. (2021). Prevalence of
Suicidality in Major Depressive Disorder: A Systematic Review and
Meta-Analysis of Comparative Studies. Frontiers in psychiatry, 12,
690130. https://doi.org/10.3389/fpsyt.2021.690130.
\344\ Moitra M, Santomauro D, Degenhardt L, et al. (2021).
Estimating the Risk of Suicide Associated with Mental Disorders: A
Systematic Review and Meta-regression Analysis. Journal of
psychiatric research, 137, 242-249. https://doi.org/10.1016/j.jpsychires.2021.02.053.
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Research shows that in the weeks, months, and year prior to
suicide, individuals significantly utilized healthcare services,
providing an opportunity for assessment and prevention in the clinical
setting.\345\ Nineteen percent of individuals who died by suicide with
a recorded mental health diagnosis visited the ED within one year prior
to their death while 7.5 percent visited the ED within one month.\346\
HOPDs may be an opportune setting for detecting suicide risk in persons
with mental health diagnoses, such as MDD, and reducing the overall
suicide rate. ED-initiated suicide prevention efforts can meaningfully
reduce suicide attempts in individuals that are screened and receive
evidence-based care.\347\
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\345\ Miller IW, Camargo CA, Arias SA, et al. (2017). Suicide
Prevention in an Emergency Department Population: The ED-SAFE Study.
JAMA psychiatry, 74(6), 563-570. https://doi.org/10.1001/jamapsychiatry.2017.0678.
\346\ Ahmedani BK, Simon GE, Stewart C, et al. (2014). Health
Care Contacts in the Year Before Suicide Death. J Gen Intern Med,
29, 870-877. https://doi.org/10.1007/s11606-014-2767-3.
\347\ Miller IW, Camargo CA, Arias SA, et al. (2017). Suicide
Prevention in an Emergency Department Population: The ED-SAFE Study.
JAMA psychiatry, 74(6), 563-570. https://doi.org/10.1001/jamapsychiatry.2017.0678.
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Under the Merit-based Incentive Payment System (MIPS), we adopted
the Adult Major Depressive Disorder (MDD): Suicide Risk Assessment
measure (CBE #0104). This measure
[[Page 49795]]
aims to improve clinical assessment of suicide risk where a new or
recurrent episode of MDD is identified and may be beneficial in the
Hospital OQR Program. We request comment on this specific measure
example, including whether interested parties believe this measure
would be appropriate and feasible for use in the Hospital OQR Program,
as well as other measures, such as a universal screening measure. More
than half of those who die by suicide do not have a recorded mental
health diagnosis.\348\ Universal suicide screening may improve
identification of individuals who may not otherwise have been
identified as at risk.\349\
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\348\ Stone DM, Simon TR, Fowler KA, et al. (2018) Vital Signs:
Trends in State Suicide Rates--United States, 1999-2016 and
Circumstances Contributing to Suicide--27 States, 2015. MMWR, 67,
617-624. https://dx.doi.org/10.15585/mmwr.mm6722a1.
\349\ Boudreaux ED, Camargo CA, Arias SA, et al. (2016).
Improving Suicide Risk Screening and Detection in the Emergency
Department. American Journal of Preventive Medicine, 50(4), 445-453.
https://doi.org/10.1016/j.amepre.2015.09.029.
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Additional measures may be needed to adequately promote screening
and treatment of behavioral health disorders in the outpatient setting.
For example, measures geared towards prevention and treatment of
substance use disorders. In 2021, 17.3 percent of adults over the age
of 18 met the criteria for substance use disorder for drugs or
alcohol.\350\ Outpatient screening of substance use disorders through
tools such as SAMHSA's Screening, Brief Intervention, and Referral to
Treatment (SBIRT) may aid the early intervention and treatment for
persons with substance use disorders and help identify those at risk of
developing such disorders.351 352 We seek comment on whether
screening for substance use disorders would be an appropriate measure
topic for the Hospital OQR Program.
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\350\ Substance Abuse and Mental Health Services Administration.
(2021).
Table 5.1B--Substance Use Disorder for Specific Substances in
Past Year: Among People Aged 12 or Older; by Age Group, Percentages,
2021. Available at: https://www.samhsa.gov/data/sites/default/files/reports/rpt39441/NSDUHDetailedTabs2021/NSDUHDetailedTabs2021/NSDUHDetTabsSect5pe2021.htm.
\351\ Substance Abuse and Mental Health Services Administration.
(2022). Screening, Brief Intervention, and Referral to Treatment
(SBIRT). Available at: https://www.samhsa.gov/sbirt.
\352\ O'Connor EA, Perdue LA, Senger, CA, et al. (2018).
Screening and Behavioral Counseling Interventions to Reduce
Unhealthy Alcohol Use in Adolescents and Adults: Updated Evidence
Report and Systematic Review for the US Preventive Services Task
Force. JAMA, 320(18), 1910-1928. https://doi.org/10.1001/jama.2018.12086.
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Furthermore, we seek broad input on behavioral health as a
measurement topic area in the Hospital OQR Program based on, but not
limited to, the following matters: (1) priorities for measuring
outcomes of outpatient behavioral health services, particularly by
setting within the HOPD; and (2) quality measure approaches to improve
behavioral health access in outpatient settings. Specifically, we are
requesting comment from interested parties on the following questions:
Are there additional behavioral health topic areas that we
should prioritize? Of the topics outlined in this RFC (availability and
access, coordination of care, patient experience, patient-centered
clinical care, prevention and treatment of chronic conditions,
prevention of iatrogenic harm, equity across all domains, and suicide
prevention), which are the highest priority? What are the most relevant
quality gaps and outcomes related to behavioral health for hospital
outpatient settings and services?
Access is one of the biggest challenges around improving
behavioral health outcomes. What measurement approaches could be used
to drive improvements in access to services?
Should CMS consider substance use disorder-related
screening and counseling measures in regards to behavioral health
outcomes for the outpatient setting, and, if so, what specific quality
measures should CMS include?
Should CMS consider a measure related to universal suicide
risk in the ED? Are there other interventions or measurement approaches
targeted at suicide prevention that CMS should consider?
5. Solicitation of Comments on Telehealth as a Measurement Topic Area
in the Hospital OQR Program
We define telehealth as the provision of healthcare services
through two-way, real-time interactive telecommunications technology
between patients and providers who are located at a distant site.\353\
Telemedicine has the potential to improve patient experience, outcomes,
and access to healthcare.\354\ Telemedicine is also associated with
cost-savings for both patients and healthcare
systems.355 356 Telehealth utilization expanded greatly in
the outpatient setting during the early months of the SARS-CoV-2
pandemic.\357\ The number of outpatient visits conducted via telehealth
has since declined but remains higher than pre-pandemic levels.\358\
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\353\ Telehealth Services, 42 CFR 410.78 Available at: https://www.ecfr.gov/current/title-42/chapter-IV/subchapter-B/part-410/subpart-B/section-410.78.
\354\ Corbett, JA, Opladen, JM, & Bisognano, JD. (2020).
Telemedicine can revolutionize the treatment of chronic disease.
International Journal of Cardiology. Hypertension, 7, 100051.
https://doi.org/10.1016/j.ijchy.2020.100051.
\355\ American Health Association. (2016). Telehealth: Helping
Hospitals Deliver Cost-Effective Care. Available at: https://www.aha.org/system/files/content/16/16telehealthissuebrief.pdf.
\356\ Patel KB, Turner K, Alishahi TA, et al. (2023). Estimated
Indirect Cost Savings of Using Telehealth Among Nonelderly Patients
With Cancer. JAMA network open, 6(1), e2250211. https://doi.org/10.1001/jamanetworkopen.2022.50211.
\357\ Lo, J, Rae M, Amin, K, & Cox C. (2022). Outpatient
telehealth use soared early in the COVID-19 pandemic but has since
receded. Peterson-KFF Health System Tracker. Available at: https://www.healthsystemtracker.org/brief/outpatient-telehealth-use-soared-early-in-the-covid-19-pandemic-but-has-since-receded/.
\358\ Ibid.
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While telehealth provides a variety of benefits to patients and
health systems, there is variability in telehealth's effectiveness
across different outpatient services as some conditions may necessitate
in-person physical examination or diagnostic testing.359 360
There are also known disparities in the effectiveness of telehealth and
its impact on outcomes as certain populations lack access to internet
and digital devices, or lack familiarity with
technology.361 362
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\359\ Patel SY, Mehrotra A, Huskamp HA, et al. (2021). Variation
in Telemedicine Use and Outpatient Care During The COVID-19 Pandemic
in the United States. Health affairs (Project Hope), 40(2), 349-358.
https://doi.org/10.1377/hlthaff.2020.01786.
\360\ Koonin LM, Hoots B, Tsang CA, et al. Trends in the Use of
Telehealth During the Emergence of the COVID-19 Pandemic--United
States, January-March 2020. MMWR Morb Mortal Wkly Rep 2020;69:1595-
1599. https://dx.doi.org/10.15585/mmwr.mm6943a3.
\361\ Ibid.
\362\ Roberts ET, & Mehrotra A. (2020). Assessment of
Disparities in Digital Access Among Medicare Beneficiaries and
Implications for Telemedicine. JAMA internal medicine, 180(10),
1386-1389. https://doi.org/10.1001/jamainternmed.2020.2666.
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For the Hospital OQR Program, we are considering a measure focused
on telehealth quality based on a framework developed by the CBE.\363\
This framework was chosen because it offers a comprehensive guide for
developing telehealth measures under four domains: access,
effectiveness, experience, and equity. We seek input from interested
parties on the following topics: (1) inclusion and prioritization of
areas of telehealth-related care, and in particular those priority
topic areas discussed above; (2) addressing quality gaps in outpatient
telehealth-related care, including across HOPD settings and services;
(3) capturing utilization, and disparities resulting from
[[Page 49796]]
utilization, of telehealth-related care for outpatient settings and
services; and (4) understanding patient experience with outpatient
telehealth services. Specifically, we are requesting comment from
interested parties on the following questions:
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\363\ National Quality Forum. (2021). Rural Telehealth and
Healthcare System Readiness Measurement Framework--Final Report.
Available at: https://www.qualityforum.org/Publications/2021/11/Rural_Telehealth_and_Healthcare_System_Readiness_Measurement_Framework_-_Final_Report.aspx.
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In reference to the telehealth-related topics outlined
above, are there additional matters that we should prioritize for the
Hospital OQR Program? Which subjects are of the highest priority?
What do commenters believe are the most relevant clinical
issues addressable through telehealth in outpatient settings, and gaps
in care that telehealth can address?
What are the highest priority concerns regarding
disparities in access, use, or outcomes related to telehealth in the
outpatient setting? Are there any settings or services that should be
prioritized?
Which existing outpatient quality measures should be
stratified by telehealth as the mode of delivery?
What are the most relevant patient-experience-related
telehealth outcomes that should be measured?
D. Administrative Requirements
1. Proposal To Modify Requirements Regarding Hospital OQR Program
Participation Status
We refer readers to Sec. 419.46(b) for our current policies
regarding participation in the Hospital OQR Program, including security
official and system registration requirements. We propose to amend our
participation regulation codified at Sec. 419.46(b)(1) and (2) to
replace references to ``QualityNet'' with ``CMS-designated information
system'' or ``CMS website,'' and to make other conforming technical
edits, to accommodate recent and future systems requirements and
mitigate confusion for program participants.
We invite public comment on this proposal.
2. Proposal To Modify Requirements Regarding Hospital OQR Program
Withdrawal
We refer readers to Sec. 419.46(c) for our policies regarding
requirements for withdrawal from the Hospital OQR Program. We propose
to amend our withdrawal policy codified at Sec. 419.46(c) to replace
references to ``QualityNet'' with ``CMS-designated information system''
or ``CMS website,'' and to make other conforming technical edits, to
accommodate recent and future systems requirements and mitigate
confusion for program participants.
We invite public comment on this proposal.
Other than the proposal to amend Sec. 419.46(c), we are not
proposing any changes to these policies in this proposed rule.
E. Form, Manner, and Timing of Data Submitted for the Hospital OQR
Program
Previously finalized quality measures and information collections
discussed in this section were approved by the Office of Management and
Budget (OMB) under control number 0938-1109 (expiration date February
28, 2025).\364\ An updated PRA package reflecting the updated
information collection requirements related to the proposals set forth
in this section of the proposed rule will be submitted for approval
under the same OMB control number.
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\364\ Office of Management and Budget. Office of Information and
Regulatory Affairs. Available at: https://www.reginfo.gov/public/do/PRAOMBHistory?ombControlNumber=0938-1109.
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1. Hospital OQR Program Annual Submission Deadlines
We refer readers to Sec. 419.46(d) for our policies regarding
clinical data submission deadlines. In the CY 2023 OPPS/ASC final rule
(87 FR 72110 through 72112), we finalized alignment of the patient
encounter quarters for chart-abstracted measures with the calendar year
beginning with the CY 2024 reporting period/CY 2026 payment
determination. To facilitate this process, we finalized transitioning
to the new timeframe for the CY 2026 payment determination and
subsequent years and use only three quarters of data for chart-
abstracted measures in determining the CY 2025 payment determination as
illustrated in the Tables 68, 69, and 70 below (87 FR 44734).
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We propose to amend our submission deadline codified at Sec.
419.46(d)(2) to replace references to ``QualityNet'' with ``CMS-
designated information system'' or ``CMS website,'' and to make other
conforming technical edits, to accommodate recent and future systems
requirements and mitigate confusion for program participants.
We invite public comment on this proposal.
Other than the proposal to amend Sec. 419.46(d)(2), we are not
proposing any changes to these policies in this proposed rule.
2. Requirements for Chart-Abstracted Measures Where Patient-Level Data
Are Submitted Directly to CMS
We refer readers to the CY 2013 OPPS/ASC final rule (77 FR 68481
through 68484) and the CMS website, currently available at: https://qualitynet.cms.gov, for a discussion of the requirements for chart-
abstracted measure data submitted via the HQR System (formerly referred
to as the QualityNet Secure Portal) for the CY 2014 payment
determination and subsequent years.
We are not proposing any changes to these policies in this proposed
rule.
3. Claims-Based Measure Data Requirements
We refer readers to the CY 2019 OPPS/ASC final rule (83 FR 59106
through 59107), where we established a 3-year reporting period for the
Facility 7-Day Risk-Standardized Hospital Visit Rate after Outpatient
Colonoscopy measure beginning with the CY 2020 payment determination.
We refer readers to the CY 2022 OPPS/ASC final rule (86 FR 63863) where
we finalized a 3-year reporting period for the Breast Cancer Screening
Recall Rates measure.
We are not proposing any changes to these policies in this proposed
rule.
4. Data Submission Requirements for the Outpatient and Ambulatory
Surgery Consumer Assessment of Healthcare Providers and Systems (OAS
CAHPS) Survey-Based Measure
We refer readers to the CYs 2017, 2018, and 2022 OPPS/ASC final
rules (81 FR 79792 through 79794; 82 FR 59432 and 59433; and 86 FR
63863 through 63866, respectively) for a discussion of the previously
finalized requirements related to survey administration and vendors for
the OAS CAHPS Survey-based measure. For more information about the
modes of administration, we refer readers to the OAS CAHPS Survey
website: https://oascahps.org/.
We are not proposing any changes to these policies in this proposed
rule.
5. Data Submission Requirements for Measures Submitted via a Web-Based
Tool
a. Background
We refer readers to the CY 2014 OPPS/ASC final rule (78 FR 75112
through 75115), the CY 2016 OPPS/ASC final rule (80 FR 70521), and the
CMS website, currently at available at https://qualitynet.cms.gov, for
a discussion of the requirements for measure data submitted via the HQR
System (formerly referred to as the QualityNet Secure Portal) for the
CY 2017 payment determination and subsequent years. The information
collections finalized in the aforementioned final rules were approved
under OMB control number 0938-1109 (expiration date February 28,
2025).\365\ The HQR System is safeguarded in accordance with the HIPAA
Privacy and Security Rules to protect submitted patient information.
See 45 CFR parts 160 and 164, subparts A, C, and E, for more
information.
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\365\ Ibid.
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We are not proposing any changes to these policies in this proposed
rule.
[[Page 49798]]
b. Proposed HOPD Procedure Volume Measure Reporting and Data Submission
Requirements
We propose to re-adopt the HOPD Procedure Volume measure with
modification, beginning with the voluntary CY 2025 reporting period
followed by mandatory reporting beginning with the CY 2026 reporting
period/CY 2028 payment determination. We propose that hospitals submit
these data to CMS during the time period of January 1 to May 15 in the
year prior to the affected payment determination year. For example, for
the CY 2025 reporting period, the submission period to report the data
to CMS through the HQR System would be January 1, 2026 to May 15, 2026,
covering the performance period of January 1, 2025 to December 31,
2025. Following a 30-day preview period, CMS would publicly display
data surrounding the top five most frequently performed procedures
among HOPDs in each of the following eight categories: Cardiovascular,
Eye, Gastrointestinal, Genitourinary, Musculoskeletal, Nervous System,
Respiratory, and Skin.\366\ This data would be publicly displayed on
the Care Compare website or another CMS website. We would assess and
update the top five procedures in each category annually, as needed. We
propose that hospitals would submit aggregate-level data through the
CMS Web-based tool within the HQR System. We refer readers to the CY
2009, CY 2014, and CY 2017 OPPS/ASC final rules (73 FR 68777 through
68779, 78 FR 75092, and 81 FR 79791, respectively) for our previously
finalized policies regarding public display of quality measures. We
previously codified our existing policies regarding data collection and
submission under the Hospital OQR Program at Sec. 419.46.
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\366\ Centers for Medicare & Medicaid Services. (2016). Hospital
Outpatient Specifications Manuals version 9.1. Available at: https://qualitynet.cms.gov/outpatient/specifications-manuals#tab9.
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We invite public comment on this proposal.
c. Proposed Modification of Survey Instrument Use for the Cataracts
Visual Function Measure Reporting and Data Submission Requirements
In section XIV.B.2.b of this proposed rule, we propose to modify
the Cataracts Visual Function measure survey instrument use, beginning
with the voluntary CY 2024 reporting period. The proposed modified
measure would refine data collection by standardizing survey
instruments that HOPDs can use, which would limit the allowable survey
instruments to those listed below:
The National Eye Institute Visual Function Questionnaire-25 (NEI VFQ-
25)
The Visual Functioning Patient Questionnaire (VF-14)
The Visual Functioning Index Patient Questionnaire (VF-8R)
We also propose that hospitals submit these data to CMS during the
time period of January 1 to May 15 in the year prior to the affected
payment determination year. For example, for the voluntary CY 2024
reporting period, the data submission period would be January 1, 2025
to May 15, 2025, covering the performance period of January 1, 2024 to
December 31, 2024. Specifically, for data collection, we propose that
hospitals submit aggregate-level data through the CMS Web-based tool
within the HQR System. We previously codified our existing policies
regarding data collection and submission under the Hospital OQR Program
at Sec. 419.46.
We invite public comment on this proposal.
d. Data Submission Requirements for Measures Submitted via the Centers
for Disease Control and Prevention (CDC) National Healthcare Safety
Network (NHSN) Website
We refer readers to the CY 2014 OPPS/ASC final rule (78 FR 75097
through 75100) for a discussion of the previously finalized
requirements for measure data submitted via the CDC NHSN website. In
addition, we refer readers to the CY 2022 OPPS/ASC final rule (86 FR
63866), where we finalized the adoption of the COVID-19 Vaccination
Coverage Among HCP measure beginning with the CY 2022 reporting period/
CY 2024 payment determination. In section XIV.B.2.a of this proposed
rule, we discuss the proposed modification of the COVID-19 Vaccination
Coverage Among HCP measure beginning with the CY 2024 reporting period/
CY 2026 payment determination. The requirements for measure data
submitted via the CDC NHSN website would remain as previously
finalized.
We are not proposing any changes to these policies in this proposed
rule.
6. eCQM Reporting and Submission Requirements
a. Background
We refer readers to the CY 2014 OPPS/ASC final rule (78 FR 75106
and 75107), the CY 2015 OPPS/ASC final rule (79 FR 66956 through
66961), the CY 2016 OPPS/ASC final rule (80 FR 70516 through 70518),
the CY 2017 OPPS/ASC final rule (81 FR 79785 through 79790), the CY
2018 OPPS/ASC final rule (82 FR 59435 through 59438), the CY 2022 OPPS/
ASC final rule (86 FR 63867 through 63870), and the CY 2023 OPPS/ASC
final rule (87 FR 72113 through 72114) for more details on previous
discussion regarding future measure concepts related to eCQMs and
electronic reporting of data for the Hospital OQR Program, including
support for the introduction of eCQMs into the Program.
We refer readers to the CY 2022 OPPS/ASC final rule (86 FR 63867
through 63868), where we finalized the adoption of the STEMI eCQM
reporting and data submission requirements. For the CY 2024 reporting
period/CY 2026 payment determination, hospitals must submit one self-
selected quarter of data.
We are not proposing any changes to these policies in this proposed
rule.
b. Proposed Excessive Radiation Dose or Inadequate Image Quality
for Diagnostic Computed Tomography (CT) in Adults eCQM Reporting and
Data Submission Requirements
In section XIV.B.3.c of this proposed rule, we discuss the proposed
adoption of the Excessive Radiation eCQM beginning with the voluntary
CY 2025 reporting period followed by mandatory reporting beginning with
the CY 2026 reporting period/CY 2028 payment determination. In this
proposed rule, we propose a progressive increase in the number of
quarters for which hospitals report eCQM data. We propose that
hospitals that submit Excessive Radiation eCQM data during the CY 2025
voluntary period may submit up to all four quarter(s) of data.
Beginning with the CY 2026 mandatory reporting period/CY 2028
payment determination, we propose that hospitals report two self-
selected calendar quarters of data for the Excessive Radiation eCQM.
Beginning with the CY 2027 reporting period/CY 2029 payment
determination, we propose to require hospitals to report all four
calendar quarters (one calendar year) of data for the Excessive
Radiation eCQM. We believe that a phased implementation approach would
allow facilities the ability to make the necessary adjustments for data
submission over time and would produce more comprehensive and reliable
quality measure data for patients and providers. Furthermore, we
believe that aligning the schedule with the STEMI measure will allow
for a seamless transition from voluntary to mandatory reporting of all
calendar quarters.
[[Page 49799]]
We also refer readers to Table 71 for a summary of the proposed
quarterly data increase in eCQM reporting beginning with the CY 2025
reporting period.
[GRAPHIC] [TIFF OMITTED] TP31JY23.107
We also propose to require Excessive Radiation eCQM data submission
by May 15 in the year prior to the affected payment determination year.
All deadlines occurring on a Saturday, Sunday, or legal holiday, or on
any other day all or part of which is declared to be a non-workday for
federal employees by statute or Executive Order would be extended to
the first day thereafter. For example, for the CY 2026 reporting
period/CY 2028 payment determination, hospitals must report two self-
selected quarters of data and would be required to submit eCQM data by
May 15, 2027. This data submission deadline would follow our policies
on submission deadlines for eCQM data defined in section XIV.E.6.e of
this proposed rule.
We invite public comment on our proposals.
c. Electronic Clinical Quality Measure Certification Requirements for
eCQM Reporting
(1) Use of the 2015 Edition Cures Update Certification Criteria
We refer readers to the CY 2022 OPPS/ASC final rule (86 FR 63868
and 63869) for our policies regarding the requirement that hospitals
participating in the Hospital OQR Program utilize certified technology
updated consistent with the 2015 Edition Cures Update as finalized in
the Office of the National Coordinator for Health Information
Technology (ONC) 21st Century Cures Act final rule (85 FR 25642 through
25961) beginning with the CY 2023 reporting period/CY 2025 payment
determination.
We are not proposing any changes to these policies in this proposed
rule.
d. File Format for eCQM Data, Zero Denominator Declarations, and Case
Threshold Exemptions
(1) File Format for eCQM Data
We refer reader to the CY 2022 OPPS/ASC final rule (86 FR 42262)
for our policies regarding the file format for eCQM data.
We are not proposing any changes to these policies in this proposed
rule.
(2) Zero Denominator Declarations
We refer readers to the CY 2022 OPPS/ASC final rule (86 FR 63869)
for our policies regarding zero denominator declarations.
We are not proposing any changes to these policies in this proposed
rule.
(3) Case Threshold Exemptions
We refer readers to the CY 2022 OPPS/ASC final rule (86 FR 63869)
for our policies regarding case threshold exemptions.
We are not proposing any changes to these policies in this proposed
rule.
e. Submission Deadlines for eCQM Data
We refer readers to the CY 2022 OPPS/ASC final rule (86 FR 63870)
for our policies regarding submission deadlines for eCQM data.
We are not proposing any changes to these policies in this proposed
rule.
7. Proposed Data Submission and Reporting Requirements for Patient-
Reported Outcome-Based Performance Measures (PRO-PMs)
In section XIV.B.3.b of this proposed rule, we propose the adoption
of the hospital-level THA/TKA PRO-PM into the Hospital OQR Program
measure set. In this section of the proposed rule, we propose the
reporting and submission requirements for PRO-PM as a new type of
measure to the Hospital OQR Program.
a. Submission of PRO-PM Data
(1) Data Submission Generally
In section XIV.B.3.b of this proposed rule, we propose adoption of
the THA/TKA PRO-PM in the Hospital OQR Program beginning with voluntary
CYs 2025 and 2026 reporting periods and mandatory reporting period
beginning with the CY 2027/CY 2030 payment determination. We propose
that hospitals and vendors use the HQR System for data submission for
the THA/TKA PRO-PM, which would enable us to incorporate this new
requirement into the infrastructure we have developed and use to
collect other quality data. HOPDs may choose to: (1) send their data to
CMS directly; or (2) utilize an external entity, such as through a
vendor or registry, to submit data on behalf of the facility to CMS. We
would provide hospitals with additional detailed information and
instructions for submitting data using the HQR System through CMS'
existing websites, through outreach, or both. Use of the HQR system
leverages existing CMS infrastructure already utilized for other
quality measures. The HQR System allows for data submission using
multiple file formats (such as CSV, XML) and a manual data entry
option, allowing facilities and vendors additional flexibility in data
submission.
(2) Data Submission Reporting Requirements
(a) Voluntary Reporting Requirements for the Proposed THA/TKA PRO-PM
For hospitals participating in voluntary reporting for the THA/TKA
PRO-PM as discussed in section
[[Page 49800]]
XIV.B.3.b of this proposed rule, we propose that hospitals submit pre-
operative PRO data, as well as matching post-operative PRO data, for at
least 50 percent of their eligible elective primary THA/TKA procedures.
For the THA/TKA PRO-PM, we propose that the first voluntary
reporting period for CY 2025 would include pre-operative PRO data
collection from 90 to 0 days before the procedure (for eligible
elective THA/TKA procedures performed from January 1, 2025, through
December 31, 2025) and post-operative PRO data collection from 300 to
425 days after the procedure. Therefore, during the first voluntary
reporting period for CY 2025, hospitals would submit pre-operative data
by May 15, 2026 and post-operative data by May 15, 2027, and we intend
to provide hospitals with their results in confidential feedback
reports in CY 2028. All deadlines occurring on a Saturday, Sunday, or
legal holiday, or on any other day all or part of which is declared to
be a non-workday for federal employees by statute or Executive order
would be extended to the first day thereafter. After the initial
submission of pre-operative data for the first voluntary period,
hospitals would submit both pre-operative data for the second voluntary
period and post-operative data for the first voluntary period by the
same data submission deadline, but for the different voluntary
reporting periods. For example, hospitals would need to submit: (1)
post-operative data for the first voluntary reporting (for procedures
performed between January 1, 2025, and December 31, 2025); and (2) pre-
operative data for the second voluntary reporting (for procedures
performed between January 1, 2026, and December 31, 2026) of the THA/
TKA PRO-PM by May 15, 2027.
For the THA/TKA PRO-PM, we propose that the second voluntary
reporting period for the CY 2026 reporting period would include pre-
operative PRO data collection from 90 to 0 days before the procedure
(for eligible elective THA/TKA procedures performed from January 1,
2026 through December 31, 2026) and post-operative PRO data collection
from 300 to 425 days after the procedure. Hospitals would submit pre-
operative data for the second voluntary reporting period by May 15,
2027 and post-operative data for the second voluntary reporting period
by May 15, 2028.we intend to provide hospitals with their results in
confidential feedback reports in CY 2029. HOPDs that voluntarily submit
data for this measure would receive confidential feedback reports that
detail submission results from the reporting period. Results of
voluntary reporting would not be made publicly available. If feasible,
we would calculate and provide each participating facility with their
RSIR as part of the confidential feedback reports. This would provide
each facility with an indication of their performance relative to the
other facilities that participate in the voluntary reporting period.
While we do not propose to publicly report the data we receive
during the voluntary reporting periods for the THA/TKA PRO-PM facility-
level RSIR, we propose to publicly report which facilities choose to
participate in voluntary reporting and/or the percent of pre-operative
data submitted by participating facilities for the first voluntary
reporting period, and their percent of pre-operative and post-operative
matched PRO data submitted for subsequent voluntary reporting periods.
For example, if out of 100 eligible procedures a facility submits 45
pre-operative cases that match to post-operative cases, then we would
report that the facility submitted 45 percent of matched pre-operative
and post-operative PRO surveys during voluntary reporting.
We refer readers to Table 72 for an overview of the proposed
performance period, pre- and post-operative data collection timeframes,
and data submission deadlines during the voluntary reporting periods
for THA/TKA PRO-PM.
[GRAPHIC] [TIFF OMITTED] TP31JY23.108
[[Page 49801]]
(b) Mandatory Reporting
Following the voluntary reporting periods, we propose that
mandatory reporting of the THA/TKA PRO-PM would begin with reporting
PRO data for eligible elective THA/TKA procedures from January 1, 2027
through December 31, 2027 (the CY 2027 performance period), impacting
the CY 2030 payment determination. This initial mandatory reporting
would include pre-operative PRO data collection from 90 days preceding
the applicable performance period and from 300 to 425 days after the
performance period. For example, pre-operative data from October 3,
2026 through December 31, 2027 (for eligible elective primary THA/TKA
procedures from January 1, 2027 through December 31, 2027) and post-
operative PRO data collection from October 28, 2027 to February 28,
2029. Pre-operative data submission would occur by May 15, 2028 and
post-operative data submission would occur by May 15, 2029.
We intend to provide hospitals with their results in CY 2030 before
publicly reporting results on the Compare tool hosted by HHS, currently
available at https://www.medicare.gov/care-compare, or its successor
website. We would provide confidential feedback reports during the
voluntary period which would include the risk-standardized improvement
rate (RSIR); as well as other results that support understanding of
their performance prior to public reporting. For this first mandatory
reporting period, hospitals that fail to meet the reporting
requirements would receive a reduction of their Annual Payment Update
(APU) in the CY 2030 payment determination. We propose that hospitals
would be required to submit 50 percent of eligible, complete pre-
operative data with matching eligible, complete post-operative data as
a minimum amount of data for mandatory reporting in the Hospital OQR
Program.
We refer readers to Table 73 below. for an overview of the proposed
performance period, pre- and post-operative data collection timeframes,
and data submission deadlines during the first year of mandatory
reporting.
[GRAPHIC] [TIFF OMITTED] TP31JY23.109
We invite comment on these proposals.
8. Population and Sampling Data Requirements for the CY 2023 Payment
Determination and Subsequent Years
We refer readers to the CY 2011 OPPS/ASC final rule (75 FR 72100
through 72103) and the CY 2012 OPPS/ASC final rule (76 FR 74482 through
74483) for our policies regarding population and sampling data
requirements.
We are not proposing any changes to these policies in this proposed
rule.
9. Review and Corrections Period for Measure Data Submitted to the
Hospital OQR Program
a. Chart-Abstracted Measures
We refer readers to the CY 2015 OPPS/ASC final rule (79 FR 66964
and 67014) for our policies regarding a review and corrections period
for chart-abstracted measures in the Hospital OQR Program.
We are not proposing any changes to these policies in this proposed
rule.
b. Web-Based Measures
We refer readers to the CY 2021 OPPS/ASC final rule (85 FR 86184)
for our policies regarding a review and corrections period for web-
based measures in the Hospital OQR Program.
We are not proposing any changes to these policies in this proposed
rule.
c. Electronic Clinical Quality Measures (eCQMs)
We refer readers to the CY 2022 OPPS/ASC final rule (86 FR 63870)
for our policies regarding a review and corrections period for eCQMs in
the Hospital OQR Program. We refer readers to the CMS website
(currently available at: https://qualitynet.cms.gov/outpatient/measures/eCQM) and the eCQI Resource Center (available at: https://ecqi.healthit.gov/) for more resources on eCQM reporting.
We are not proposing any changes to these policies in this proposed
rule.
d. OAS CAHPS Measures
We refer readers to the CY 2022 OPPS/ASC final rule (86 FR 63870)
and the CY 2017 OPPS/ASC final rule (81 FR 79793) for our policies
regarding a review and corrections period for OAS CAHPS measures in the
Hospital OQR Program.
We are not proposing any changes to these policies in this proposed
rule.
[[Page 49802]]
10. Hospital OQR Program Validation Requirements
a. Background
We refer readers to the CY 2011 OPPS/ASC final rule (75 FR 72105
through 72106), the CY 2013 OPPS/ASC final rule (77 FR 68484 through
68487), the CY 2015 OPPS/ASC final rule (79 FR 66964 through 66965),
the CY 2016 OPPS/ASC final rule (80 FR 70524), the CY 2018 OPPS/ASC
final rule (82 FR 59441 through 59443), the CY 2022 OPPS/ASC final rule
(86 FR 63870 through 63873), the CY 2023 OPPS/ASC final rule (87 FR
72115 through 72116), and Sec. 419.46(f) for our policies regarding
validation.
We are not proposing any changes to these policies in this proposed
rule.
b. Use of Electronic File Submissions for Chart-Abstracted Measure
Medical Records Requests
We refer readers to the CY 2022 OPPS/ASC final rule (86 FR 63870)
for additional information on the use of electronic file submissions
for chart-abstracted measure medical records requests.
We are not proposing any changes to these policies in this proposed
rule.
c. Time Period for Chart-Abstracted Measure Data Validation
We refer readers to the chart-abstracted validation requirements
and methods we adopted in the CY 2014 OPPS/ASC final rule (78 FR 75117
through 75118) and codified at Sec. 419.46(f)(1) for the CY 2025
payment determination and subsequent years. We refer readers to Sec.
419.46(f)(1) for our policies regarding the time period for chart-
abstracted measure data validation.
We are not proposing any changes to these policies in this proposed
rule.
d. Targeting Criteria
We refer readers to the CY 2012 OPPS/ASC final rule (76 FR 74485),
where we finalized a validation selection process in which we select a
random sample of 450 hospitals for validation purposes and select an
additional 50 hospitals based on specific criteria; the CY 2013 OPPS/
ASC final rule (77 FR 68485 and 68486), where we finalized that a
hospital will be preliminarily selected for validation based on
targeting criteria if it fails the validation requirement that applies
to the previous year's payment determination, and for a discussion of
finalized policies regarding our medical record validation procedure
requirements; the CY 2018 OPPS/ASC final rule (82 FR 59441), where we
clarified that an ``outlier value'' for purposes of the targeting
criterion; the CY 2022 OPPS/ASC final rule (86 FR 63872), where we
finalized the addition of two targeting criteria: (1) any hospital that
has not been randomly selected for validation in any of the previous
three years; or (2) any hospital that passed validation in the previous
year and had a two-tailed confidence interval that included 75 percent;
and the CY 2023 OPPS/ASC final rule (87 FR 72115 through 72116), where
we finalized an additional targeting criteria: any hospital with a two-
tailed confidence interval that is less than 75 percent, and that had
less than four quarters of data due to receiving an ECE for one or more
quarters. We refer readers to Sec. 419.46(f)(3) for our policies
regarding the validation selection process and targeting criteria.
We are not proposing any changes to these policies in this proposed
rule.
e. Educational Review Process and Score Review and Correction Period
for Chart-Abstracted Measures
We refer readers to Sec. 419.46(f)(4) for our policies regarding
the educational review process, including validation score review and
correction, for chart-abstracted measures.
We are not proposing any changes to these policies in this proposed
rule.
11. Extraordinary Circumstances Exception (ECE) Process
We refer readers to Sec. 419.46(e) for our policies regarding the
extraordinary circumstances exception (ECE) process under the Hospital
OQR Program. We propose to amend our exception policy codified at Sec.
419.46(e)(1) to replace references to ``QualityNet'' with ``CMS-
designated information system'' or ``CMS website.'' and to make other
conforming technical edits, to accommodate recent and future systems
requirements and mitigate confusion for program participants.
We invite public comment on this proposal.
Other than the proposal to amend Sec. 419.46(e)(1), we are not
proposing any changes to these policies in this proposed rule.
12. Hospital OQR Program Reconsideration and Appeals Procedures
We refer readers to Sec. 419.46(g) for our policies regarding
reconsideration and appeals procedures. We propose to amend our
submission deadline codified at Sec. 419.46(g)(1) to replace
references to ``QualityNet'' with ``CMS-designated information system''
or ``CMS website,'' and to make other conforming technical edits, to
accommodate recent and future systems requirements and mitigate
confusion for program participants.
We invite public comment on this proposal.
Other than the proposal to amend Sec. 419.46(g)(1), we are not
proposing any changes to these policies in this proposed rule.
F. Payment Reduction for Hospitals That Fail To Meet the Hospital OQR
Program Requirements for the CY 2024 Payment Determination
1. Background
Section 1833(t)(17) of the Act, which applies to subsection (d)
hospitals (as defined under section 1886(d)(1)(B) of the Act), states
that hospitals that fail to report data required to be submitted on
measures selected by the Secretary, in the form and manner, and at a
time, specified by the Secretary will incur a 2.0 percentage point
reduction to their Outpatient Department (OPD) fee schedule increase
factor; that is, the annual payment update factor. Section
1833(t)(17)(A)(ii) of the Act specifies that any reduction applies only
to the payment year involved and will not be taken into account in
computing the applicable OPD fee schedule increase factor for a
subsequent year.
The application of a reduced OPD fee schedule increase factor
results in reduced national unadjusted payment rates that apply to
certain outpatient items and services provided by hospitals that are
required to report outpatient quality data in order to receive the full
payment update factor and that fail to meet the Hospital OQR Program
requirements. Hospitals that meet the reporting requirements receive
the full OPPS payment update without the reduction. For a more detailed
discussion of how this payment reduction was initially implemented, we
refer readers to the CY 2009 OPPS/ASC final rule with comment period
(73 FR 68769 through 68772).
The national unadjusted payment rates for many services paid under
the OPPS equal the product of the OPPS conversion factor and the scaled
relative payment weight for the APC to which the service is assigned.
The OPPS conversion factor, which is updated annually by the OPD fee
schedule increase factor, is used to calculate the OPPS payment rate
for services with the following status indicators (listed in Addendum B
to the proposed rule, which is available via the internet on the CMS
website): ``J1'', ``J2'', ``P'', ``Q1'', ``Q2'', ``Q3'', ``R'', ``S'',
``T'', ``V'', or ``U''. In the CY 2017 OPPS/ASC final
[[Page 49803]]
rule with comment period (81 FR 79796), we clarified that the reporting
ratio does not apply to codes with status indicator ``Q4'' because
services and procedures coded with status indicator ``Q4'' are either
packaged or paid through the Clinical Laboratory Fee Schedule and are
never paid separately through the OPPS. Payment for all services
assigned to these status indicators will be subject to the reduction of
the national unadjusted payment rates for hospitals that fail to meet
Hospital OQR Program requirements, with the exception of services
assigned to New Technology APCs with assigned status indicator ``S'' or
``T''. We refer readers to the CY 2009 OPPS/ASC final rule with comment
period (73 FR 68770 through 68771) for a discussion of this policy.
The OPD fee schedule increase factor is an input into the OPPS
conversion factor, which is used to calculate OPPS payment rates. To
reduce the OPD fee schedule increase factor for hospitals that fail to
meet reporting requirements, we calculate two conversion factors--a
full market basket conversion factor (that is, the full conversion
factor), and a reduced market basket conversion factor (that is, the
reduced conversion factor). We then calculate a reduction ratio by
dividing the reduced conversion factor by the full conversion factor.
We refer to this reduction ratio as the ``reporting ratio'' to indicate
that it applies to payment for hospitals that fail to meet their
reporting requirements. Applying this reporting ratio to the OPPS
payment amounts results in reduced national unadjusted payment rates
that are mathematically equivalent to the reduced national unadjusted
payment rates that would result if we multiplied the scaled OPPS
relative payment weights by the reduced conversion factor. For example,
to determine the reduced national unadjusted payment rates that applied
to hospitals that failed to meet their quality reporting requirements
for the CY 2010 OPPS, we multiplied the final full national unadjusted
payment rate found in Addendum B of the CY 2010 OPPS/ASC final rule
with comment period by the CY 2010 OPPS final rule with comment period
reporting ratio of 0.980 (74 FR 60642).
We note that the only difference in the calculation for the full
conversion factor and the calculation for the reduced conversion factor
is that the full conversion factor uses the full OPD update and the
reduced conversion factor uses the reduced OPD update. The baseline
OPPS conversion factor calculation is the same since all other
adjustments would be applied to both conversion factor calculations.
Therefore, our standard approach of calculating the reporting ratio as
described earlier in this section is equivalent to dividing the reduced
OPD update factor by that of the full OPD update factor. In other
words:
Full Conversion Factor = Baseline OPPS conversion factor * (1 + OPD
update factor)
Reduced Conversion Factor = Baseline OPPS conversion factor * (1 + OPD
update factor-0.02)
Reporting Ratio = Reduced Conversion Factor/Full Conversion Factor
Which is equivalent to:
Reporting Ratio = (1 + OPD Update factor-0.02)/(1 + OPD update factor)
In the CY 2009 OPPS/ASC final rule with comment period (73 FR 68771
through 68772), we established a policy that the Medicare beneficiary's
minimum unadjusted copayment and national unadjusted copayment for a
service to which a reduced national unadjusted payment rate applies
would each equal the product of the reporting ratio and the national
unadjusted copayment or the minimum unadjusted copayment, as
applicable, for the service. Under this policy, we apply the reporting
ratio to both the minimum unadjusted copayment and national unadjusted
copayment for services provided by hospitals that receive the payment
reduction for failure to meet the Hospital OQR Program reporting
requirements. This application of the reporting ratio to the national
unadjusted and minimum unadjusted copayments is calculated according to
Sec. 419.41 of our regulations, prior to any adjustment for a
hospital's failure to meet the quality reporting standards according to
Sec. 419.43(h). Beneficiaries and secondary payers thereby share in
the reduction of payments to these hospitals.
In the CY 2009 OPPS/ASC final rule with comment period (73 FR
68772), we established the policy that all other applicable adjustments
to the OPPS national unadjusted payment rates apply when the OPD fee
schedule increase factor is reduced for hospitals that fail to meet the
requirements of the Hospital OQR Program. For example, the following
standard adjustments apply to the reduced national unadjusted payment
rates: the wage index adjustment, the multiple procedure adjustment,
the interrupted procedure adjustment, the rural sole community hospital
adjustment, and the adjustment for devices furnished with full or
partial credit or without cost. Similarly, OPPS outlier payments made
for high cost and complex procedures will continue to be made when
outlier criteria are met. For hospitals that fail to meet the quality
data reporting requirements, the hospitals' costs are compared to the
reduced payments for purposes of outlier eligibility and payment
calculation. We established this policy in the OPPS beginning in the CY
2010 OPPS/ASC final rule with comment period (74 FR 60642). For a
complete discussion of the OPPS outlier calculation and eligibility
criteria, we refer readers to section II.G of the CY 2023 OPPS/ASC
proposed rule (87 FR 44533 through 44534).
2. Reporting Ratio Application and Associated Adjustment Policy for CY
2024
We proposed to continue our established policy of applying the
reduction of the OPD fee schedule increase factor through the use of a
reporting ratio for those hospitals that fail to meet the Hospital OQR
Program requirements for the full CY 2024 annual payment update factor.
For this CY 2024 OPPS/ASC proposed rule, the proposed reporting ratio
is 0.9805, which, when multiplied by the proposed full conversion
factor of $87.488, equals a proposed conversion factor for hospitals
that fail to meet the requirements of the Hospital OQR Program (that
is, the reduced conversion factor) of $85.782. We propose to continue
to apply the reporting ratio to all services calculated using the OPPS
conversion factor. We propose to continue to apply the reporting ratio,
when applicable, to all HCPCS codes to which we have proposed status
indicator assignments of ``J1'', ``J2'', ``P'', ``Q1'', ``Q2'', ``Q3'',
``R'', ``S'', ``T'', ``V'', and ``U'' (other than New Technology APCs
to which we have proposed status indicator assignments of ``S'' and
``T''). We proposed to continue to exclude services paid under New
Technology APCs. We propose to continue to apply the reporting ratio to
the national unadjusted payment rates and the minimum unadjusted and
national unadjusted copayment rates of all applicable services for
those hospitals that fail to meet the Hospital OQR Program reporting
requirements. We also propose to continue to apply all other applicable
standard adjustments to the OPPS national unadjusted payment rates for
hospitals that fail to meet the requirements of the Hospital OQR
Program. Similarly, we propose to continue to calculate OPPS outlier
eligibility and outlier payment based on the reduced payment rates for
those hospitals that fail to meet the reporting requirements. In
addition to our
[[Page 49804]]
proposal to implement the policy through the use of a reporting ratio,
we also propose to calculate the reporting ratio to four decimals
(rather than the previously used three decimals) to more precisely
calculate the reduced adjusted payment and copayment rates.
For CY 2024, the proposed reporting ratio is 0.9805, which, when
multiplied by the proposed full conversion factor of $87.488, equaled a
proposed conversion factor for hospitals that fail to meet the
requirements of the Hospital OQR Program (that is, the reduced
conversion factor) of $85.782.
XV. Ambulatory Surgical Center Quality Reporting (ASCQR) Program
Requirements, Proposals, and Requests for Comment
A. Background
1. Overview
We seek to promote higher quality, more efficient, and equitable
healthcare for Medicare beneficiaries. Consistent with these goals, we
have implemented quality reporting programs for multiple care settings,
including the Ambulatory Surgical Center Quality Reporting (ASCQR)
Program for ambulatory surgical center care.
2. Statutory Authority for the ASCQR Program
Section 1833(i)(7)(A) authorizes the Secretary to reduce any annual
increase under the revised ambulatory surgical center (ASC) payment
system by 2.0 percentage points for such year that an ASC that fails to
submit required data on quality measures specified by the Secretary in
accordance with section 1833(i)(7)(B) of the Act. Section 1833(i)(7)(B)
of the Act states that, except as the Secretary may otherwise provide,
several of the statutory provisions governing the Hospital Outpatient
Quality Reporting (OQR) Program, specifically section 1833(t)(17)(B)
through (E) of the Act, also apply to the services of ASCs under the
ASCQR Program in a similar manner to the manner in which they apply to
the services of hospital outpatient departments under the Hospital OQR
Program. Sections 1833(t)(17)(B) through (E) of the Act generally
govern the development and replacement of quality measures, the form
and manner of submission of data to CMS, and procedures for making the
data submitted to CMS available to the public.
We refer readers to the CY 2012 OPPS/ASC final rule (76 FR 74492
through 74494) for a detailed discussion of the statutory authority of
the ASCQR Program.
3. Regulatory History of the ASCQR Program
We refer readers to the following final rules for detailed
discussions of the regulatory history of the ASCQR Program:
CY 2012 OPPS/ASC final rule (76 FR 74492 through 74517);
FY 2013 IPPS/LTCH PPS final rule (77 FR 53637 through
53644);
CY 2013 OPPS/ASC final rule (77 FR 68492 through 68500);
CY 2014 OPPS/ASC final rule (78 FR 75122 through 75141);
CY 2015 OPPS/ASC final rule (79 FR 66966 through 66987);
CY 2016 OPPS/ASC final rule (80 FR 70526 through 70538);
CY 2017 OPPS/ASC final rule (81 FR 79797 through 79826);
CY 2018 OPPS/ASC final rule (82 FR 59445 through 59476);
CY 2019 OPPS/ASC final rule (83 FR 59110 through 59139);
CY 2020 OPPS/ASC final rule (84 FR 61420 through 61434);
CY 2021 OPPS/ASC final rule (85 FR 86187 through 86193);
CY 2022 OPPS/ASC final rule (86 FR 63875 through 63911);
and
CY 2023 OPPS/ASC final rule (87 FR 72117 through 72136)
We have codified certain requirements under the ASCQR Program at 42
CFR part 416, subpart H (Sec. 416.300 through Sec. 416.330). We refer
readers to section XV.E of this proposed rule for a detailed discussion
of the payment reduction for ASCs that fail to meet program
requirements.
B. ASCQR Program Quality Measures
1. Considerations in the Selection of ASCQR Program Quality Measures
We refer readers to the CY 2013 OPPS/ASC final rule (77 FR 68493
and 68494) for a detailed discussion of the priorities we consider for
quality measure selection for the ASCQR Program.
We are not proposing any changes to these policies in this proposed
rule.
2. Retention of Previously Adopted ASCQR Program Measures
We previously finalized and codified at Sec. 416.320(a) our policy
regarding retention of quality measures adopted for the ASCQR Program.
Specifically, our regulation at Sec. 416.320(a) provides that we will
retain quality measures previously adopted for the ASCQR Program as
part of its measure set unless we remove, suspend, or replace the
measure.
We are not proposing any changes to this policy in this proposed
rule.
3. Removal, Replacement, or Suspension of Quality Measures From the
ASCQR Program Measure Set
a. Immediate Removal of Program Measures
We refer readers to Sec. 416.320(b) for our policies regarding
immediate removal of a measure for the ASCQR Program based on evidence
that the continued use of the measure as specified raises patient
safety concerns. We propose to amend our measure removal policy
codified at Sec. 416.320(b) to replace references to ``QualityNet''
with ``CMS-designated information system'' or ``CMS website,'' and to
make other conforming technical edits, to accommodate recent and future
systems requirements and mitigate confusion for program participants.
We invite public comment on this proposal.
b. Removal, Replacement, or Suspension of Program Measures
We previously finalized and codified at Sec. 416.320(c) our
policies regarding removal of quality measures adopted for the ASCQR
Program. Specifically, our regulation at Sec. 416.320(c) provides
that, unless a measure raises specific safety concerns, we will use the
regular rulemaking process, allowing public comment, to remove,
suspend, or replace quality measures in the ASCQR Program. Our
regulation at Sec. 416.320(c)(2) further provides that we will weigh
whether to remove measures based on eight factors, including whether a
measure is ``topped-out'' (Sec. 416.320(c)(2)(i)), based on criteria
set forth in our regulation at Sec. 416.320(c)(3). However, as
provided in our regulation at Sec. 416.320(c)(4), we will assess the
benefits of removing a measure on a case-by-case basis and will not
remove a measure solely on the basis of it meeting any of specific
factor or criterion.
We are not proposing any changes to these policies in this proposed
rule.
4. Modifications to Previously Adopted Measures
In this proposed rule, we propose to modify three previously
adopted measures beginning with the CY 2024 reporting period/CY 2026
payment determination: (1) COVID-19 Vaccination Coverage Among
Healthcare Personnel (HCP) measure; (2) Cataracts: Improvement in
Patient's Visual Function Within 90 Days Following Cataract Surgery
measure survey instrument use; and (3) Endoscopy/Polyp Surveillance:
Appropriate Follow-Up Interval for
[[Page 49805]]
Normal Colonoscopy in Average Risk Patients measure.
a. Proposed Modification of the COVID-19 Vaccination Coverage Among
HealthCare Personnel (HCP) Measure Beginning With the CY 2024 Reporting
Period/CY 2026 Payment Determination
(1) Background
On January 31, 2020, the Secretary of the Department of Health and
Human Services (HHS) declared a public health emergency (PHE) for the
United States in response to the global outbreak of SARS-COV-2, a then
novel coronavirus that causes a disease named ``coronavirus disease
2019'' (COVID-19).\367\ Subsequently, the COVID-19 Vaccination Coverage
Among Health Care Personnel (HCP) measure was adopted across multiple
quality reporting programs, including the ASCQR Program (86 FR 63875
through 63833).\368\ COVID-19 has continued to spread domestically and
around the world with more than 102.7 million cases and 1.1 million
deaths in the United States alone as of February 13, 2023.\369\ The
Secretary renewed the PHE on April 21, 2020 and then every three months
thereafter, with the final renewal on February 9, 2023.\370\ The PHE
ended on May 11, 2023; however, the public health response to COVID-19
remains a public health priority including vaccination efforts.\371\
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\367\ U.S. Dept of Health and Human Services, Office of the
Assistant Secretary for Preparedness and Response. (2020).
Determination that a Public Health Emergency Exists. Available at:
https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx.
\368\ The Hospital Inpatient Quality Reporting Program (86 FR
45374 through 45382), the Hospital OQR Program (86 FR 63824 through
63833), the Inpatient Psychiatric Facility Quality Reporting Program
(86 FR 42633 through 42640), the PPS-Exempt Cancer Hospital Quality
Reporting Program (86 FR 45428 through 45434), the Long-Term Care
Hospital Quality Reporting Program (86 FR 45438 through 45446), the
Skilled Nursing Facility Quality Reporting Program (86 FR 42480
through 42489), the End-Stage Renal Disease Quality Incentive
Program (87 FR 67244 through 67248), and the Inpatient
Rehabilitation Facility Quality Reporting Program (86 FR 42385
through 42396).
\369\ Centers for Disease Control and Prevention. COVID Data
Tracker. Accessed February 13, 2023. Available at: https://covid.cdc.gov/covid-data-tracker/#datatracker-home.
\370\ U.S. Dept. of Health and Human Services. Office of the
Assistant Secretary for Preparedness and Response. (2023). Renewal
of Determination that a Public Health Emergency Exists. Available
at: https://aspr.hhs.gov/legal/PHE/Pages/COVID19-9Feb2023.aspx.
\371\ U.S. Dept. of Health and Human Services. Fact Sheet:
COVID-19 Public Health Emergency Transition Roadmap. February 9,
2023. Available at: https://www.hhs.gov/about/news/2023/02/09/fact-sheet-covid-19-public-health-emergency-transition-roadmap.html.
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As stated in the CY 2022 OPPS/ASC final rule (86 FR 63876) and in
our ``Revised Guidance for Staff Vaccination Requirements,''
vaccination is a critical part of the nation's strategy to effectively
counter the spread of COVID-19.372 373 374 We continue to
believe it is important to incentivize and track HCP vaccination
through quality measurement across care settings, including the ASC
setting, to protect health care workers, patients, and caregivers, and
to help sustain the ability of HCP in each of these care settings to
continue serving their communities. Studies indicate higher levels of
population-level vaccine effectiveness in preventing COVID-19 infection
among HCP and other frontline workers in multiple industries, with
vaccines having a 90 percent effectiveness in preventing symptomatic
and asymptomatic infection from December 2020 through August 2021.\375\
Since the Food and Drug Administration (FDA) issued emergency use
authorizations (EUAs) for selected initial and primary vaccines for
adults, vaccines have been highly effective in real-world conditions at
preventing COVID-19 in HCP with up to 96 percent efficacy for fully
vaccinated HCP, including those at risk for severe infection and those
in racial and ethnic groups disproportionately affected by COVID-
19.376 377 378 379 Overall, data demonstrate that COVID-19
vaccines are effective and prevent severe disease, hospitalization, and
death from the COVID-19 infection.\380\
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\372\ Centers for Medicare & Medicaid Services. (October 26,
2022). Revised Guidance for Staff Vaccination Requirements.
Available at: https://www.cms.gov/medicareprovider-enrollment-and-certificationsurveycertificationgeninfopolicy-and-memos-states-and/revised-guidance-staff-vaccination-requirements.
\373\ Centers for Disease Control and Prevention. (September 24,
2021). Morbidity and Mortality Weekly Report (MMWR). Comparative
Effectiveness of Moderna, Pfizer-BioNTech, and Janssen (Johnson &
Johnson) Vaccines in Preventing COVID-19 Hospitalizations Among
Adults Without Immunocompromising Conditions--United States, March-
August 2021. Available at: https://cdc.gov/mmwr/volumes/70/wr/mm7038e1.htm?s_cid=mm7038e1_w.
\374\ Centers for Medicare & Medicaid Services. (2022). Revised
Guidance for Staff Vaccination Requirements. Available at: https://www.cms.gov/files/document/qs0-23-02-all.pdf.
\375\ Centers for Disease Control and Prevention. (August 27,
2021). Morbidity and Mortality Weekly Report (MMWR). Effectiveness
of COVID-19 Vaccines in Preventing SARS-COV-2 Infection Among
Frontline Workers Before and During B.1.617.2 (Delta) Variant
Predominance--Eight U.S. Locations, December 2020-August 2021.
Available at: https://www.cdc.gov/mmwr/volumes/70/wr/mm7034e4.htm.
\376\ Pilishivi T, Gierke R, Fleming-Dutra KE, et al. (2022).
Effectiveness of mRNA Covid-19 Vaccine among U.S. Health Care
Personnel. New England Journal of Medicine, 385(25), e90. https://doi.org/10.1056/NEJMoa2106599.
\377\ Centers for Disease Control and Prevention. (2021).
Morbidity and Mortality Weekly Report (MMWR). Monitoring Incidence
of COVID-19 Cases, Hospitalizations, and Deaths, by Vaccination
Status--13 U.S. Jurisdictions, April 4-July 17, 2021. Available at:
https://www.cdc.gov/mmwr/volumes/70/wr/mm7037e1.htm.
\378\ Centers for Medicare & Medicaid Services. (2022). Revised
Guidance for Staff Vaccination Requirements QSO-23-02-ALL. Available
at: https://www.cms.gov/files/document/qs0-23-02-all.pdf.
\379\ Food and Drug Administration. (2020). FDA Takes Key Action
in Fight Against COVID-19 By Issuing Emergency Use Authorization for
First COVID-19 Vaccine. Available at: https://www.fda.gov/news-events/press-announcements/fda-takes-key-action-fight-against-covid-19-issuing-emergency-use-authorization-first-covid-19.
\380\ McGarry BE et al. (January 2022). Nursing Home Staff
Vaccination and Covid-19 Outcomes. New England Journal of Medicine.
2022 Jan 27;386(4):397-398. Available online at: https://pubmed.ncbi.nlm.nih.gov/34879189/.
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When we adopted the COVID-19 Vaccination Coverage Among HCP measure
in the CY 2022 OPPS/ASC final rule (86 FR 63875 through 63883), we
acknowledged that the measure did not address booster shots for COVID-
19 vaccination (86 FR 63881), although the FDA authorized, and the
Centers for Disease Control and Prevention (CDC) recommended,
additional doses and booster doses of the COVID-19 vaccine for certain
individuals, particularly those who are immunocompromised due to age or
condition or who are living or working in high-risk settings, such as
HCP (86 FR 63881). However, we also stated that we believed the
numerator of the measure was sufficiently broad to include potential
future boosters as part of a ``complete vaccination course'' (86 FR
63881).
Since then, new variants of SARS-COV-2 have emerged around the
world and within the United States. Specifically, the Omicron variant
(and its related subvariants) is listed as a variant of concern by the
CDC because it spreads more easily than earlier variants.\381\ Vaccine
manufacturers have responded to the Omicron variant by developing
bivalent COVID-19 vaccines, which include a component of the original
virus strain to provide broad protection against COVID-19 and a
component of the Omicron variant to provide better protection against
COVID-19 caused by the Omicron variant.\382\ Booster doses of the
bivalent COVID-19 vaccine have proven effective at increasing immune
response to SARS-COV-2 variants, including Omicron, particularly in
individuals
[[Page 49806]]
who are more than six months removed from receipt of their primary
series.\383\ These booster doses are associated with a greater
reduction in infections among HCP and their patients relative to those
who only received primary series vaccination, with a rate of
breakthrough infections among HCP who received only the two-dose
regimen of 21.4 percent compared to a rate of 0.7 percent among boosted
HCP.384 385 Data from the existing COVID-19 Vaccination
Coverage Among HCP measure demonstrate clinically significant variation
in booster dose vaccination rates across ASCs.
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\381\ Centers for Disease Control and Prevention. (August 2021).
Variants of the Virus. Available at: https://www.cdc.gov/coronavirus/2019-ncov/variants/.
\382\ Food and Drug Administration. (November 2022). COVID-19
Bivalent Vaccine Boosters. Available at: https://www.fda.gov/emergency-preparedness-and-response/coronavirus-disease-2019-covid-19/covid-19-bivalent-vaccines.
\383\ Chalkias, S et al. (October 2022). A Bivalent Omicron-
Containing Booster Vaccine against Covid-19. N Engl J Med 2022;
387:1279-1291. Available online at: https://www.nejm.org/doi/full/10.1056/NEJMoa2208343.
\384\ Prasad N et al. (May 2022). Effectiveness of a COVID-19
Additional Primary or Booster Vaccine Dose in Preventing SARS-CoV-2
Infection Among Nursing Home Residents During Widespread Circulation
of the Omicron Variant--United States, February 14-March 27, 2022.
Morbidity and Mortality Weekly Report (MMWR). 2022 May 6;71(18):633-
637. Available online at: https://pubmed.ncbi.nlm.nih.gov/35511708/.
\385\ Oster Y et al. (May 2022). The effect of a third BNT162b2
vaccine on breakthrough infections in health care workers: a cohort
analysis. Clin Microbiol Infect. 2022 May;28(5):735.e1-735.e3.
Available online at: https://pubmed.ncbi.nlm.nih.gov/35143997/.
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We believe that vaccination remains the most effective means to
prevent the worst consequences of COVID-19, including severe illness,
hospitalization, and death. Given the availability of vaccine efficacy
data, EUAs issued by the FDA for bivalent boosters, the continued
presence of SARS-COV-2 in the United States, and variance among rates
of booster dose vaccination, we believe it is important to modify the
COVID-19 Vaccination Coverage Among HCP measure for HCP to receive
primary series and booster vaccine doses in a timely manner per the
CDC's recommendation that bivalent COVID-19 vaccine booster doses might
improve protection against SARS-CoV-2 Omicron sublineages.\386\
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\386\ Centers for Medicare and Medicaid Services. (October 26,
2022). Revised Guidance for Staff Vaccination Requirements. Center
for Clinical Standards and Quality/Quality, Safety & Oversight
Group. Available at: https://www.cms.gov/files/document/qs0-23-02-all.pdf.
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We propose to modify the COVID-19 Vaccination Coverage Among HCP
measure to utilize the term ``up to date'' in the HCP vaccination
definition. We also propose to update the numerator to specify the
timeframes within which an HCP is considered up to date with CDC
recommended COVID-19 vaccines, including booster doses, beginning with
the CY 2024 reporting period/CY 2026 payment determination for the
ASCQR Program.
We note that as we stated in the CY 2022 OPPS/ASC final rule (86 FR
63877), the COVID-19 Vaccination Coverage Among HCP measure is a
process measure that assesses HCP vaccination coverage rates and not an
outcome measure for which ASCs are held responsible for a particular
outcome. We propose to adopt the same modification to versions of the
measure that we have adopted for other quality reporting programs.\387\
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\387\ The Hospital Inpatient Quality Reporting Program, the
Long-Term Care Hospital Quality Reporting Program and the PPS-Exempt
Cancer Hospital Quality Reporting Program (88 FR 27074) as well as
the Inpatient Psychiatric Facility Quality Reporting Program (88 FR
21290), the Skilled Nursing Facility Quality Reporting Program (88
FR 21332), the End-Stage Renal Disease Quality Incentive Program (87
FR 67244),), and the Inpatient Rehabilitation Facility Quality
Reporting Program (88 FR 20985).
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(2) Overview of Measure
The COVID-19 Vaccination Coverage Among HCP measure is a process
measure developed by the CDC to track COVID-19 vaccination coverage
among HCP in various settings. ASCs report the required data for this
measure via the CDC's National Healthcare Safety Network (NHSN). We
refer readers to the CY 2022 OPPS/ASC final rule (86 FR 63877 through
63878) for more information on the initial review of the measure by the
Measure Applications Partnership (MAP).\388\
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\388\ Interested parties convened by the consensus-based entity
will provide input and recommendations on the Measures under
Consideration (MUC) list as part of the pre-rulemaking process
required by section 1890A of the Act. We refer readers to https://p4qm.org/PRMR-MSR for more information.
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We included an updated version of the measure on the Measures Under
Consideration (MUC) list for the 2022-2023 pre-rulemaking cycle for
consideration by the MAP. In December 2022, during the MAP's Hospital
Workgroup discussion, the workgroup stated that the revision of the
current measure captures up to date vaccination information in
accordance with the CDC's updated recommendations for additional and
booster doses since the measure's initial development. Additionally,
the Hospital Workgroup appreciated that the revised measure's target
population is broader and simplified from seven categories of HCP to
four.\389\ During the MAP's Health Equity Advisory Group review, the
group highlighted the importance of COVID-19 vaccination measures and
questioned whether the proposed revised version of the measure excludes
individuals with contraindications to FDA authorized or approved COVID-
19 vaccines, and if the measure would be stratified by demographic
factors. The measure developer confirmed that HCP with
contraindications to the vaccines are excluded from the measure
denominator, but stated that the measure would not be stratified since
the data are submitted at an aggregate rather than an individual level.
The MAP Rural Health Advisory Group expressed concerns about data
collection burden, citing that collection is performed manually.\390\
We note that when reviewed by the MAP, reporting for contract personnel
providing care or services not specifically included in the measure
denominator was fully optional, whereas this reporting is now required
to complete NHSN data entry, but is not included in the measure
calculation. The developer also noted that the model used for this
measure is based on the Influenza Vaccination Coverage Among HCP
measure (CBE #0431).\391\ We refer readers to sections XXIV.B and XXVI
(Collection of Information) of this proposed rule for additional detail
on the burden and impact of this proposal.
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\389\ Pre-rulemaking MUC lists and map reports. The Measures
Management System. (n.d.). Available at: https://mmshub.cms.gov/measure-lifecycle/measure-implementation/pre-rulemaking/lists-and-reports.
\390\ Ibid.
\391\ In previous years, we referred to the consensus-based
entity (CBE) by corporate name. We have updated this language to
refer to the CBE more generally.
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The proposed revised measure received conditional support for
rulemaking from the MAP pending (1) testing indicating the measure is
reliable and valid, and (2) endorsement by the consensus-based entity
(CBE). The MAP noted that the previous version of the measure received
endorsement from the CBE (CBE #3636) \392\ and that the measure steward
(CDC) intends to submit the updated measure for endorsement.\393\
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\392\ Centers for Medicare and Medicaid Services Measures
Inventory Tool. (n.d.). Available at: https://cmit.cms.gov/cmit/#/MeasureView?variantId=11670§ionNumber=1.
\393\ The measure steward owns and maintains a measure while a
measure developer develops, implements, and maintains a measure. In
this case, the CDC serves as both the measure steward and measure
developer. For more information on measure development, we refer
readers to: Centers for Medicare and Medicaid Services (2023). Roles
in Measure Development. Available at: https://mmshub.cms.gov/about-quality/new-to-measures/roles.
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(a) Measure Specifications
This measure is calculated quarterly by averaging the ASC's most
recently submitted and self-selected one week of data. The measure
includes at least 1 week of data collection a month for each of the
three months in a quarter. The
[[Page 49807]]
denominator is calculated as the aggregated number of HCP eligible to
work in the ASC for at least one day during the week of data
collection, excluding denominator-eligible individuals with
contraindications as defined by the CDC for all 3 months in a
quarter.\394\ Facilities report vaccination information for the
following four, separate categories of HCP to NHSN:
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\394\ Centers for Disease Control and Prevention. (2022).
Contraindications and precautions. Available at: https://www.cdc.gov/vaccines/covid-19/clinical-considerations/interim-considerations-us.html#contraindications.
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Employees: This includes all persons who receive a direct
paycheck from the reporting facility (i.e., on the facility's payroll),
regardless of clinical responsibility or patient contact.
Licensed independent practitioners (LIPs): This includes
only physicians (MD, DO), advanced practice nurses, and physician
assistants who are affiliated with the reporting facility, but are not
directly employed by it (i.e., they do not receive a paycheck from the
reporting facility), regardless of clinical responsibility or patient
contact. Post-residency fellows are also included in this category if
they are not on the facility's payroll.
Adult students/trainees and volunteers: This includes
medical, nursing, or other health professional students, interns,
medical residents, or volunteers aged 18 or older who are affiliated
with the facility but are not directly employed by it (i.e., they do
not receive a paycheck from the facility), regardless of clinical
responsibility or patient contact.
Other contract personnel: Contract personnel are defined
as persons providing care, treatment, or services at the facility
through a contract who do not fall into any of the previously discussed
denominator categories.\395\ This also includes vendors providing care,
treatment, or services at the facility who may or may not be paid
through a contract. We note that the other contract personnel category
is required for data submission to NHSN, but is not included as part of
the proposed COVID-19 Vaccination Coverage Among HCP measure.\396\
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\395\ For more details on the reporting of other contract
personnel, we refer readers to the NHSN COVID-19 Vaccination
Protocol, Weekly COVID-19 Vaccination Module for Healthcare
Personnel available at: https://www.cdc.gov/nhsn/pdfs/hps/covidvax/protocol-hcp-508.pdf.
\396\ Ibid.
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We are not proposing to modify the denominator exclusions. The
numerator is calculated as the cumulative number of HCP in the
denominator population who are considered up to date with CDC
recommended COVID-19 vaccines. The term ``up to date'' is defined as
meeting the CDC's set of criteria on the first day of the applicable
reporting quarter. The current definition of ``up to date'' for COVID-
19 vaccination can be found at: https://www.cdc.gov/nhsn/pdfs/hps/covidvax/UpToDateGuidance-508.pdf.
We refer readers to XV.D.1.c.(2) of this proposed rule for more
details on the proposed modifications to this measure's specifications.
We propose that public reporting of the modified version of the
COVID-19 Vaccination Coverage Among HCP for the ASCQR Program would
begin with the Fall 2024 Care Compare refresh, or as soon as
technically feasible.
(b) CBE Endorsement
The current version of the measure in ASCQR received CBE
endorsement (CBE #3636) on July 26, 2022.\397\ The measure steward
(CDC) intends to pursue CBE endorsement for the modified version of
this measure.
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\397\ Centers for Medicare & Medicaid Services. Measure
Specifications for Hospital Workgroup for the 2022 MUC List.
Available at: https://mmshub.cms.gov/sites/default/files/map-hospital-measure-specifications-manual-2022.pdf.
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(3) Data Submission and Reporting
We refer readers to the CY 2022 OPPS/ASC final rule (86 FR 63879
through 63883) for information on data submission and reporting of this
measure. While we are not proposing any changes to the data submission
or reporting process, we propose that reporting of the updated,
modified version of this measure would begin with the CY 2024 reporting
period for the ASCQR Program. Under the data submission and reporting
process, ASCs would collect the numerator and denominator for the
COVID-19 Vaccination Coverage Among HCP measure for at least one self-
selected week during each month of the reporting quarter and submit the
data to the NHSN Healthcare Personnel Safety (HPS) Component before the
quarterly deadline to meet ASCQR Program requirements. If an ASC
submits more than one week of data in a month, the most recent week's
data would be used to calculate the measure. For example, if first and
third week data are submitted, the third week data would be used. Each
quarter, the CDC would calculate a single quarterly COVID-19 HCP
vaccination coverage rate for each ASC, which would be calculated by
taking the average of the data from the three weekly rates submitted by
the ASC for that quarter. CMS would publicly report each quarterly
COVID-19 HCP vaccination coverage rate as calculated by the CDC (86 FR
63878).
We refer readers to section XIV.B.2.a of this proposed rule for the
same proposal for the Hospital OQR Program.
We invite public comment on this proposal.
b. Proposed Modification of the Survey Instrument Used for the
Cataracts: Improvement in Patient's Visual Function Within 90 Days
Following Cataract Surgery Measure Beginning With the Voluntary CY 2024
Reporting Period
(1) Background
In the CY 2014 OPPS/ASC final rule (78 FR 75129), we finalized the
adoption of the Cataracts: Improvement in Patient's Visual Function
Within 90 Days Following Cataract Surgery (Cataracts Visual Function)
measure beginning with the CY 2014 reporting period/CY 2016 payment
determination. This measure assesses the percentage of patients aged 18
years and older who had cataract surgery and had improvement in visual
function within 90 days following the cataract surgery via the
administration of pre-operative and post-operative survey instruments
(78 FR 75129). A ``survey instrument'' is an assessment tool that has
been appropriately validated for the population for which it being
used.\398\ For purposes of this proposed modification to the Cataracts
Visual Function measure, the survey instruments we considered and are
proposing to assess the visual function of a patient pre- and post-
operatively to determine whether the patient's visual function changed
within 90 days of cataract surgery. Currently, examples of survey
instruments assessing visual function include, but are not limited to,
the National Eye Institute Visual Function Questionnaire (NEI-VFQ), the
Visual Function (VF-14), the modified (VF-8R), the Activities of Daily
Vision Scale (ADVS), the Catquest, and the modified Catquest-9. While
the measure has been available for voluntary reporting in the ASCQR
Program since the CY 2015 reporting period, a number of ASCs have
reported data consistently using the survey instrument of their choice
(87 FR 72119). We refer readers to the Cataracts Visual Function
measure's Measure Information Form (MIF) and the ASCQR Program
Specifications Manual for additional detail, which is available at:
https://
[[Page 49808]]
qualitynet.cms.gov/asc/specifications-manuals.
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\398\ Ambulatory Surgical Center Specification Manual. (n.d.).
Qualitynet. Retrieved March 21, 2023, from https://qualitynet.cms.gov/asc/specifications-manuals.
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In the CY 2015 OPPS/ASC final rule (79 FR 66984), we expressed
concerns that clinicians' use of varying survey instruments would lead
to inconsistent measure results. However, a study conducted a
comparison among the 16 survey instruments currently accepted for use
by ASCs in collecting data for this measure and found them to be
scientifically validated, detected clinically important changes, and
provided comparable results.\399\ While all 16 survey instruments in
this study demonstrate usefulness for detecting clinically important
change in cataract patients, some survey instrument's detection
sensitivity scores higher than others.\400\
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\399\ McAlinden C, Gothwal VK, Khadka J, et al. (2011). A head-
to-head comparison of 16 cataract surgery outcome questionnaires.
Ophthalmology. 118(12):2374-81. https://doi.org/10.1016/j.ophtha.2011.06.008.
\400\ Ibid.
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Several commenters responding to the CY 2022 OPPS/ASC proposed rule
(86 FR 63846) requested additional guidance from CMS regarding measure
specifications and survey instruments for this Cataracts Visual
Function measure in the Hospital OQR Program. We have considered this
comment on this measure, and we agree that survey instruments for the
assessment of visual function pre- and post-cataract surgery should be
clarified in order to standardize acceptable survey instruments while
minimizing collecting and reporting burden and to improve measure
reliability. We propose to clarify which specific survey instruments
may be used for the assessment of visual function pre- and post-
cataract surgery for the Cataracts Visual Function measure in both the
Hospital OQR Program and the ASCQR Program, to ensure alignment of this
measure's specifications across our quality reporting programs. Thus,
for the ASCQR Program, we propose to limit the survey instruments that
an ASC may use to assess changes in a patient's visual function for
purposes of the Cataracts Visual Function measure to those listed
below:
The National Eye Institute Visual Function Questionnaire-
25 (NEI VFQ-25)
The Visual Functioning Patient Questionnaire (VF-14)
The Visual Functioning Index Patient Questionnaire (VF-8R)
(2) Considerations for the Standardization of Survey Instruments
Assessing Improvement in Patient's Visual Function Within 90 Days
Following Cataract Surgery
We took into consideration several factors when identifying which
specific survey instruments would be acceptable for ASCs to use when
collecting data for the Cataracts Visual Function measure, such as
comprehensiveness, validity, reliability, length, and burden. We
believe that these three proposed survey instruments will allow ASCs to
select the length of the survey instrument to be administered while
ensuring adequate validity and reliability.401 402 403 All
three of these proposed survey instruments are based upon the 51-item
National Eye Institute Visual Function Questionnaire (NEI VFQ-51)
survey instrument, which was the first survey instrument originally
developed for assessing a patient's visual function before and after
cataract surgery. Each of the three proposed survey instruments have
progressively fewer numbers of questions than the NEI VFQ-51: 25
questions for the NEI VFQ-25, 14 questions for the VF-14, and 8
questions for the VF-8R. Even with fewer questions, all three of the
proposed survey instruments have been validated as providing results
comparable to the NEI VFQ-51. In addition, all three of the proposed
survey instruments are readily available for ASCs to access and use.
---------------------------------------------------------------------------
\401\ Sivaprasad, S., Tschosik, E., Kapre, A., Varma, R.,
Bressler, N.M., Kimel, M., Dolan, C., & Silverman, D. (2018).
Reliability and construct validity of the NEI VFQ-25 in a subset of
patients with geographic atrophy from the Phase 2 mahalo study.
American Journal of Ophthalmology, 190, 1-8. https://doi.org/10.1016/j.ajo.2018.03.006.
\402\ Hecht, I., Kanclerz, P., & Tuuminen, R. (2022). Secondary
outcomes of Lens and cataract surgery: More than just ``best-
corrected visual acuity.'' Progress in Retinal and Eye Research,
101150. https://doi.org/10.1016/j.preteyeres.2022.101150.
\403\ Orizonartstudios. (2023). 2023 MIPS measure #303:
Cataracts: Improvement in patient's visual function within 90 days
following cataract surgery. MDinteractive. Retrieved March 13, 2023,
from https://mdinteractive.com/mips_quality_measure/2023-mips-quality-measure-303.
---------------------------------------------------------------------------
We propose to allow ASCs to use the NEI VFQ-25 for administering
and calculating this Cataracts Visual Function measure due to its
comprehensiveness, its adequate validity and reliability, as well as
its potential to reduce language barriers for patients. The NEI VFQ-25
is a shorter version of the NEI VFQ-51, being comprised of 25 items
across 12 vision-specific domains (general health, general vision,
ocular pain, near activities, distance activities, social functioning,
mental health, role difficulties, dependency, driving, color vision,
and peripheral vision).\404\
---------------------------------------------------------------------------
\404\ U.S. Department of Health and Human Services. (n.d.).
Visual function questionnaire 25. National Eye Institute. Retrieved
March 13, 2023, from https://www.nei.nih.gov/learn-about-eye-health/outreach-campaigns-and-resources/outreach-materials/visual-function-questionnaire-25.
---------------------------------------------------------------------------
The NEI VFQ-25, similar to the VF-14 and VF-8R, has adequate
reliability and validity.\405\ The NEI VFQ-25 composite, near
activities, and distance activities subscales demonstrated good
internal consistency reliability, test-retest reliability, convergent
validity, and known-groups validity.\406\ Furthermore, the NEI VFQ-25's
high internal consistency, indicates that items of the NEI VFQ-25 are
highly related to each other and to the scale as a whole.\407\
---------------------------------------------------------------------------
\405\ Sivaprasad, S., Tschosik, E., Kapre, A., Varma, R.,
Bressler, N.M., Kimel, M., Dolan, C., & Silverman, D. (2018).
Reliability and construct validity of the NEI VFQ-25 in a subset of
patients with geographic atrophy from the Phase 2 mahalo study.
American Journal of Ophthalmology, 190, 1-8. https://doi.org/10.1016/j.ajo.2018.03.006.
\406\ Ibid.
\407\ Ibid.
---------------------------------------------------------------------------
In addition, the survey instrument is publicly available on the
RAND website at no cost and has been translated to many languages,
which is a valuable benefit for patients with limited English
proficiency. The NEI VFQ-25 was chosen over other survey instruments to
reduce potential language barriers, as, for example, the currently
available Activities of Daily Vision Scale (ADVS) is dependent on
English language skills.\408\ More information on the NEI VFQ-25 can be
found at: https://www.rand.org/health-care/surveys_tools/vfq.html.
---------------------------------------------------------------------------
\408\ Mangione CM, Phillips RS, Seddon JM, et al. Development of
the `Activities of Daily Vision Scale'. A measure of visual
functional status. Med Care. 1992;30(12):1111-1126. https://doi.org/10.1097/00005650-199212000-00004.
---------------------------------------------------------------------------
While the NEI VFQ-25 was shortened significantly from the original
NEI VFQ-51, it has been criticized for its still lengthy test-time.
However, our proposal to include this survey instrument in this
measure's specifications allows for a more detailed assessment of
cataract surgery outcomes as it was designed to include questions which
are most important for persons who have chronic eye diseases.\409\
Further, if an ASC finds the NEI VFQ-25 particularly burdensome to
administer, the ASC may choose from the other two survey instruments we
propose for inclusion in this measure's
[[Page 49809]]
specifications for ASCs to use for this measure, as both of these have
even fewer survey questions to administer.
---------------------------------------------------------------------------
\409\ Hecht, I., Kanclerz, P., &; Tuuminen, R. (2022). Secondary
outcomes of Lens and cataract surgery: More than just ``best-
corrected visual acuity.'' Progress in Retinal and Eye Research,
101150. https://doi.org/10.1016/j.preteyeres.2022.101150.
---------------------------------------------------------------------------
We also propose to allow ASCs to use the 14-item VF-14 and the 8-
item VF-8R for administering and calculating this Cataracts Visual
Function measure. Each can be administered in a shorter timeframe than
the NEI VFQ-25 with high precision.410 411 Thus, the
succinct formats of the VF-14 and VF-8R may ease ASCs' burden in
administering the survey instruments, and potentially increase the rate
of patient responses for this measure, as compared with other survey
instrument options we considered. Therefore, we propose including the
VF-14 and VF-8R for this measure's data collection specifications
because we believe these survey instruments achieve results comparable
with the longer NEI VFQ-25 and NEI VFQ-51 survey instruments with
substantially fewer questions to administer.
---------------------------------------------------------------------------
\410\ Ibid.
\411\ Orizonartstudios. (2023). 2023 MIPS measure #303:
Cataracts: Improvement in patient's visual function within 90 days
following cataract surgery. MDinteractive. Retrieved March 13, 2023,
from https://mdinteractive.com/mips_quality_measure/2023-mips-quality-measure-303.
---------------------------------------------------------------------------
Furthermore, we propose inclusion of the VF-14 because currently it
is the most commonly used survey instrument and we believe it would be
beneficial to allow the majority of physicians who have already been
using the VF-14 to continue to have the option to do so.\412\ The VF-14
is comprised of 14 items relating to daily living activities and
function, such as reading, writing, seeing steps, stairs or curbs, and
operating a motor vehicle.\413\ Studies using this survey instrument
generally report significant and clinically important improvement
following cataract surgery.\414\ The VF-14 additionally has achieved
adequate reliability and validity, proving it to be a dependable survey
instrument for cataract outcomes.415 416
---------------------------------------------------------------------------
\412\ Hecht, I., Kanclerz, P., &; Tuuminen, R. (2022). Secondary
outcomes of Lens and cataract surgery: More than just ``best-
corrected visual acuity.'' Progress in Retinal and Eye Research,
101150. https://doi.org/10.1016/j.preteyeres.2022.101150.
\413\ Ibid.
\414\ Ibid.
\415\ Ibid.
\416\ Orizonartstudios. (2023). 2023 MIPS measure #303:
Cataracts: Improvement in patient's visual function within 90 days
following cataract surgery. MDinteractive. Retrieved March 13, 2023,
from https://mdinteractive.com/mips_quality_measure/2023-mips-quality-measure-303.
---------------------------------------------------------------------------
We propose the VF-8R, as it is the most concise of the three survey
instruments, while still achieving adequate validity and
reliability.\417\ The VF-8R consists of questions related to reading,
fine handwork, writing, playing board games, and watching
television.\418\ Given its conciseness compared to the majority of
currently available survey instruments and its adequate psychometric
properties, we believe that the VF-8R would be beneficial for measuring
cataract surgery outcomes without prompting further patient survey
fatigue.\419\
---------------------------------------------------------------------------
\417\ Ibid.
\418\ Pre[hyphen]Cataract Surgery--Visual Functioning Index
(VF[hyphen]8R) patient. (n.d.). https://eyecaresite.com/wp-content/uploads/2020/02/Visual-Functioning-Index-Pre-Cat-SX.pdf.
\419\ Ibid.
---------------------------------------------------------------------------
For these reasons, we believe that the NEI VFQ-25, VF-14, and VF-8R
are the most appropriate survey instruments for ASCs to use to assess a
patient's visual function pre- and post-cataract surgery for purposes
of calculating and submitting data for the Cataracts Visual Function
measure in the ASCQR Program.
To standardize survey instrument administration for the Cataracts
Visual Function measure, we propose to limit the survey instruments
that can be used to administer this measure, beginning with the
voluntary CY 2024 reporting period, to these three survey instruments:
(1) NEI VFQ-25; (2) VF-14; and (3) VF-8R. We believe the use of these
three survey instruments to report data on the Cataracts Visual
Function measure would allow for a more standardized approach to data
collection. Having a limited number of allowable survey instruments
would also address several commenters' request for additional guidance
on survey instruments as well as improve measure reliability.
(3) Considerations for Data Collection Modes for the Cataracts:
Improvement in Patient's Visual Function Within 90 Days Following
Cataract Surgery Measure Beginning With the Voluntary CY 2024 Reporting
Period
As summarized in the CY 2023 OPPS/ASC final rule (87 FR 72118
through 72120), many commenters expressed concern about the high
administrative burden of reporting the Cataracts Visual Function
measure, as the measure uniquely requires coordination among clinicians
of different specialties (that is, opticians and ophthalmologists). In
an effort to decrease administrative burden surrounding in-office time
constraints, we reiterate that, while we recommend the patient's
physician or optometrist administer, collect, and report the survey
results to the ASC, the survey instruments required for this measure
can be administered by the ASC itself via phone, by the patient via
regular or electronic mail, or during clinician follow-up.
Scientific literature supports the conclusion that self-
administered survey instruments produce statistically reliable
results.420 421 Furthermore, scientific literature indicates
that regular mail and electronic mail surveys respectively, are
preferred by varying subgroups of patients. The inclusion of both
options ensures that patients will be able to respond to survey
instruments in their preferred format.422 423 These findings
support the inclusion of varying survey instrument-collection methods
for patient and provider convenience.
---------------------------------------------------------------------------
\420\ Bhandari, N. R., Kathe, N., Hayes, C., & Payakachat, N.
(2018). Reliability and validity of SF-12V2 among adults with self-
reported cancer. Research in Social and Administrative Pharmacy,
14(11), 1080-1084. https://doi.org/10.1016/j.sapharm.2018.01.007.
\421\ Stolwijk, C., van Tubergen, A., Ramiro, S., Essers, I.,
Blaauw, M., van der Heijde, D., Landewe, R., van den Bosch, F.,
Dougados, M., & Boonen, A. (2014). Aspects of validity of the self-
administered comorbidity questionnaire in patients with ankylosing
spondylitis. Rheumatology, 53(6), 1054-1064. https://doi.org/10.1093/rheumatology/ket354.
\422\ Kelfve, S., Kivi, M., Johansson, B., & Lindwall, M.
(2020). Going web or staying paper? the use of web-surveys among
older people. https://doi.org/10.21203/rs.3.rs-21136/v4.
\423\ Meyer, V.M., Benjamens, S., Moumni, M.E., Lange, J.F., &
Pol, R.A. (2020). Global overview of response rates in patient and
health care professional surveys in surgery. Annals of Surgery,
275(1). https://doi.org/10.1097/sla.0000000000004078.
---------------------------------------------------------------------------
We invite public comment on this proposal.
c. Proposed Modification of Endoscopy/Polyp Surveillance: Appropriate
Follow-Up Interval for Normal Colonoscopy in Average Risk Patients
Measure Denominator Change To Align With Current Clinical Guidelines
Beginning With the CY 2024 Reporting Period/CY 2026 Payment
Determination
(1) Background
In 2019, colorectal cancer (CRC) accounted for the 4th highest rate
of new cancer cases and 4th highest rate of cancer deaths in the United
States.\424\ The American Cancer Society (ACS) estimates that in 2023,
153,020 individuals will be newly diagnosed with CRC and 52,550
individuals will die from CRC in the United States.\425\ The CDC
advises, ``[c]olorectal cancer almost always develops from precancerous
polyps (abnormal growths) in the colon or rectum. Screening tests can
find precancerous
[[Page 49810]]
polyps, so that they can be removed before they turn into cancer.
Screening tests can also find colorectal cancer early, when treatment
works best. Regular screening, beginning at age 45, is the key to
preventing colorectal cancer and finding it early.'' \426\
---------------------------------------------------------------------------
\424\ Centers for Disease Control. (2022). Colorectal Cancer
Statistics. Available at: https://gis.cdc.gov/Cancer/USCS/#/AtAGlance/.
\425\ American Cancer Society. (2023). Cancer Facts & Figures
2023. Available at: https://www.cancer.org/research/cancer-facts-statistics/all-cancer-facts-figures/2023-cancer-facts-figures.html.
\426\ Centers for Disease Control. (2022). What Should I Know
About Screening?. Available at: https://www.cdc.gov/cancer/colorectal/basic_info/screening/index.htm.
---------------------------------------------------------------------------
In May 2021, the United States Preventive Services Task Force
(USPSTF) issued a revised Final Recommendation Statement on CRC
Screening.\427\ This replaced the prior USPSTF 2016 Final
Recommendation Statement and included a number of updated policy
recommendations based on new evidence and understandings of CRC and CRC
screening. The USPSTF recommended that adults who do not have signs or
symptoms of CRC and who are at average risk for CRC begin screening at
age 45 instead of the previous recommendation of age 50.\428\ In
addition, multiple professional organizations, including the ACS,
American Society of Colon and Rectal Surgeons, and the U.S. Multi-
Society Task Force on Colorectal Cancer (which represents the American
College of Gastroenterology, the American Gastroenterological
Association, and the American Society for Gastrointestinal Endoscopy),
recommend that people of average risk of CRC start regular screening at
age 45.429 430 431 Based on the recent changes in clinical
guidelines to begin CRC screening at age 45 instead of age 50, we
propose to modify the Endoscopy/Polyp Surveillance: Appropriate Follow-
Up Interval for Normal Colonoscopy in Average Risk Patients (the
``Colonoscopy Follow-Up Interval'') measure to follow these clinical
guideline changes.
---------------------------------------------------------------------------
\427\ US Preventive Services Task Force. (2021). Screening for
Colorectal Cancer. JAMA, 325(19), 1965-1977. https://doi.org/10.1001/jama.2021.6238.
\428\ Ibid.
\429\ Wolf A, Fontham ETH, Church TR, et al. (2018). Colorectal
cancer screening for average-risk adults: 2018 guideline update from
the American Cancer Society. CA. Cancer J. Clin., 2018(68), 250-281.
https://doi.org/10.3322/caac.21457.
\430\ American Society of Colon & Rectal Surgeons. Colorectal
Cancer Screening and Surveillance Recommendations of U.S.
Multisociety Task Force. Available at: https://fascrs.org/healthcare-providers/education/clinical-practice-guidelines/colorectal-cancer-screening-and-surveillance-recom.
\431\ Patel SG, May FP, Anderson JC, Burke CA, et al. (2022).
Updates on Age to Start and Stop Colorectal Cancer Screening:
Recommendations From the U.S. Multi-Society Task Force on Colorectal
Cancer. The American Journal of Gastroenterology, 117(1), 57-69.
https://doi.org/10.14309/ajg.0000000000001548.
---------------------------------------------------------------------------
(2) Overview of Measure
We refer readers to the CMS Measures Inventory Tool and the ASCQR
Specification Manual for more information on the Colonoscopy Follow-Up
Interval measure, including background on the measure and a complete
summary of measure specifications.432 433 Currently, the
Colonoscopy Follow-Up Interval measure assesses the ``percentage of
patients aged 50 years to 75 years receiving a screening colonoscopy
without biopsy or polypectomy who had a recommended follow-up interval
of at least 10 years for repeat colonoscopy documented in their
colonoscopy report.'' \434\ We propose to amend the measure's
denominator language by replacing the phrase ``aged 50 years'' with the
phrase ``aged 45 years.'' The measure denominator would be modified to
``all patients aged 45 years to 75 years receiving screening
colonoscopy without biopsy or polypectomy'' from ``all patients aged 50
years to 75 years receiving screening colonoscopy without biopsy or
polypectomy.'' \435\ We are not proposing any changes to the measure
numerator, other measure specifications, exclusions, or data collection
for the Colonoscopy Follow-Up Interval measure.
---------------------------------------------------------------------------
\432\ Centers for Medicare & Medicaid Services. (2023). Measures
Inventory Tool. Available at: https://cmit.cms.gov/cmit/#/MeasureView?variantId=793§ionNumber=1.
\433\ Qualitynet Home. (n.d.). Retrieved March 21, 2023, from
https://qualitynet.cms.gov/asc/specifications-manuals#tab6.
\434\ Centers for Medicare & Medicaid Services. (2023). Measures
Inventory Tool. Available at: https://cmit.cms.gov/cmit/#/MeasureView?variantId=793§ionNumber=1.
\435\ Ibid.
---------------------------------------------------------------------------
In the CY 2023 Physician Fee Schedule final rule (87 FR 69760
through 69767), we adopted the modified Colonoscopy Follow-Up Interval
measure, which we propose here for the ASCQR Program, for the Merit-
based Incentive Payment System (MIPS). We have considered the
importance of aligning the minimum age requirement for CRC screening
across quality reporting programs and clinical guidelines, and as a
result, we propose to modify the Colonoscopy Follow-Up Interval measure
denominator to ``all patients aged 45 to 75 years'' for the ASCQR
Program. We propose the modification of the Colonoscopy Follow-Up
Interval measure beginning with the CY 2024 reporting period/CY 2026
payment determination.
We invite public comment on this proposal.
5. Proposed Adoption of New Measures for the ASCQR Program Measure Set
Section 1833(i)(7)(B) of the Act states that, except as the
Secretary may otherwise provide, the provisions of section
1833(t)(17)(B) through (E) of the Act apply with respect to ASC
services in a similar manner to the manner in which they apply to
hospitals for the Hospital OQR Program. Section 1833(t)(17)(C)(i) of
the Act requires the Secretary to develop measures appropriate for the
measurement of the quality of care (including medication errors)
furnished by hospitals in outpatient settings, that these measures
reflect consensus among affected parties and, to the extent feasible
and practicable, that these measures include measures set forth by one
or more national consensus-based entities. We have noted in previous
rulemaking (76 FR 74494) the requirement that measures reflect
consensus among affected parties can be achieved in other ways aside
from CBE endorsement, including through the measure development
process, through broad acceptance, use of the measure(s), and through
public comment.
Section 1890A of the Act requires that we establish and follow a
pre-rulemaking process for selecting quality and efficiency measures
for our programs, including taking into consideration input from multi-
stakeholder groups. As part of this pre-rulemaking process, the CBE,
with which we contract under section 1890 of the Act, convened these
groups under the Measure Applications Partnership (MAP). The MAP is a
public-private partnership created for the primary purpose of providing
input to HHS on the selection of measures as required by section
1890(b)(7)(B) of the Act, including measures for the ASCQR Program. We
followed this pre-rulemaking process for both of the measures we
propose for adoption for the ASCQR Program under this section of the
proposed rule, as further detailed below.
In this proposed rule, we propose to: (1) re-adopt with
modification the ASC Facility Volume Data on Selected ASC Surgica
Procedures measure, with voluntary reporting in the CY 2025 reporting
period followed by mandatory reporting beginning with the CY 2026
reporting period/CY 2028 payment determination; and (2) adopt the Risk-
Standardized Patient-Reported Outcome-Based Performance Measure (PRO-
PM) Following Elective Primary Total Hip Arthroplasty (THA) and/or
Total Knee Arthroplasty (TKA) in the ASC Setting (THA/TKA PRO-PM), with
[[Page 49811]]
voluntary reporting beginning with the CYs 2025 and 2026 reporting
periods followed by mandatory reporting beginning with the CY 2027
reporting period/CY 2030 payment determination. In this section of the
proposed rule, we provide additional information on these measure
adoption proposals for the ASCQR Program.
a. Proposed Re-Adoption With Modification of the ASC Facility Volume
Data on Selected ASC Surgical Procedures Measure Beginning With the
Voluntary CY 2025 Reporting Period Followed by Mandatory Reporting
Beginning With the CY 2026 Reporting Period/CY 2028 Payment
Determination
(1) Background
Hospital care has been gradually shifting from inpatient to
outpatient settings.\436\ Further, research indicates that volume of
services performed in ASCs will continue to grow, with some estimates
projecting a 25 percent increase in patients between 2019 and
2029.\437\ In addition, as further discussed herein, larger facility
surgical procedure volume may be associated with better outcomes due to
having characteristics that improve care, such as efficient team work
and increased surgical experience.\438\ In light of these trends in
facility volume and more recent studies finding that volume is an
indicator of quality, it is now especially important to track volume
within ASCs, as it could provide valuable insight into the quality of
ASCs' services for CMS and patients.
---------------------------------------------------------------------------
\436\ Medicare Payment Advisory Commission. March 2021 Report to
the Congress: Medicare Payment Policy. Chapter 3. Available at:
https://www.medpac.gov/wp-content/uploads/2021/10/mar21_medpac_report_ch3_sec.pdf.
\437\ SG2 impact of Change Forecast predicts enormous disruption
in health care provider landscape by 2029. Sg2. (2021). Retrieved
March 28, 2023, from https://www.sg2.com/media-center/press-releases/sg2-impact-forecast-predicts-disruption-health-care-provider-landscape-2029/.
\438\ Jha AK. (2015) Back to the Future: Volume as a Quality
Metric. JAMA Forum Archive. Published online June 10, 2015. https://jamanetwork.com/channels/health-forum/fullarticle/2760155.
---------------------------------------------------------------------------
Although measuring the volume of procedures and other services has
a long history as a quality metric, quality measurement efforts had
moved away from collecting and analyzing data on volume because some
considered volume simply a proxy for quality compared to directly
measuring outcomes.\439\ However, experts on quality and safety have
recently suggested that, while volume may not alone indicate better
outcomes, it is still an important component of
quality.440 441 442 Specifically, larger facility surgical
procedure volume may be associated with better outcomes due to having
characteristics that improve care.\443\ For example, high-volume
facilities may have teams that work more effectively together, or have
superior systems or programs for identifying and responding to
complications.\444\ This association between volume and patient
outcomes may be attributable to greater experience or surgical skill,
greater comfort with and, hence, likelihood of application of
standardized best practices, and increased experience in monitoring and
management of surgical patients for the particular procedure.
---------------------------------------------------------------------------
\439\ Ibid.
\440\ Ibid.
\441\ Shang, M., Mori, M., Gan, G., Deng, Y., Brooks, C.,
Weininger, G., Sallam, A., Vallabhajosyula, P., & Geirsson, A.
(2022). Widening volume and persistent outcome disparity in Valve
Operations: New York Statewide Analysis, 2005-2016. The Journal of
Thoracic and Cardiovascular Surgery, 164(6). https://doi.org/10.1016/j.jtcvs.2020.11.098.
\442\ Iwatsuki, M., Yamamoto, H., Miyata, H., Kakeji, Y.,
Yoshida, K., Konno, H., Seto, Y., & Baba, H. (2018). Effect of
hospital and surgeon volume on postoperative outcomes after distal
gastrectomy for gastric cancer based on data from 145,523 Japanese
patients collected from a nationwide web-based data entry system.
Gastric Cancer, 22(1), 190-201. https://doi.org/10.1007/s10120-018-0883-1.
\443\ Jha AK. (2015) Back to the Future: Volume as a Quality
Metric. JAMA Forum Archive. Published online June 10, 2015. https://jamanetwork.com/channels/health-forum/fullarticle/2760155.
\444\ Ibid.
---------------------------------------------------------------------------
The ASCQR Program does not currently include a quality measure for
facility-level volume data, including surgical procedure volume data,
but it did so previously. We refer readers to the CY 2012 OPPS/ASC
final rule (76 FR 74507 through 74509) where we adopted the ASC
Facility Volume Data on Selected ASC Surgical Procedures (ASC Procedure
Volume) measure beginning with the CY 2015 payment determination. This
structural measure of facility capacity collected surgical procedure
volume data on seven categories of procedures frequently performed in
the ASC setting: Gastrointestinal, Eye, Nervous System,
Musculoskeletal, Skin, Respiratory, and Genitourinary.\445\ We adopted
the ASC Procedure Volume measure based on evidence that the volume of
surgical procedures, particularly of high-risk surgical procedures, is
related to better patient outcomes, including decreased mortality (76
FR 74507).446 447 We further stated our belief that publicly
reporting volume data would provide patients with beneficial
information to use when selecting a care provider (76 FR 74507).
---------------------------------------------------------------------------
\445\ ASC Specifications Manual version 5.1. Available at:
https://qualitynet.cms.gov/asc/specifications-manuals#tab6.
\446\ Saito, Y., Tateishi, K., Kanda, M., Shiko, Y., Kawasaki,
Y., Kobayashi, Y., & Inoue, T. (2022). Volume-outcome relationships
for percutaneous coronary intervention in acute myocardial
infarction. Journal of the American Heart Association, 11(6).
https://doi.org/10.1161/jaha.121.023805.
\447\ Vemulapalli, S., Carroll, J., & Mack, M. et al. (2019)
Procedural Volume and Outcomes for Transcatheter Aortic-Valve
Replacement. The New England Journal of Medicine, 380(26), 2541-
2550. https://doi.org/10.1056/NEJMsa1901109.
---------------------------------------------------------------------------
In the CY 2018 OPPS/ASC final rule (82 FR 59449 through 59450), we
stated our belief at that time that other measures in the ASCQR Program
on specific procedure types, such as the Unplanned Anterior Vitrectomy
measure, could provide patients with more valuable ASC quality of care
information than the ASC Procedure Volume measure. Thus, we removed the
ASC Procedure Volume measure beginning with the CY 2019 payment
determination based on the availability of other measures that are
``more strongly associated with desired patient outcomes for the
particular topic'' (currently Factor 6 in our regulation at Sec.
416.320(c)(vi)) (82 FR 59449).
However, a commenter who opposed the removal of the ASC Procedure
Volume measure at the time emphasized the measure data's usefulness for
comparative research, outcomes research, immediate consumer value, and
strategic planning (82 FR 59449). One commenter also expressed concern
that non-availability of these data would interfere with the acceptance
of ASC-based procedures, asserting that this measure helps to
demonstrate the value of ASC-based procedures (82 FR 59449). These
commenters further noted that the measure was not overly burdensome
and, therefore, should not be removed (82 FR 59449). At the time, while
we recognized the value of the measure and these concerns, we believed,
overall, that the administrative burden and maintenance costs
associated with this measure outweighed the benefits of keeping the
measure in the ASCQR Program (82 FR 59449 through 59450).
In the CY 2023 OPPS/ASC final rule (87 FR 72127 through 72130), we
stated that we have been considering re-adopting the ASC Procedure
Volume measure for two reasons. First, since the removal of the ASC
Procedure Volume measure, scientific literature has concluded that
volume metrics serve as an indicator of which facilities are
experienced with certain outpatient procedures and can assist consumers
in making informed decisions about where
[[Page 49812]]
they receive care.\448\ Further supporting this position that volume
metrics are an indicator of quality, one study found an inverse volume-
mortality relationship related to transfemoral transcatheter aortic-
valve replacement (TAVR) procedures performed from 2015 through
2017.\449\ Second, as discussed above, the recent shift of more
surgical procedures being performed in outpatient settings has placed
greater importance on tracking the volume of outpatient procedures in
different settings, including ASCs. We believe that patients and their
caregivers may benefit from the public reporting of facility-level
volume measure data because the volume data illuminate which procedures
are performed across ASCs, provide the ability to track volume changes
by facility and procedure category, and can serve as an indicator for
patients of which facilities are experienced with certain outpatient
procedures. The ASC Procedure Volume measure was the only measure in
the ASCQR Program measure set that captured facility-level volume
within ASCs for both Medicare beneficiaries and non-Medicare patients.
As a result of this measure's removal in the CY 2018 OPPS/ASC final
rule, the ASCQR Program currently does not capture outpatient surgical
procedure volume in ASCs.
---------------------------------------------------------------------------
\448\ Ogola GO, Crandall ML, Richter KM, & Shafi S. (2018).
High-volume hospitals are associated with lower mortality among
high-risk emergency general surgery patients. Journal of Trauma and
Acute Care Surgery, 85(3), 560-565. https://doi.org/10.1097/TA.0000000000001985.
\449\ Vemulapalli S, Carroll J, Mack M, et al. (2019).
Procedural Volume and Outcomes for Transcatheter Aortic-Valve
Replacement. The New England Journal of Medicine, 380(26), 2541-
2550. https://doi.org/10.1056/NEJMsa1901109.
---------------------------------------------------------------------------
In response to our request for comment in the CY 2023 OPPS/ASC
proposed rule (87 FR 44748 through 44750) regarding the potential
inclusion of a volume measure in the ASCQR Program, a few commenters
suggested that we can determine facility volumes for procedures
performed using Medicare Fee-For-Service (FFS) claims (87 72129 through
72130). However, we note that the ASC Procedure Volume measure included
the submission of both Medicare and non-Medicare volume data; thus,
relying solely on the use of Medicare FFS claims data to simplify
reporting would limit a future volume measure to only the Medicare
program payer, leading to an incomplete representation of ASCs'
procedural volume.\450\
---------------------------------------------------------------------------
\450\ The specifications for the removed ASC Procedure Volume
measure are available in the ASC Specifications Manual version 5.1
available at https://qualitynet.cms.gov/asc/specifications-manuals#tab6.
---------------------------------------------------------------------------
Additionally, in response to our request for comment in the CY 2023
OPPS/ASC proposed rule (87 FR 44748 through 44750), a few commenters
stated that they believe there is a lack of evidence proving the
correlation between volume and quality (87 FR 72129 through 72130).
However, many studies in recent years have shown that volume does serve
as an indicator of quality of care.451 452 For example,
studies published since the CY 2018 OPPS/ASC final rule found that
patients at high volume hospitals for a specific procedure had lower
rates of surgical site infections, complications, and mortality
compared to patients at low-volume hospitals.453 454 We
reiterate our belief, grounded in this published scientific literature,
that volume metrics serve as an indicator of which facilities are
experienced with certain outpatient procedures and assist consumers in
making informed decisions about where they receive
care.455 456
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\451\ Ogola, Gerald O. Ph.D., MPH; Crandall, Marie L. MD, MPH;
Richter, Kathleen M. MS, MBA, MFA; & Shafi, Shahid MD, MPH. (2018)
High-volume hospitals are associated with lower mortality among
high-risk emergency general surgery patients. Journal of Trauma and
Acute Care Surgery: September 2018--Volume 85--Issue 3--p 560-565
https://doi.org/10.1097/TA.0000000000001985.
\452\ Vemulapalli, S., Carroll, J., & Mack, M. et al. (2019)
Procedural Volume and Outcomes for Transcatheter Aortic-Valve
Replacement. The New England Journal of Medicine, 380(26), 2541-
2550. https://doi.org/10.1056/NEJMsa1901109.
\453\ Mufarrih, S.H., Ghani, M.O.A., Martins, R.S. et al. (2019)
Effect of hospital volume on outcomes of total hip arthroplasty: a
systematic review and metaanalysis. J Orthop Surg Res 14, 468.
https://doi.org/10.1186/s13018-019-1531-0.
\454\ Saito, Y., Tateishi, K., Kanda, M., Shiko, Y., Kawasaki,
Y., Kobayashi, Y., & Inoue, T. (2022). Volume[hyphen]outcome
relationships for percutaneous coronary intervention in acute
myocardial infarction. Journal of the American Heart Association,
11(6). https://doi.org/10.1161/jaha.121.023805.
\455\ Ogola GO, Crandall ML, Richter KM, Shafi, S. (2018). High-
volume hospitals are associated with lower mortality among high-risk
emergency general surgery patients. Journal of Trauma and Acute Care
Surgery, 85(3), 560-565. https://doi.org/10.1097/TA.0000000000001985.
\456\ Vemulapalli S, Carroll J, Mack M, et al. (2019).
Procedural Volume and Outcomes for Transcatheter Aortic-Valve
Replacement. The New England Journal of Medicine, 380(26), 2541-
2550. https://doi.org/10.1056/NEJMsa1901109.
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(2) Overview of Measure
(a) Data Collection, Submission, Reporting, and Measure Specifications
The proposed ASC Procedure Volume measure collects data regarding
the aggregate count of selected surgical procedures. Most ASC
procedures fall into one of eight categories: Cardiovascular, Eye,
Gastrointestinal, Genitourinary, Musculoskeletal, Nervous System,
Respiratory, and Skin.\457\ For this proposed measure, data surrounding
the top five most frequently performed procedures among ASCs in each
category will be collected and publicly displayed. The top five
procedures in each category would be assessed and updated annually as
needed to ensure data collection of most accurate and frequently
performed procedures.\458\
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\457\ ASC Specifications Manual version 1.0b. Available at:
https://qualitynet.cms.gov/asc/specifications-manuals#tab6.
\458\ Data source: Clinical Data Warehouse; CMS ASC Part B
claims for encounters January 1, 2022-December 31, 2022.
---------------------------------------------------------------------------
We propose that ASCs would submit aggregate-level data through the
CMS web-based tool (currently the Hospital Quality Reporting (HQR)
system), consistent with what was required during the measure's initial
adoption (76 FR 74508). Data received through the HQR system would then
be publicly displayed on the https://data.cms.gov">data.cms.gov website or another CMS
website. We refer readers to Sec. 416.315 for our codified policies
regarding public reporting of data under the ASCQR Program.
We propose to re-adopt the ASC Procedure Volume measure with
modification, with voluntary reporting beginning with the CY 2025
reporting period followed by mandatory reporting beginning with CY 2026
reporting period/CY 2028 payment determination. At the time of this
measure's initial adoption in the CY 2012 OPPS/ASC final rule (76 FR
74509), we finalized that ASCs would report all-patient volume data
with respect to six categories: Gastrointestinal, Eye, Nervous System,
Musculoskeletal, Skin, and Genitourinary. The first modification of
this previously adopted measure that we propose is that the ASC
Procedure Volume measure data collection will cover eight categories:
Cardiovascular, Eye, Gastrointestinal, Genitourinary, Musculoskeletal,
Nervous System, Respiratory, and Skin. Furthermore, in response to
commenter concerns regarding potential difficulty detecting procedural
volume differention among these broad based categories (76 FR 74508),
the second modification to this measure that we propose is that instead
of collecting and publicly displaying data surrounding these eight
broad categories, we would more granularly collect and publicly display
data reported for the top five most frequently performed procedures
among ASCs within each category will be collected. We refer readers to
the Center for Medicare and Medicaid Services Inventory Tool for more
information on this measure: https://cmit.cms.gov/cmit/#/.
[[Page 49813]]
We also propose that ASCs submit these data to CMS during the time
period of January 1 through May 15 in the year prior to the affected
payment determination year. For example, for the CY 2028 payment
determination, the data submission period would be January 1, 2027 to
May 15, 2027, covering the performance period of January 1, 2026 to
December 31, 2026. We refer readers to section XV.D.1.c of this
proposed rule for a more detailed discussion of the requirements for
data submitted via a CMS online web-based tool. We previously codified
our existing policies regarding data collection and submission under
the ASCQR Program at Sec. 416.310.
(b) Review by the Measure Applications Partnership (MAP)
The MAP conditionally supported the ASC Procedure Volume measure
for rulemaking, pending testing indicating that the measure is reliable
and valid, and endorsement by a CBE.\459\ Additionally, the MAP noted
that electronic reporting of procedure volumes based on code lists
should not be overly burdensome to ASCs, and the public reporting of
specific procedure volumes may be useful to patients.
---------------------------------------------------------------------------
\459\ Pre-rulemaking MUC lists and map reports. Pre-Rulemaking
MUC Lists and MAP Reports [verbar] The Measures Management System.
(n.d.). Retrieved March 13, 2023, from https://mmshub.cms.gov/measure-lifecycle/measure-implementation/pre-rulemaking/lists-and-reports.
---------------------------------------------------------------------------
The MAP members expressed differing views on the value of volume
data to patients. Specifically, the MAP members representing patients
stated the measure would be useful to patients as they decide where to
seek care, as one data point along with others (for example, advice
from providers). However, other MAP members expressed concern about the
value of volume data for informing patient decisions without other
context and encouraged the use of outcome measures instead.\460\
---------------------------------------------------------------------------
\460\ Ibid.
---------------------------------------------------------------------------
As discussed above, we reiterate that various studies have found
that there is a well-established positive correlation between the
volume of procedures performed at a facility and the clinical outcomes
resulting from that procedure. For instance, a recent systematic review
highlighted by the MAP found a significant volume-outcome relationship
in the vast majority (87 percent) of the 403 studies analyzed.\461\ The
MAP noted a similar review focused on outpatient surgeries that
similarly found a significant volume-outcome relationship across eight
studies.\462\
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\461\ Levaillant, M., Marcilly, R., Levaillant, L., Michel, P.,
Hamel-Broza, J.F., Vallet, B., & Lamer, A. (2021). Assessing the
hospital volume-outcome relationship in surgery: A scoping review.
BMC Medical Research Methodology, 21(1). https://doi.org/10.1186/s12874-021-01396-6.
\462\ Stanak, M., & Strohmaier, C. (2020). Minimum volume
standards in day surgery: A systematic review. BMC Health Services
Research, 20(1). https://doi.org/10.1186/s12913-020-05724-2.
---------------------------------------------------------------------------
The MAP stated that this measure addresses a national trend in
which surgeries are moving from hospital inpatient settings to ASCs,
and that public reporting of this measure could help CMS and the public
better understand differences in the quality of care provided at
facilities.\463\ The MAP reported that ASC Procedure Volume measure
data from 2015 and 2016 demonstrates variation in performance in the
number of procedures performed by facilities in the 25th and 75th
percentiles across the condition categories.\464\ These findings
support our belief, grounded in additional published scientific
literature, that volume metrics serve as an indicator of which
facilities are experienced with certain outpatient procedures and can
assist consumers in making informed decisions about where they receive
care.465 466
---------------------------------------------------------------------------
\463\ Medicare Payment Advisory Commission. March 2021 Report to
the Congress: Medicare Payment Policy. Available at: https://www.medpac.gov/document/march-2021-report-to-the-congress-medicare-payment-policy/.
\464\ Pre-rulemaking MUC lists and map reports. The Measures
Management System. (n.d.). Retrieved March 13, 2023, from https://mmshub.cms.gov/measure-lifecycle/measure-implementation/pre-rulemaking/lists-and-reports.
\465\ Ogola, Gerald O. Ph.D., MPH; Crandall, Marie L. MD, MPH;
Richter, Kathleen M. MS, MBA, MFA; Shafi, & Shahid MD, MPH. (2018)
High-volume hospitals are associated with lower mortality among
high-risk emergency general surgery patients. Journal of Trauma and
Acute Care Surgery: September 2018--Volume 85--Issue 3--p 560-565.
https://doi.org/10.1097/TA.0000000000001985.
\466\ Saito, Y., Tateishi, K., Kanda, M., Shiko, Y., Kawasaki,
Y., Kobayashi, Y., & Inoue, T. (2022). Volume[hyphen]outcome
relationships for percutaneous coronary intervention in acute
myocardial infarction. Journal of the American Heart Association,
11(6). https://doi.org/10.1161/jaha.121.023805.
---------------------------------------------------------------------------
In addition, the MAP noted the concurrent submission of MUC
(Measures Under Consideration) 2022-030: Hospital Outpatient Department
Volume Data on Selected Outpatient Surgical Procedures for inclusion in
the Hospital Outpatient Quality Reporting (OQR) Program.\467\ The MAP
highlighted that the specifications of the volume measure proposed for
the Hospital OQR Program are aligned with the volume measure we propose
for the ASCQR Program and, therefore, would facilitate comparisons of
equivalent procedure volumes across ASCs and hospital outpatient
departments (HOPDs), one of the key goals of the Hospital OQR and ASCQR
Programs.
---------------------------------------------------------------------------
\467\ Pre-rulemaking MUC lists and map reports. The Measures
Management System. (n.d.). Retrieved March 13, 2023, from https://mmshub.cms.gov/measure-lifecycle/measure-implementation/pre-rulemaking/lists-and-reports.
---------------------------------------------------------------------------
(c) Measure Endorsement
As discussed in the previous subsection of the proposed rule, the
MAP reviewed and conditionally supported the ASC Procedure Volume
measure pending testing indicating the measure is reliable and valid,
and endorsement by a national consensus-based entity as the measure was
not submitted for endorsement. We have noted in previous rulemaking (76
FR 74494) the requirement that measures reflect consensus among
affected parties can be achieved in other ways aside from endorsement
by a national consensus-based entity, including through the measure
development process, through broad acceptance, use of the measure(s),
and through public comment.
We considered the MAP's recommendation and propose to adopt the
measure because we did not find any other measures of procedure volume
and this measure was previously used in the ASCQR Program, with
supporters of its use. Given the support from the MAP and feedback from
public comment, as well as the increasing shift from inpatient to
outpatient surgical procedures and evidence that volume metrics can
promote higher quality healthcare for patients, we propose the
readoption of this measure, with two modifications, in the ASCQR
Program pending endorsement from a national consensus-based entity.
We invite public comment on this proposal.
b. Proposed Adoption of the Risk Standardized Patient-Reported Outcome-
Based Performance Measure (PRO-PM) Following Elective Primary Total Hip
Arthroplasty (THA) and/or Total Knee Arthroplasty (TKA) in the ASC
Setting (THA/TKA PRO-PM) Beginning With Voluntary CYs 2025 and 2026
Reporting Periods Followed by Mandatory Reporting Beginning With the CY
2027 Reporting Period/CY 2030 Payment Determination
(1) Background
In the FY 2023 IPPS/LTCH PPS final rule (87 FR 49246 through
49257), we adopted the THA/TKA PRO-PM in the Hospital Inpatient Quality
Reporting (IQR) Program beginning with voluntary reporting periods in
FY 2025 and FY 2026, followed by mandatory reporting for eligible
elective procedures
[[Page 49814]]
occurring July 1, 2024 through June 30, 2025 for the FY 2028 payment
determination. In this proposed rule, we propose the adoption of the
THA/TKA PRO-PM into the ASCQR Program using the same specifications as
finalized for the hospital-level measure adopted into the Hospital IQR
Program (87 FR 49246 through 49257) with modifications to include
procedures performed in the ASC setting.
Approximately six million adults aged 65 or older suffer from
osteoarthritis in the United States.\468\ In 2013, there were
approximately 568,000 hospitalizations billed to Medicare for
osteoarthritis.\469\ Hip and knee osteoarthritis is one of the leading
causes of disability among non-institutionalized
adults,470 471 and roughly 80 percent of patients with
osteoarthritis have some limitation in mobility.472 473
Elective THA and TKA are most commonly performed for degenerative joint
disease or osteoarthritis, which affects more than 30 million
Americans.\474\ THA and TKA offer the potential for significant
improvement in quality of life by decreasing pain and improving
function in a majority of patients, without resulting in a high risk of
complications or death.475 476 477 However, not all patients
experience benefit from these procedures.\478\ Many patients note that
their pre-operative expectations for functional improvement have not
been met.479 480 481 482 In addition, clinical practice
variation has been well documented in the United
States,483 484 485 486 487 readmission and complication
rates vary across hospitals,488 489 and international
experience documents wide hospital-level variation in patient-reported
outcome measure results following THA and TKA.\490\
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\468\ Arthritis Foundation. (2018). Arthritis By the Numbers
Book of Trusted Facts and Figures. Accessed March 8, 2019. Available
at: https://www.arthritis.org/getmedia/e1256607-fa87-4593-aa8a-8db4f291072a/2019-abtn-final-march-2019.pdf.
\469\ Torio CM, & Moore BJ. (2016). National inpatient hospital
costs: the most expensive conditions by payer, 2013. HCUP
statistical brief #204. Healthcare Cost and Utilization Project
(HCUP) Statistical Briefs. Rockville, MD, Agency for Healthcare
Research and Quality. Available at: https://www.ncbi.nlm.nih.gov/books/NBK368492/.
\470\ Guccione AA, Felson DT, Anderson JJ, et al. (1994). The
effects of specific medical conditions on the functional limitations
of elders in the Framingham Study. American journal of public
health, 84(3), 351-358. https://www.doi.org/10.2105/AJPH.84.3.351.
\471\ Barbour KE, Helmick CG, Boring M, & Brady TJ. (2017).
Vital Signs: Prevalence of Doctor-Diagnosed Arthritis and Arthritis-
Attributable Activity Limitation--United States, 2013-2015. MMWR
Morbidity and mortality weekly report, 66(9), 246-253. https://www.doi.org/10.15585/mmwr.mm6609e1.
\472\ Michaud CM, McKenna MT, Begg S, et al. (2006). The burden
of disease and injury in the United States 1996. Population health
metrics, 4, 11. https://doi.org/10.1186/1478-7954-4-11.
\473\ Theis KA, Murphy LB, Baker NA, & Hootman JM. (2019). When
you can't walk a mile: Walking limitation prevalence and
associations among middle-aged and older US adults with Arthritis: A
cross-sectional, population-based study. ACR Open Rheumatol, 1(6),
350-358. https://www.doi.org/10.1002/acr2.11046.
\474\ Centers for Disease Control and Prevention. Osteoarthritis
(OA). Accessed March 8, 2019. Available at: https://www.cdc.gov/arthritis/basics/osteoarthritis.htm.
\475\ Rissanen P, Aro S, Slatis P, et al. (1995). Health and
quality of life before and after hip or knee arthroplasty. The
Journal of arthroplasty, 10(2), 169-175. https://www.doi.org/10.1016/s0883-5403(05)80123-8.
\476\ Ritter MA, Albohm MJ, Keating EM, et al. (1995).
Comparative outcomes of total joint arthroplasty. The Journal of
arthroplasty, 10(6), 737-741. https://doi.org/10.1016/s0883-5403(05)80068-3.
\477\ Sayah SM, Karunaratne S, Beckenkamp PR, et al. (2021).
Clinical Course of Pain and Function Following Total Knee
Arthroplasty: A Systematic Review and Meta-Regression. J
Arthroplasty, 36(12), 3993-4002.e37. https://www.doi.org/10.1016/j.arth.2021.06.019.
\478\ National Joint Registry. National Joint Registry for
England and Wales 9th Annual Report 2012. Available at: https://www.hqip.org.uk/wp-content/uploads/2018/02/national-joint-registry-9th-annual-report-2012.pdf.
\479\ Suda AJ, Seeger JB, Bitsch RG, et al. (2010). Are
patients' expectations of hip and knee arthroplasty fulfilled? A
prospective study of 130 patients. Orthopedics, 33(2), 76-80.
https://www.doi.org/10.3928/01477447-20100104-07.
\480\ Ghomrawi HM, Franco Ferrando N, Mandl LA, et al. (2011).
How Often are Patient and Surgeon Recovery Expectations for Total
Joint Arthroplasty Aligned? Results of a Pilot Study. HSS journal:
The musculoskeletal journal of Hospital for Special Surgery, 7(3),
229-234. https://www.doi.org/10.1007/s11420-011-9203-6.
\481\ Harris IA, Harris AM, Naylor JM, et al. (2013).
Discordance between patient and surgeon satisfaction after total
joint arthroplasty. The Journal of arthroplasty, 28(5), 722-727.
https://www.doi.org/10.1016/j.arth.2012.07.044.
\482\ Jourdan C, Poiraudeau S, Descamps S, et al. (2012).
Comparison of patient and surgeon expectations of total hip
arthroplasty. PloS one, 7(1), e30195. https://www.doi.org/10.1371/journal.pone.0030195.
\483\ Roos EM. (2003). Effectiveness and practice variation of
rehabilitation after joint replacement. Current opinion in
rheumatology, 15(2),160-162. https://doi.org/10.1097/00002281-200303000-00014.
\484\ Anderson FA, Huang W, Friedman RJ, et al. (2012).
Prevention of venous thromboembolism after hip or knee arthroplasty:
findings from a 2008 survey of US orthopedic surgeons. The Journal
of arthroplasty, 27(5), 659-666 e655. https://doi.org/10.1016/j.arth.2011.09.001.
\485\ American Academy of Orthopaedic Surgeons. (2011).
Preventing Venous Thromboembolic Disease in Patients Undergoing
Elective Hip and Knee Arthroplasty: Evidence-Based Guideline and
Evidence Report. https://www.aaos.org/globalassets/quality-and-practice-resources/vte/vte_full_guideline_10.31.16.pdf.
\486\ Pincus D, et al. (2020). Association Between Surgical
Approach and Major Surgical Complications in Patients Undergoing
Total Hip Arthroplasty. JAMA, 323(11), 1070-1076. https://doi.org/10.1001/jama.2020.0785.
\487\ Siebens HC, Sharkey P, Aronow HU, et al. (2016). Variation
in Rehabilitation Treatment Patterns for Hip Fracture Treated With
Arthroplasty. PM&R, 8(3), 191-207. https://doi.org/10.1016/j.pmrj.2015.07.005.
\488\ Suter LG, Grady JN, Lin Z, et al. 2013 Measure Updates and
Specifications: Elective Primary Total Hip Arthroplasty (THA) And/OR
Total Knee Arthroplasty (TKA) All-Cause Unplanned 30-Day Risk-
Standardized Readmission Measure (Version 2.0). March 2013.
Available at: https://qualitynet.org/.
\489\ Suter LG, Parzynski CS, Grady JN, et al. 2013 Measures
Update and Specifications: Elective Primary Total Hip Arthroplasty
(THA) AND/OR Total Knee Arthroplasty (TKA) Risk-Standardized
Complication Measure (Version 2.0). March 2013. Available at: https://qualitynet.org/.
\490\ Rolfson O. (2010). Patient-reported Outcome Measures and
Health-economic Aspects of Total Hip Arthroplasty: A study of the
Swedish Hip Arthroplasty Register. Accessed July 20, 2013. Available
at: https://gupea.ub.gu.se/bitstream/handle/2077/23722/gupea_2077_23722_1.pdf?sequence=1.
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Due to the absence of recently conducted, large scale and uniformly
collected patient-reported outcome (PRO) data available from patients
undergoing elective primary THA/TKA, we established an incentivized,
voluntary PRO data collection opportunity within the Comprehensive Care
for Joint Replacement (CJR) model to support measure development.\491\
Elective THA/TKAs are important, effective procedures performed on a
broad population, and the patient outcomes for these procedures (such
as pain, mobility, and quality of life) can be measured in a
scientifically sound way,492 493 are influenced by a range
of improvements in care,\494\ and demonstrate hospital-level variation
even after patient case mix adjustment.495 496 Further, THA/
TKA procedures are specifically intended to improve function and reduce
pain,
[[Page 49815]]
making PROs a meaningful outcome metric to assess.\497\
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\491\ Centers for Medicare & Medicaid Services. Comprehensive
Care for Joint Replacement Model. Available at: https://innovation.cms.gov/innovation-models/cjr.
\492\ Liebs TR, Herzberg W, Ruther W, et al. (2016). Quality-
adjusted life years gained by hip and knee replacement surgery and
its aftercare. Archives of physical medicine and rehabilitation,
97(5), 691-700. https://doi.org/10.1016/j.apmr.2015.12.021.
\493\ White D, & Master H. (2016). Patient Reported Measures of
Physical Function in Knee Osteoarthritis. Rheum Dis Clin North Am,
42(2), 239-252. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4853650/.
\494\ Kim K, Anoushiravani A, Chen K, et al. (2019).
Perioperative Orthopedic Surgical Home: Optimizing Total Joint
Arthroplasty Candidates and Preventing Readmission. Journal of
Arthroplasty, 34(7), S91-S96. https://doi.org/10.1016/j.arth.2019.01.020.
\495\ Bozic KJ, Grosso LM, Lin Z, et al. (2014). Variation in
hospital-level risk-standardized complication rates following
elective primary total hip and knee arthroplasty. The Journal of
Bone and Joint Surgery, 96(8), 640-647. https://www.doi.org/10.2106/JBJS.L.01639.
\496\ Makela KT, Peltola M, Sund R, et al. (2011). Regional and
hospital variance in performance of total hip and knee replacements:
A national population-based study. Annals of medicine, 43(sup1),
S31-S38. https://doi.org/10.3109/07853890.2011.586362.
\497\ Liebs T, Herzberg W, Gluth J, et al. (2013). Using the
patient's perspective to develop function short forms specific to
total hip and knee replacement based on WOMAC function items. The
Bone & Joint Journal, 95(B), 239-243. https://www.doi.org/10.1302/0301-620X.95B2.28383.
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In the CY 2021 OPPS/ASC final rule (85 FR 86146), we announced that
THA and TKA procedures were removed from the Inpatient Only Procedures
(IPO) list and added to the ASC covered procedures list (CPL). As a
result, the volume of THA and TKA procedures for Medicare beneficiaries
aged 65 years and older have been increasing in outpatient settings,
including ASCs.
We analyzed Part B Medicare FFS claims data for the number of ASC
facility claims with THA/TKA procedures during CYs 2020, 2021, and 2022
(Table 74 below). Though we acknowledge that currently the total number
of ASCs performing these procedures, and the number of procedures being
performed in ASCs, is relatively low and there is wide variation in
number of procedures performed in those ASCs, the number of procedures
performed in the ASC setting has steadily grown.
BILLING CODE 4120-01-P
[GRAPHIC] [TIFF OMITTED] TP31JY23.110
BILLING CODE 4120-01-C
In the CY 2022 OPPS/ASC proposed rule (86 FR 42251 through 42252),
we requested comment on the potential future adoption of the THA/TKA
PRO-PM into the ASCQR Program. We refer readers to the CY 2022 OPPS/ASC
final
[[Page 49816]]
rule (86 FR 63896 through 63898) for a complete summary of feedback
from interested parties.
Many commenters supported inclusion of the THA/TKA PRO-PM to the
ASCQR Program as procedures move from inpatient to outpatient settings.
Commenters noted it was important to monitor quality outcomes and
publicly report results. Additionally, commenters stated that the
measure is aligned with patient values, being presented in a manner
that is easy to understand.
Other commenters did not support expansion of the measure to the
ASCQR Program, and expressed concern with data collection burden,
patient survey fatigue, and reporting thresholds. While we recognize
that patient-reported outcome (PRO) based performance measures require
providers to integrate data collection into clinical workflows, this
integration provides opportunity for PROs to inform clinical decision
making and benefits patients by engaging them in discussions about
potential outcomes. Furthermore, we do not expect this measure to
contribute to survey fatigue as the PRO instruments used to calculate
pre- and post-operative scores for this THA/TKA PRO-PM were carefully
selected, with extensive interested party input, to be low burden for
patients.498 499
---------------------------------------------------------------------------
\498\ Pre-rulemaking MUC lists and map reports. The Measures
Management System. (n.d.). Retrieved March 13, 2023, from https://mmshub.cms.gov/measure-lifecycle/measure-implementation/pre-rulemaking/lists-and-reports.
\499\ Centers for Medicare and Medicaid Services Measures
Inventory Tool. (n.d.). Retrieved March 28, 2023, from https://cmit.cms.gov/cmit/#/MeasureView?variantId=11547§ionNumber=1.
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We propose to adopt the THA/TKA PRO-PM into the ASCQR Program
beginning with two voluntary reporting periods, followed by mandatory
reporting. The first voluntary reporting period would begin with the CY
2025 reporting period for eligible elective outpatient procedures
between January 1, 2025 through December 31, 2025, and the second
voluntary reporting period would begin with the CY 2026 reporting
period for eligible outpatient procedures between January 1, 2026
through December 31, 2026. Mandatory reporting would begin with the CY
2027 reporting period/CY 2030 payment determination for eligible
elective outpatient procedures occurring January 1, 2027 through
December 31, 2027, impacting the CY 2030 payment determination and
subsequent years. Because this proposed measure requires collection of
data during the 3-month pre-operative period and the greater than 1-
year post-operative period, there is a delay between when the elective
THA/TKA procedures actually occur, when the results would be reported
under the ASCQR Program, and when payment determinations occur.
Therefore, we propose a 3-year gap between the reporting period and the
payment determination year (for example, CY 2027 reporting period for
the CY 2030 payment determination) for the ASCQR Program. We refer
readers to section XV.B.5.b.(2)(a) of this proposed rule for more
information on the reporting requirements.
(2) Overview of Measure
(a) Data Collection, Submission, Reporting and Measure Specifications
This measure reports the facility-level risk-standardized
improvement rate (RSIR) in PROs following elective primary THA/TKA for
Medicare FFS beneficiaries aged 65 years and older who were enrolled in
Medicare FFS Part A and B for the 12 months prior to the date of the
procedure and in Medicare FFS Part A and B during the procedure. The
measure includes only elective primary outpatient THA/TKA procedures
(patients with fractures and revisions are not included) performed at
ASCs and does not include any inpatient procedures. The measure
excludes patients with staged procedures (multiple elective primary THA
or TKA procedures performed on the same patient during distinct
encounters) that occur during the measurement period and excludes
discontinued procedures (that is, procedures that were started but not
completed).\500\
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\500\ U.S. Department of Health and Human Services. (2021).
Hospital Outpatient Prospective Payment System (OPPS): Use of
Modifiers -52, -73, and -74 for Reduced or Discontinued Services.
Available at: https://www.hhs.gov/guidance/document/hospital-outpatient-prospective-payment-system-opps-use-modifiers-52-73-and-74-reduced-or.
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Substantial clinical improvement is measured by achieving a pre-
defined improvement in score on one of the two validated joint-specific
PRO instruments measuring hip or knee pain and functioning: (1) The Hip
Dysfunction and Osteoarthritis Outcome Score for Joint Replacement
(HOOS, JR) for completion by THA recipients; or (2) the Knee injury and
Osteoarthritis Outcome Score for Joint Replacement (KOOS, JR) for
completion by TKA recipients. Improvement is measured from the pre-
operative assessment (data collected 90 to 0 days before surgery) to
the post-operative assessment (data collected 300 to 425 days following
surgery). Improvement scores are risk-adjusted to account for
differences in patient case-mix. The measure, as proposed, accounts for
potential non-response bias in measure scores through inverse
probability weighting based on likelihood of response.
We refer readers to the FY 2023 IPPS/LTCH PPS final rule (87 FR
49246 through 49257) for more information on the development of the
hospital-level THA/TKA PRO-PM, including background on the measure and
a complete summary of measure specifications, data sources, and measure
calculation.
For additional details regarding the measure specifications, we
also refer readers to the Hip and Knee Arthroplasty Patient-Reported
Outcomes file, available at https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/HospitalQualityInits/Measure-Methodology.
(i) Data Sources
The THA/TKA PRO-PM uses four sources of data for the calculation of
the measure: (1) PRO data; (2) claims data; (3) Medicare enrollment and
beneficiary data; and (4) U.S. Census Bureau survey data. As described
in section XV.B.5.b.(1) of this proposed rule, the measure uses PRO
data directly reported by the patient regarding their health, quality
of life, or functional status associated with their health care or
treatment. This patient reported-data are collected by facilities pre-
operatively and post-operatively, and limited patient-level risk factor
data are collected with PRO data and identified in claims as detailed
in this section of the proposed rule.\501\ The measure includes PRO
data collected with the two joint-specific PRO instruments described in
this section of the proposed rule--the HOOS, JR for completion by THA
recipients and the KOOS, JR for completion by TKA recipients--from
which scores are used to assess substantial clinical improvement. For
risk-adjustment by pre-operative mental health score, ASCs would submit
one of two additional PRO instruments, all the items in either the: (1)
the Patient-Reported Outcomes Measurement Information System (PROMIS)-
Global Mental Health subscale; or (2) the Veterans RAND 12-Item Health
Survey (VR-12) Mental Health subscale. The risk model also includes a
one-question patient-reported assessment of health literacy--the Single
Item Literacy Screener questionnaire.
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\501\ Higgins JP, Thomas J, Chandler J, et al. (2019). Cochrane
handbook for systematic reviews of interventions. John Wiley & Sons.
https://doi.org/10.1002/9781119536604.
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[[Page 49817]]
Furthermore, the following data would be collected for
identification of the measure cohort, for risk-adjustment purposes, and
for the statistical approach to potential non-response bias. ASC
facility claims data would be used to identify eligible elective
primary outpatient THA/TKA procedures for the measure cohort to which
submitted PRO data can be matched, and to identify additional variables
for risk-adjustment and in the statistical approach to account for
response bias, including patient demographics and clinical
comorbidities up to 12 months prior to surgery. The Medicare Enrollment
Database (EDB) identifies Medicare FFS enrollment and patient-
identified race, and the Master Beneficiary Summary File allows for
determination of Medicare and Medicaid dual eligibility enrollment
status. Demographic information from the U.S. Census Bureau's American
Community Survey allows for derivation of the Agency for Healthcare
Research and Quality (AHRQ) Socioeconomic Status (SES) Index score.
Race, dual eligibility, and AHRQ SES Index score are used in the
statistical approach to account for potential non-response bias in the
outcome calculation. We refer readers to section XV.B.5.b.(2)(iii) of
this proposed rule for further details regarding the variables required
for data collection and submission.
(ii) Measure Calculation
The ASC facility-level THA/TKA PRO-PM result is calculated by
aggregating all patient-level results across the facility. This measure
would be calculated and presented as a RSIR, producing a performance
measure per facility which accounts for patient case-mix, addresses
potential non-response bias, and represents a measure of quality of
care following elective primary outpatient THA/TKA. Response rates for
PRO data would be calculated as the percentage of elective primary ASC
THA or TKA procedures for which complete and matched pre-operative and
post-operative PRO data have been submitted divided by the total number
of eligible THA or TKA procedures performed at each facility.
(iii) Data Submission and Reporting
In response to feedback received from interested parties in the
request for comments (RFCs) on this measure in the FY 2022 IPPS/LTCH
PPS final rule (86 FR 45408 through 45414) and the CY 2022 OPPS/ASC
proposed rule (86 FR 42251 through 42252) and adoption of the measure
in the Hospital IQR Program in the FY 2023 IPPS/LTCH PPS final rule (87
FR 49246 through 49257), we propose to adopt the THA/TKA PRO-PM in the
ASCQR Program utilizing flexible data submission approaches.
ASCs would submit the following variables collected pre-operatively
between 90 and zero days prior to the THA/TKA procedure for each
patient: Medicare provider number; Medicare health insurance claim
(HIC) number/Medicare beneficiary identifier (MBI); date of birth; date
of procedure; date of PRO data collection; procedure type; mode of
collection; person completing the survey; facility admission date;
patient-reported outcome measure version; PROMIS Global (mental health
subscale items) or VR-12 (mental health subscale items); HOOS, JR (for
THA patients); KOOS, JR (for TKA patients); Single-Item Health Literacy
Screening (SILS2) questionnaire; BMI or weight (kg)/height (cm);
chronic (>=90 day) narcotic use; total painful joint count (patient
reported in non-operative lower extremity joint); and quantified spinal
pain (patient-reported back pain, Oswestry index
question502 503).
---------------------------------------------------------------------------
\502\ Fairbank JC, & Pynsent PB. (2000). The Oswestry Disability
Index. Spine. 25(22), 2940-52 https://journals.lww.com/spinejournal/Abstract/2000/11150/The_Oswestry_Disability_Index.17.aspx.
\503\ The Oswestry Disability Index is in the public domain and
available for all hospitals to use.
---------------------------------------------------------------------------
ASCs would submit the following variables collected post-
operatively between 300 and 425 days following the THA/TKA procedure
for each patient: Medicare provider number; Medicare HIC number/MBI;
date of birth; procedure date; date of PRO data collection; procedure
type; mode of collection; person completing the survey; facility
admission date; KOOS, JR (TKA patients); and HOOS, JR (THA patients).
The data submission period for the THA/TKA PRO-PM would also serve as
the review and correction period. Data would not be able to be
corrected following the submission deadline.
We propose a phased implementation approach for adoption of this
measure to the ASCQR Program, with voluntary reporting periods in CYs
2025 and CY 2026 followed by mandatory reporting beginning with the CY
2027 reporting period/CY 2030 payment determination in the ASCQR
Program. Voluntary reporting prior to mandatory reporting would allow
time for facilities to incorporate the THA/TKA PRO-PM data collection
into their clinical workflows and is responsive to interested parties'
comments as summarized in the FY 2022 IPPS/LTCH PPS final rule (86 FR
45408 through 45414) and FY 2023 IPPS/LTCH PPS final rule (87 FR 49246
through 49257). Given the numbers of ASCs, varied number of procedures
being performed, and the extended follow-up periods, we considered
extending the length of voluntary reporting.
Following the two voluntary reporting periods, we propose that
mandatory reporting of the THA/TKA PRO-PM would begin with the CY 2027
reporting period/CY 2030 payment determination. For each voluntary and
subsequent mandatory reporting period, we would collect data on the
THA/TKA PRO-PM in accordance with Health Insurance Portability and
Accountability Act of 1996 (HIPAA), Privacy and Security Rules (45 CFR
parts 160 and 164, subparts A, C, and E), and other applicable law.
(b) Review by Measure Applications Partnership (MAP)
We included the THA/TKA PRO-PM measure for the ASCQR Program in the
publicly available ``2022 Measures Under Consideration List.''
(MUC2022-026).\504\ The MAP Coordinating Committee supported the
measure, as referenced in the MAP's 2022-2023 Final Recommendations
report to HHS and CMS.\505\
---------------------------------------------------------------------------
\504\ 2022 Measures Under Consideration List. Available at
https://mmshub.cms.gov/sites/default/files/2022-MUC-List.xlsx.
\505\ MAP MUC Preliminary Recommendations 2022-2023. Available
at https://mmshub.cms.gov/sites/default/files/2022-2023-MAP-Final-Recommendations-508.xlsx.
---------------------------------------------------------------------------
The MAP members noted that, while a similar version of this measure
has been adopted for use in the Hospital IQR program, a measure that
assesses PROs among THA/TKA patients in ASCs for the ASCQR Program does
not currently exist. The MAP highlighted the key strategy for the ASCQR
Program is to ensure that procedures done in any type of facility have
equivalent quality. As such, the MAP members agree that quality
measures regarding procedures in hospital settings should be
incorporated into the ASCQR Program, to the extent feasible and
appropriate, so that consumers can compare quality of a specific
procedure across different facility types, including ASCs.\506\
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\506\ Ibid.
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In addition, the MAP members stated that the goal of the THA/TKA
PRO-PM is to capture the full spectrum of care to incentivize
collaboration and shared responsibility for improving patient health
and reducing the burden of their disease. They agreed that this measure
aligns with the goal of patient-centered approaches to health care
quality improvement and addresses the high priority areas of patient
and family
[[Page 49818]]
engagement, communication, and care coordination for the ASCQR
Program.\507\
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\507\ Ibid.
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(c) Measure Endorsement
The CBE endorsed the hospital-level version of the THA/TKA PRO-PM
(CBE #3559) in November 2020.\508\ We note that the ASCQR Program
version of the THA/TKA PRO-PM currently uses the same specifications as
the CBE endorsed hospital-level THA/TKA PRO-PM with modifications that
allow for the capture of procedures performed in for the ASC setting.
We intend to seek CBE endorsement for the ASCQR Program's version of
the THA/TKA PRO-PM in a future endorsement cycle.
---------------------------------------------------------------------------
\508\ Centers for Medicaid & Medicare Services. Hospital-Level,
Risk-Standardized Improvement Rate in Patient-Reported Outcomes
Following Elective Primary Total Hip and/or Total Knee Arthroplasty
(THA/TKA). Available at: https://cmit.cms.gov/cmit/#/FamilyView?familyId=1618.
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We have noted in previous rulemaking (76 FR 74494) the requirement
that measures reflect consensus among affected parties can be achieved
in other ways aside from CBE endorsement, including through the measure
development process, through broad acceptance, use of the measure(s),
and through public comment. We propose this measure without CBE-
endorsement based upon strong MAP and public support combined with the
importance of the measure for Medicare beneficiaries. In addition,
there are two existing, CBE-endorsed versions of this measure, one at
the clinician-group level (CBE #3639) and one for the hospital level
(CBE #3559). We expect that the measure will perform similarly in the
ASC setting, and we intend on submitting the measure for CBE
endorsement following data collection during voluntary reporting.
We refer readers to section XV.D.1.d of this proposed rule for a
discussion on the THA/TKA PRO-PM form, manner, and timing submission
requirements.
We invite public comment on this proposal.
6. ASCQR Program Quality Measure Set
a. Summary of Previously Finalized and Newly Proposed ASCQR Program
Quality Measure Set for the CY 2024 Reporting Period/CY 2026 Payment
Determination
We refer readers to the CY 2023 OPPS/ASC final rule (87 FR 72120
through 72121) for the previously finalized ASCQR Program measure set
for the CY 2024 reporting period/CY 2026 payment determination.
Table 75 below summarizes the previously finalized and newly
proposed ASCQR Program measures for the CY 2024 reporting period/CY
2026 payment determination.
BILLING CODE 4120-01-P
[GRAPHIC] [TIFF OMITTED] TP31JY23.111
b. Summary of Previously Finalized and Newly Proposed ASCQR Program
Quality Measure Set for the CY 2025 Reporting Period/CY 2027 Payment
Determination and Subsequent Years
Table 76 summarizes the previously finalized and newly proposed
ASCQR Program measures for the CY 2025
[[Page 49819]]
reporting period/CY 2027 payment determination.
[GRAPHIC] [TIFF OMITTED] TP31JY23.112
BILLING CODE 4120-01-C
7. Maintenance of Technical Specifications for Quality Measures
We maintain technical specifications for previously adopted ASCQR
Program measures. These specifications are updated as we modify the
ASCQR Program measure set. The manuals that contain specifications for
the previously adopted measures can be found on the CMS website
(currently at: https://qualitynet.cms.gov/asc/specifications-manuals).\509\ Our policy on maintenance of technical specifications
for the ASCQR Program are codified in our regulations at Sec. 416.325.
We propose to amend our measure maintenance regulation at Sec.
416.325(c) to replace references to ``QualityNet'' with ``CMS-
designated information system'' or ``CMS website,'' and to make other
[[Page 49820]]
conforming technical edits, to accommodate recent and future systems
requirements and mitigate confusion for program participants.
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\509\ Qualitynet Home. (n.d.). Retrieved March 21, 2023, from
https://qualitynet.cms.gov/asc/specifications-manuals.
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We invite public comment on this proposal.
8. Public Reporting of ASCQR Program Data
We refer readers to the CYs 2012, 2016, 2017, and 2018 OPPS/ASC
final rules (76 FR 74514 through 74515; 80 FR 70531 through 70533; 81
FR 79819 through 79820; and 82 FR 59455 through 59470, respectively)
for detailed discussion of our policies regarding the public reporting
of ASCQR Program data, which are codified in our regulations at Sec.
416.315 (80 FR 70533).
We are not proposing any changes to these policies in this proposed
rule.
C. Administrative Requirements
1. Requirements Regarding Data Submission
We refer readers to Sec. 416.310(c)(1)(i) for our current policies
regarding submission of data via our online data submission tool,
including security official and system registration requirements. We
propose to amend our collection and submission regulation at Sec.
416.310(c)(1)(i) to replace references to ``QualityNet'' with ``CMS-
designated information system'' or ``CMS website,'' and to make other
conforming technical edits, to accommodate recent and future systems
requirements and mitigate confusion for program participants.
We invite public comment on this proposal.
2. Requirements Regarding Program Participation
We refer readers to the CY 2014 OPPS/ASC final rule (78 FR 75133
through 75135) for a complete discussion of the participation status
requirements beginning with the CY 2014 payment determination. In the
CY 2016 OPPS/ASC final rule (80 FR 70533 through 70534), we codified
these requirements regarding participation status for the ASCQR Program
in our regulations at Sec. 416.305. We propose to amend our withdrawal
regulation at Sec. 416.305(b)(1) to replace references to
``QualityNet'' with ``CMS-designated information system'' or ``CMS
website,'' and to make other conforming technical edits, to accommodate
recent and future systems requirements and mitigate confusion for
program participants.
We invite public comment on this proposal.
D. Form, Manner, and Timing of Data Submitted for the ASCQR Program
Previously finalized quality measures and information collections
discussed in this section were approved by the Office of Management and
Budget (OMB) under control number 0938-1270 (expiration date August 31,
2025). An updated PRA package reflecting the updated information
collection requirements related to the proposals set forth in this
section of the proposed rule will be submitted for approval under the
same OMB control number.
1. Data Collection and Submission
a. Background
We previously codified our existing policies regarding data
collection and submission under the ASCQR Program in our regulations at
Sec. 416.310.
b. Requirements for Claims-Based Measures
(1) Requirements Regarding Data Processing and Collection Periods for
Claims-Based Measures Using Quality Data Codes (QDCs)
We refer readers to the CY 2014 OPPS/ASC final rule (78 FR 75135)
for a complete summary of the data processing and collection periods
for the claims-based measures using QDCs beginning with the CY 2012
reporting period/CY 2014 payment determination. In the CY 2016 OPPS/ASC
final rule (80 FR 70534), we codified the requirements regarding data
processing and collection periods for claims-based measures using QDCs
for the ASCQR Program in our regulations at Sec. 416.310(a)(1) and
(2). We note that the previously finalized data processing and
collection period requirements will apply to any future claims-based
measures using QDCs adopted in the ASCQR Program.
We are not proposing any changes to these policies in this proposed
rule.
(2) Minimum Threshold, Minimum Case Volume, and Data Completeness for
Claims-Based Measures Using QDCs
We refer readers to the CY 2018 OPPS/ASC final rule (82 FR 59472)
(and the previous rulemakings cited therein), as well as our
regulations at Sec. Sec. 416.310(a)(3) and 416.305(c) for our policies
about minimum threshold, minimum case volume, and data completeness for
claims-based measures using QDCs. We also refer readers to section
XVI.D.1.b of the CY 2022 OPPS/ASC final rule (86 FR 63904 through
63905), where we finalized that our policies for minimum threshold,
minimum case volume, and data completeness requirements apply to any
future claims-based-measures using QDCs adopted in the ASCQR Program.
We are not proposing any changes to these policies in this proposed
rule.
(3) Requirements Regarding Data Processing and Collection Periods for
Non-QDC Based, Claims-Based Measure Data
We refer readers to the CY 2019 OPPS/ASC final rule (83 FR 59136
through 59138) for a complete summary of the data processing and
collection requirements for the non-QDC based, claims-based measures.
We codified the requirements regarding data processing and collection
periods for non-QDC, claims-based measures for the ASCQR Program in our
regulations at Sec. 416.310(b). We note that these requirements for
non-QDC based, claims-based measures apply to the following previously
adopted measures:
Facility 7-Day Risk-Standardized Hospital Visit Rate after
Outpatient Colonoscopy; and
Facility-Level 7-Day Hospital Visits after General Surgery
Procedures Performed at Ambulatory Surgical Centers (CBE #3357).
We are not proposing any changes to these policies in this proposed
rule.
c. Requirements for Data Submitted Via an Online Data Submission Tool
(1) Requirements for Data Submitted Via a CMS Online Data Submission
Tool
We refer readers to the CY 2018 OPPS/ASC final rule (82 FR 59473)
(and the previous rulemakings cited therein) and our regulations at
Sec. 416.310(c)(1) for our requirements regarding data submitted via a
CMS online data submission tool. We are currently using the HQR System
(formerly referred to as the QualityNet Secure Portal) \510\ to host
our CMS online data submission tool, available by securely logging in
at: https://hqr.cms.gov/hqrng/login. We note that, in the CY 2018 OPPS/
ASC final rule (82 FR 59473), we finalized expanded submission via the
CMS online tool to also allow for batch data submission and made
corresponding changes at Sec. 416.310(c)(1)(i).
---------------------------------------------------------------------------
\510\ The HQR System was previously referred to as the
QualityNet Secure Portal.
---------------------------------------------------------------------------
The following previously finalized measures require data
to be submitted via a CMS online data submission tool beginning with
the CY 2019 reporting period/CY 2021 payment determination: Endoscopy/
Polyp Surveillance: Appropriate Follow-Up Interval for Normal
Colonoscopy in Average Risk Patients;
Cataracts Visual Function measure (Previously referred to
as Cataracts:
[[Page 49821]]
Improvement in Patients' Visual Function within 90 Days Following
Cataract Surgery);
Normothermia Outcome; and
Unplanned Anterior Vitrectomy.
In the CY 2022 OPPS/ASC final rule (86 FR 63883 through 63885), we
finalized our proposal to require and resume data collection beginning
with the CY 2023 reporting period/CY 2025 payment determination for the
following four measures:
Patient Burn;
Patient Fall;
Wrong Site, Wrong Side, Wrong Patient, Wrong Procedure,
Wrong Implant; and
All-Cause Hospital Transfer/Admission.
Measure data for these measures must be submitted via the HQR
System.
Other than the proposal to amend Sec. 416.310(c)(1)(i) and (d)(1)
discussed in section XV.C.1 of this proposed rule, we are not proposing
any changes to these policies in this proposed rule.
(a) Proposed Data Submission and Reporting Requirements for the ASC
Procedure Volume Measure
In section XV.B.5.a of this proposed rule, we propose to re-adopt
the ASC Procedure Volume measure (with modification), with voluntary
reporting beginning with the CY 2025 reporting period followed by
mandatory reporting beginning with CY 2026 reporting period/CY 2028
payment determination. We also propose that ASCs submit these data to
CMS through the HQR System during the time period of January 1 to May
15 in the year prior to the affected payment determination year. For
example, for the CY 2025 reporting period, the data submission period
would be January 1, 2026 to May 15, 2026, covering the performance
period of January 1, 2025 to December 31, 2025.
Under this proposed measure, we will collect and publicly display
data surrounding the top five most frequently performed procedures
among ASCs in each of the following eight categories: Cardiovascular,
Eye, Gastrointestinal, Genitourinary, Musculoskeletal, Nervous System,
Respiratory, and Skin.\511\ We will assess and update the top five
procedures in each category annually as needed. We propose that ASCs
would submit aggregate-level data through the CMS web-based tool
(currently the HQR system). Data received through the HQR system
website will then be publicly displayed on the https://data.cms.gov">data.cms.gov website, or
other CMS website, following our 30-day preview period of submitted
data.
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\511\ Ambulatory Surgical Center Specifications Manuals.
Available at https://qualitynet.cms.gov/asc/specifications-manuals#tab6.
---------------------------------------------------------------------------
We refer readers to our regulation at Sec. 416.315 for our
codified policies regarding public reporting of data under the ASCQR
Program, as well as our existing policies regarding data collection and
submission under the ASCQR Program in our regulations at Sec. 416.310.
We invite public comment on this proposal.
(b) Proposed Data Submission and Reporting Requirements for the
Cataracts Visual Function Measure
In section XV.B.4.b of this proposed rule, we propose to modify the
Cataracts Visual Function measure by standardizing acceptable survey
instruments, beginning with the CY 2024 reporting period, which would
limit the allowable survey instruments to those listed below:
The National Eye Institute Visual Function Questionnaire-25
(NEI VFQ-25)
The Visual Functioning Patient Questionnaire (VF-14)
The Visual Functioning Index Patient Questionnaire (VF-8R)
We also propose that ASCs submit these data to CMS during the time
period of January 1 to May 15 in the year prior to the affected payment
determination year. For example, for the CY 2024 reporting period, the
data submission period would be January 1, 2025 to May 15, 2025,
covering the performance period of January 1, 2024 to December 31,
2024. Specifically, for data collection, we propose that ASCs submit
aggregate-level data through the HQR System. We previously codified our
existing policies regarding data collection and submission under the
ASCQR Program in our regulations at Sec. 416.310.
We invite public comment on this proposal.
(2) Requirements for Data Submitted Via a Non-CMS Online Data
Submission Tool
We refer readers to the CY 2014 OPPS/ASC final rule (78 FR 75139
through 75140) and the CY 2015 OPPS/ASC final rule (79 FR 66985 through
66986) for our requirements regarding data submitted via a non-CMS
online data submission tool (specifically, the CDC's National Health
Safety Network [NHSN]). We codified our existing policies regarding the
data collection periods for measures involving online data submission
and the deadline for data submission via a non-CMS online data
submission tool in our regulations at Sec. 416.310(c)(2). While we did
not finalize any changes to those policies in the CY 2022 OPPS/ASC
final rule (86 FR 63875 through 63883), we did finalize policies
specific to the COVID-19 Vaccination Coverage Among HCP measure, for
which data will be submitted via the CDC NHSN. In section XV.B.4.a of
this proposed rule, we discuss the proposed modification of the COVID-
19 Vaccination Coverage Among HCP measure beginning with the CY 2024
reporting period/CY 2026 payment determination. The requirements for
measure data submitted via the CDC NHSN website would remain as
previously finalized.
We are not proposing any changes to these policies in this proposed
rule.
d. Proposed Data Submission and Reporting Requirements for Patient-
Reported Outcome-Based Performance Measures (PRO-PMs)
In section XV.B.5.b of this proposed rule, we propose to adopt the
THA/TKA PRO-PM into the ASCQR Program measure set. We also propose the
reporting and submission requirements for PRO-PM measures as a new type
of measure to the ASCQR Program.
(1) Submission of PRO-PM Data
(a) Data Submission Generally
We believe that ASCs should have the choice of selecting from
multiple submission approaches, in line with input received by the
measure developer during measure development and comments as summarized
in the FY 2022 IPPS/LTCH PPS final rule (86 FR 45411 through 45414),
which recommended that we provide multiple options for data submission
mechanisms to ensure flexibility.
In section XV.B.5.b of this proposed rule, we propose that both
ASCs and vendors use the HQR System for data submission for the THA/TKA
PRO-PM, which would enable us to incorporate this new requirement into
the infrastructure we have developed and use to collect other quality
data. We would provide ASCs with additional detailed information and
instructions for submitting data using the HQR System through CMS'
existing websites, and through outreach, or both.
We invite public comment on these proposals.
[[Page 49822]]
(2) Data Submission Reporting Requirements
(a) Data Submission Requirements for Measures Submitted via a Web-Based
Tool
We refer readers to the QualityNet website available at: https://qualitynet.cms.gov for a discussion of the requirements for measure
data submitted via the HQR System (formerly referred to as the
QualityNet Secure Portal) for the CY 2017 payment determination and
subsequent years. The HQR System is safeguarded in accordance with the
HIPAA Privacy and Security Rules to protect submitted patient
information. See 45 CFR parts 160 and 164, subparts A, C, and E, for
more information regarding the HIPAA Privacy and Security Rules.
(b) Voluntary Reporting Requirements for the Proposed THA/TKA PRO-PM
For ASCs participating in voluntary reporting for the THA/TKA PRO-
PM as discussed in section XV.B.5.b of this proposed rule, we propose
that ASCs submit pre-operative PRO data, as well as matching post-
operative PRO data, for at least 45 percent of their eligible elective
primary THA/TKA procedures.
For the THA/TKA PRO-PM, we propose that the first voluntary
reporting period for the CY 2025 reporting period would include pre-
operative PRO data collection from 90 to 0 days before the procedure
(for eligible elective THA/TKA procedures performed from January 1,
2025 through December 31, 2025) and post-operative PRO data collection
from 300 to 425 days after the procedure. Therefore, during this first
voluntary reporting period for CY 2025, ASCs would submit pre-operative
data by May 15, 2026 and post-operative data by May 15, 2027, and we
intend to provide ASCs with their results in confidential feedback
reports in CY 2028. All deadlines occurring on a Saturday, Sunday, or
legal holiday, or on any other day all or part of which is declared to
be a non-workday for federal employees by statute or Executive order
would be extended to the first day thereafter. After the initial
submission of pre-operative data for the first voluntary period, ASCs
would submit both pre-operative and post-operative data by the same
day, but for different time periods. For example, ASCs would need to
submit: (1) post-operative data for the first voluntary reporting
period (for procedures performed between January 1, 2025 and December
31, 2025); and (2) pre-operative data for the second voluntary
reporting (for procedures performed between January 1, 2026 and
December 31, 2026) of the THA/TKA PRO-PM by May 15, 2027.
For the THA/TKA PRO-PM, we propose that the second voluntary
reporting period for the CY 2026 reporting period would include pre-
operative PRO data collection from 90 to 0 days before the procedure
(for eligible elective THA/TKA procedures performed from January 1,
2026, through December 31, 2026) and post-operative PRO data collection
from 300 to 425 days after the procedure. ASCs would submit pre-
operative data by May 15, 2027 and post-operative data by May 15, 2028,
and we intend to provide ASCs with their results in confidential
feedback reports in CY 2029. ASCs that voluntarily submit data for this
measure would receive confidential feedback reports that detail
submission results from the reporting period. Results of voluntary
reporting would not be made publicly available. If feasible, we would
calculate and provide each participating ASC with their RSIR as part of
the confidential feedback reports. This would provide each ASC with an
indication of their performance relative to the other facilities that
participate in the voluntary reporting period.
While we do not propose to publicly report the data we receive
during the voluntary reporting periods for the THA/TKA PRO-PM facility-
level RSIR, we propose to publicly report which ASCs choose to
participate in voluntary reporting and/or the percent of pre-operative
data submitted by participating ASCs for the first voluntary reporting
period, and their percent of pre-operative and post-operative matched
PRO data submitted for subsequent voluntary reporting periods. For
example, if out of 100 eligible procedures a facility submits 45 pre-
operative cases that match to post-operative cases, then we would
report that facilities submitted 45 percent of matched pre-operative
and post-operative PRO surveys during voluntary reporting.
We refer readers to Table 77 for an overview of the proposed
performance period, pre- and post-operative data collection timeframes,
and data submission deadlines during the voluntary reporting periods
for THA/TKA PRO-PM.
[[Page 49823]]
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(c) Mandatory Reporting
Following the two voluntary reporting periods, we propose that
mandatory reporting of the THA/TKA PRO-PM would begin with reporting
PRO data for eligible elective THA/TKA procedures from January 1, 2027
through December 31, 2027 (the CY 2027 performance period), impacting
the CY 2030 payment determination. This initial mandatory reporting
would include pre-operative PRO data collection from 90 days preceding
the applicable performance period and from 300 to 425 days after the
performance period. For example, pre-operative data from October 3,
2026 through December 31, 2027 (for eligible elective primary THA/TKA
procedures from January 1, 2027 through December 31, 2027) and post-
operative PRO data collection from October 28, 2027 to February 28,
2029. Pre-operative data submission would occur by May 15, 2028 and
post-operative data submission in May 15, 2029.
We intend to provide ASCs with their results in CY 2030 before
publicly reporting results on the Compare tool hosted by HHS, currently
available at https://www.medicare.gov/care-compare, or its successor
website. We would provide confidential feedback reports during the
voluntary period which would include the RSIR as well as other results
that support understanding of their performance prior to public
reporting. For this first mandatory reporting period, facilities that
fail to meet the reporting requirements would receive a reduction of
their Annual Payment Update (APU) in the CY 2030 payment determination.
We propose that ASCs would be required to submit 45 percent of
eligible, complete pre-operative data with matching eligible, complete
post-operative data as a minimum amount of data for mandatory reporting
in the ASCQR Program.
We refer readers to Table 78 for an overview of the proposed
performance period, pre- and post-operative data collection timeframes,
and data submission deadlines during the first mandatory reporting
period.
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We invite comment on these proposals.
e. ASCQR Program Data Submission Deadlines
We refer readers to the CY 2021 OPPS/ASC final rule (85 FR 86191)
for a detailed discussion of our data submission deadlines policy,
which we codified in our regulations at Sec. 416.310(f).
We are not proposing any changes to this policy in this proposed
rule.
f. Review and Corrections Period for Measure Data Submitted to the
ASCQR Program Review and Corrections Period for Data Submitted via a
CMS Online Data Submission Tool
We refer readers to the CY 2021 OPPS/ASC final rule (85 FR 86191
through 86192) for a detailed discussion of our review and corrections
period policy, which we codified in our regulations at Sec.
416.310(c)(1)(iii).
We are not proposing any changes to this policy in this proposed
rule.
g. ASCQR Program Reconsideration Procedures
We refer readers to the CY 2016 OPPS/ASC final rule (82 FR 59475)
(and the previous rulemakings cited therein) and Sec. 416.330 for the
ASCQR Program's reconsideration policy.
We are not proposing any changes to this policy in this proposed
rule.
h. Extraordinary Circumstances Exception (ECE) Process
We refer readers to the CY 2018 OPPS/ASC final rule (82 FR 59474
through 59475) (and the previous rulemakings cited therein) and Sec.
416.310(d) for the ASCQR Program's extraordinary circumstance
exceptions (ECE) request policy. We propose to amend our exception
policy codified at Sec. 416.310(d)(1) to replace references to
``QualityNet'' with ``CMS-designated information system'' or ``CMS
website'', and to make other conforming technical edits, to accommodate
recent and future systems requirements and mitigate confusion for
program participants.
We invite public comment on this proposal.
E. Payment Reduction for ASCs That Fail To Meet the ASCQR Program
Requirements
1. Statutory Background
We refer readers to the CY 2012 OPPS/ASC final rule with comment
period (76 FR 74492 through 74493) for a detailed discussion of the
statutory background regarding payment reductions for ASCs that fail to
meet the ASCQR Program requirements.
2. Policy Regarding Reduction to the ASC Payment Rates for ASCs That
Fail To Meet the ASCQR Program Requirements for a Payment Determination
Year
The national unadjusted payment rates for many services paid under
the ASC payment system are equal to the product of the ASC conversion
factor and the scaled relative payment weight for the APC to which the
service is assigned. For CY 2022, the ASC conversion factor is equal to
the conversion factor calculated for the previous year updated by the
productivity-adjusted hospital market basket update factor. The
productivity adjustment is set forth in section 1833(i)(2)(D)(v) of the
Act. The productivity-adjusted hospital market basket update is the
annual update for the ASC payment system for a 5-year period (CY 2019
through CY 2023). Under the ASCQR Program, in accordance with section
1833(i)(7)(A) of the Act and as discussed in the CY 2013 OPPS/ASC final
rule with comment period (77 FR 68499), any annual increase in certain
payment rates under the ASC payment system shall be reduced by 2.0
percentage points for ASCs that fail to meet the reporting requirements
of the ASCQR Program. This reduction applied beginning with the CY 2014
payment rates (77 FR 68500). For a complete discussion of the
calculation of the ASC conversion factor and our finalized proposal to
update the ASC payment rates using the inpatient hospital market basket
update for CYs 2019 through 2023, we refer readers to the CY 2019 OPPS/
ASC final rule with comment period (83 FR 59073 through 59080).
In the CY 2013 OPPS/ASC final rule with comment period (77 FR 68499
through 68500), in order to implement the requirement to reduce the
annual update for ASCs that fail to meet the ASCQR Program
requirements, we finalized the following policies: (1) to calculate a
full update conversion factor and an ASCQR Program reduced update
conversion factor; (2) to calculate reduced national unadjusted payment
rates using the ASCQR Program reduced update conversion factor that
would apply to ASCs that fail to meet their quality reporting
requirements for that calendar year payment determination; and (3) that
application of the 2.0 percentage point reduction to the annual update
may result in the update to the ASC payment system being less than zero
prior to the application of the productivity adjustment. The ASC
conversion factor is used to calculate the ASC payment rate for
services with the following payment indicators (listed
[[Page 49825]]
in Addenda AA and BB to the proposed rule, which are available via the
internet on the CMS website): ``A2'', ``G2'', ``P2'', ``R2'' and
``Z2'', as well as the service portion of device-intensive procedures
identified by ``J8'' (77 FR 68500). We finalized our proposal that
payment for all services assigned the payment indicators listed above
would be subject to the reduction of the national unadjusted payment
rates for applicable ASCs using the ASCQR Program reduced update
conversion factor (77 FR 68500).
The conversion factor is not used to calculate the ASC payment
rates for separately payable services that are assigned status
indicators other than payment indicators ``A2'', ``G2'', ``J8'',
``P2'', ``R2'' and ``Z2.'' These services include separately payable
drugs and biologicals, pass-through devices that are contractor-priced,
brachytherapy sources that are paid based on the OPPS payment rates,
and certain office-based procedures, radiology services and diagnostic
tests where payment is based on the PFS nonfacility PE RVU-based
amount, and a few other specific services that receive cost-based
payment (77 FR 68500). As a result, we also finalized our proposal that
the ASC payment rates for these services would not be reduced for
failure to meet the ASCQR Program requirements because the payment
rates for these services are not calculated using the ASC conversion
factor and, therefore, are not affected by reductions to the annual
update (77 FR 68500).
Office-based surgical procedures (generally those performed more
than 50 percent of the time in physicians' offices) and separately paid
radiology services (excluding covered ancillary radiology services
involving certain nuclear medicine procedures or involving the use of
contrast agents) are paid at the lesser of the PFS nonfacility PE RVU-
based amounts or the amount calculated under the standard ASC
ratesetting methodology. Similarly, in the CY 2015 OPPS/ASC final rule
with comment period (79 FR 66933 through 66934), we finalized our
proposal that payment for certain diagnostic test codes within the
medical range of CPT codes for which separate payment is allowed under
the OPPS will be at the lower of the PFS nonfacility PE RVU-based (or
technical component) amount or the rate calculated according to the
standard ASC ratesetting methodology when provided integral to covered
ASC surgical procedures. In the CY 2013 OPPS/ASC final rule with
comment period (77 FR 68500), we finalized our proposal that the
standard ASC ratesetting methodology for this type of comparison would
use the ASC conversion factor that has been calculated using the full
ASC update adjusted for productivity. This is necessary so that the
resulting ASC payment indicator, based on the comparison, assigned to
these procedures or services is consistent for each HCPCS code,
regardless of whether payment is based on the full update conversion
factor or the reduced update conversion factor.
For ASCs that receive the reduced ASC payment for failure to meet
the ASCQR Program requirements, we have noted our belief that it is
both equitable and appropriate that a reduction in the payment for a
service should result in proportionately reduced coinsurance liability
for beneficiaries (77 FR 68500). Therefore, in the CY 2013 OPPS/ASC
final rule with comment period (77 FR 68500), we finalized our proposal
that the Medicare beneficiary's national unadjusted coinsurance for a
service to which a reduced national unadjusted payment rate applies
will be based on the reduced national unadjusted payment rate.
In the CY 2013 OPPS/ASC final rule with comment period, we
finalized our proposal that all other applicable adjustments to the ASC
national unadjusted payment rates would apply in those cases when the
annual update is reduced for ASCs that fail to meet the requirements of
the ASCQR Program (77 FR 68500). For example, the following standard
adjustments would apply to the reduced national unadjusted payment
rates: the wage index adjustment; the multiple procedure adjustment;
the interrupted procedure adjustment; and the adjustment for devices
furnished with full or partial credit or without cost (77 FR 68500). We
believe that these adjustments continue to be equally applicable to
payment for ASCs that do not meet the ASCQR Program requirements (77 FR
68500).
In the CY 2015 through CY 2023 OPPS/ASC final rules with comment
period we did not make any other changes to these policies. We propose
the continuation of these policies for the CY 2024 reporting period/CY
2026 payment determination.
XVI. Proposed Requirements for the Rural Emergency Hospital Quality
Reporting (REHQR) Program
A. Background
1. Overview
The Rural Emergency Hospital Quality Reporting (REHQR) Program's
overarching goals are to improve the quality of care provided to
Medicare beneficiaries, facilitate public transparency, ensure
accountability, and safeguard the accessibility of facilities in rural
settings. We refer readers to section XVI of the CY 2023 Hospital
Outpatient Prospective Payment System (OPPS)/Medicare Ambulatory
Surgical Center Payment System (ASC) final rule (87 FR 72136 through
72150) for an overview of the REHQR Program.
2. Statutory and Regulatory History of Quality Reporting for REHs
Congress established Rural Emergency Hospitals (REHs) as a new
Medicare provider type in the Consolidated Appropriations Act (CAA),
2021. Section 125 of Division CC of the CAA added section 1861(kkk) to
the Social Security Act (the Act). This section defines an REH as a
facility that, in relevant part, was, as of December 27, 2020 (1) a
critical access hospital (CAH); or (2)(i) a subsection (d) hospital
with not more than 50 beds located in a county (or equivalent unit of
local government) in a rural area,\512\ or (ii) a subsection (d)
hospital with not more than 50 beds that was treated as being in a
rural area.513 514 Among other requirements, an REH must
apply for enrollment in the Medicare program, provide emergency
department (ED) services and observation care, and not provide any
acute care inpatient services (other than post-hospital extended care
services furnished in a distinct part unit licensed as a skilled
nursing facility).515 516 At the election of the REH, it can
also provide certain services furnished on an outpatient basis.\517\
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\512\ As defined in section 1886(d)(2)(D) of the Act.
\513\ Pursuant to section 1886(d)(8)(E) of the Act.
\514\ As set out under section 1861(kkk)(3) of the Act.
\515\ 42 CFR part 485 subpart E (Sec. Sec. 485.500 through
485.546).
\516\ Qualification Requirements for REHs are set out under
section 1861(kkk)(2) of the Act.
\517\ See section 1861(kkk)(1)(A)(ii) of the Act.
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3. Proposal To Codify the Statutory Authority of the REHQR Program
We propose to codify the statutory authority for the REHQR Program
at 42 CFR 419.95 by adding paragraph (a) ``Statutory Authority.''
Section 1861(kkk)(7)(A) of the Act authorizes the Secretary to
implement a quality reporting program requiring REHs to submit data on
measures in accordance with the Secretary's requirements in section
1861(kkk)(7). Section 1861(kkk)(7)(B)(ii) requires REHs to submit
quality measure data to the Secretary ``in a form and manner, and at a
time, specified by the Secretary.'' The Act does not require the
Secretary to provide incentives for submitting this
[[Page 49826]]
data under the REHQR Program, nor does it require the Secretary to
impose penalties for failing to comply with this requirement under the
REHQR Program.
We invite public comment on this proposal.
B. REHQR Program Quality Measures
1. Considerations in the Selection of REHQR Program Quality Measures
As we stated in the CY 2023 OPPS/ASC final rule, we seek to adopt a
concise set of important, impactful, reliable, accurate, and clinically
relevant measures for REHs that would inform consumer decision-making
regarding care and drive further quality improvement efforts in the REH
setting (87 FR 72137). As we considered potential measures for the
REHQR Program, we prioritized measures that had undergone previous
consensus-based entity (CBE) \518\ review for the hospital outpatient
department setting that reflect important areas of service for REHs
while adhering to the CMS National Quality Strategy goals,\519\
Strategic Plan,\520\ Meaningful Measures 2.0 initiatives,\521\ and the
Department of Health and Human Services' (HHS) Strategic Plan.\522\
When identifying potential measures for the REHQR Program, we focused
on the considerations of service and patient volume, care
accountability and quality, rurality and setting relevance, and health
equity.
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\518\ In previous years, we referred to the consensus-based
entity by corporate name. We have updated this language to refer to
the consensus-based entity more generally.
\519\ CMS (2023). What is the CMS National Quality Strategy?
Available at https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/Value-Based-Programs/CMS-Quality-Strategy. Last accessed April 13, 2023.
\520\ CMS (2023). CMS Strategic Plan. Available at: https://www.cms.gov/cms-strategic-plan. Last accessed March 10, 2023.
\521\ CMS (2022), Meaningful Measures 2.0: Moving from Measures
Reduction to Modernization. Available at https://www.cms.gov/medicare/meaningful-measures-framework/meaningful-measures-20-moving-measure-reduction-modernization. Last accessed April 13,
2023.
\522\ HHS (2022). Strategic Plan FY 2022-2026. Available at
https://www.hhs.gov/about/strategic-plan/2022-2026/. Last
accessed March 10, 2023.
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We note that under section 1861(kkk)(7)(C)(i) of the Act, unless
the exception of subclause (ii) applies, a measure selected for the
REHQR Program must have been endorsed by the entity with a contract
under section 1890(a) of the Act, also known as the CBE. The CBE is a
voluntary, consensus-based, standard-setting organization with a
diverse representation of consumer, purchaser, provider, academic,
clinical, and other health care stakeholder organizations. The CBE was
established to standardize healthcare quality measurement and reporting
through its consensus development processes. We have generally adopted
CBE-endorsed measures in our reporting programs. However, section
1861(kkk)(7)(C)(ii) provides an exception to CBE-endorsement, which is
that, in the case of a specified area or medical topic determined
appropriate by the Secretary for which a measure has not been endorsed
by the entity with a contract under section 1890(a) of the Act, the
Secretary may specify a measure that is not endorsed as long as due
consideration is given to measures that have been endorsed or adopted
by a consensus organization identified by the Secretary. In general, we
prefer to adopt measures that have been endorsed by the CBE identified
by the Secretary; however, due to lack of an endorsed measure for a
given setting, procedure, or other aspect of care, the requirement that
measures reflect consensus among affected parties can be achieved in
other ways, including input from the measure development process,
through broad acceptance, use of the measure(s) in other programs, and
through public comment.
We propose to adopt four measures in this proposed rule: (1)
Abdomen Computed Tomography (CT)--Use of Contrast Material; (2) Median
Time from Emergency Department (ED) Arrival to ED Departure for
Discharged ED Patients; (3) Facility 7-Day Risk-Standardized Hospital
Visit Rate After Outpatient Colonoscopy; and (4) Risk-Standardized
Hospital Visits Within 7 Days After Hospital Outpatient Surgery--for
the REHQR Program measure set. The proposed measures are currently
adopted measures in the Hospital Outpatient Quality Reporting (OQR)
Program. We recognize REHs will be smaller hospitals that will likely
have limited resources compared with larger hospitals in metropolitan
areas.\523\ For the REHQR Program, we intend to seek balance between
the costs associated with reporting data and the benefits of ensuring
safety and quality of care through measurement and public reporting.
Because REHs will consist of hospitals formerly operating as either
CAHs or subsection (d) hospitals, we assessed whether these facilities
have successfully reported the proposed measures within the context of
the Hospital OQR Program with sufficient volume to meet CMS case number
thresholds for data to be publicly reported. We note that CAHs report
data voluntarily under the Hospital OQR Program. We considered
reporting rates and measure performance for subsection (d) hospitals
that are eligible to convert to REHs and also analyzed data for other
subsection (d) hospitals that are not eligible for conversion to permit
comparisons of these providers' ability to report these data in
sufficient numbers to permit public reporting and to view comparative
performance. Table 79 includes the results of this analysis.
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\523\ American Hospital Association, Rural Report. (February,
2019), 2019 Challenges Facing Rural Communities and the Roadmap to
Ensure Local Access to High-quality, Affordable Care 3. Available at
https://www.aha.org/system/files/2019-02/rural-report-2019.pdf. Last
accessed February 28, 2023.
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Based on our analysis of these data, current to the January 2023
refresh of Care Compare, we note that a relatively high percentage of
the hospitals eligible to convert to REH status have reported
aggregated measure data in sufficient number for disclosure per CMS
privacy policy \524\ for the measures we propose for the initial REHQR
Program measure set. For example, in comparing solely the averages for
the Abdomen Computed Tomography (CT)--Use of Contrast Material measure,
a significant majority of CAHs (77.9 percent) and rural subsection (d)
hospitals with 50 or fewer beds (75.5 percent) have data publicly
reported. In addition, for the Facility 7-Day Risk-Standardized
Hospital Visit Rate After Outpatient Colonoscopy measure, rural
subsection (d) hospitals with 50 or fewer beds were more often able to
have data publicly reported than urban subsection (d) hospitals with 50
or fewer beds (65.5 percent versus 43.7 percent), which indicates that
this measure could be useful for small rural hospitals that convert.
For this latter measure, while the mean values are similar across
categories of hospitals, the results show that there are outlier
hospitals with higher levels of hospital events following outpatient
surgery than expected, which provides potentially valuable information
when discerning individual hospital performance.
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\524\ CMS Policy for Privacy Act Implementation & Breach
Notification, July 23, 2007, Document Number: CMS-CIO-POL-PRIV01-01,
p 4. Statistical, aggregate or summarized information created as a
result of analysis conducted using identifiable CMS data obtained
under CMS-approved projects/studies may only be disclosed if the
data are not individual-specific and the data are aggregated to a
level where no data cells contain 10 or fewer individuals.
---------------------------------------------------------------------------
While it is not possible to identify the exact group of hospitals
that will choose to convert to REH status, our analysis indicates that
the services targeted by the proposed measures are relevant for
hospitals that may participate in the REHQR Program as these hospitals
are currently providing the services assessed by the selected measures
with case volumes sufficient to meet thresholds to allow public
reporting of the collected data.\525\
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\525\ CMS does not report measures publicly unless measures are
the result of an analysis of more than 10 cases. See CMS Policy for
Privacy Act Implementation & Breach Notification, July 23, 2007,
Document Number: CMS-CIO-POL-PRIV01-01, p 4.
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2. Retention of Measures Previously Adopted Into the REHQR Program
a. Background
For purposes of our quality reporting programs, we retain measures
from previously adopted measure sets for subsequent years unless
otherwise specified; for example, see the Hospital OQR (42 CFR
419.46(i)(1)) and Ambulatory Surgical Center Quality Reporting (ASCQR)
Programs (Sec. 416.320(a)). As this approach establishes regularity
and predictability for participating providers and suppliers, we seek
to align the REHQR Program with this policy.
[[Page 49831]]
b. Proposal To Adopt and Codify a Measure Retention Policy for the
REHQR Program
We propose that once adopted into the REHQR Program measure set,
such measures are retained for use until we propose removal,
suspension, or replacement. We also propose to codify this policy at
Sec. 419.95 by adding paragraph (e) ``Retention and Removal of Quality
Measures Under the REHQR Program.'' In proposed paragraph (e)(1), we
propose that quality measures would be adopted into the REHQR Program
measure set until such time that such measures are proposed for
removal, suspension, or replacement, as set forth at proposed
paragraphs (e)(2) and (e)(3) of the section.
We invite public comment on these proposals.
3. Removal of Quality Measures From the REHQR Program Measure Set
a. Proposal To Adopt and Codify an Immediate Removal Policy for Adopted
REHQR Program Measures
When there is reason to believe that the continued collection of a
measure as currently specified raises potential patient safety
concerns, we believe it would be appropriate for us to take immediate
action to remove the measure from the REHQR Program outside of
rulemaking. Therefore, we propose to adopt an immediate measure removal
policy that would allow us to promptly remove such a measure and notify
REHs and the public of the decision to remove the measure through
standard hospital communication channels, including, but not limited
to, REHQR Program-specific listservs and REHQR Program guidance
currently housed on the QualityNet website. We also propose to confirm
the removal of the measure in the next appropriate rulemaking,
typically an OPPS rulemaking cycle. We note that the Hospital OQR
Program previously finalized a similar policy (74 FR 60634 through
60635).
We propose to codify this policy at Sec. 419.95 by adding
paragraph (e)(2) ``Immediate Measure Removal.'' In proposed paragraph
(e)(2), we propose that in cases where CMS believes that the continued
use of a quality measure as specified raises patient safety concerns,
CMS would immediately remove the measure from the REHQR Program,
promptly notify REHs and the public of the removal of the measure and
the reasons for its removal, and confirm the removal of the measure in
the next appropriate rulemaking.
We invite public comment on these proposals.
b. Proposal To Adopt and Codify a Measure Removal Factors Policy
The Hospital OQR and ASCQR Programs use similar sets of factors for
determining whether to remove measures. For more detail on the measure
removal factors in those programs, we refer readers to Sec. Sec.
419.46(i)(3)(i) and 416.320(c)(2), respectively. Generally, we prefer
to use similar removal factors across the quality reporting programs
for consistency and alignment. Therefore, to enhance alignment with
those programs, we propose to adopt a similar set of removal factors
for the REHQR Program.
Specifically, we propose to adopt the following eight factors to
determine conditions for measure removal from the REHQR Program:
Factor 1. Measure performance among REHs is so high and
unvarying that meaningful distinctions and improvements in performance
can no longer be made (``topped-out'' measures).
Factor 2. Performance or improvement on a measure does not
result in better patient outcomes.
Factor 3. A measure does not align with current clinical
guidelines or practice.
Factor 4. The availability of a more broadly applicable
(across settings, populations, or conditions) measure for the topic.
Factor 5. The availability of a measure that is more
proximal in time to desired patient outcomes for the particular topic.
Factor 6. The availability of a measure that is more
strongly associated with desired patient outcomes for the particular
topic.
Factor 7. Collection or public reporting of a measure
leads to negative unintended consequences other than patient harm.
Factor 8. The costs associated with a measure outweigh the
benefit of its continued use in the program.
In addition, for the proposed Measure Removal Factor 1, we propose
that a measure for the REHQR Program would be deemed topped-out by
determining: (1) when the difference between the 75th and 90th
percentiles for an REH's measure is within two times the standard error
of all measure data reported for all REHs, and (2) when the measure's
truncated coefficient of variation (TCOV) is less than or equal to 0.1.
We propose to codify these policies at Sec. 419.95 by adding
paragraph (e)(3), ``Measure Removal, Suspension, or Replacement Through
the Rulemaking Process.'' In proposed paragraph (e)(3), we propose that
unless a measure raises specific safety concerns as set forth in
proposed paragraph (e)(2) of the section, we would use rulemaking to
remove, suspend, or replace quality measures in the REHQR Program. We
also propose to adopt the eight removal factors discussed above by
codifying them at proposed paragraph (e)(3)(i), in alignment with other
quality reporting programs (74 FR 60634 through 60635, 77 FR 68472, and
83 FR 59082). Additionally, we propose to adopt the criteria to
determine topped-out measures discussed above at proposed paragraph
(e)(3)(ii). Similar to the Hospital OQR Program (79 FR 66941 through
66942), we propose to assess the benefits of removing a measure from
the REHQR Program on a case-by-case basis at proposed paragraph
(e)(3)(iii). An REHQR Program measure would not be removed solely based
on meeting any specific factor.
We invite public comment on these proposals.
4. Modifications to Previously Adopted Measures
a. Background
It is important for measures adopted for the REHQR Program to
remain up-to-date. We believe the way to achieve this is to have in
place a sub-regulatory process to incorporate non-substantive updates
to measure specifications to facilitate the incorporation of scientific
advances and updates to measure specifications in a as timely manner as
possible.
b. Proposal To Adopt and Codify a Sub-Regulatory Measure Modification
Policy
We propose a policy under which we would use a sub-regulatory
process to make non-substantive updates to measures adopted for the
REHQR Program. Examples of non-substantive changes to measures might
include updated diagnoses or procedure codes. With respect to what
constitutes substantive versus non-substantive changes, we expect to
make this determination on a case-by-case basis.
We propose that when there is an update to an REHQR Program measure
that we believe does not substantially change the nature of the
measure, we would use a sub-regulatory process to incorporate those
updates to the measure specifications that we apply to the program.
Specifically, we will develop a specifications manual that will provide
the complete and current technical specifications and abstraction
information for quality measures used in the REHQR Program. We would
[[Page 49832]]
revise the specifications manual to clearly identify any updates, and
would provide sufficient lead time for REHs to implement the revisions
where changes to the data collection systems would be necessary. We
would also provide notification of the measure specification updates on
a designated website, currently the QualityNet website, https://qualitynet.cms.gov/. We note that this proposed policy for the REHQR
Program aligns with the policies under the Hospital OQR Program (73 FR
68766 through 68767) and ASCQR Program (Sec. 416.325) that allow
measures to be refined through a sub-regulatory process.
We propose to codify this policy at Sec. 419.95(d) ``Technical
Specifications and Measure Maintenance Under the REHQR Program.'' In
proposed paragraph (d)(2), we propose that REHQR Program specifications
would be updated based on whether the change is considered substantive
or non-substantive, as determined by CMS. In proposed paragraph
(d)(2)(ii), we propose that if CMS determines that a change to a
measure previously adopted in the REHQR Program is non-substantive, CMS
would use a sub-regulatory process to revise the specifications manual
as discussed above.
Changes that we determine to be substantive would be those in which
the changes are so significant that the measure is no longer the same
measure. In proposed paragraph (d)(2)(i), we propose that we would
utilize rulemaking to adopt substantive updates to measures previously
adopted under the REHQR Program. We believe that this proposal
adequately balances the need to incorporate updates to the REHQR
Program measures in the most expeditious manner possible to maintain
relevancy, reliability, and accuracy of data collection while also
preserving the public's ability to comment on updates that
significantly change a measure.
We invite public comment on these proposals.
c. Proposal To Develop and Maintain Technical Specifications for
Quality Measures
We intend to maintain technical specifications for adopted REHQR
Program measures. We note that many of the measures considered for the
REHQR Program have been previously adopted by the Hospital OQR Program.
To simplify and streamline participation in the REHQR Program, we
propose to adopt a policy for maintaining the measure specifications of
REHQR Program measures that aligns with the Hospital OQR Program's
policy (83 FR 59104 through 59105).
In this proposed rule, we propose that, whenever we modify the
REHQR Program measures and measure sets, we would also update the
specifications manual for the REHQR Program. The manuals containing
specifications for previously adopted measures can be found on the
QualityNet website at: https://qualitynet.cms.gov/outpatient/specifications-manuals. At proposed paragraph (d)(1) of Sec. 419.95,
``Technical Specifications and Measure Maintenance Under the REHQR
Program,'' we propose to update the specifications manual for REHQR
Program measures at least every 12 months beginning with CY 2024.
We invite public comment on this proposal.
5. Proposed New Measures for the REHQR Program Measure Set
In this proposed rule, we propose to adopt four measures into the
REHQR Program measure set beginning CY 2024: (1) Abdomen Computed
Tomography (CT)--Use of Contrast Material measure; (2) Median Time from
ED Arrival to ED Departure for Discharged ED Patients measure; (3)
Facility 7-Day Risk-Standardized Hospital Visit Rate After Outpatient
Colonoscopy measure; and (4) Risk-Standardized Hospital Visits Within 7
Days After Hospital Outpatient Surgery measure. Three of these measures
would be calculated from Medicare Fee-For-Service (FFS) claims and
enrollment information. The fourth is a chart-abstracted measure. Many
hospitals that are eligible to convert to REH status would already have
established resources and experience with submitting these four
measures as part of the Hospital OQR Program as previously discussed.
a. Proposal To Adopt the Abdomen Computed Tomography (CT)--Use of
Contrast Material Measure
(1) Background
A CT study performed with and without contrast increases the
radiation dose to patients,\526\ exposing them to the potential harmful
side effects of the contrast material itself \527\ and it is often
unnecessary.\528\ In the past, reports showed deviations from
clinically appropriate American College of Radiology contrast practices
for abdominal/pelvic CTs nationally.\529\ A 2020 study using CMS Care
Compare data determined that hospitals are now conducting fewer
duplicate abdomen CTs (that is, less often performing CTs twice, once
with and once without contrast). These improvements are more pronounced
among hospitals that formerly conducted the most duplicate abdomen CTs.
The reduction in duplicate abdomen CTs observed in the 2020 study may
indicate that the Abdomen Computed Tomography (CT)--Use of Contrast
Material measure (the Abdomen CT) measure has been effective in
identifying performance gaps among some hospitals. Thus, collecting
data on this measure may have been effective in reducing duplicate
abdomen CTs and lowering related patient risks.\530\ However, the same
2020 study found that duplicate abdomen CTs continue to occur.
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\526\ Sahbaee, P, et. al (2017). The Effect of Contrast Material
on Radiation Dose at CT: Part II. A Systematic Evaluation across 58
Patient Models. Radiology, 283(3), 749-757. https://doi.org/10.1148/radiol.2017152852.
\527\ An, J, et. al. (2019). Differences in Adverse Reactions
Among Iodinated Contrast Media: Analysis of the KAERS Database. The
Journal of Allergy and Clinical Immunology: In Practice, 7(7), 2205-
2211. https://www.sciencedirect.com/science/article/abs/pii/S2213219819302570.
\528\ Hwang, IK, Lee, YS, Kim, J, Lee, YJ, Park, JH, Hwang.
(2015). Do we really need additional contrast-enhanced abdominal
computed tomography for differential diagnosis in triage of middle-
aged subjects with suspected biliary pain. Medicine, 94(7):e546.
doi: 10.1097/MD.0000000000000546.
\529\ Broder JS, Hamedani AG, Liu SW, Emerman CL. (2013).
Emergency department contrast practices for abdominal/pelvic
computed tomography--a national survey and comparison with the
American College of Radiology Appropriateness Criteria([supreg]). J
Emerg Med, 44(2): 423-433. Available at: https://doi.org/10.1016/j.jemermed.2012.08.027. Last accessed February 28, 2023.
\530\ Davis, M, McKiernan, C, Lama, S, Parzynski, C, Bruetman,
C, & Venkatesh, A., (July, 2020). Trends in publicly reported
quality measures of hospital imaging efficiency, 2011-2018. American
Journal of Roentology 215: 153-158. Available at https://www.ajronline.org/doi/pdf/10.2214/AJR.19.21993. Last accessed April
3, 2023.
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We believe that the Abdomen CT measure is relevant for REH quality
reporting. Although analysis of Care Compare data indicate the practice
of duplicate scans continues with some hospitals large and small in
both rural and urban settings, rural hospitals during the study period
accounted for nearly half of those cases.\531\ We note that this
measure is also part of the Hospital OQR Program's measure set (adopted
in the CY 2009 OPPS/ASC final rule (73 FR 68766)).
---------------------------------------------------------------------------
\531\ Ibid.
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(2) Measure Overview
This measure provides the percentage of CT abdomen and
abdominopelvic studies performed with and without contrast out of all
CT abdomen studies performed (those without contrast, those with
contrast, and those with both).
[[Page 49833]]
Section 1890A(a)(2) of the Act outlines the pre-rulemaking process
established under section 1890A of the Act, which requires the
Secretary to make available to the public by December 1 of each year a
list of quality and efficiency measures under consideration. The
Abdomen CT measure was on the 2022 Measures Under Consideration (MUC)
list,\532\ and the Measure Applications Partnership (MAP) Hospital
Workgroup provided conditional support for this measure to be included
in rulemaking for the REHQR Program. The MAP provides an annual review
of the MUC list, and presents CMS with its recommendations in its Final
Recommendations.\533\ In its February 1, 2023 Final Recommendations,
the MAP noted that the measure addresses a critical priority of patient
safety in rural hospitals for the REHQR Program.\534\ In the Final
Recommendations, the MAP noted that the Health Equity Advisory Group
expressed the importance of the measure and its potential to advance
health equity, and the Rural Health Advisory Group discussed the
measure in detail and cited no concerns with regard to rural health.
The MAP conditionally supported the measure for rulemaking, pending
testing indicating the measure is reliable and valid, and having CBE
endorsement.\535\
---------------------------------------------------------------------------
\532\ Centers for Medicare & Medicaid Services (CMS). 2022
Measures Under Consideration Spreadsheet. Available at: https://mmshub.cms.gov/measure-lifecycle/measure-implementation/pre-rulemaking/lists-and-reports. Last accessed March 13, 2023.
\533\ Interested parties convened by the consensus-based entity
will provide input and recommendations on the Measures under
Consideration (MUC) list as part of the pre-rulemaking process
required by section 1890A of the Act. We refer readers to https://p4qm.org/PRMR-MSR for more information.
\534\ Centers for Medicare & Medicaid Services (CMS). 2022-2023
MAP Final Recommendations. Available at: https://mmshub.cms.gov/measure-lifecycle/measure-implementation/pre-rulemaking/lists-and-reports. Last accessed April 13, 2023.
\535\ Ibid.
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Although section 1861(kkk)(7)(C)(i) of the Act requires that
measures specified by the Secretary for use in the REHQR Program be
endorsed by the entity with a contract under section 1890(a) of the
Act, section 1861(kkk)(7)(C)(ii) of the Act states that in the case of
a specified area or medical topic determined appropriate by the
Secretary for which a feasible and practical measure has not been
endorsed by the entity with a contract under section 1890(a) of the
Act, the Secretary may specify a measure that is not so endorsed as
long as due consideration is given to measures that have been endorsed
or adopted by a consensus organization identified by the Secretary. The
Abdomen CT measure is not CBE endorsed and we were unable to identify
any other CBE-endorsed measures on this topic; therefore, we believe
the exception in section 1861(kkk)(7)(C)(ii) of the Act applies for
this measure. Also, we believe the measure has received sufficient
support from consensus organizations, given the conditional support for
the measure by the MAP Hospital Workgroup,\536\ favorable comments
received by the Health Equity Advisory Group,\537\ and lack of
objection by the Rural Health Advisory Group.\538\
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\536\ CMS, 2022 Measures Under Consideration Spreadsheet.
\537\ CMS, 2022-2023 MAP Final Recommendations.
\538\ Ibid.
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We propose to adopt the Abdomen CT measure into the REHQR Program
measure set beginning with the CY 2024 reporting period. By addressing
the critical priority area of patient safety in rural hospitals,
collecting data on this measure seeks to ensure that CT abdomen imaging
in rural communities adheres to evidence-based clinical guidelines.
Inclusion of this measure aligns with the CMS National Quality Strategy
goals of embedding quality into the care journey, as well as the goal
of promoting safety,\539\ and is aligned with the priorities we
identified for our Meaningful Measures 2.0 initiative, including using
only high-value quality measures that impact key quality domains and
aligning measures across our programs.\540\
---------------------------------------------------------------------------
\539\ CMS (2023). What is the CMS National Quality Strategy?
Available at https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/Value-Based-Programs/CMS-Quality-Strategy. Last accessed April 13, 2023.
\540\ CMS (2022), Meaningful Measures 2.0: Moving from Measures
Reduction to Modernization. Available at https://www.cms.gov/medicare/meaningful-measures-framework/meaningful-measures-20-moving-measure-reduction-modernization. Last accessed April 13,
2023.
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(3) Data Sources
This measure addresses excessive radiation exposure from improper
outpatient imaging procedures in Medicare beneficiaries. It would be
calculated using Medicare FFS final action claims and enrollment data
for hospital services paid through the OPPS for abdomen CT studies
performed in the REH setting. Data from the hospital outpatient file is
used to determine beneficiary inclusion (for example, a CT abdomen
study performed at an REH) and exclusion (that is, diagnoses of adrenal
mass, hematuria, infections of the kidney, jaundice, liver lesion (mass
or neoplasm), malignant neoplasm of bladder, malignant neoplasm of
pancreas, diseases of urinary system, pancreatic disorders, non-
traumatic aortic disease, and unspecified disorder of kidney or
ureter).\541\
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\541\ YNHHSC/CORE and The Lewin Group, 2021. Abdomen Computed
Tomography (CT)--Use of Contrast Material (OP-10): 2021 Annual
Reevaluation Report. Available at: https://qualitynet.cms.gov/files/607ee75eaba8620022335d7e?filename=OP=10_2021_ReevalReport.pdf.
Last accessed March 13, 2023.
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(4) Measure Calculation
This measure calculates the percentage of CT abdomen and
abdominopelvic studies that are performed with and without contrast out
of all CT abdomen studies performed (those with contrast, those without
contrast, and those with both). The measure would be calculated based
on a 12-month window of claims data. From this patient cohort, the
numerator contains patients who had a combined CT abdomen study (that
is, a CT abdomen study without contrast followed by a CT abdomen study
with contrast, documented using the CT Abdomen With and Without
Contrast CPT code). For this measure, lower scores indicate less usage
of CT scanning as scans with and without contrast are typically not
medically necessary, which means a high-performing facility reports a
value nearer to zero, whereas facilities that may be performing too
many combined CT abdomen studies score closer to 100 percent.\542\
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\542\ Ibid.
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(5) Cohort
This measure would apply to Medicare beneficiaries enrolled in
original, Medicare FFS who underwent an abdomen or abdominopelvic CT
study with or without contrast performed at an REH. This measure does
not include Medicare managed care beneficiaries, non-Medicare patients,
or beneficiaries who were admitted to the hospital as inpatients. A
beneficiary can be included in the measure's initial patient population
multiple times because each abdomen or abdominopelvic CT (without
contrast, with contrast, or both with and without contrast) performed
at an REH during the data collection period is counted once in the
measure's denominator.
This claims-based imaging measure is not risk-adjusted; instead,
Medicare FFS beneficiaries who have a clinical diagnosis of one or more
conditions for which imaging with and without contrast is considered
appropriate are
[[Page 49834]]
excluded from the measure.\543\ Thus, this measure does not include
beneficiaries with the following conditions: adrenal mass, hematuria,
infections of kidney, jaundice, liver lesion (mass or neoplasm),
malignant neoplasm of bladder, malignant neoplasm of pancreas, diseases
of urinary system, pancreatic disorders, non-traumatic aortic disease,
and unspecified disorder of kidney or ureter.\544\
---------------------------------------------------------------------------
\543\ American College of Radiology. ACR Appropriateness
Criteria. Available at: https://www.acr.org/Clinical-Resources/ACR-Appropriateness-Criteria. Last accessed April 4, 2023.
\544\ Centers for Medicare & Medicaid Services Measures
Inventory Tool (CMIT). Abdomen Computed Tomography (CT)--Use of
Contrast Material. Available at https://cmit.cms.gov/cmit/#/MeasureView?variantId=1842§ionNumber=1. Last accessed April 3,
2023.
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We invite public comment on this proposal.
b. Proposal To Adopt the Median Time From Emergency Department (ED)
Arrival to ED Departure for Discharged ED Patients Measure
(1) Background
Care provided in the ED will likely be a focus of REH services and
we seek measures that assess the quality of care in this setting.
Improving ED throughput times is important for alleviating overcrowding
and reducing wait times.\545\ Crowding has led to a number of
potentially avoidable problems in EDs, including ambulance diversion,
prolonged patient waiting times, and potentially poor patient outcomes
due to delays, such as in the administration of medication.\546\
---------------------------------------------------------------------------
\545\ Smalley, CM, Simon, EL, Meldon, SW, et al. (2020). The
impact of hospital boarding on the emergency department waiting
room. JACEP Open, 1(5):1052-1059. doi: 10.1002/emp2.12100.
\546\ Kelen GD, Wolfe R, D-Onofrio G, Mills AM, Diercks D, Stern
SA, Wadman MC, Sokolove PE. Emergency Department Crowding: The
Canary in the Health Care System. NEJM Catalyst. 2021; 5(2).
https://catalyst.nejm.org/doi/full/10.1056/CAT.21.0217. Last
accessed February 28, 2023.
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The Median Time from Emergency Department (ED) Arrival to ED
Departure for Discharged ED Patients (the Median Time for Discharged ED
Patients measure was adopted for reporting in the Hospital OQR Program
beginning with the CY 2013 payment determination (75 FR 72086).
(2) Measure Overview
The Median Time for Discharged ED Patients measure is a chart-
abstracted measure that evaluates the time between the arrival to and
departure from the ED, also known as ED throughput time.
As described in the measure specifications and Measure Information
Form (MIF),\547\ \548\ measure data are stratified for four separate
calculations: (1) the Overall Rate is calculated as the overall rate;
(2) the Reported Measure calculates data for all patients excluding
psychiatric/mental health patients and transfer patients; (3)
Psychiatric/Mental Health calculates data for psychiatric/mental health
patients; and (4) Transfers calculates data for transfer patients.
---------------------------------------------------------------------------
\547\ A Measure Information Form provides detail on the
rationale for a measure as well as the relevant numerator
statements, denominator statements and measure calculations.
\548\ Hospital OQR Program ED Throughput Measures Information
Form. Available at: https://qualitynet.cms.gov/files/638e75e376962e0016ad907d?filename=1d_ED_Throughput_set_v16.0a.pdf
(p. 1-26). Last accessed February 28, 2023.
---------------------------------------------------------------------------
Although section 1861(kkk)(7)(c)(i) of the Act requires that
measures specified by the Secretary for use in CMS hospital quality
programs be endorsed by the entity with a contract under section
1890(a) of the Act, section 1861(kkk)(7)(C)(ii) of the Act states that
in the case of a specified area or medical topic determined appropriate
by the Secretary for which a feasible and practical measure has not
been endorsed by the entity with a contract under section 1890(a) of
the Act, the Secretary may specify a measure that is not so endorsed as
long as due consideration is given to measures that have been endorsed
or adopted by a consensus organization identified by the Secretary.
This measure is not CBE-endorsed. We reviewed CBE-endorsed measures and
were unable to identify any other CBE-endorsed measures on this topic;
therefore, we believe the exception in section 1861(kkk)(7)(C)(ii) of
the Act applies for this measure.
The Median Time for Discharged ED Patients measure was included in
the 2022 MUC list.\549\ In its February 1, 2023 Final Recommendations,
the MAP stated their belief that changes in wait times may not directly
influence mortality or patient outcomes and had concerns that transfer
times may be delayed due to weather and transport safety issues that
are out of a facility's control. The Rural Health Advisory Group
expressed similar concerns regarding the impact on transport times of
issues beyond a facility's control, such as weather, local facility
transport modalities, and distance; but also noted that transfer time
for trauma patients is especially important. The Health Equity Advisory
Group, however, emphasized the importance of the measure and its
potential to advance health equity. Ultimately, the MAP did not provide
support for this measure for the REHQR Program.\550\
---------------------------------------------------------------------------
\549\ Centers for Medicare & Medicaid Services. 2022 Measures
Under Consideration Spreadsheet. Available at: https://mmshub.cms.gov/measure-lifecycle/measure-implementation/pre-rulemaking/lists-and-reports. Last accessed March 13, 2023.
\550\ Centers for Medicare & Medicaid Services. 2022-2023 MAP
Final Recommendations. Available at: https://mmshub.cms.gov/measure-lifecycle/measure-implementation/pre-rulemaking/lists-and-reports. Last accessed March 13, 2023.
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We recognize the concerns expressed in the MAP Final
Recommendation. However, we believe that ED wait times have significant
impact on patients. Prolonged waiting times are associated with worse
patient experience in patients discharged from the emergency
department.\551\ Studies demonstrate that higher patient satisfaction
is associated with patient outcomes, including decreased mortality
\552\ and lower readmission rates.\553\
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\551\ Nyce, A, Gandhi, S, Freeze, B, Bosire, J, Ricca, T,
Kupersmith, E, Mazzarelli, A, Rachoin, J-S. Association of Emergency
Department Waiting Times With Patient Experience in Admitted and
Discharged Patients. 2021. J Pat Exp 8:1-7. https://doi.org/10.1177/23743735211011404.
\552\ Glickman SW, Boulding W, Manary M, Staelin R, Roe MT,
Wolosin RJ. et al. Patient satisfaction and its relationship with
clinical quality and inpatient mortality in acute myocardial
infarction. Circ Cardiovasc Qual Outcomes. 2010; 3:188-95. Available
at https://www.ahajournals.org/doi/10.1161/CIRCOUTCOMES.109.900597?url_ver=Z39.88-2003&rfr_id=ori:rid:crossref.org&rfr_dat=cr_pub%20%200pubmed.
\553\ Boulding W, Glickman SW, Manary MP, Schulman KA, Staelin
R. Relationship between patient satisfaction with inpatient care and
hospital readmission within 30 days. Am J Manag Care. 2011;17:41-8.
Available at https://www.ajmc.com/view/ajmc_11jan_boulding_41to48.
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We acknowledge that transfer times may be delayed due to weather
and transport safety issues that are out of a facility's control.
However, we believe that some factors such as building transfer
relationships and process improvements can be addressed by hospitals to
improve ED wait times. Further, this information could be useful to
Medicare beneficiaries and other interested parties toward assessing
care provided and the care environment of a hospital. By implementing
this measure, we are supporting CMS National Quality Strategy goals,
including embedding quality into the care journey (for example, by
addressing quality throughout the patient experience); promoting safety
(for example, by minimizing associated negative patient outcomes, such
as delayed administration of medications); and increasing alignment
(given that this measure is used in other quality programs).\554\
Alignment of measures across CMS federal programs is also an
[[Page 49835]]
objective of the Meaningful Measures 2.0 initiative.\555\ This measure
also promotes the Meaningful Measures goal of driving outcome
improvement through public reporting, given that CMS predicts that data
for this measure will be reported in sufficient numbers to permit
public reporting (see Table 79 in section XVI.B.1 of this proposed
rule).
---------------------------------------------------------------------------
\554\ CMS (2023). What is the CMS National Quality Strategy?
Available at https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/Value-Based-Programs/CMS-Quality-Strategy. Last accessed April 13, 2023.
\555\ CMS (2022), Meaningful Measures 2.0: Moving from Measures
Reduction to Modernization. Available at https://www.cms.gov/medicare/meaningful-measures-framework/meaningful-measures-20-moving-measure-reduction-modernization. Last accessed April 13,
2023.
---------------------------------------------------------------------------
Care Compare data current to January 2023 show that CAHs and
subsection (d) hospitals with fewer than 50 beds reported sufficient
data for this measure under the Hospital OQR Program to be publicly
reported for all of these strata, indicating that hospitals eligible to
convert to REH status would be able to report data for this measure to
a level sufficient for public reporting. Our proposal to publicly
report these data is further described in section XVI.B.8.c of this
proposed rule. Thus, we propose to adopt this measure in the REHQR
Program beginning with the CY 2024 reporting period.
(3) Data Sources
The measure would be calculated using chart-abstracted data on a
rolling quarterly basis, and would be publicly reported in aggregate
for one calendar year. Sources of the relevant data may include claims
forms, electronic health care data, electronic health records (EHRs),
or paper records. Data elements necessary for the calculation of the
measure include arrival time, discharge code, Evaluation and Management
(E/M) code, ED departure date, ED departure time, ICD-10-CM principal
diagnosis code, and outpatient encounter date.
(4) Measure Calculation
The measure calculates the median time (in minutes) from ED arrival
to time of departure from the ED for patients discharged from the ED.
Reducing the time patients remain in the ED can improve access to
treatment and increase quality of care.\556\ \557\ Improvement is noted
as a decrease in the median value. The included population is any ED
patient who completes an ED discharge process. This process measure is
not risk-adjusted or risk-stratified.\558\ However, the measure is
stratified by certain subgroups of patients, as described in the next
section.
---------------------------------------------------------------------------
\556\ Smalley, CM, Simon, EL, Meldon, SW, et al. (2020). The
impact of hospital boarding on the emergency department waiting
room. JACEP Open, 1(5):1052-1059. doi: 10.1002/emp2.12100.
\557\ Kelen GD, Wolfe R, D-Onofrio G, Mills AM, Diercks D, Stern
SA, Wadman MC, Sokolove PE. Emergency Department Crowding: The
Canary in the Health Care System. NEJM Catalyst. 2021; 5(2).
https://catalyst.nejm.org/doi/full/10.1056/CAT.21.0217.
\558\ CMIT. Median time from ED Arrival to ED Departure for
Discharged ED patients. Available at https://cmit.cms.gov/cmit/#/MeasureView?variantId=695§ionNumber=1. Last accessed April 4,
2023.
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(5) Cohort
The Median Time for Discharged ED Patients measure is calculated in
stratified subsections for certain types of patients: (1) Median Time
from ED Arrival to ED Departure for Discharged ED Patients--Reported
Measure, which excludes psychiatric/mental health and transferred
patients; (2) Median Time from ED Arrival to ED Departure for
Discharged ED Patients--Psychiatric/Mental Health Patients, which
includes information only for psychiatric/mental health patients; (3)
Median Time from ED Arrival to ED Departure for Discharged ED
Patients--Transfer Patients, which includes information only for
patients transferred from the ED; and (4) Median Time from ED Arrival
to ED Departure for Discharged ED Patients--Overall Rate. The measure
excludes patients who expired in the ED, left against medical advice,
or whose discharge was not documented or unable to be determined.\559\
---------------------------------------------------------------------------
\559\ QualityNet. Hospital Outpatient Specifications Manuals.
Available at: https://qualitynet.cms.gov/outpatient/specifications-manuals. Last accessed April 5, 2023.
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We invite public comment on this proposal.
c. Proposal To Adopt the Facility 7-Day Risk-Standardized Hospital
Visit Rate After Outpatient Colonoscopy Measure
(1) Background
Colonoscopies are one of the most frequently performed procedures
in the outpatient setting in the United States,\560\ with more than 16
million procedures performed each year.\561\ Colonoscopies are
associated with a range of well-described and potentially preventable
adverse events that can lead to hospital visits, repeat procedures, or
surgical intervention for treatment, including colonic perforation,
gastrointestinal (GI) bleeding, and abdominal pain.\562\ While hospital
visits are generally unexpected after an outpatient colonoscopy, the
literature indicates that the majority of such visits occurring later
than seven days post-procedure are more likely to be unrelated to the
procedure.\563\ Such hospital visits occurring later than seven days
post-procedure may be complicated by patient comorbidities and high
risk factors.\564\
---------------------------------------------------------------------------
\560\ Definitive Healthcare. Top 10 Outpatient Procedures at
Surgery Centers and Hospitals. Available at: https://
www.definitivehc.com/blog/top-10-outpatient-procedures-at-ascs-and-
hospitals#:~:text=Definitive%20Healthcare%20data%20shows%20that,proce
dures%20at%20ASCs%20by%20volume. Last accessed March 12, 2023.
\561\ I Data Research. An Astounding 16.6 Million Colonoscopies
are Performed Annually in The United States. (https://idataresearch.com/an-astounding-19-million-colonoscopies-are-performed-annually-in-the-united-states/[sic]). Accessed February
28, 2023.
\562\ I. Ranasinghe, C.S. Parzynski, R. Searfoss, et al.
Differences in colonoscopy quality among facilities: development of
a post-colonoscopy risk-standardized rate of unplanned hospital
visits. Gastroenterology, 150 (2016), pp. 103-113 Available at:
https://www.gastrojournal.org/action/showPdf?pii=S0016-5085%2815%2901353-0. Last accessed March 12, 2023.
\563\ L.B. Grossberg, A. Vodonos, K. Papamichael, et al.
Predictors of post-colonoscopy emergency department use.
Gastrointest Endosc, 87 (2018), pp. 517-525. Available at: https://www.sciencedirect.com/science/article/pii/S0016510717322010?viewFullText=true#sec4. Last accessed March 12,
2023.
\564\ Ibid.
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As noted in Table 79 with Hospital OQR Program data current to
2023, the average rate of reported unplanned hospital visits per 1,000
colonoscopies at CAHs and rural subsection (d) hospitals eligible for
REH conversion are 14.3 (1.43 percent) and 14.4 (1.44 percent),
respectively. These average rates are in line with those of small,
urban subsection (d) hospitals, and larger, rural hospitals subsection
(d) with 50 or more beds (that is, with categories of subsection (d)
hospitals that are not eligible for REH conversion). Hospitals in these
categories that are in the top 10th percentile in terms of numbers of
cases (that is, unplanned hospital visits within 7 days of an
outpatient colonoscopy) reported, however, do appear to perform
differently. In this percentile, hospitals eligible for REH conversion
do not perform as well as those that are not eligible for REH
conversion. REH-eligible hospitals with these larger caseloads have a
higher rate of unplanned hospital visits per 1,000 colonoscopies than
non-REH eligible hospitals.
The Facility 7-Day Risk-Standardized Hospital Visit Rate After
Outpatient Colonoscopy (the 7-Day Hospital Visit Rate After Outpatient
Colonoscopy) measure was adopted for reporting in the Hospital OQR
Program in 2015, first with a dry run (that is, confidential reports
containing measure results were made available for hospitals to review,
provide feedback, and become familiar with the measure methodology in
advance of public reporting and impact on payment determinations), and
then fully implemented beginning with the
[[Page 49836]]
CY 2018 payment determination (79 FR 66948 through 66955).
(2) Measure Overview
The 7-Day Hospital Visit Rate After Outpatient Colonoscopy measure
was on the 2022 MUC list.\565\ In its February 1, 2023 Final
Recommendations, the MAP considered and supported it for rulemaking for
the REHQR Program given that a previous version of this measure
specified for colonoscopies performed in ambulatory surgical centers
(ASCs) and hospital outpatient departments (HOPDs) received endorsement
from the CBE (CBE #2539) in 2014 and 2020, and that this measure is
currently in use in the ASCQR and Hospital OQR Programs.\566\
---------------------------------------------------------------------------
\565\ Centers for Medicare & Medicaid Services. 2022 Measures
Under Consideration Spreadsheet. Available at: https://mmshub.cms.gov/measure-lifecycle/measure-implementation/pre-rulemaking/lists-and-reports. Last accessed March 13, 2023.
\566\ Centers for Medicare & Medicaid Services. 2022-2023 MAP
Final Recommendations. Available at: https://mmshub.cms.gov/measure-lifecycle/measure-implementation/pre-rulemaking/lists-and-reports.
Last accessed March 13, 2023.
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As evidenced in Table 79, CAHs and small, rural subsection (d)
hospitals--hospitals which are eligible to convert to REH status--
performed a sufficient number of colonoscopies and had sufficient
measure data for this measure to be publicly reported on the Care
Compare site. Using data current to January 2023 for the Hospital OQR
Program, out of those eligible to report data, 65.5 percent (131) of
small, rural subsection (d) hospitals and 44.7 percent (609) of CAHs
eligible to convert to REHs reported for this measure.
We believe this could be an important measure for those REHs that
elect to provide outpatient services and for patients seeking
information regarding complications following this procedure. Inclusion
of this measure in the REHQR Program will also promote goals of the CMS
National Quality Strategy, including embedding quality into the care
journey; advancing health equity within and across settings; and
increasing alignment of performance metrics, programs, policy, and
payment across CMS.\567\ Inclusion will also advance goals of the
Meaningful Measures 2.0 initiative, including by empowering consumers
to make good health care choices by providing public transparency; and
by leveraging quality measures to promote health equity and close gaps
in care.\568\ Therefore, we propose to include the 7-Day Hospital Visit
Rate After Outpatient Colonoscopy measure in the REHQR Program
beginning with the CY 2024 reporting period.
---------------------------------------------------------------------------
\567\ CMS (2023). What is the CMS National Quality Strategy?
Available at https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/Value-Based-Programs/CMS-Quality-Strategy. Last accessed April 13, 2023.
\568\ CMS (2022), Meaningful Measures 2.0: Moving from Measures
Reduction to Modernization. Available at https://www.cms.gov/medicare/meaningful-measures-framework/meaningful-measures-20-moving-measure-reduction-modernization. Last accessed April 13,
2023.
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(3) Data Sources
This outcome measure is calculated using Medicare FFS claims and
enrollment data, estimating a facility-level rate of risk-standardized,
all-cause, unplanned hospital visits within 7 days of an outpatient
colonoscopy among Medicare FFS patients aged 65 years and older.\569\
In alignment with the reporting period for this measure as used in the
Hospital OQR Program, the initial reporting period is a three-year
period beginning with patient encounters from January 1, 2024 through
December 31, 2026 with annual updates on a rolling basis.\570\
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\569\ CMIT. Facility 7-Day Risk-Standardized Hospital Visit Rate
after Outpatient Colonoscopy. Available at https://cmit.cms.gov/cmit/#/MeasureView?variantId=1354§ionNumber=1. Last accessed
February 28, 2023.
\570\ CMS, Hospital Outpatient Specifications Manuals--Measure
Information Form, 1.6 Outcome Measures, OP-32: Facility 7-Day Risk-
Standardized Hospital Visit Rate after Outpatient Colonoscopy.
Available at https://qualitynet.cms.gov/files/638e788ffb845c00175c7aaf?filename=1u_OP32MIF_v16.0a.pdf. Last
accessed February 28, 2023.
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(4) Measure Calculation
The measure defines the outcome as any (one or more) unplanned
hospital visits within 7 days of an outpatient colonoscopy
procedure.\571\ For this measure, a hospital visit includes any ED
visit, observation stay, or unplanned inpatient admission to any short-
term, acute care facility.572 573 The measure score is the
ratio of predicted hospital visits (numerator) over the expected
hospital visits (denominator) multiplied by the national observed rate.
The numerator is the number of predicted (meaning adjusted actual)
hospital visits, which is the number of unplanned hospital visits the
facility is predicted to have within 7 days of colonoscopy, and it
accounts for the observed unplanned hospital visit rate, the number of
colonoscopies performed at the facility, and the facility's case mix.
The denominator is the number of expected hospital visits, which is the
number of unplanned hospital visits the facility is expected to have
based on the facility's case mix. It is the sum of all patients'
expected probabilities of a hospital visit, given their risk factors
and the risk of readmission at an average facility. The national
observed rate is the national unadjusted number of patients who had a
hospital visit post-colonoscopy among all patients who had a
colonoscopy.\574\ Additional methodology details and information
obtained from public comments for measure development are available at:
https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/HospitalQualityInits/Measure-Methodology.html under
``Hospital Outpatient Colonoscopy.''
---------------------------------------------------------------------------
\571\ 2022 Measure Updates and Specifications Report: Hospital
Outpatient Quality Reporting Program. available at: https://qualitynet.cms.gov/outpatient/measures/surgery/methodology. Last
accessed May 2, 2023.
\572\ Ibid.
\573\ CMS, Frequently Asked Questions. Available at: https://qualitynet.cms.gov/outpatient/measures/colonoscopy/resources. Last
accessed May 2, 2023.
\574\ ``Included colonoscopies'' are outpatient colonoscopy
procedures using Healthcare Common Procedure Coding System (HCPCS)
codes G0121 and G0105, and Common Procedural Terminology (CPT) codes
45378, 45380, 45385, 45384, 45383, and 45381. This measure also uses
a number of exclusion criteria. Additional methodology details and
information obtained from public comments for measure development
are available at: https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/HospitalQualityInits/Measure-Methodology.html under ``Hospital Outpatient Colonoscopy.''
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We note that the measure calculation is comparable to the Hospital
OQR Program version of the measure, as set out in the CY 2015 OPPS/ASC
final rule (79 FR 66948 through 66955).
(5) Cohort
The measure denominator includes Medicare patients with paid, final
action claims for typical colonoscopies. The denominator excludes
patients undergoing concomitant high-risk upper GI endoscopy because
this is a more extensive procedure that places these patients at a
higher risk for hospital visits than patients undergoing a typical
colonoscopy, as well as patients with a history of inflammatory bowel
disease (IBD) or diverticulitis in the year preceding the colonoscopy
because we likely could not fully characterize and adjust for their
pre-procedure risk of needing a post-procedure hospital visit or
identify whether these admissions are planned or unplanned. The measure
also excludes procedures for patients who lack continuous enrollment in
Medicare FFS Parts A and B in the month after the procedure to ensure
all patients have complete data available for outcome assessment. For
further discussion of the cohort for the 7-Day Hospital Visit Rate
After Outpatient Colonoscopy measure, please see ``2022 Measure Updates
and Specifications
[[Page 49837]]
Report: Hospital Outpatient Quality Reporting Program,'' available at:
https://qualitynet.cms.gov/outpatient/measures/surgery/methodology.
(6) Risk Adjustment
The statistical risk-adjustment model includes 15 clinically
relevant risk-adjustment variables that are strongly associated with
risk of hospital visits within seven days following colonoscopy.
Additional methodology details and information for measure development
are available at: https://qualitynet.cms.gov/outpatient/measures/surgery/methodology.
We invite public comment on this proposal.
d. Proposal To Adopt the Risk-Standardized Hospital Visits Within 7
Days After Hospital Outpatient Surgery Measure
(1) Background
Most surgical procedures in the United States are performed in
outpatient settings; there are approximately 23 million such procedures
performed annually.\575\ Same-day surgery offers significant patient
benefits as compared with inpatient surgery, including shorter waiting
times, avoidance of hospitalizations, and rapid return home.\576\
Furthermore, as same-day surgery costs are significantly less than an
equivalent inpatient surgery, there is a significant cost saving
opportunity to the health system.\577\ With the ongoing shift towards
outpatient surgery, assessing the quality of surgical care provided by
hospitals has become increasingly important. Patients undergoing same-
day surgery may require subsequent unplanned hospital visits for a
broad range of reasons. While most outpatient surgery is safe, there
are well-described and potentially preventable adverse events that
occur after outpatient surgery, such as uncontrolled pain, urinary
retention, infection, bleeding, and venous thromboembolism, which can
result in unplanned hospital visits.\578\ Similarly, direct admissions
after surgery that are primarily caused by nonclinical patient
considerations (for example, lack of transport home upon discharge) or
facility logistical issues (for example delayed start of surgery) are
common causes of unplanned yet preventable hospital admissions
following same-day surgery.\579\ Hospital utilization following same-
day surgery is an important and accepted patient-centered outcome
reported in the literature. As evidenced by one study, ``national
estimates of hospital visit rates following surgery vary from 0.5 to
9.0 percent based on the type of surgery, outcome measured (admissions
alone or admissions and ED visits), and timeframe for measurement after
surgery,'' \580\ suggesting variation in surgical and discharge care
quality. However, providers (hospitals and surgeons) are often unaware
of their patients' hospital visits after surgery because patients often
present to the ED or to different hospitals.\581\ This risk-
standardized measure provides the opportunity for providers to improve
the quality of care and to lower the rate of preventable adverse events
that occur after outpatient surgery.
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\575\ Munnich, EL, & Richards, MR. (February, 2022). Long-run
growth of ambulatory surgery centers 1990-2015 and Medicare payment
policy. Health Services Research, 57(1), 66-71. https://doi.org/10.1111/1475-6773.13707.
\576\ Banner Health. Outpatient Experience & Benefits. Available
at: https://www.bannerhealth.com/services/outpatient-surgery/experience-benefits. Last accessed April 4, 2023.
\577\ Munnich, EL, & Parente, ST. (January, 2018). Returns to
specialization: Evidence from the outpatient surgery market. Journal
of health economics, 57, 147-167. https://doi.org/10.1016/j.jhealeco.2017.11.004.
\578\ Bongiovanni, T, Parzynski, C, Ranasinghe, I, Steinman, MA,
& Ross, JS. (July 2021). Unplanned hospital visits after ambulatory
surgical care. PloS one, 16(7), e0254039. https://doi.org/10.1371/journal.pone.0254039.
\579\ Ibid.
\580\ Ibid.
\581\ Williams, BR, Smith, LC, Only, AJ., Parikh, HR,
Swiontkowski, MF, & Cunningham, BP. (September, 2021). Unplanned
Emergency and Urgent Care Visits After Outpatient Orthopaedic
Surgery. Journal of the American Academy of Orthopaedic Surgeons.
Global research & reviews, 5(9), e21.00209. https://doi.org/10.5435/JAAOSGlobal-D-21-00209.
---------------------------------------------------------------------------
The Risk-Standardized Hospitalized Visits Within 7 Days After
Hospital Outpatient Surgery (the 7-Day Hospital Visit Rate After
Outpatient Surgery) measure was adopted for reporting in the Hospital
OQR Program beginning with the CY 2020 payment determination (81 FR
79771).
(2) Measure Overview
The 7-Day Hospital Visit Rate After Outpatient Surgery measure
would make unplanned patient hospital visits (ED visits, observation
stays, or unplanned inpatient admissions) after surgery more visible to
providers and patients through publicly reporting scores. It could also
encourage providers to engage in quality improvement activities to
reduce these visits by providing feedback to facilities and physicians.
This measure meets the National Quality Strategy goals of embedding
quality into the care journey and promoting safety.\582\ We expect that
the measure would promote improvement in patient care over time.
---------------------------------------------------------------------------
\582\ CMS, What is the CMS National Quality Strategy? Available
at: https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/Value-Based-Programs/CMS-Quality-Strategy.
---------------------------------------------------------------------------
The 7-Day Hospital Visit Rate After Outpatient Surgery measure was
on the 2022 MUC list.\583\ The Rural Health Advisory Group members did
not have any rural health concerns about the measure. We believe that
this proposed measure reflects consensus among the affected parties as
public comment received during the MAP and measure development
processes was in agreement with the MAP's conclusions on the measure.
The CBE recommended the measure for rulemaking (CBE #2687).\584\
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\583\ Centers for Medicare & Medicaid Services. 2022 Measures
Under Consideration Spreadsheet. Available at: https://mmshub.cms.gov/measure-lifecycle/measure-implementation/pre-rulemaking/lists-and-reports. Last accessed March 13, 2023.
\584\ Centers for Medicare & Medicaid Services. MAP 2016
Considerations for Implementing Measures in Federal Programs--
Hospitals. Available at: https://www.qualityforum.org/Publications/2016/02/MAP_2016_Considerations_for_Implementing_Measures_in_Federal_Programs_-_Hospitals.aspx. Last accessed March 13, 2023.
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We believe it is important to reduce adverse patient outcomes
associated with preparation for surgery, the procedure itself, and
follow-up care. Therefore, we propose to include the 7-Day Hospital
Visit Rate After Outpatient Surgery measure in the REHQR Program
beginning with the CY 2024 reporting period.
(3) Data Sources
The proposed 7-Day Hospital Visit Rate After Outpatient Surgery
measure would be calculated from Part A and Part B Medicare
administrative claims data for Medicare FFS beneficiaries with an
outpatient same-day surgical procedure excluding eye surgeries and
colonoscopies (except colonoscopy with biopsy). Colonoscopies are
excluded from this measure as these procedures are examined separately
on their own. The exclusion of eye procedures is discussed below. The
performance period for the measure is one year (that is, the measure
calculation includes eligible outpatient same-day surgeries occurring
within a 1-year timeframe),\585\ and would begin with the CY 2024
reporting period. We also considered increasing the data collection
time period, to account for low volume, to 2 or 3 years.
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\585\ QualityNet. 2022 Measure Updates and Specifications Report
(2022), available at https://qualitynet.cms.gov/outpatient/measures/surgery/methodology. Last accessed February 28, 2023.
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[[Page 49838]]
(4) Measure Calculation
The measure outcome includes unplanned hospital visits within seven
days after a surgery performed at an REH that are: (1) an inpatient
admission at a separate hospital that can admit patients; or (2) an ED
visit or observation stay at the REH or other hospital occurring after
discharge. If more than one unplanned hospital visit occurs, only the
first hospital visit within the outcome timeframe is counted in the
outcome.
The facility-level measure score is a ratio of the predicted to
expected number of post-surgical hospital visits among the hospital's
patients. The numerator of the ratio is the number of hospital visits
predicted for the hospital's patients accounting for its observed rate,
the number of surgeries performed at the hospital, the case-mix, and
the surgical procedure mix. The denominator of the ratio is the
expected number of hospital visits given the hospital's case-mix and
surgical procedure mix. A ratio of less than one indicates the
hospital's patients have fewer post-surgical visits than expected
compared to hospitals with similar surgical procedures and patients;
and a ratio of greater than one indicates the hospital's patients were
estimated as having more visits than expected.
To ensure the accuracy of the algorithm for attributing claims data
and the comprehensive capture of hospital surgeries potentially
affected by the CMS 3-day payment window policy,\586\ we identify
physician claims for same-day surgeries in hospital settings from the
Medicare Part B Standard Analytical Files (SAF) with inpatient
admissions that occur within 3 days after these surgeries that lack a
corresponding hospital facility claim. Under the 3-day payment window
policy, all outpatient diagnostic services furnished to a Medicare
beneficiary by a hospital (or an entity wholly owned or operated by the
hospital), on the date of a beneficiary's admission or during the 3
days immediately preceding the date of a beneficiary's inpatient
hospital admission, must be included on the Part A bill for the
beneficiary's inpatient stay at the hospital. Hospitals must include
the following information on the claim for a beneficiary's inpatient
stay: (1) the diagnoses; (2) procedures; and (3) charges for all
outpatient diagnostic services and admission-related outpatient
nondiagnostic services that are furnished to the beneficiary during the
3-day payment window.\587\ A surgery identified as affected by this
policy would be attributed to the appropriate hospital facility using
the facility provider identification from the inpatient claim.\588\
---------------------------------------------------------------------------
\586\ https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/AcuteInpatientPPS/Three_Day_Payment_Window. Accessed May 4,
2023.
\587\ Three Day Payment Window Implementation of New Statutory
Provision Pertaining to Medicare 3-Day (1-Day) Payment Window
Policy--Outpatient Services Treated As Inpatient. Centers for
Medicare and Medicaid Services (CMS). Available at: https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/AcuteInpatientPPS/Three_Day_Payment_Window. Last accessed on March
28, 2023.
\588\ For additional methodology details, we refer readers to
the documents posted at: https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/HospitalQualityInits/Measure-Methodology, including ``2016 Measure Updates and
Specifications Report: Hospital Visits after Hospital Outpatient
Surgery Measure (PDF)''. Last accessed March 21, 2023.
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(5) Cohort
The measure includes Medicare FFS patients aged 65 years and older
undergoing same-day, outpatient surgery in REHs, excluding eye
surgeries and colonoscopies, but including colonoscopy with biopsy.
``Same-day surgeries'' are substantive surgeries and procedures
listed on Medicare's list of covered ASC procedures excluding eye
surgeries and colonoscopies (except colonoscopy with biopsy).\589\ This
list was developed for Medicare to identify surgeries that can be
safely performed as same-day surgeries and do not typically require an
overnight stay. Surgeries on the ASC list of covered procedures do not
involve or require major or prolonged invasion of body cavities,
extensive blood loss, major blood vessels, or care that is either
emergent or life-threatening.
---------------------------------------------------------------------------
\589\ YNHHSC/CORE (2016). 2016 Measure Updates and
Specifications Report Hospital Outpatient Quality Reporting Program
2022. Available at https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/HospitalQualityInits/Measure-Methodology. Last accessed March 21, 2023.
---------------------------------------------------------------------------
Although Medicare developed this list of surgeries for ASCs, we use
it more broadly for this measure for two reasons. First, it aligns with
our target cohort of surgeries that have low to moderate risk profile
and are safe to be performed as same-day surgeries. By only including
surgeries on this list in the measure, we effectively do not include
surgeries performed at hospitals that typically require an overnight
stay which are more complex, higher risk surgeries. Second, we use this
list of surgeries because it is annually reviewed and updated by
Medicare, and includes a transparent public comment submission and
review process for addition or removal of procedures codes. To view the
ASC covered procedures list for 2023, we refer readers to the CMS
website at: https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/ASCPayment/ASC-Regulations-and-Notices. On that page, readers
may select ``CMS-1772-FC'' from the list of regulations. The ASC
Addenda are contained in a zipped folder entitled ``Addendum AA, BB,
DD1, DD2, and EE.'' Addendum AA includes the relevant list of covered
surgeries.
For further discussion of the cohort for this measure, please see
``2022 Measure Updates and Specifications Report: Hospital Outpatient
Quality Reporting Program,'' available at https://qualitynet.cms.gov/outpatient/measures/surgery/methodology.
The cohort for this measure excludes eye surgeries. Eye surgery is
performed in high volume and is generally perceived as being ``low
risk.'' However, studies have indicated non-insignificant levels of
hospital visits following cataract surgery. One study reported 0.3
percent of patients as having an inpatient admission within 7 days
following cataract surgery \590\ and another study showing a 1.77
percent of patients with ED visits within 30 days following cataract
surgery.\591\ The measure cohort also excludes procedures for patients
who lack continuous enrollment in Medicare FFS Parts A and B in the
seven days after the procedure to ensure all patients have complete
data available for outcome assessment.
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\590\ Wang, SY, Blachley, TS, Andrews, CA, Avanian, JZ, Lee, PP,
& Stein, JD. Feb 22, 2016). Hospitalization after Cataract Surgery
in a Nationwide Managed-Care Population. PLOS ONE (11:2). https://doi.org/10.1371/journal.pone.0149819.
\591\ Sahil Aggarwal, Andrew Gross, Alex Snyder, Jay
Rathinavelu, Terry Kim, Leon Herndon. Younger Age and Longer Case
Times Associated With Emergency Department Visits After Cataract
Surgery Published: August 23, 2022DOI: https://doi.org/10.1016/j.ajo.2022.08.017.
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(6) Risk Adjustment
The statistical risk-adjustment model includes 25 clinically
relevant risk-adjustment variables that are strongly associated with
risk of hospital visits within 7 days following outpatient
surgery.\592\ The measure risk-adjusts for surgical procedure
complexity using two variables. First, it adjusts for surgical
procedure complexity using the
---------------------------------------------------------------------------
\592\ Information about the risk-adjustment model and measure
methodology are located in the Measure Updates and Specifications
Report available on QualityNet at: https://qualitynet.cms.gov/outpatient/measures/surgery/methodology.
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[[Page 49839]]
Work Relative Value Units (RVUs).\593\ Work RVUs are assigned to each
CPT procedure code and approximate procedure complexity by
incorporating elements of physician time and effort. Second, it
classifies each surgery into an anatomical body system group using the
Agency for Healthcare Research and Quality (AHRQ) Clinical
Classification System (CCS),\594\ to account for organ-specific
differences in risk and complications, which are not adequately
captured by the Work RVU alone.
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\593\ Coberly, S. (January 12, 2015). The Basics; Relative Value
Units (RVUs). National Health Policy Forum. Available at: https://hsrc.himmelfarb.gwu.edu/cgi/viewcontent.cgi?article=1275&context=sphhs_centers_nhpf. Last
accessed February 28, 2023.
\594\ HCUP Clinical Classifications Software for Services and
Procedures. Healthcare Cost and Utilization Project (HCUP). 2008.
Agency for Healthcare Research and Quality. Available at: https://www.hcup-us.ahrq.gov/toolssoftware/ccs_svcsproc/ccssvcproc.jsp. Last
accessed February 28, 2023.
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We invite public comment on this proposal.
6. Summary of Proposed REHQR Program Measure Set Beginning With the CY
2024 Reporting Period
Table 80 summarizes the proposed REHQR Program measure set
beginning with the CY 2024 reporting period:
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[[Page 49840]]
7. REHQR Program Measures and Topics for Future Consideration
a. Request for Comment: Electronic Clinical Quality Measures (eCQMs)
for Reporting Quality Data Under the REHQR Program
eCQMs are measures specified in a standard electronic format that
use data electronically extracted from EHRs and/or health information
technology systems to measure the quality of health care provided.
Through electronic reporting, hospitals have leveraged EHRs to capture,
calculate, and electronically submit quality data instead of manually
chart-abstracting and submitting to CMS. Adoption of certain eCQMs into
the REHQR Program could address high priority areas as stated in our
Meaningful Measures Framework, including the transition to digital
quality measures and the adoption of high-quality measures that improve
patient outcomes and safety.\595\
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\595\ CMS. Meaningful Measures Initiative. https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/QualityInitiativesGenInfo/CMS-Quality-Strategy. Last accessed April
3, 2023.
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We acknowledge that technological, monetary, and staffing barriers
may present challenges to eCQM adoption and use at some REHs. Although
some REH staff may have had experience reporting eCQMs in the Hospital
IQR, Hospital OQR, or Medicare Promoting Interoperability (PI) Programs
during the time period when their REHs were organized as CAHs or
subsection (d) hospitals, we acknowledge that challenges will remain.
We see evidence of these challenges when analyzing eCQM reporting under
the Medicare PI Program for eligible hospitals and CAHs. Tables 81 and
82 compare urban and rural hospital eCQM reporting, as defined by
census area, with respect to the Medicare PI Program for CY 2021. Most
hospitals of all bed sizes successfully reported eCQMs, but eCQM
submission compliance percentages for smaller hospitals and rural
hospitals were slightly lower than for larger or urban hospitals.
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We believe that certain eCQMs, if adopted into the REHQR Program,
could provide insightful quality measure data for monitoring REHs and
potentially lower provider burden. For example, the Excessive Radiation
Dose or Inadequate Image Quality for Diagnostic Computed Tomography in
Adults eCQM (the Excessive Radiation eCQM) could be adopted into the
REHQR Program to improve patient outcomes and patient safety. This eCQM
provides a standardized method for monitoring the performance of
diagnostic CT to discourage unnecessarily high radiation doses while
preserving image quality. The measure is expressed as a percentage of
eligible CT scans that are out-of-range based on having either
excessive radiation dose or inadequate
[[Page 49841]]
image quality, relative to evidence-based thresholds based on the
clinical indication for the exam.\596\ This measure is not risk-
adjusted. The purpose of this measure is to reduce unintentional harm
to patients and provide REHs with a reliable method to assess harm
reduction efforts and modify their improvement efforts. We propose
adoption of the Excessive Radiation eCQM for the Hospital OQR Program.
We refer readers to section XIV.B.3.c of this proposed rule for a
discussion of the Hospital OQR Program proposal.
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\596\ Centers for Medicare & Medicaid Services. Pre-Rulemaking
MUC Lists and MAP Reports. The Measures Management System. Available
at: https://mmshub.cms.gov/measure-lifecycle/measure-implementation/pre-rulemaking/lists-and-reports.
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We also refer readers to section XIV of the CY 2022 OPPS/ASC
proposed rule (86 FR 42232 through 42237) where we requested
information on potential actions and priority areas that would enable
the continued transformation of our quality measurement enterprise
toward greater digital capture of data and use of the Fast Healthcare
Interoperability Resources (FHIR) standard. This will be taken into
consideration in future years when deciding how and when to introduce
eCQMs to the REHQR Program.
We invite public comment on the use of eCQMs in the REHQR Program,
any specific eCQM measures that we should consider for inclusion in the
REHQR Program measure set, including the Excessive Radiation eCQM, and
any considerations or criteria we should use in identifying eCQM
measures to propose for future inclusion.
b. Request for Comment: Care Coordination Measures
As part of future rulemaking, we may consider adding measures to
the REHQR Program measure set that are relevant to the coordination of
care between REHs and other kinds of healthcare providers. REHs
encounter challenges in coordinating care that are specific to rural
settings. Geographically isolated areas typically have fewer healthcare
settings and providers, and experience difficulties related to
workforce shortages, transportation issues, and lack of information
technology capabilities, such as the availability of broadband
networks.\597\ Other challenges relate to shifting workforce
availability (for example, issues related to the availability of
traveling nurses or independent healthcare providers) and limited
access to specialists, diagnostic equipment, and other resources.\598\
In particular, REHs are required to have in effect a transfer agreement
with a level I or level II trauma center,\599\ such that patients that
present at an REH with needs for longer-term inpatient care may receive
that care. REHs must, therefore, address issues related to the
coordination of care for transferred patients.
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\597\ Healthcare Access in Rural Communities. Rural Health
Information Hub. Available at: https://www.ruralhealthinfo.org/topics/healthcare-access. Last accessed March 13, 2023.
\598\ Ibid.
\599\ Section 1861(kkk)(2)(C) of the Act.
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We have sought to identify measures relevant to care coordination
in rural settings that are also important, impactful, reliable,
accurate, and clinically relevant. In the CY 2023 OPPS/ASC final rule,
we provided responses to the comments received on our request for
information on additional topics for quality measures appropriate for
the REH setting (87 FR 72146 through 72149). Many of these comments
addressed the provision of telehealth, an issue that impacts care
coordination (87 FR 72146 through 72147). The CBE provided additional
information on this topic in 2021, when they identified a list of 324
measures relevant to the provision of telehealth.\600\ We believe that
a number of these measures are directly related to the coordination of
care, such as measures CBE #0006 Care Coordination, CBE #0097
Medication Reconciliation Post-Discharge, and CBE #0326 Advance Care
Plan.\601\ The current Medicare Beneficiary Quality Improvement Project
(MBQIP) measures also include several ``care transitions'' measures
that may be relevant to the coordination of care for REHs. Relevant
MBQIP measures include Emergency Department Transfer Communication (on
which we invited public comment in the CY 2022 OPPS/ASC proposed rule,
at 86 FR 42285 through 42289), Discharge Planning, and Medication
Reconciliation.\602\
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\600\ Rural Telehealth and Healthcare System Readiness
Measurement Framework Final Report (2021). Accessed March 28, 2023.
Available at: https://www.qualityforum.org/Publications/2021/11/Rural_Telehealth_and_Healthcare_System_Readiness_Measurement_Framework__Final_Report.aspx.
\601\ Ibid.
\602\ Federal Office of Rural Health Policy (FORHP). MBQIP
Measures (January 2023)--Current Medicare Beneficiary Quality
Improvement Project (MBQIP) Measures. Available at: https://www.ruralcenter.org/sites/default/files/2023-02/MBQIP-Measures.pdf.
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We invite public comment on the use of care coordination measures
including telehealth measures in the REHQR Program, any specific
measures that we should consider for inclusion in the REHQR Program
measure set regarding care coordination, and any considerations or
criteria we should use in determining which if any coordination of care
measures to propose for future inclusion.
c. Request for Comment: Tiered Approach Framework
We refer readers to section XVII of the CY 2022 OPPS/ASC proposed
rule, where we included a request for information (RFI) on REHs (86 FR
42285 through 42289). We received more than 50 comments in response to
the RFI, including one suggestion to implement a multi-tiered approach
for quality measures and reporting requirements to incentivize REH
reporting.
Within such a tiered framework, Tier 1 could encompass a set of
measures that would be required for all REHs and would focus on
measures applicable for the required ED and observation services at
REHs. Tier 2 could apply only to REHs that choose to provide additional
outpatient services; the measures in that set would be related to the
optional services provided.
Measures being proposed in this proposed rule for adoption into the
REHQR Program measure set are the: (1) Abdomen CT measure, (2) Median
Time for Discharged ED Patients measure, (3) 7-Day Hospital Visit Rate
After Outpatient Colonoscopy measure, and (4) 7-Day Hospital Visit Rate
After Outpatient Surgery measure. Two of these proposed measures are
related to services that REHs must provide to participate in the
Medicare program. The other two proposed measures are related to
services that could be furnished on an outpatient basis at the election
of the REH.\603\ To fit into an example scenario of a tiered approach,
Tier 1 could include the measures related to required services, which
are the diagnostic, claims-based Abdomen CT measure, and the chart-
abstracted Median Time for Discharged ED Patients measure. Tier 2 could
consist of the measures related to services the REH may elect to
provide, which are the claims-based 7-Day Hospital Visit Rate After
Outpatient Colonoscopy and 7-Day Hospital Visit Rate After Outpatient
Surgery measures.
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\603\ See section 1861(kkk)(1) of the Act.
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The aforementioned tiered measures are only examples for the
purposes of this request for comment to further discussion of this
concept for the REHQR Program.
Such reporting could be phased-in; for example, as suggested by the
commenter, all REHs could report the Tier 1 quality measures beginning
at a designated time after their REH status began, and all REHs
providing
[[Page 49842]]
additional services would begin to submit Tier 2 data at a designated
time after such services begin under the new REH status.
We invite public comment on the implementation of a tiered quality
measure approach in the REHQR Program, considerations in designing the
structure of a tiered framework, the number of measures in each tier,
and considerations for designating measures for tiers of such a
framework.
8. Proposal To Display Quality Measure Data Publicly
a. Public Reporting of Quality Data Generally
Pursuant to the CAA, the Secretary shall establish procedures to
make quality measure data submitted by REHs available to the public on
a CMS website.\604\ Such procedures shall ensure that the REH has the
opportunity to review, and submit corrections for, the data that is to
be made public with respect to the REH prior to such data being made
public.\605\ In this proposed rule, we propose to align our approach to
the public display of measures with that of the Hospital OQR and ASCQR
Programs. For detail on the public display of measures in the Hospital
OQR and ASCQR Programs, we refer readers OPPS/ASC final rules of CY
2009 (73 FR 68777 through 67779), CY 2014 (78 FR 75092), and CY 2017
(81 FR 79791). We propose to make publicly reported data under the
REHQR Program available to the public both on our Care Compare website
and in downloadable data files located in the Provider Data Catalog
(PDC), found at https://data.cms.gov. We intend to display these data
publicly for any consumer or other member of the public beginning with
measure data submitted relevant to services provided in CY 2024. To the
extent possible, in order to publicly display these data, we will use
the same information systems, business processes, and other
infrastructure that we use to display data for the Hospital OQR and
Hospital Inpatient Quality Reporting (IQR) Programs. This alignment of
processes and policies will enhance alignment with other quality
reporting programs and ease of understanding for REHs.
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\604\ CAA, 2021, at section 125(a)(1)(B) of Division CC, adding
section 1861(kkk)(7)(D) of the Act.
\605\ CAA, 2021, at section 125(a)(1)(B) of Division CC, adding
section 1861(kkk)(7)(D) of the Act.
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We also propose that participating REHs would be granted the
opportunity to review their data before the information is published
during a 30-day review and corrections period (the preview process).
Similarly, to the Hospital OQR and Hospital IQR Programs, we would
announce the timeframes for the preview period starting with the
measure data submitted relevant to services provided in CY 2024 on a
CMS website, such as QualityNet, or on applicable listservs. We
generally strive to display hospital quality measures data on the
designated website as soon as possible after measure data have been
submitted to CMS. However, if there are unresolved display issues or
pending design considerations, we may make the data available on other,
non-interactive, CMS websites. This preview process aligns with that of
the Hospital OQR Program (81 FR 79791).
We propose to codify this policy at Sec. 419.95 by adding
paragraph (f) ``Public Reporting of Data Under the REHQR Program.'' In
proposed paragraph (f), we propose that data that an REH submits for
the REHQR Program would be made publicly available by a CMS
Certification Number (CCN) on a CMS website in an easily understandable
format after providing the REH an opportunity to review the data to be
made public.
We invite public comment on this proposal.
b. Public Reporting of Proposed REHQR Program Claims-Based Measures
We propose to make measure scores for claims-based measures
proposed for the REHQR Program measure set publicly available beginning
with measure data submitted relevant to services provided in CY 2024.
As discussed above in section XVI.B.5 of this proposed rule, we propose
to adopt the following three claims-based measures into the REHQR
Program measure set: (1) Abdomen CT measure, (2) 7-Day Hospital Visit
Rate After Outpatient Colonoscopy measure, and (3) 7-Day Hospital Visit
Rate After Outpatient Surgery measure.
Public reporting measure data for a claims-based measure would not
begin until completion of a data collection period specific to that
claims-based measure, provided sufficient case volumes are
achieved.606 607 For example, for the 7-Day Hospital Visit
Rate After Outpatient Colonoscopy measure, the data collection period
is three years; public reporting would begin after completion of an
initial three-year data collection period, or CY 2027, provided the
hospital had sufficient case volumes. We plan to provide additional
detail on the timeline of publicly reporting this data in future
rulemaking.
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\606\ CMS does not report measures publicly unless measures are
the result of an analysis of more than 10 cases.
\607\ CMS Policy for Privacy Act Implementation & Breach
Notification, July 23, 2007, Document Number: CMS-CIO-POL-PRIV01-01,
p 4. Statistical, aggregate or summarized information created as a
result of analysis conducted using identifiable CMS data obtained
under CMS-approved projects/studies may only be disclosed if the
data are not individual-specific and the data are aggregated to a
level where no data cells contain 10 or fewer individuals.
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The display of these data would rely on the same business processes
and resources that are currently in use for the Hospital OQR and
Hospital IQR Programs. The data would be available to the public both
on our Care Compare website and in downloadable data files located in
the Provider Data Catalog (PDC), found at https://data.cms.gov. Data
associated with these three claims-based measures would be updated
annually.
We invite public comment on this proposal.
c. Public Reporting of the Proposed Median Time from ED Arrival to ED
Departure for Discharged ED Patients Measure
In the Hospital OQR Program, only data for two out of the four
strata of the Median Time for Discharged ED Patients measure are
reported publicly. Measure data for the Median Time for Discharged ED
Patients--Reported Rate is currently publicly displayed on the Care
Compare site and in the downloadable data files located in the PDC,
found at https://data.cms.gov, for the Hospital OQR Program.
Additionally, measure data for the Median Time for Discharged ED
Patients--Psychiatric/Mental Health Patients is publicly displayed in
downloadable data files located in the PDC, in order to address a
behavioral health gap in the publicly reported Hospital OQR Program
measure set.\608\
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\608\ CMS adopted a policy to publicly report measure data for
the Median Time for Discharged ED Patients--Psychiatric/Mental
Health Patients in the CY 2018 OPPS/ASC final rule (82 FR 59437).
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While data for the Median Time for Discharged ED Patients--Transfer
Patients measure stratification is not currently reported publicly for
hospitals participating in the Hospital OQR Program, we believe
publicly reporting measure data for this stratum for REHs is imperative
to allow for the identification of REH ED throughput performance gaps
for patients requiring higher levels of specialized care above what an
REH is able to provide. Likewise, data for the Median Time for
Discharged Patients--Overall Rate measure stratification are not
currently reported publicly for hospitals participating in the Hospital
OQR
[[Page 49843]]
Program. However, we believe publicly reporting measure data for this
stratum for REHs participating in the REHQR Program is important to
provide an account of all patients seen in the REH's ED, beyond
identifying specific performance in certain patient populations as
reflected by the other strata calculated for this measure. We note that
the Median Time for Discharged ED Patients measure is of particular
importance for the REHQR Program because care provided in EDs will
likely be a focus of REH services; as such, we seek to provide
transparency in publicly reporting of all the strata calculated for
this measure. For a more detailed discussion of our proposal to adopt
the Median Time for Discharged ED Patients measure in the REHQR
Program, please refer to section XVI.B.5.b of this proposed rule.
We propose to make publicly available data received from REHs to
calculate the following measure strata for the Median Time for
Discharged ED Patients measure: (1) Median Time for Discharged ED
Patients--Overall Rate; (2) Median Time for Discharged ED Patients--
Reported Measure; (3) Median Time for Discharged ED Patients--
Psychiatric/Mental Health Patients; and (4) Median Time for Discharged
ED Patients--Transfer Patients. We intend to display these data
publicly beginning with the first quarter of measure data submitted
relevant to services provided in CY 2024 in which case thresholds are
met. We plan to provide additional detail on the timeline of publicly
reporting this data in future rulemaking. As discussed above, display
of these data would rely on the same business processes and resources
that are currently in use for the Hospital OQR and Hospital IQR
Programs.
We invite public comment on these proposals.
C. Administrative Requirements
1. Proposal To Codify Administrative Requirements
Section 1861(kkk)(7)(B)(i) of the Act provides that, with respect
to each year beginning with 2023, or each year beginning on or after
the date that is one year after one or more measures are first
specified under section 1861(kkk)(7)(C) of the Act, an REH shall submit
data to the Secretary in accordance with section 1861(kkk)(7)(B)(ii).
Clause (ii) states that, with respect to each such year, an REH shall
submit to the Secretary data on quality measures in a form and manner,
and at a time, specified by the Secretary for purposes of section
1861(kkk)(7)(B) of the Act.
We finalized foundational administrative requirements for REHs
participating in the REHQR Program in the CY 2023 OPPS/ASC final rule
(87 FR 71752, and 72149 through 72150). In that rule, we require REHs
must (1) register on a CMS website before beginning to report data; and
(2) identify and register a security official as part of that
registration process. We also require REHs to submit data on all
quality measures to CMS. We propose to codify the participation
requirements in the REHQR Program at Sec. 419.95(b) ``Participation in
the REHQR Program.''
We note that we intend to propose additional administrative
requirements as appropriate for the REHQR Program in subsequent
rulemaking.
We invite public comment on these proposals.
D. Form, Manner, and Timing of Data Submitted for the REHQR Program
1. Proposal To Align and Codify Submission of REHQR Program Data
We refer readers to the CYs 2014, 2016, and 2018 OPPS/ASC final
rules (78 FR 75110 through 75111; 80 FR 70519 through 70520; and 82 FR
59439, respectively) where we finalized our policies for clinical data
submission for the Hospital OQR Program. We codified these submission
requirements at Sec. 419.46(d). We propose to align the policies
regarding submission of program data for the REHQR Program with those
from the Hospital OQR Program.
We also propose to codify this policy at Sec. 419.95 by adding
paragraph (c) ``Submission of REHQR Program Data.'' In proposed
paragraph (c)(1), we would require that REHs that participate in the
REHQR Program must submit to CMS data on measures selected under
section 1861(kkk)(7)(C) of the Act in a form and manner, and at a time
specified by CMS. REHs sharing the same CMS Certification Number (CCN)
must combine data collection and submission across their multiple
campuses for all clinical measures for public reporting purposes. In
proposed paragraph (c)(2), we propose that submission deadlines by
measure and by data type be posted on a CMS website. All deadlines
occurring on a Saturday, Sunday, or legal holiday, or on any other day
all or part of which is declared to be a non-work day for Federal
employees by statute or executive order would be extended to the first
day thereafter which is not a Saturday, Sunday, or legal holiday or any
other day all or part of which is declared to be a nonwork day for
Federal employees by statute or executive order.
We invite public comments on these proposals.
2. Proposed Requirements for Chart-Abstracted Measures Where Patient-
Level Data Are Submitted Directly to CMS Beginning With the CY 2024
Reporting Period
We propose to adopt one initial chart-abstracted measure for the CY
2024 reporting period and for subsequent years: Median Time for
Discharged ED Patients. Measure data for this measure would be
submitted via the HQR System (formerly referred to as the QualityNet
Secure Portal). In developing this proposal, we also considered
proposing that REHs submit data for this measure on an annual rather
than quarterly basis to help reduce burden for REHs participating in
the REHQR Program. However, we note that REHs would have been reporting
this measure on a quarterly basis under the Hospital OQR Program and
would thus be acclimated to this reporting frequency. Therefore, to
enhance alignment with this program, we propose a similar data
submission frequency on a quarterly basis. We refer readers to the CY
2015 OPPS/ASC and CY 2023 OPPS/ASC final rules for a discussion of our
previously finalized policies regarding submissions deadlines for
chart-abstracted measures for the Hospital OQR Program (79 FR 66964; 87
FR 72110 to 72112).
Beginning with the CY 2024 reporting period, the applicable patient
encounter quarters for chart-abstracted data and their corresponding
data submission deadlines are as follows in Table 83.
[[Page 49844]]
[GRAPHIC] [TIFF OMITTED] TP31JY23.125
We propose to adopt these dates as deadlines for submitting chart-
abstracted measure data for the REHQR Program.
We invite public comment on this proposal.
3. Proposed Claims-Based Measure Data Requirements Beginning With the
CY 2024 Reporting Period
We propose to adopt three initial claims-based measures for the CY
2024 reporting period and for subsequent years: Abdomen CT; 7-Day
Hospital Visit Rate After Outpatient Colonoscopy (CBE #2539); and 7-Day
Hospital Visit Rate After Outpatient Surgery (CBE #2687). In
calculating these and future claims-based measures, we propose to use
Medicare claims data for services with encounter dates on or after
January 1, 2024.
We invite public comment on this proposal.
4. Proposal To Adopt and Codify a Review and Corrections Period for
Measure Data Submitted to the REHQR Program
In the event that an REH submits data for a measure, such as the
chart-abstracted Median Time for Discharged ED Patients measure
proposed for adoption in section XVI.B.5.b of this proposed rule, and
later discovers or suspects the data provided were not accurate, it may
need to submit corrected data. To address this need, we propose to
adopt the same policies currently in place for the Hospital OQR
Program. Under the Hospital OQR Program, hospitals submit chart-
abstracted data to CMS on a quarterly basis. These data are typically
due approximately four months after the quarter has ended. We refer
readers to the CY 2015 OPPS/ASC final rule for a discussion of our
previously finalized policies regarding submissions deadlines for
chart-abstracted measures for the Hospital OQR Program (79 FR 66964).
Hospitals are encouraged to submit data early in the submission
schedule so that they can identify errors and resubmit data before
submission deadlines. Hospitals can continue to review, correct, and
change these data up until the close of each submission deadline. For
example, under the Hospital OQR Program, we finalized a 4-month period
as the review and corrections period for chart-abstracted data (79 FR
66964). During this review and corrections period, hospitals can enter,
review, and correct data submitted directly to CMS. However, after the
submission deadline, hospitals would not be allowed to change these
data. Under the Hospital OQR Program, we generally provide rates to
hospitals for the measures that have been submitted for chart-
abstracted, patient-level data 24 to 48 hours following submission
deadline.
We propose to adopt this same policy under which an REH may review
and submit corrections to measure data, and that for chart-abstracted
measure data, an REH may review and submit corrections to measure data
submitted for a period of four months after the reporting quarter has
ended. We also propose to codify this policy at Sec. 419.95 by adding
paragraph (c)(3) ``Review and Corrections Period.'' In proposed
paragraph (c)(3), we propose that REHs would have a review and
corrections period for all quality data submitted, which runs
concurrently with the data submission period, when they would be able
to enter, review, and correct data submitted prior to the submission
deadline. In addition, we propose that after the submission deadline,
these data cannot be changed.
We invite public comment on this proposal.
5. Extraordinary Circumstances Exceptions (ECE) Process
a. Proposal To Adopt an ECE Process for the REHQR Program
In our experience, there have been times when facilities have been
unable to submit information to meet program requirements due to
extraordinary circumstances that are not within their control. It is
our goal not to penalize such entities for such circumstances and we do
not want to unduly increase their burden during these times. We propose
an Extraordinary Circumstances Exceptions (ECE) process for REHs to
request and for CMS to grant extensions or waivers with respect to the
reporting of required quality data when there are extraordinary
circumstances beyond the control of the REH. Under this proposed
process, CMS may grant an exception to one or more data submission
deadlines and requirements in the event of extraordinary circumstances
beyond the control of the REH, such as when an act of nature affects an
entire region or locale or a systemic problem with one of CMS' data
collection systems directly or indirectly affects data submission.
Because we do not anticipate that such systemic errors will happen
often, we do not anticipate granting exceptions on this basis
frequently.
We propose that CMS may grant an exception to one or more data
submission deadlines and requirements upon request by an REH, pursuant
to specific requirements for submission of such a request described
below. In addition, we propose that CMS may grant exceptions at its own
discretion, without an accompanying request from an affected REH, when
CMS determines that an extraordinary circumstance has occurred.
For an REH to request consideration of an exception to the
requirement to submit quality data or medical record documentation for
one or more quarters, the REH would follow specific requirements for
submission of an ECE request form available on a CMS website. We note
that the following information must appear on the request form: the
REH's CCN; the REH's name; the REH's CEO or other REH-designated
personnel contact information, including name, email address, telephone
number, and mailing address (must include a physical address, a post
office box address is not acceptable); REH's reason for requesting an
exception; evidence of the impact of the extraordinary circumstances,
including
[[Page 49845]]
but not limited to photographs, newspaper and other media articles; and
a date when the REH believes it would again be able to submit REHQR
Program data and/or medical record documentation, and a justification
for the proposed date.
The request form must be signed by the REH's designated contact,
whether or not that individual is the CEO. A request form is required
to be submitted within 90 days of the date that the extraordinary
circumstance occurred. Following receipt of such a request, CMS would
provide an email acknowledgement using the contact information provided
in the request notifying the designated contact that the REH's request
has been received and following CMS' decision, CMS would notify the REH
using the same contact information. In the case where CMS grants
exceptions to REHs that have not requested them because we determine
that an extraordinary circumstance has occurred in a region or locale,
we would communicate this decision to REHs and vendors through routine
communication channels, including but not limited to emails and notices
on a CMS website.
We also propose to codify these policies at Sec. 419.95 by adding
paragraph (g), ``Exception.'' In proposed paragraphs (g)(1) and (g)(2),
we propose that we may grant, upon the request of the REH or at our
discretion, an exception to one or more data submission deadlines and
requirements in the event of extraordinary circumstances beyond the
control of the REH.
We invite public comment on this proposal.
XVII. Changes to Community Mental Health Center (CMHC) Conditions of
Participation (CoPs)
A. Background and Statutory Authority
The Consolidated Appropriations Act (CAA) of 2023 (Pub. L. 117-328)
was signed into law on December 29, 2022. Section 4124 of division FF
of this legislation established coverage of intensive outpatient
services (IOP) in community mental health centers (CMHC). Section 4124
of the CAA, 2023 extends Medicare coverage and payment of IOP services
furnished by a CMHC beginning January 1, 2024, allowing coverage of
both partial hospitalization services (PHP) and IOP services to be
furnished by CMHCs at section 1832(a)(2)(J) of the Act. Additionally,
the CAA, 2023 revised section 1861(ff) of the Act to define IOP
services while also amending the definition of PHP services. The
statutory definitions provide distinctions between the two programs for
Medicare purposes.
Section 1861 (ff)(3)(B)(iv) of the Act authorizes the Secretary to
establish the requirements that a CMHC must meet to participate in the
Medicare Program, and these CoPs are set forth in regulations at 42 CFR
part 485, subpart J (42 CFR 485.900). On October 29, 2013, we published
a final rule in the Federal Register titled ``Medicare Program:
Conditions of Participation (CoP) for Community Mental Health Centers''
(78 FR 64604), hereinafter referred to as ``2013 CoP CMHC final rule'',
which established CoPs for CMHCs.
In order to implement division FF, section 4124 of the CAA, 2023,
we propose to modify the requirements for the CMHC to include IOP
services throughout the CoPs.
Under section 1861(ff)(3)(B)(iii) of the Act, a CMHC must provide
at least 40 percent of its services to individuals who are not eligible
for Medicare Part B. This requirement is reflected in the CoPs at Sec.
485.918(b)(1)(v).\609\ Under this requirement, CMHCs must submit a
self-attestation certification statement upon initial application to
enroll in Medicare, and as a part of revalidation, including any off-
cycle revalidation. Medicare enrollment will be denied or revoked in
instances where the CMHC fails to provide the certification statement
as required. In addition, Medicare enrollment will also be denied or
revoked if the 40 percent requirement, as specified in section
1861(ff)(3)(B)(iii) of the Act and Sec. 485.918(b)(1)(v), is not met.
We solicit public comment on how the provision of IOP services may
impact the populations CMHCs serve as well as the potential impact on
meeting the 40 percent requirement.
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\609\ https://www.reginfo.gov/public/do/PRAOMBHISTORY?ombControlNumber=0938-1245#.
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We also propose to revise the personnel qualifications of Mental
Health Counselors (MHCs) and add personnel qualifications of Marriage
and Family Therapists (MFTs) to the CMHC CoPs. Division FF, section
4121 of the CAA, 2023, establishes a new Medicare benefit category for
MHC services and MFT services furnished by and directly billed by MHCs
and MFTs, respectively. At the time of publication of the 2013 CoP CMHC
final rule (78 FR 64604), there were no specific personnel requirements
(for purposes of the Medicare program) for Mental Health Counselors
(MHCs). We believe it was necessary to recognize and outline specific
personnel requirements for MHCs due to their integral role in providing
mental health services to CMHC clients. We believe that MFTs are also
essential mental health professionals who may furnish services in a
CMHC, and propose adding MFTs to Sec. 485.904 Condition of
participation: Personnel qualifications. According to the American
Association for Marriage and Family Therapy, a professional association
for the MFT field, one of the settings an MFT may practice is in a
CMHC.\610\ The CAA 2023 does not require CMHCs to employ MFTs or MHCs;
however, we believe the services provided by both MHCs and MFTs are
integral to ensuring the health and safety of CMHC clients. We seek
comment on the revised personnel qualifications for MHCs.
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\610\ https://www.aamft.org/Consumer_Updates/MFT.aspx.
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B. Provisions of the Proposed Rule
Section 4124 of the CAA, 2023 provides intensive outpatient
services to be included as services provided by CMHCs under the
Medicare Program. We propose the following revisions to the CMHC CoPs.
1. Sec. 485.900 Basis and Scope
Currently, a CMHC may receive Medicare payment for partial
hospitalization services if it meets the CMHC CoPs. Our regulations are
intended to protect the health and safety of CMHC clients and support
quality care. We propose to update the CoPs for CMHCs to reflect the
statutory addition of IOP services provided by CMHCs to protect the
health and safety of clients. Both PHP and IOP services are outpatient
mental health services for adults and children who have an acute mental
illness, including, but not limited to, conditions such as depression,
schizophrenia, and substance use disorders. The Medicare Statute
authorizes the PHP program for clients that need a higher level and
intensity of care, a minimum of 20 hours per week (section 1861(ff)(1)
of the Act). A Medicare beneficiary qualifies if they otherwise require
inpatient psychiatric care in the absence of such services (section
1835(a)(2)(F) of the Act). The PHP program may assist in transitioning
from these institutional settings to community-based services. PHP and
the addition of IOP services are important components in the continuum
of mental health care and services. Both PHP and IOP are more intensive
than office-based counseling but less intense than inpatient
psychiatric care. Both PHP and IOP programs can serve beneficiaries as
a step-up in care if additional support is
[[Page 49846]]
needed or a step down in managing symptoms. The addition of IOP
services in a CMHC would assist in ensuring the continuum of coverage
of outpatient mental health services under the Medicare program.
Medicare coverage of IOP services may help address barriers to access
to mental health care, which may also address inequities in mental
health care and services. In order to implement division FF, section
4124 of the CAA, 2023, we propose to modify the CMHC CoP at Sec.
485.900(a)(1) through (a)(3). These modifications would allow CMHCs to
receive payments for IOP services under Medicare Part B, establish
requirements for the provision of IOP services in CMHCs, provide IOP
services to clients, and include IOP services in the Medicare provider
agreement.
2. Sec. 485.904 Personnel Qualifications
Section Sec. 485.904 of the CMHC CoP establishes staff
qualifications, and paragraph (a) requires all professionals who
furnish services directly, under an individual contract, or under
arrangements with a CMHC to be legally authorized (licensed, certified,
or registered) in accordance with applicable Federal, State and local
laws, and be required to act only within the scope of their State
licenses, certifications, or registrations. The staff qualifications
set out at Sec. 485.904(b), Standard: Personnel qualifications for
certain disciplines, are consistent with, or similar to, those set
forth in CoPs for other provider types in the Medicare regulations. As
part of the 2013 CMHC CoP final rule, we established personnel
qualifications for MHCs at Sec. 485.904(b)(5). Division FF, section
4124 of the CAA, 2023, established a new Medicare benefit category for
MFTs and MHC services in section 1861(lll) of the Act, including a
definition for MFTs in section 1861(lll)(2) of the Act and MHCs in
section 1861(lll)(4) of the Act. Section 1861(lll)(4) of the CAA 2023
defines the term `mental health counselor' to mean an individual who:
(1) possesses a master's or doctor's degree which qualifies for
licensure or certification as a mental health counselor, clinical
professional counselor, or professional counselor under the State law
of the State in which such individual furnishes the services described
in paragraph (3); (2) is licensed or certified as a mental health
counselor, clinical professional counselor, or professional counselor
by the State in which the services are furnished; (3) after obtaining
such a degree has performed at least 2 years of clinical supervised
experience in mental health counseling; and (4) meets such other
requirements as specified by the Secretary. Section 1861(lll)(2) of the
Act defines the term `marriage and family therapist' to mean (1)
possesses a master's or doctor's degree which qualifies for licensure
or certification as a marriage and family therapist pursuant to State
law of the State in which such individual furnishes the services
described in paragraph (1); (2) is licensed or certified as a marriage
and family therapist by the State in which such individual furnishes
such services; (3) after obtaining such degree has performed at least 2
years of clinical supervised experience in marriage and family therapy;
and (4) meets such other requirements as specified by the Secretary.
To support the health and safety of CMHC clients and to promote
consistency and clarity of CMHC personnel qualifications, we believe it
is best to align the personnel qualifications for MFTs and MHCs with
the requirements set out in the CAA, 2023. The statutory requirements
for MHCs and MFTs are being codified in the CY 2024 Physician Fee
Schedule proposed payment rule that is published elsewhere in the
Federal Register. We propose to modify the MHC personnel requirement at
Sec. 485.904(b)(5) by cross-referencing the definition of an MHC at
Sec. 410.54 and adding a new requirement at Sec. 485.904(b)(12),
cross-referencing the definition of an MFT at Sec. 410.53.
3. Sec. 485.914 Admission, Initial Evaluation, Comprehensive
Assessment, and Discharge or Transfer of the Client
The requirements at Sec. 485.914 establish requirements for
admission, initial evaluation, comprehensive assessment, and discharge
or transfer of the client in accordance with sections 1835(a)(2)(F) and
1861(ff) of the Act. These CoPs identify general areas that would be
included in a client assessment and the timeframes for completing the
assessments to help the CMHC ensure it is identifying the needs in all
areas in a timely fashion. At Sec. 485.914(a)(1), we require that
clients are assessed and admitted to receive partial hospitalization
(PHP) services, and (2) the CMHC must also meet separate requirements
as specified in Sec. 485.918(f). The requirements at Sec. 485.918(f)
reference additional PHP requirements of 42 CFR part 410 (CMHC services
and definition) and Sec. 424.24(e) (the content of the certification
and plan of treatment requirements). We propose to modify the current
CoP at Sec. 485.914(a)(2) to add IOP requirements and reference
applicable requirements the CMHC must meet that are specific to IOP
services at proposed Sec. 485.918(g). This proposed standard for IOP
is discussed later in section XVII.A.5 of this proposed rule.
Currently, Sec. 485.914(d) requires that the CMHC update each
client's comprehensive assessment through the CMHC interdisciplinary
treatment team, in consultation with the client's primary health care
provider (if any), when changes in the client's status, responses to
treatment, or goal achievement have occurred and in accordance with
current standards of practice. Section 485.914(d)(2) requires that the
assessment must be updated no less frequently than every 30 days for
clients that receive PHP services. We note that this aligns with the
changes made in section 4124(a) of the CAA, 2023 to the definition of
``partial hospitalization services'' in section 1861(ff)(1) of the Act,
which requires that a physician determine (not less frequently than
monthly) that a client has a need for such services. This update
includes information on the client's progress toward desired outcomes,
a reassessment of the client's response to care and therapies, and the
client's goals. We believe that for some clients, more frequent reviews
are necessary since clients with ongoing mental illness may be subject
to frequent and/or rapid changes in status, needs, acuity, and
circumstances, and the client's treatment goals may change, thereby
affecting the type and frequency of services that should be furnished.
The CMHC interdisciplinary treatment team uses assessment information
to guide necessary reviews and/or changes to the client's active
treatment plan.\611\ Currently, Sec. 485.914(d)(2) addresses how often
a CMHC must update a PHP client's assessment, and we propose to add IOP
requirements to this standard, using the same period (30 days).
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\611\ https://www.reginfo.gov/public/do/PRAOMBHISTORY?ombControlNumber=0938-1245#.
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4. Sec. 485.916 Treatment Team, Person-Centered Active Treatment Plan,
and Coordination of Services
The review and update of the CMHC client's person-centered active
treatment plan plays an integral role in outlining the care and
services provided by the CMHC. The current requirements at Sec.
485.916(d) indicate that the active treatment plan be updated with
current information from the client's comprehensive assessment and
information concerning the client's progress toward achieving outcomes
and goals specified in the active treatment plan. The active treatment
plan is reviewed at specified intervals
[[Page 49847]]
but no less frequently than every 30 calendar days. Under this current
requirement, the revised active treatment plan must include information
from the client's initial evaluation and comprehensive assessments, the
client's progress toward outcomes and goals specified in the active
treatment plan, and changes in the client's goals. In addition, the
CMHC is required to meet partial hospitalization program requirements
specified under Sec. 424.24(e).
We propose to modify language at Sec. 485.916(d) to include IOP
requirements and a specific reference to the proposed requirement at
Sec. 424.24(d). As the CMHC must meet partial hospitalization program
requirements specified under Sec. 424.24(e), they must meet IOP
program requirements specified under Sec. 424.24(d) if such services
are included in the active treatment plan.
5. Sec. 485.918 Organization, Governance, Administration of Services,
Partial Hospitalization Services
The CoP at Sec. 485.918 establishes requirements for CMHC
organization, governance, administration of services, and partial
hospitalization services. This standard includes administrative and
governance structure standards and clarifies the governing body's
expectations. Other requirements under this standard are professional
management responsibility, staff training, and physical environment.
The overall goal of this CoP is to ensure that the management structure
is organized and accountable. The requirement at Sec. 485.918(b),
Standard: Provision of services, specifies a comprehensive list of
services that a CMHC is required to furnish. This list of services that
CMHCs provide corresponds directly to the Act's statutory requirements
in section 1861(ff)(3).
We propose to modify the section heading at Sec. 485.918 by adding
``intensive outpatient services,'' such that the new section heading
will be ``Organization, governance, administration of services, partial
hospitalization services, and intensive outpatient services.''
In addition, we propose to add IOP to the requirement at Sec.
485.918(b)(1)(iii) for the provision of services. These proposed
changes would recognize IOP, along with day treatment and PHP, as
services that can be provided by a CMHC, other than in an individual's
home or an inpatient or residential setting or psychosocial
rehabilitation services.
We propose to redesignate the current requirements at Sec.
485.918(g) to paragraph (h) and add a new standard for IOP services at
Sec. 485.918(g). This new requirement would specify the additional
requirements a CMHC providing IOP services must meet based on the
proposed requirements at Sec. 410.2, Sec. 410.44, Sec. 410.111, and
Sec. 424.24(d) of this chapter. See section VIII.B.2 and VIII.C.2 of
this proposed rule for a discussion of these additional requirements.
We solicit public comments on each of our proposals. In addition,
we request comments from CMHC stakeholders regarding the impact of the
proposed IOP requirements on the requirement that CMHCs provide at
least 40 percent of their items and services to individuals who are not
eligible for benefits under title XVIII of the Act, as specified at
Sec. 485.918(b)(1)(v). Specifically, we seek comment on the following:
Do you expect the total number of clients served in your
CMHC to increase with the addition of IOP?
Do you expect that your CMHC would admit new clients
directly into the IOP program, and do you have a sense of their
anticipated insurance status?
Do you expect that any of your PHP clients would step down
to the IOP program? If so, can you provide an estimated percentage of
PHP clients who would step down to the IOP program?
Do you expect any of your outpatient treatment clients,
such as office-based therapy, to step up to the IOP program?
Do you expect that offering IOP would impact your ability
to meet the 40 percent requirement at Sec. 485.918(b)(1)(v)? This
requirement states that the CMHC provides at least 40 percent of its
items and services to individuals who are not eligible for benefits
under title XVIII of the Act.
XVIII. Proposed Updates to Requirements for Hospitals To Make Public a
List of Their Standard Charges
A. Introduction and Overview
1. Statutory Basis and Background
Section 1001 of the Patient Protection and Affordable Care Act
(Pub. L. 111-148), as amended by section 10101 of the Health Care and
Education Reconciliation Act of 2010 (Pub. L. 111-152), amended Title
XXVII of the Public Health Service Act (the PHS Act), in part, by
adding a new section 2718(e). Section 2718 of the PHS Act, entitled
``Bringing Down the Cost of Health Care Coverage,'' requires each
hospital operating within the United States (U.S.) for each year to
establish and update, and make public a list of the hospital's standard
charges for items and services provided by the hospital, including for
diagnosis-related groups established under section 1886(d)(4) of the
Social Security Act (the Act). Section 2718(b)(3) of the PHS Act
requires the Secretary of the Department of Health and Human Services
(Secretary) to promulgate regulations to enforce the provisions of
section 2718 of the PHS Act, and, in so doing, the Secretary may
provide for appropriate penalties.
In a final rule dated November 2019 (84 FR 65524) (herein referred
to as the CY 2020 HPT final rule), we adopted requirements for
hospitals to make public their standard charges in two ways: (1) as a
comprehensive machine-readable file (MRF); \612\ and (2) in a consumer-
friendly format. We codified these requirements at new 45 CFR part 180.
We also explained our belief that these two different methods of making
hospital standard charges public are necessary to ensure that such data
are available to consumers where and when they are needed, including
through data aggregation methods (for example, via integration into
price transparency tools, electronic health records (EHRs), and
consumer apps), and direct availability to consumers searching for
hospital-specific charge information. Additionally, we believe such
data can be used specifically by employers, researchers, and policy
officials, and similar members of the public to help bring more value
to healthcare.
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\612\ We have previously generally described the machine-
readable file (MRF) as a single digital file that is in a machine-
readable format (as defined at 45 CFR 180.20), and we propose in
this proposed rule to codify that definition in our regulations.
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Subsequently, in the CY 2022 OPPS/ASC final rule with comment
period (86 FR 63941), we strengthened the hospital price transparency
(HPT) enforcement scheme in order to improve compliance rates and made
other updates to the requirements. Specifically, we (1) increased the
penalty amount for noncompliance through the use of a scaling factor
based on hospital bed count; (2) deemed state forensic hospitals that
meet certain requirements to be in compliance with the requirements of
45 CFR part 180, and (3) prohibited certain conduct that we concluded
were barriers to accessing the standard charge information, including,
specifically, prohibiting hospitals from coding their MRF in a fashion
that made it inaccessible to automated searches and direct downloads.
In both of those final rules, we stated that our policies requiring
public release of hospital standard charge information
[[Page 49848]]
are a necessary and important first step in ensuring transparency in
healthcare prices for consumers. We also recognize that the release of
hospital standard charge information is not itself sufficient to
achieve our ultimate price transparency goals. The regulations are,
therefore, designed to begin to address some of the barriers that limit
price transparency, with a goal of increasing competition among
healthcare providers to bring down costs.
2. Summary of Proposals in This Proposed Rule
We propose to amend several of our HPT requirements in order to
improve our monitoring and enforcement capabilities by improving access
to, and the usability of, hospital standard charge information;
reducing the compliance burden on hospitals by providing CMS templates
and technical guidance for display of hospital standard charge
information; aligning, where feasible, certain HPT requirements and
processes with requirements and processes we have implemented in the
Transparency in Coverage (TIC) initiative; and making other
modifications to our monitoring and enforcement capabilities that will,
among other things, increase its transparency to the public.
Specifically, we propose to: (1) define several terms; (2) revise the
standard charge information and data elements that hospitals must
include in their MRFs, as well as require hospitals to use a template
developed by CMS (hereafter referred to as a `CMS template') for
purposes of complying with Sec. 180.50 of our regulations, in order to
standardize the displayed MRF data; (3) improve the accessibility of
the hospital MRF by requiring hospitals to include a .txt file in the
root folder that includes a direct link to the MRF and a link in the
footer on its website that links directly to the publicly available web
page that hosts the link to the MRF; and (4) improve our enforcement
process by updating our methods to assess hospital compliance,
requiring hospitals to acknowledge receipt of warning notices, working
with health system officials to address noncompliance issues in one or
more hospitals that are part of a health system, and publicizing more
information about CMS enforcement activities related to individual
hospital compliance. Additionally, we are seeking comment on additional
considerations for improving compliance and aligning consumer-friendly
policies and requirements with other federal price transparency
initiatives.
B. Proposal To Modify the Requirements for Making Public Hospital
Standard Charges at 45 CFR 180.50
In the CY 2020 HPT final rule, we finalized, at 45 CFR 180.50,
specific requirements with which hospitals must comply for the purpose
of making public a single comprehensive list of standard charges for
the items and services they provide, including requirements that govern
the format, data elements, location and accessibility of the list, as
well as the frequency by which they must update the list.
In this section, for the reasons discussed below, we propose to
substantially modify Sec. 180.50(a) through (d) of our regulations,
which govern some of the requirements for how hospitals must make
public their standard charges for all items and services they provide.
Specifically, we propose to (1) define several new terms; (2) require
hospitals to affirm the accuracy and completeness of the standard
charges displayed in the MRF; (3) require hospitals to display
additional data elements in their list of standard charges; (4) require
display of standard charge information using a CMS template; and (5)
adopt new requirements to improve the automated accessibility of the
machine-readable file.
1. Proposed Definitions
We propose to add the following definitions to Sec. 180.20:
``CMS template'' means a CSV format or JSON schema that
CMS makes available for purposes of compliance with the requirements of
Sec. 180.40(a).
``Consumer-friendly expected allowed amount'' means the
average dollar amount that the hospital estimates it will be paid by a
third party payer for an item or service.
``Encode'' means to enter data items into the fields of
the CMS template.
``Machine-readable file'' means a single digital file that
is in a machine-readable format.
In light of these proposed definitions, we further propose several
technical and conforming revisions to ensure consistency of the use of
these terms across the regulation. Specifically, we propose to replace
references to ``the file'' and ``the digital file'' in Sec.
180.50(d)(4) through (5) with the proposed defined term ``machine-
readable file''. Revisions to references to the ``file'' in the
introductory text of Sec. 180.50(c) and at Sec. 180.50(e) are
addressed as a part of other proposed changes within this proposed
rule.
2. Proposal To Require Hospitals To Affirm the Accuracy and
Completeness of Their Standard Charge Information Displayed in the MRF
Since we implemented the HPT regulations, we have received
questions from the public regarding the accuracy and completeness of
the standard charge information displayed by hospitals. Similar
questions have also arisen in the course of our enforcement activities.
Section 2718(e) of the PHS Act requires hospitals to make public each
standard charge the hospital has established; however, a hospital may
not have established certain types of standard charges defined by the
regulation. For example, under our current regulations, a hospital that
has not established any discounted cash prices for any item or service
would not have any discounted cash prices to display in its MRF.
Depending on the type of MRF format chosen by the hospital, the file
may contain `blanks' without explanation. Although a hospital that
chooses to leave the discounted cash price field blank under this
scenario would be in compliance with our regulations, a user of the MRF
could be unsure as to whether the hospital has not established such
charges, or, instead, has not complied with the requirement to disclose
them in the MRF. Although many hospitals include explanatory
information on the web page associated with the MRF or within the MRF
itself (for example, in a CSV format, inserting `N/A' in blank cells or
adding an explanatory note), they currently do so on a voluntary basis.
We believe that requiring the hospital to affirm the accuracy and
completeness of its MRF would mitigate the potential for public
confusion as to whether the MRF is accurate and complete because it
clarifies to the public that blank cells left in some formats (such as
CSV which can be opened in a human-readable format) are intentional.
Such an affirmation would also streamline our enforcement efforts by
removing the need to initiate a compliance action asking for the
hospital to verify that their file is accurate and complete. We
therefore propose to require that each hospital affirm directly in its
MRF (using a CMS template, which we propose in more detail at XVIII.B.2
of this proposed rule) that it has included all applicable standard
charge information in its MRF as of the date in the MRF. We believe
that requiring the hospital to add this affirmation directly in its MRF
would make it clear to the public that the affirmation relates directly
to that MRF, and would mitigate the potential for confusion if
[[Page 49849]]
we only required that the affirmation appear on a website that links to
the hospital's MRF, especially if that website also links to other
hospital MRFs.
We therefore propose to add new paragraph (a)(3) at Sec. 180.50 to
require that, in its MRF, each hospital add a statement affirming that,
to the best of its knowledge and belief, the hospital has included all
applicable standard charge information in its MRF, in accordance with
the requirements of Sec. 180.50, and that the information displayed is
true, accurate, and complete as of the date indicated in the file.
We seek comment on this proposal.
3. Proposal To Improve the Standardization of Hospital Machine-Readable
File (MRF) Formats and Data Elements
In this section, we propose to revise several requirements at Sec.
180.50(b) and (c). We also propose to adopt technical edits to other
sections of the HPT regulations that are related to the revisions for
alignment, conformity, and clarity.
a. Background
In the CY 2020 HPT final rule, we expressed our concern that lack
of uniformity in the way that hospitals display their standard charges
leaves the public unable to meaningfully use, understand, and compare
standard charge information across hospitals (84 FR 65556). We stated
that we agreed with commenters that standardization in some form is
important to ensure high utility for users of hospital standard charge
information, and we finalized an initial set of rules for making public
all standard charges in an MRF at Sec. 180.50. Section 180.50(a)(1) of
our regulations states that a hospital must establish, update, and make
public a list of all standard charges for all items and services online
in the form and manner specified in that section, and Sec.
180.50(a)(2) states that each hospital location operating under a
single hospital license (or approval) that has a different set of
standard charges than the other location(s) operating under the same
hospital license (or approval) must separately make public the standard
charges applicable to that location. If a hospital location operating
under a single hospital license or approval shares the same set of
standard charges as another hospital location operating under the same
license or approval, then both hospital locations may post the same
MRF. In other words, in the interest of burden reduction, hospital
locations may share a file so long as the standard charges information
displayed in the file are applicable to the indicated locations.
Section 180.50(b) of our regulations describes the required data
elements that must be included, as applicable, in the hospital's MRF,
which are the following:
Description of each item or service provided by the
hospital.
The corresponding gross charge that applies to each
individual item or service when provided in, as applicable, the
hospital inpatient setting and outpatient department setting.
The corresponding payer-specific negotiated charge that
applies to each item or service when provided in, as applicable, the
hospital inpatient setting and outpatient department setting. Each
payer-specific negotiated charge must be clearly associated with the
name of the third party payer and plan.
The corresponding de-identified minimum negotiated charge
that applies to each item or service when provided in, as applicable,
the hospital inpatient setting and outpatient department setting.
The corresponding de-identified maximum negotiated charge
that applies to each item or service when provided in, as applicable,
the hospital inpatient setting and outpatient department setting.
The corresponding discounted cash price that applies to
each item or service when provided in, as applicable, the hospital
inpatient setting and outpatient department setting.
Any code used by the hospital for purposes of accounting
or billing for the item or service, including, but not limited to, the
CPT code, HCPCS code, DRG, NDC, or other common payer identifier.
When we finalized this set of standardized data elements, we stated
our belief that they would help ensure that the public could compare
standard charges for similar or the same items and services provided by
different hospitals. Commenters had provided many additional
suggestions for how to standardize the standard charge information
displayed by hospitals, but we declined at the time to be more
prescriptive in our approach. Instead, we indicated that we might
revisit the requirements in future rulemaking should we find it
necessary to make improvements in the display and accessibility of
hospital standard charge information.
At Sec. 180.50(c), the regulation specifies that the required (but
``as applicable'') data elements must be published in a single digital
file that is in a machine-readable format. The term ``machine-readable
format'' is defined at Sec. 180.20 to mean a digital representation of
data or information in a file that can be imported or read into a
computer system for further processing.
Since we first implemented the regulation in January 2021, feedback
in reports developed and made public by interested parties,
particularly from IT specialists, researchers, employers, and others,
indicates that more standardization of the files (including a specified
template and standardization of additional contextual data elements)
may be necessary to improve the public's use and understanding of, and
ability to make comparisons among, hospital standard charge
information.613 614 615 616 617 In particular, IT
specialists have indicated that the current flexibilities and lack of
encoding specifications hinder the machine-readability of the data in
the files, presenting a barrier to the intended use of the data.
Additionally, hospitals have asked us for more specificity on how they
should publicly display their standard charge information, with an
emphasis on how they should explain and display their payer-specific
negotiated charges. Some hospitals have suggested that a template
developed by CMS could be useful to improve hospital compliance and
reduce hospital burden. Further, the flexibilities that the current
regulation permit insofar as the format of hospital standard charges
information, and the very limited set of data elements required to be
displayed under Sec. 180.50, have presented an enforcement challenge.
For example, because hospitals are permitted to display their
information using a wide variety of file formats and data encoding
practices, we must manually, via time and resource-intensive processes,
review the information in the files to assess whether the information
is consistent with the data element requirements at Sec. 180.50(b).
Some hospitals rename data elements, include additional data elements,
or exclude, without explanation, data elements that are not applicable,
which can make it difficult
[[Page 49850]]
to assess whether the information contained in the file is accurate and
complete. This, in turn, slows compliance reviews and often requires us
to engage in one-on-one discussions with hospitals. We therefore came
to believe that requiring more specificity in formatting and encoding
the MRFs, as well as increasing the number of required corresponding
data elements hospitals must provide, would not only create
efficiencies for public users of the MRFs and our efforts to enforce
the requirements, but also improve the meaningfulness of the hospital's
standard charges.
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\613\ https://www.healthsystemtracker.org/brief/ongoing-challenges-with-hospital-price-transparency/.
\614\ https://energycommerce.house.gov/events/improving-drug-pricing-transparency-and-lowering-prices-for-american-consumers.
\615\ https://familiesusa.org/wp-content/uploads/2023/04/Power-of-Price-Transparency-final-4.19.23.pdf.
\616\ https://blog.turquoise.health/hospital-compliance-assessments/.
\617\ https://static1.squarespace.com/static/60065b8fc8cd610112ab89a7/t/60de0380cc0972060d0354eb/1625162631437/PRA+OPPS+Recommendations+June+2021%5B3%5D.pdf.
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As a result, in the CY 2022 OPPS/ASC proposed rule (86 FR 42321),
we sought comment on improving standardization of the data disclosed by
hospitals in the MRF. In response, many commenters urged CMS to create
a standard template for hospitals to use for posting their MRF, noting
that such standardization could ease operational burdens, improve the
public's (including employers and researchers) ability to make price
comparisons across hospitals, and better enable third party data
aggregation services to develop user-friendly consumer tools for
displaying this information. Some commenters recommended that CMS work
with providers and vendors to better understand the benefits of a
standard template. Some hospitals also urged CMS to be more
prescriptive, requesting that CMS standardize the MRF format and
contents and provide additional clarification on how hospitals should
indicate that they have not established all five types of standard
charges for a particular listed item or service.
We requested the HHS Health Federally Funded Research and
Development Center (FFRDC) \618\ to more fully explore the feasibility
of these commenters' recommendations, and to identify technical
specifications and categories of information (referred to as ``data
elements'') that we could consider proposing in future rulemaking to
improve the usability and meaningfulness of the standard charges
display. The Health FFRDC convened a technical expert panel (TEP) and
used the TEP members' advice to make informed recommendations to CMS in
the summer of 2022.\619\ The TEP was comprised of both MRF developers,
specifically, hospitals (representatives of large and small acute and
specialty care hospitals), and primary users of MRF data, specifically,
researchers and information technology innovators. The TEP members
discussed the challenges and complexities of displaying, in a
meaningful way, all hospital standard charges in an MRF. The TEP
members noted that increasing standardization of the MRF and the
required data elements may improve the public's ability to make price
comparisons across hospitals. TEP members indicated their belief that
public display of hospital standard charge information is an important
step toward transparency in prices for hospital items and services, but
cautioned that hospitals use different methods to establish standard
charges for items and services, resulting in charge/item and charge/
service combinations that are often unique to that hospital. Therefore,
some direct comparisons of hospital standard charges may continue to be
a challenge if such comparisons are made under the assumption that
hospitals always use the same methods to establish their standard
charges and that the same charge/item and charge/service combinations
are consistent across hospitals. As such, attempting to use hospital
standard charges in isolation, without additional contextual
information, can result in erroneous conclusions and comparisons. The
members went on to discuss the potential benefits to both hospitals and
the public if CMS required hospitals to display standard charge
information that better described or contextualized their standard
charges, including standard charge information related to complex
contracting arrangements between hospitals and third party payers. The
TEP also weighed the benefits with the potential burden hospitals would
incur to display those new data elements and encode data in a more
specified way.
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\618\ MITRE operates HHS' Health FFRDC, a federally funded
research and development center. For more information, see: https://www.mitre.org/our-impact/rd-centers/health-ffrdc.
\619\ MITRE, Hospital Price Transparency Machine-Readable File
Technical Expert Panel Report and MITRE Recommendations to the
Centers for Medicare & Medicaid Services, November, 2022. https://mitre.box.com/v/MITRE-MRF-TEP.
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First, the TEP members discussed what general machine-readable
format(s) would be best suited to display hospital standard charges.
The TEP members indicated that use of non-proprietary formats would be
ideal because they are widely and freely available to both the
developers (the hospitals) and users (for example, IT developers and
researchers) of the MRFs. The TEP members then considered different
types of non-proprietary formats. They first considered whether a
single non-proprietary format, such as JSON, should be recommended
because of its ability to represent hierarchical relationships better
than tabular non-proprietary formats, such as CSV. Whereas JSON's use
of a hierarchical format could be beneficial because it would eliminate
the need to leave data fields, sometimes numerous, blank if the
hospital has no applicable corresponding information. However, TEP
members noted that existing hospital systems often produce files in
CSV, and that smaller, less-resourced, hospitals often lack the in-
house capacity to develop and manage a JSON file. The TEP members
therefore suggested that hospitals have a choice of JSON and CSV
formats. The TEP members also discussed the specific technical layout
of a CSV file, including a:
``tall'' format, with separate payer and plan data
elements that provide the benefit of static header naming with less
opportunity for standardization error and that is similar to existing
output files that many hospitals are using to build their MRFs; and
``wide'' format, with variable payer-specific negotiated
charge data elements that incorporate the payer and plan name into a
single column header; this may reduce the file size because many data
elements would not need to be repeated as frequently.
Ultimately, MITRE, as informed by TEP members, recommended to CMS
that CMS provide hospitals with an option to use one of three layouts
representing two types of machine-readable formats for displaying their
standard charge information in an MRFs: (1) JSON schema (plain format),
(2) CSV (``tall'' format), or (3) CSV (``wide'' format). TEP members
indicated that this choice would balance the need for greater
standardization for automated machine use of the files, while providing
a hospital some flexibility to select the least burdensome format and
layout to incorporate into its current MRF development process.
The TEP also discussed the data elements, or categories of standard
charge information, that they believed should be included in the MRF,
with a goal of improving the public's understanding and use of hospital
standard charges. These discussions focused on the challenges of
displaying payer-specific negotiated charges, given the variety of ways
that hospitals establish this type of standard charge, and data
elements that would be necessary to help the public understand them.
TEP members discussed several types of commercial contracting
methodologies commonly used by hospitals to establish their payer-
specific negotiated charges, including:
[[Page 49851]]
fee schedule, case rate, per diem, percentage of total billed (or
gross) charges, and others. Ultimately, the TEP agreed on the following
data elements to improve the meaningfulness and facilitate automated
aggregation of hospital standard charges: (1) general information such
as file version and date of most recent update of the file; (2)
hospital-specific information (such as hospital name and location,
license number, financial aid policy); (3) data elements corresponding
to the types of standard charges defined by the HPT regulation (that
is, the gross charge, payer-specific negotiated charges by payer and
plan, discounted cash price, and minimum and maximum de-identified
negotiated rates) and, for payer-specific negotiated charges, the type
of contracting methodology and whether the payer-specific negotiated
charge established by the hospital is being expressed as a dollar
amount versus an algorithm or percentage; and (4) data elements that
enhance understanding of the item or service to which the standard
charge applies, such as a general description of the item/service,
billing class (for example, whether the standard charge is billed as a
facility or professional service), the hospital setting in which the
item or service is provided (for example, in the inpatient or
outpatient setting), drug-specific information such as the drug unit
and type of measurement (such as number of milligrams), and information
related to corresponding codes (such as common billing codes, revenue
center codes, modifiers). TEP participants also suggested including an
open field that a hospital could use, as needed, to provide additional
contextual information should it believe the template's data elements
are insufficient to ensure a user's understanding of a standard charge
displayed in the file.
The TEP members discussed a number of other data elements,\620\ but
concluded that the burden on hospitals to gather and display such
information would outweigh their benefit to users, or that it would be
infeasible to include such information in an MRF. As such, MITRE did
not recommend that CMS adopt them.
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\620\ Those data elements included: `Billing Code Version' which
would be the version of a code set used by providers and payers;
`Unit of Measurement' which would be used for items and services
other than drugs; `Place of Service Code' used by Medicare to
indicate where in a hospital a service would be provided; `Insurance
Plan ID' such as a Health Insurance Oversight System (HIOS)
identifier \620\ or employer identification number (EIN) of the
payer; `Contract Expiration Date' to indicate how long a contract
would be in place; `Bundled Codes' which would indicate all
individualized items and services that comprised a payer-specific
negotiated rate or discounted cash price; `Covered Services' which
would indicate all the codes for services covered under a capitation
arrangement; and a `Payment Learning & Action Network' field which
would indicate whether the hospital's commercial contract met
criteria for different types of value-based arrangements as defined
by the Learning & Action Network's Alternative Payment Model
Framework (https://innovation.cms.gov/innovation-models/health-care-payment-learning-and-action-network).
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MITRE presented its findings and recommendations to CMS in the fall
of 2022. After considering them, we announced in November of 2022 the
availability of several `sample formats,' that may be found on the HPT
website,\621\ that hospitals could voluntarily use to make public their
standard charge information in an MRF. At the same time, we developed
and made available a supplemental data dictionary that provides
technical instructions to hospitals on how to conform to the sample
formats and encode standard charge information. The sample formats and
data dictionary can be found on the HPT website: https://www.cms.gov/hospital-price-transparency/resources. We encourage commenters to
review the sample templates and data dictionary to inform their
comments on these proposals.
---------------------------------------------------------------------------
\621\ https://www.cms.gov/hospital-price-transparency/resources.
---------------------------------------------------------------------------
b. Proposals To Require Hospitals To Encode All Data Items for
Additional Data Elements in Their MRF
(1) Proposal To Encode, as Applicable, All Data Items in the MRF
Currently, the introductory text at Sec. 180.50(b) states that a
hospital must include all of the data elements (as specified in the
paragraph) in its list of standard charges, ``as applicable''. We
propose to revise the introductory text for clarity to indicate that
each hospital must encode, as applicable, all standard charge
information corresponding to each required data element in its MRF.
This proposed revision would differentiate the standard charge
information, or data values, that must be encoded in the MRF from the
``data elements,'' or categories of data as the basis for the CMS
template. The term ``data element'' is currently used at Sec.
180.50(b) in both ways, which, at the time we implemented the
regulations, seemed appropriate because of the wide latitude of
flexibility we were giving hospitals to display their standard charges.
However, now that we propose to require hospitals to display complete
standard charge information for an expanded set of data elements and to
be much more prescriptive in how such data is encoded, we believe that
adopting more precise terminology will make the display requirements
easier to understand.
We believe that this proposed revision is necessary in light of our
other proposals to be more prescriptive in the form and manner in which
hospitals display their standard charge information, and would clarify
that the term ``data element'' refers to a required category of data
items encoded in the MRF, and not the standard charge information
itself.
Under our proposal, the term ``as applicable'' would no longer
refer to data elements (which, if finalized as proposed, would all be
required) and instead would qualify the standard charge information
that the hospital encodes in the MRF. Hospitals would thus be required
to encode its MRF with all applicable standard charge information that
corresponds to each of the required data elements. We note that the
phrase ``as applicable'' does not mean that encoding standard charge
information that corresponds to a required data element is
``optional.'' Rather, if a hospital has established standard charge
information for a required data element at proposed new Sec.
180.50(b)(1) through (4), the hospital would be required to display
that information accurately and completely, in its MRF.
(2) Proposal To Revise and Expand the Required Data Elements
At new Sec. 180.50(b)(1) through (4), we propose to revise and
expand the required data elements which describe the categories of
information the hospital must encode in its MRF. We propose to include
most of the data elements suggested by the TEP and recommended by MITRE
in its report to CMS \622\ and note that many of the proposed data
elements are incorporated in the CMS `sample formats' currently
available for voluntary use by hospitals on CMS's HPT website.\623\
---------------------------------------------------------------------------
\622\ MITRE, Hospital Price Transparency Machine-Readable File
Technical Expert Panel Report and MITRE Recommendations to the
Centers for Medicare & Medicaid Services, November, 2022. https://mitre.box.com/v/MITRE-MRF-TEP.
\623\ https://www.cms.gov/hospital-price-transparency/resources.
---------------------------------------------------------------------------
We propose to require hospitals to encode all applicable standard
charge information for an expanded set of data elements in its MRF,
which we believe would improve the public's ability to better
understand and therefore more meaningfully use hospital standard
charges. We believe that this expanded set of data elements will make
hospital standard charges more understandable and comparable across
hospitals. We
[[Page 49852]]
decided to make these proposals after considering: the feedback
discussed above; our experience with enforcing the current HPT
requirements; the FFRDC recommendations as informed by their TEP; and
our evolving understanding of how hospitals establish payer-specific
negotiated charges with third party payers.
We agree with the feedback we have received from various interested
parties, the recommendations of the FFRDC, and publicly available
reports that the machine-readable data needs to be contextualized and
more precisely encoded to improve the public's ability to understand
and use hospital standard charges. We believe that this could largely
be accomplished by requiring hospitals to conform to a CMS template
layout and encode all applicable standard charge information in a
consistent form and manner specified by CMS.
(a) Proposed General Data Elements
Proposed new Sec. 180.50(b)(1) would require a hospital to encode
standard charge information for each of the following ``general'' data
elements:
Hospital name(s), license number, and location name(s) and
address(es) under the single hospital license to which the list of
standard charges apply.
Under this proposal, a hospital would be required to include the
location to which its list of standard charges applies within the MRF
itself, instead of simply on its website, as is currently required at
45 CFR 180.50(d). We believe this change is necessary because we have
found that a single public website may host the files of several
hospitals and identify each hospital location in text on the web page.
Because the hospital location is currently not listed on the file
itself, the hospital information sometimes becomes disassociated from
the file as it is further processed, making it difficult for end users
of the data to connect standard charge information to a particular
hospital, hospital location, or address. This is a result we did not
intend when we finalized the initial display requirements. We believe
that requiring hospitals to encode standard charge information for
these data elements directly in the MRF will permit the public,
including end users creating various aggregation tools, to connect the
standard charge information in the file to a particular hospital's site
of care as they seek to make the information more actionable.
Additionally, the current requirement at Sec. 180.50(a)(2) indicates
that each hospital location operating under a single hospital license
(or approval) that has a different set of standard charges than the
other location(s) operating under the same hospital license (or
approval) must separately make public the standard charges applicable
to that location. However, there is no current requirement for a
hospital to indicate under what license the hospital is operating,
making enforcement of this requirement challenging. By including the
license number of the hospital in the file, CMS would better be able to
validate and ensure that hospitals are complying with the requirements
because CMS would be able to directly connect the hospital name,
license and MRF.
The file version and date of the most recent update to the
standard charge information in the MRF. First, we propose that
hospitals indicate in their MRF the file version that corresponds to
the CMS template that the hospital is using to display the standard
charge information. File version information is necessary to provide
certainty to users of the file (including CMS for purposes of
automating review of MRFs) that they have coded to the correct format
for processing the data. Second, we note that hospitals are currently
required at Sec. 180.50(e) to update, at least once annually, the
standard charge information in the MRF and to clearly indicate the date
that the standard charge information was most recently updated.
Hospitals also currently have the flexibility to indicate the updated
date in the file itself or otherwise in a manner that is clearly
associated with the file. That flexibility would be eliminated with
this proposal because we would require the date of last update to be
indicated in the file itself. We therefore propose to make a necessary
corresponding revision to Sec. 180.50(e) to remove the sentence `The
hospital must clearly indicate the date that the standard charge data
was most recently updated, either within the file itself or otherwise
clearly associated with the file.' Requiring a hospital to include the
date of the last update in the file itself is necessary for a machine
to be able to automatically validate that the standard charge
information in the file has been updated by the hospital at least once
annually, as is required under section 2718(e) of the PHS Act and 45
CFR 180.50(e). Moreover, by placing the date of most recent update
within the MRF, file users would be assured that the file they are
using is the most recently available. Nothing in this proposal would
prohibit a hospital from continuing to also indicate the date of the
last update on its website in addition to indicating the date of the
last update within its MRF.
(b) Proposals for Data Elements Related to Types of Standard Charges
First, at proposed new Sec. 180.50(b)(2), we would consolidate
into a single data element the standard charges (that is, the gross
charge, payer-specific negotiated charge, de-identified minimum and
maximum negotiated charge, and discounted cash price) that are
currently listed as required data elements at Sec. 180.50(b)(2)
through (6). We note that this revision would remove the phrase ``that
applies to each individual item or service when provided in, as
applicable, the hospital inpatient setting and outpatient department
setting'' from each of the individually referenced type of standard
charge at Sec. 180.50(b)(2) through (6). This concept, however, would
be retained and incorporated (as addressed in more detail below) as a
separate data element (``setting'') and used to contextualize hospital
items and services at new Sec. 180.50(b)(3).
Second, we would continue to require that the payer-specific
negotiated charges be displayed by name of the third party payer and
plan(s), each indicated as a separate data element (for example,
``payer name'' and ``plan name''). However--and as a result of our
acquiring a better understanding of hospital and commercial payer
contracting, we propose that hospitals may indicate plan(s) as
categories (such as ``all PPO plans'') when the established payer-
specific negotiated charges are applicable to each plan in the
indicated category. We believe this modification is necessary because
we have learned that many hospital contracts are designed to negotiate
the same rates across a grouping of payer plans, and not always on a
plan-by-plan basis. For example, some hospitals have contracts
stipulating that the payer-specific negotiated charges they establish
with third party payers are for ``all plans'' offered by the third
party payer, without specifying plan names. Similarly, a hospital's
contract with a payer may set forth the payer-specific negotiated
charges for ``all PPO plans'' or ``all managed care plans'' without
listing specific plan names. As a result, hospitals would be required
to indicate payer-specific negotiated charges that apply to ``Payer A''
for ``all PPO plans'', for example, rather than having to research and
insert repetitious standard charge information for each named PPO plan
offered by Payer A. We believe this modification is necessary to ensure
hospitals are not penalized for displaying information that is
consistent
[[Page 49853]]
with their contracting practices. Moreover, this practice could improve
accessibility of the MRF by avoiding repetition of standard charge
information that would unnecessarily increase file size. Additionally,
because we propose to require hospitals to encode standard charge
information in an MRF that conforms to a CMS template layout, the use
of such template would ensure that the payer-specific negotiated
charges remain `clearly associated' with the name of each payer and
plan. Accordingly, we propose to remove the phrase ``clearly
associated'' from the regulatory text as a separate and distinct
requirement in relationship to the data elements. Finally, we are aware
of interested parties' recommendations that the payer and plan be
indicated in the MRF using some uniform, nationally applicable set of
abbreviations. To the extent that a uniform nationally applicable set
of abbreviations is available, we seek comment on a publicly available
data source(s) that we may consider as we develop the technical
instructions.
Third, we propose to require that hospitals indicate the
contracting method they used to establish the payer-specific negotiated
charge. TEP members indicated that including the contracting method
within the MRF would bring necessary context to the payer-specific
negotiated charges established by the hospital. For example, a hospital
may have established a payer-specific negotiated charge as a `base
rate' for a service package.\624\ Without knowing that, a file user
might assume that the listed payer-specific negotiated charge included
every charge applicable to the provision of the item or service when,
in fact, a `base rate' charge likely would include non-standard
adjustments and other added charges. Additionally, including this data
element would align with the data element in the TIC template. We seek
comment on contracting types that we should consider as allowed values
in the CMS template, should this data element be finalized.
---------------------------------------------------------------------------
\624\ For additional discussion, please see the CY 2020 HPT
final rule, 84 FR 65534.
---------------------------------------------------------------------------
Fourth, we propose to require that hospitals indicate whether the
payer-specific standard charge listed should be interpreted by the user
as a dollar amount, percentage, or, if the standard charge is based on
an algorithm, the algorithm that determines the dollar amount for the
item or service. Specifying whether the number indicated as the
standard charge should be interpreted as a dollar figure or percentage
would ensure that the data is machine-readable and would minimize
confusion about the value inserted into a particular standard charge
column. Knowledge of the algorithm for a standard charge that can only
be expressed as an algorithm is necessary for consumer-friendly tools
to estimate in dollars an individual's payer-specific negotiated
charge. Similar to the existing technical instructions for the sample
templates, CMS will provide technical instructions for hospitals to
display standard charges expressed in dollars, percentages, and
algorithms in order to ensure consistency and machine-readability.
Fifth, we propose a consumer-friendly data element called the
`expected allowed amount' that we would require a hospital to display
in situations where the payer-specific negotiated charge cannot be
expressed as a dollar figure. As finalized in the CY 2020 HPT final
rule, the definition of a standard charge is the `regular rate'
established by the hospital for items and services provided to a
`specific group of paying patients.' In other words, the standard
charge displayed in the MRF represents the exact rate that applies to
all individuals in the group, for example, all individuals covered by a
particular payer and plan. This amount is generally considered to be
analogous to the `allowed amount' that is established in the contract
the hospital has with the third party payer, and that appears on a
patient's explanation of benefits. This is the maximum payment the plan
will pay for a covered health care service, and may also be called
``eligible expense,'' ``payment allowance,'' or ``negotiated rate.''
\625\ A portion of this allowed amount is reimbursed to the hospital by
the third party payer while the hospital bills the consumer for the
remainder which is described as the `out-of-pocket' amount. As we
explained in the CY 2020 HPT final rule, knowledge of the rate the
insurer has negotiated with the hospital on the consumer's behalf is
essential for helping consumers determine their out-of-pocket cost
estimates in advance. However, while essential, the standard charge
information is not sufficient because the individual must obtain
additional information from his or her third party payer related to the
circumstances of their particular insurance plan (for example, what
portion of the payer-specific negotiated charges would be paid by the
plan and other plan dependencies such as the patient's co-insurance
obligations or where the patient has not satisfied their deductible for
the year).
---------------------------------------------------------------------------
\625\ https://www.cms.gov/files/document/nosurpriseactfactsheet-health-insurance-terms-you-should-know508c.pdf.
---------------------------------------------------------------------------
Since implementation of the HPT regulation, hospitals have become
more transparent about how they establish their payer-specific
negotiated charges. Based on our experience in enforcing the
requirements of the regulation, we have learned that most commercial
contracting methods result in a hospital's ability to identify and
display as a dollar figure the payer-specific negotiated charges they
have established with third party payers. For example, a negotiated
rate is established as a dollar amount for an item or service or
service package (that is, the `base rate'), or is established as a
percent discount off the gross charge for each item or service
provided, or as a percentage of the Medicare rate which can be
translated and displayed by the hospital as a standard dollar amount.
At other times, however, hospitals and payers establish the payer-
specific negotiated charge by agreeing to an algorithm that will
determine the dollar value of the allowed amount on a case-by-case
basis after a pre-defined service package has been provided. This means
that the standard charge that applies to the group of patients in a
particular payer's plan can only prospectively be expressed as an
algorithm, because the resulting allowed amount in dollars will be
individualized on a case-by-case basis for a pre-defined service
package, and thus cannot be known in advance or displayed as a rate
that applies to each member of the group.
For example: Patients X and Y are under the same payer's plan. They
both go to a hospital for the same procedure which is identified by the
payer after analyzing the claim as having the same DRG code. The gross
charges (that is, the charges billed on the claim to the payer) for
each itemized item and service provided by the hospital for Patient X's
procedure total $1,500, while Patient Y's gross charges for each
itemized item and service provided by the hospital total $2,000. The
hospital and payer have negotiated a payer-specific negotiated charge
that is calculated as an amount equal to 50 percent off the total gross
(or billed) charges for the procedure identified by the DRG code. The
resulting charge (in dollars) for Patient X would be $750 while
resulting charge (in dollars) for Patient Y would be $1,000. In this
example, the payer-specific negotiated charge (as an algorithm) is the
same for each patient in the payer's plan for the procedure, but it is
possible that each patient covered under this payer's plan would have a
different resulting charge, in dollars, for the same procedure. In
other
[[Page 49854]]
words, in this example, there is no single dollar amount that would be
appropriate for the hospital to post in its MRF as the payer-specific
negotiated charge. Instead, the only payer-specific negotiated charge
that applies to the group is the algorithm used to calculate the
individualized dollar amount (in this example, the algorithm would be
``50 percent of the total gross charges'' that are billed on the claim
for the procedure).
The reality of commercial healthcare contracting practices
highlights a tension that sometimes exists between a hospital's
establishment of a `standard charge' that applies to a group of paying
patients and the desire for individuals within the group to know and
understand the specific cost of their care in dollars for specific
hospital items or services. Currently, this tension is largely
mitigated by price estimator tools that typically display `estimated'
dollar amounts that are based on past claims and, when available,
knowledge of the contracting arrangements to predict, often with very
high accuracy,\626\ the most likely or expected allowed amount that
will apply to an individual. When combined with the individual's
insurance information, the individual's out-of-pocket can be determined
and displayed. Therefore, as an alternative to leaving a `blank' or `N/
A' in the MRF when no standard dollar amount is available, we allow
hospitals to make public the standard algorithm that applies to the
group. The publication of the algorithm makes it possible for a user of
the file (such as a price estimator tool developer) to use that
algorithm in conjunction with educated assumptions about the items or
services likely to be utilized by a given patient for a given
procedure, along with their corresponding gross charges, to estimate an
allowed amount in dollars for the individual. This amount can be
further personalized by including insurance information (such as the
copay, co-insurance, or deductible) to determine the individual's
estimated out-of-pocket dollar amount.
---------------------------------------------------------------------------
\626\ Stults, et al. Assessment of Accuracy and Usability of a
Fee Estimator for Ambulatory Care in an Integrated Health Care
Delivery Network. JAMA Network Open. 2019;2(12):e1917445.
---------------------------------------------------------------------------
While we continue to support efforts via other methods, such as
price estimator tools, for providing consumer-friendly and personalized
out-of-pocket information, we have heard from interested parties that,
when a hospital has negotiated a standard charge that can only be
expressed as an algorithm, some estimate displayed in dollars within
the MRF may be useful, particularly for making comparisons across
hospitals. For example, an estimate displayed in dollars would permit
users to make price comparisons across hospitals when, with respect to
the same procedure and payer/plan, one hospital has established a
payer-specific negotiated charge as an algorithm and a second as a
dollar amount. We therefore considered whether and what data element
could be required in the MRF to provide additional needed context for a
payer-specific negotiated charge that is expressed as an algorithm.
We propose that when a hospital has established a payer-specific
negotiated charge that can only be expressed as a percentage or
algorithm, it must display alongside that percentage or algorithm a
consumer-friendly `expected allowed amount' in dollars for that payer/
plan for that particular item or service. The `expected allowed amount'
would be the amount, on average, that the hospital estimates it will be
paid for the item or service based on the contract with the third party
payer. It is our understanding that hospitals often have such
information already calculated and available as part of their revenue
cycle management systems to provide a back-end check on their
reimbursement from the third party payer, so we do not expect that the
inclusion of such data in the MRF would represent a large burden. The
`consumer-friendly expected allowed amount' is likely to represent
reimbursement for an average patient, rather than an exact amount,
since, for a payer-specific negotiated charge based on an algorithm,
the amount in dollars is known with certainty only after the patient
has been discharged. As such, it is an estimate of the average amount
that the hospital expects to receive for the item or service for all
group members but not the final exact amount in dollars that would be
actually apply to each group member. Even so, we believe this
information would provide context to the public that is necessary to
compare payer-specific negotiated charges across hospitals and a
valuable benchmark against which price estimator tools can use to
develop and estimate an individual's personalized out-of-pocket costs.
We propose to add this consumer-friendly `expected allowed amount' to
the list of required data elements at Sec. 180.50(b)(2).
(c) Proposals for Data Elements Related to Hospital Items and Services
At new Sec. 180.50(b)(3), we propose that hospitals be required to
provide standard charge information for additional data elements. These
data would describe hospital items and services that correspond to the
standard charges established by the hospital as follows:
Recasting as a separate data element, but otherwise
without change, the presently required description of the item or
service and whether the standard charge is for an item or service
provided in connection with an inpatient admission or an outpatient
department visit.
If a standard charge has been established for a drug, we
propose that the hospital would be required to indicate the drug unit
and type of measurement as separate data elements. We have seen
hospital MRFs in which the drug unit and type of measurement are either
not specified or are included in the same field as the description of
the item or service. In the first case, when the drug unit and type of
measurement is not specified, the user of the file has no basis for
understanding the standard charge that the hospital has established. In
other words, the description is not sufficient for the user to
understand what quantity of the item or service the user would receive
at the indicated standard charge amount. In the second case, when the
drug unit and type of measurement are included in the same field as the
description of the drug, the information is not easily machine-readable
because computers are unable to parse the description if expressed as a
`string' of characters that are unique and undefined. Under this
proposal, if the hospital has established a standard charge for a drug,
the hospital would be required to encode the file with a description of
the drug, including the applicable drug unit and type of measurement as
a separate and distinct data element from the description. For example,
if a hospital establishes a gross charge of $2 for an item or service
it describes as `aspirin 81mg chewable tablet--each', the hospital
would be required to input data for each of the required separate data
elements, which would look something like this in the MRF, based on the
current technical specifications in the data dictionary that
accompanies the currently available sample templates: gross charge: 2;
description: aspirin 81mg chewable tablet; unit of measurement: 1; type
of measurement: UN.\627\ This indicates to the public that the standard
charge established by the hospital for this item or service is $2.00
for a single tablet of
[[Page 49855]]
a drug described as `aspirin 81mg chewable tablet.'
---------------------------------------------------------------------------
\627\ Where ``UN'' in the sample format data dictionary (found
here: https://www.cms.gov/hospital-price-transparency/resources)
stands for ``unit'' which, in this example, comes in the form of a
tablet.
---------------------------------------------------------------------------
We are aware that hospitals may at times establish standard charges
for units of items and services other than drugs. While we would
encourage hospitals to be transparent about such information in the
MRF, we only propose to add data elements for the unit and type of
measurement of drugs because the codes (such as HCPCS codes) for non-
pharmaceutical items and services typically include instructions or
additional descriptions that clarify the unit and type of measurement
for the indicated item or service, but the codes (typically National
Drug Codes (NDC)) used for pharmaceutical agents do not, and we do not
believe it is necessary to burden the hospital with a requirement to
publicly disclose information that is already available to the users of
the file. Additionally, the TEP members discussed this issue and
concluded that drugs are a unique class of items and service when it
comes to a user's ability to clearly understand how hospitals are
representing their standard charges. TEP members speculated that such
challenges may arise because hospitals establish and display their
standard charges for drugs using different methodologies. For example,
it is often unclear in the hospital's MRF whether the payer-specific
negotiated charge for a drug is based on the billing unit for the NDC
associated with the drug or the billing unit associated with the drug's
HCPCS code.
Based on our own experience in reviewing MRFs, we agree with the
TEP members that more prescriptive requirements are necessary when it
comes to display of standard charges for drugs and believe that
requiring the drug unit and type of measurement as separate data
elements would facilitate machine-readability and ensure clarity for
the users of these files. We also agree with the TEP members that this
proposal may introduce a burden on some hospitals that are already
including such information in the description but would have to
separate it for display in the CMS template. Because of this potential
burden, we considered an alternative approach by which we would require
the drug unit and type of measurement to be included in the description
or encoded as separate data elements. This alternative would ensure
availability of the data to users of the MRF, albeit in a way that
would not be optimized for machine-readability. However, in this case
we believe the burden on hospitals is outweighed by the need for
improvements in data machine-readability, and therefore propose to
require hospitals to report this information as separate data elements.
We note that nothing would preclude the hospital from also including
the information in its description of the drug. We seek comment on this
proposal and the alternative we considered but are not proposing.
(d) Proposals for Data Elements Related to Item or Service Billing
At new Sec. 180.50(b)(2)(iv), we propose to specify data elements
related to item or service billing. We believe data elements related to
item or service billing are necessary because the standard charges that
a hospital establishes are often dependent on the way an item or
service is billed. As such, including billing information may improve
the public's understanding of the standard charge that has been
established for the item or service. In specifying these data elements,
we would retain, without modification, the current requirement that the
MRF include any code used by the hospital for purposes of accounting or
billing for the item or service (the example of such codes would be
removed from the reg text as unnecessary). We propose to add a
requirement that the hospital specify any relevant modifier(s) needed
to describe the established standard charge, and the code type(s) (for
example, whether the code is based on HCPCS, CPT, APC, DRG, NDC,
revenue center, or other type of code). As discussed by the TEP
members, there are instances where a hospital has established different
standard charges for the same item or service description, depending on
additional factors such as modifiers or revenue centers that are not
included in the file. As such, TEP members agreed that some distinction
to ensure meaningfulness of the standard charge would be helpful to
users of the file and impose minimal hospital burden. Based on our
experience in reviewing MRFs, we have also seen such instances and
believe that requirements to include applicable codes that include
modifiers and revenue center codes would help make necessary
distinctions when multiple standard charges have been established for
the same items or services. Separating the code itself (for example,
the numbers of the code) from the code type (for example, ``HCPCS'')
would directly improve machine-readability.
(e) Summary of Proposed Required Data Elements
In summary, we believe these proposed modifications to Sec.
180.50(b) are necessary to improve hospitals' ability to display their
standard charges in a more specific, clear, and standardized way. We
believe the proposals would increase the meaningfulness of the standard
charge information and heighten the public's ability to understand and
more efficiently aggregate and use the data. Further, as described
above, we believe these proposals would improve and streamline CMS's
ability to enforce the HPT requirements.
Table 84 summarizes and compares the existing sample format data
elements with the proposed data elements.
BILLING CODE 4120-01-P
[[Page 49856]]
[GRAPHIC] [TIFF OMITTED] TP31JY23.126
BILLING CODE 4120-01-C
We seek comment on these proposed revisions to Sec. 180.50(b).
Specifically, we seek comment on whether we should consider additional
data elements to ensure the public's understanding and ability to
meaningful use the standard charge information as displayed in hospital
MRFs. In particular, we seek comment from hospitals related to display
of payer-specific negotiated charges and solicit specific examples of
complex contracting methodologies so that we can provide specific
recommendations and technical instructions on display of standard
charges resulting from such methodologies in the CMS template.
c. Proposals To Specify Formatting Requirements for Display of Standard
Charge Information Using a CMS Template
In this section, we propose to require each hospital to conform to
the CMS template layout, data specifications, data dictionary, and to
meet any other specifications related to the encoding of the hospital's
standard charge information in its MRF. We are making these proposals
in order to improve automated aggregation of the standard charge
information in the hospital's MRFs. Additionally, we believe these
proposals will streamline our enforcement capabilities.
While most hospitals are ensuring that the data they display
appears in a machine-readable format (such as JSON
[[Page 49857]]
or CSV), as required under the current regulation, many are not taking
as much care to display the data that encodes the file in a way that
improves machine-readability that facilitates automated aggregation of
standard charge information. Even when individual hospitals make an
effort to optimize the machine-readability of the data they include in
the MRF, the lack of standardization in the MRF format data encoding
limits the ability of users to aggregate MRF data in an automated way.
This is because the format of the data encoded in the MRF is unknown to
the user and therefore cannot be coded by them for further processing.
This lack of standardization in format presents a barrier to intended
use of the MRFs as expressed in the CY 2020 HPT final rule--that is,
for enhancing the public's ability to use the data in, for example,
consumer price estimator tools and in EHRs at the point of care for
value-based referrals, or to aggregate and use the data to increase
competition.
As indicated throughout the CY 2020 HPT final rule, we believed the
flexibility that we initially afforded to hospitals was necessary to
ensure that ``each hospital operating in the United States'' could
implement the law and regulatory requirements. Now that hospitals have
experience in making their standard charges public in an MRF and we
have a better understanding of how hospitals establish their standard
charges, we believe our data formatting requirements can be made more
prescriptive to enhance the public's ability to use the hospital
standard charge information to its fullest potential. These
evolutionary changes may serve to decrease hospital burden.
To accomplish this, we propose to revise the introductory text at
Sec. 180.50(c) to require that each hospital must conform to the CMS
template layout, data specifications, and data dictionary when making
public the standard charge information required under paragraph (b).
Should these proposed rules be finalized, we propose to make at
least one CMS template available to hospitals, and hospitals would be
required to conform to its layout and comply with technical
instructions (located in the template, corresponding data dictionary,
and other technical guidance) to be published on a CMS website (such as
the HPT website or CMS GitHub). A hospital's failure to display its
standard charge information in the form and manner specified by CMS
could lead to a compliance action. The CMS template and accompanying
technical specifications would describe the form and manner in which
the hospital must organize, arrange, and encode its standard charge
information for the required data elements (if finalized, and as
discussed in XVIII.B.3.b of this proposed rule) in its MRF.
For purposes of this requirement, we propose to make available a
CMS template in CSV and JSON formats. Additionally, we propose to make
available three different layouts. The three layouts would be similar
to the three `sample formats' that are currently available on the HPT
website.\628\ The three sample layout are: (1) JSON schema (plain
format), (2) CSV (``wide'' format), and (3) CSV (``tall'' format).
Although we considered proposing to require hospitals to display their
standard charge information using only the JSON format, we concluded
that some flexibility remains necessary given the variability in
hospital sophistication and technical expertise, and the fact that
these two proposed non-proprietary formats (CSV and JSON) appear to be
the most frequently used by hospitals for displaying standard charges.
We seek comment on this issue, and on whether we should instead require
use of a single format (such as JSON).
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\628\ https:/www.cms.gov/hospital-price-transparency/resources.
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Technical guidance, to which the hospital must conform for purposes
of encoding the standard charge information, would be made available
through, for example, a data dictionary and within the CMS template.
The data dictionary would be similar to the data dictionary that CMS
has developed for the `sample templates,' \629\ but would be updated to
include any new policies that we finalize in the CY 2024 OPPS/ASC PPS
final rule. This technical instruction would ensure consistent
implementation and machine-readability of hospital MRFs across all
hospitals. For example, CMS would provide guidance on how to conform to
the CMS template layout and encode the data items for the required data
elements; that guidance would also consist of the set of rules for the
header and attribute naming and rules for allowed values for encoding
standard charge information, including the data type (for example,
enum, numeric, alphanumeric), data format (for example, string, float),
and, in some cases, specific (``enum'') valid values (for example,
``inpatient'' ``outpatient'' ``both''). The data dictionary could also
include a section on `how to use the data dictionary' which would
provide educational information about the encoding instructions for
those with low technology expertise. We believe that providing such
direction via separate technical instructions is reasonable because
such direction does not rise to the meaningful substance that is
subject to notice-and-comment rulemaking, and it would enable CMS to
update such technical specifications to keep pace with and respond to
technical developments and inquiries. Moreover, this proposal is
consistent with data disclosure formatting requirements of other CMS
programs such as the EHR Incentive Program (see 42 CFR 412.614).
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\629\ https://www.cms.gov/hospital-price-transparency/resources.
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Hospitals that do not conform to the CMS template layout, data
specifications, and data dictionary would be determined to be
noncompliant with 42 CFR 180.50(c) and could be subject to a compliance
action. In addition to providing a data dictionary, to further aid
hospitals, we are considering whether we should develop an MRF
validator tool, similar to the validator tool provided by TIC on the
CMS GitHub website.\630\ The validator tool could be used by hospitals
as a check for compliance with the formatting requirements of Sec.
180.50(c), thereby providing some additional technical instruction and
assurance that the formatting requirements have been met prior to
posting the MRF online. We seek comment on whether hospitals would find
a validator tool helpful and, if so, what technical specifications such
a validator ought to assess.
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\630\ https://github.com/CMSgov/price-transparency-guide-validator.
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We continue to encourage hospitals to provide any additional
information they deem necessary to further explain or contextualize
their standard charges, and we would provide technical instructions and
specifications for hospitals to do so. For example, the data dictionary
could include one or more optional data elements for inserting
additional explanatory notes (similar to the ``additional generic
notes'' data element included in the sample formats data dictionary),
and could also permit hospitals to add other optional data elements
such as `average reimbursement amounts' derived from past claims, LAN
designations, quality information, or the hospital's financial aid
policy, or any other categories of information the hospital wishes to
convey to the public related to hospital's standard charges.
Consistent with our proposal that hospitals must use a CSV or JSON
format, we propose to remove the examples of specific types of machine-
readable formats from the definition of ``machine-readable format'' at
Sec. 180.20.
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Similarly, we propose a technical edit to the naming convention at
Sec. 180.50(d)(5) to remove ``[json[verbar]xml[verbar]csv]'' and in
its place add ``[json[verbar]csv].''
If the proposals related to these formatting requirements are
finalized, CMS will provide additional technical instructions for how a
hospital should indicate non-applicability, when necessary. As
explained more fully in section XVIII.B.3.b of this proposed rule, we
propose to apply the term `as applicable' to the standard charge
information that the hospital encodes in the MRF, and not to the data
elements themselves. We continue to recognize that a hospital may have
no applicable standard charge information to encode in some fields
within a CMS template (this is particularly true for CSV formats, which
can be opened in a human-readable spreadsheet format that forces
column/row cross relationships between data elements which are not
always applicable). We therefore reiterate that absence of encoded
information does not necessarily mean that the MRF is incomplete. To
illustrate using a specific example, a hospital may have established a
gross charge for operating room time described as `OR time, first 15
minutes' but may not have established any payer-specific negotiated
charges that correspond to the same item or service. If the hospital
has chosen to use the CMS CSV ``wide'' template (which can also be
opened and viewed as a human-readable spreadsheet), a person may see
that the cell at the intersection of the column `gross charge' and row
of `OR time, first 15 minutes' would be encoded with the applicable
standard charge amount but the cell at the intersection of any payer
and plan's `payer-specific negotiated charge' column(s) and the row of
`OR time, first 15 minutes' would be empty. In this example, the
absence of encoded data would be a result of non-applicability, not
non-compliance, because the hospital has not established a standard
charge with the payers for a 15-minute increment of OR time.
We caution users of the files who choose to view MRFs in human-
readable formats from concluding that a hospital is noncompliant solely
based on blanks or the hospital's use of ``N/A'' (or other indicator(s)
specified by CMS in guidance). To help mitigate ongoing
misunderstandings by users of hospital MRF data, CMS intends to
continue to educate the public on the standard charge information
displayed by hospitals and proper interpretation of the information
they contain. Additionally, as discussed in this proposed rule, we
propose that hospitals include an affirmation of accuracy and
completeness within the CMS template (see proposal in section
XVIII.B.2.b of this proposed rule), which we believe would provide some
assurance to users of hospital MRFs that the data is accurate and
complete to the best of the hospital's knowledge and belief. Such an
affirmation may also mitigate the need for a hospital to insert any
indicator of non-applicability into its MRF. We are therefore not
proposing to require insertion of such an indicator, although such
indicators would not be precluded should a hospital wish to add them,
so long as the hospital adheres to the technical specifications to
preserve the machine-readability of the file. However, we seek comment
on this issue. We seek comment on whether an indicator of non-
applicability is necessary, whether such an indicator should be
required or just recommended, and how CMS can best educate the public
on the nature of standard charge information display, and, in
particular, the potential for non-applicability in certain MRF formats.
Finally, if finalized, we propose a 60-day enforcement grace period
for adoption and conformation to the new CMS template layout and
encoding of standard charge information of the newly proposed data
elements. To be clear, this proposal would be with respect solely to
enforcement actions based on the new (if finalized) CMS template
display requirements at revised Sec. 180.50(b) and (c); it would in no
way affect already-initiated compliance actions or actions for
noncompliance with other requirements under part 180 as they are
currently being implement. Additionally, this proposal would not apply
to other proposals in this proposed rule which would become effective
and enforced on January 1, 2024 including proposals related to
inclusion of an affirmation statement in the hospital's MRF (discussed
in section XVIII.B.2), the accessibility requirements as proposed and
discussed in section XVIII.B.4 of this proposed rule, and any other
proposals related to enforcement revisions discussed in section XVIII.C
of this proposed rule. The effect of this proposal is that CMS would
not begin to enforce any finalized requirement for hospitals to use the
CMS template until 2 months after the effective date of the CY 2024
OPPS/ASC PPS final rule with comment period. We understand that some
hospitals may have already adopted the sample format that CMS made
available in November 2022, however, we propose to implement an
enforcement grace period to accommodate hospitals that have adopted
formats that vary significantly from the sample format. We seek comment
on this proposal. In particular, we seek comment on whether and why an
enforcement grace period should or should not be applied.
4. Proposal To Improve the Accessibility of Hospital MRFs
Currently, the HPT regulations at Sec. 180.50(d) describe our
requirements for the location and accessibility of the hospital's MRF.
Specifically, the regulations require a hospital to select a publicly
available website for purposes of making public its standard charges
(Sec. 180.50(d)(1)) and displaying the standard charges information in
a prominent manner and clearly identified with the hospital location
with which the standard charge information is associated (Sec.
180.50(d)(2)). Additionally, at Sec. 180.50(d)(3), the hospital must
ensure that the standard charge information is easily accessible,
without barriers, including, but not limited to, ensuring the
information is accessible: free of charge; without having to establish
a user account or password; without having to submit personal
identifying information (PII); and to automated searches and direct
file downloads through a link posted on a publicly available website.
At Sec. 180.50(d)(4), the digital file and the standard charge
information contained within that file must be digitally searchable
and, at Sec. 180.50(d)(5), the file must use a naming convention
specified by CMS.
As we explained in the CY 2020 HPT final rule, because of the
flexibility we allowed to hospitals to choose the internet location, we
recognized and expected that there would be some variability in how
hospitals would choose to publicly display their MRF and how quickly
the file could be found by the public. However, we indicated our belief
that standardizing a file name or website location information could
provide consumers with a standard pathway to find the information and
would provide some uniformity, making it easier for potential software
to review information on each website. We expressed our belief that
specific requirements for file naming conventions and locations for
posting on websites could also facilitate the monitoring and
enforcement of the requirements.
We believe our current policies are sufficient for purposes of
manual searches but may not be sufficient for automated searches. As we
noted in the CY 2022 OPPS/ASC proposed rule, in our experience, many
publicly available web pages that hospitals select to host
[[Page 49859]]
the MRF (or a link to the MRF) are discoverable using simple manual
internet searches (using key words such as the hospital name plus
`standard charges,' `price,' or `machine-readable file') or, for
example, by navigating to the hospital's home page and clicking and
searching through pages related to patient billing and financing.
However, despite the requirement for the MRF and the standard charge
information contained in that file to be digitally searchable and the
required naming convention, various MRF users, including IT developers
and technology innovators, continue to express concerns that they can't
efficiently, via automated techniques, aggregate the files. We believe
these challenges should be addressed because we believe that ensuring
that the MRFs and their data contents are easily accessible, including
by members of the public who develop tools that improve the public's
overall understanding and ability to use the information in meaningful
ways, aligns with the MRFs' intended use. As we indicated in the CY
2020 HPT final rule, we believe that ``[b]y ensuring accessibility to
all hospital standard charge data for all items and services, these
data will be available for use by the public in price transparency
tools, to be integrated into EHRs for purposes of clinical decision-
making and referrals, or to be used by researchers and policy officials
to help bring more value to healthcare.''
As a result, we considered methods that would specifically improve
the automated accessibility of MRFs. Thus, at proposed new Sec.
180.50(d)(6), we propose to require that a hospital ensure that the
public website it chooses to host the MRF establishes and maintains
automated access to the MRF in two specific ways.
First, we propose, at new Sec. 180.50(d)(6)(i) that the hospital
ensure the public website includes a .txt file in the root folder that
includes a standardized set of fields including the hospital location
name that corresponds to the MRF, the source page URL that hosts the
MRF, a direct link to the MRF (the MRF URL), and hospital point of
contact information. CMS would make available the technical
specifications for implementing this file in technical instructions,
and could also consider creating a simple .txt generator tool to assist
non-technical hospital personnel in generating a .txt file as well as
plain-language instructions for complying with the requirement to post
a .txt file to the root folder of the public website.
In considering this proposed approach to automating access to
hospital MRFs, we identified several benefits, including: a
standardized text file at a consistent location (for example, the root
folder of the website) would provide automated tools a direct link to
the MRF as opposed to the current approach of having to locate the
correct web page within the website; technical experts suggest this is
a relatively simple, low burden method that could be applied by
maintainers of any public website that hosts the MRF; and information
included in the .txt file could include information necessary to
validate the contents of the file, for example, by including hospital
point-of-contact information. We also considered potential drawbacks of
this approach, including that any standardization of this nature is
subject to errors in formatting which could negate the benefit to
automated access and generate a compliance action. We believe the
benefits outweigh the drawbacks for having a hospital ensure that the
public website it chooses to host the MRF includes a .txt file in the
root folder that includes a direct link to the MRF to establish and
maintain automated access.
Second, we propose at new Sec. 180.50(d)(6)(ii) that the hospital
ensure the public website includes a link in the footer on its website,
including but not limited to the homepage, that is labeled ``Hospital
Price Transparency'' and links directly to the publicly available web
page that hosts the link to the MRF. We propose this requirement
because we believe the addition of standardized hyperlinks in the
footer of hospital websites would aid in the automation of MRF data
retrieval by creating a predictable navigation path to internal web
pages that describe the HPT program and providing direct links to the
MRF location. Once a human or web crawler arrives at the web page on
which the MRF is located, it would be able to identify the specific
location of the file(s) containing the pricing data. We believe that by
making this information more easily accessible to automated searches
and data aggregation, it would help third parties develop tools that
further assist the public in understanding this information and
capturing it in a meaningful way for making informed health care
decisions. Moreover, we believe this requirement would be simple for
hospitals to understand and implement, due to the website footer being
a common place for hospitals to link to other information. In addition,
using a standardized label for the link in the footer may make the
location of the MRFs more visible to individual consumers manually
searching for such files.
We seek comment on this proposed approach to improving
accessibility of MRFs to automated searches. We particularly seek
comment on whether there: may be better or more efficient ways of
improving access to MRFs or the direct links to the MRFs; are
additional benefits or challenges that we should alternatively
consider; might be any challenges for automation tools to find MRFs
when they are hosted by a publicly available website other than a
website hosted by the hospital, and ways that would make those
automated searches more easily accessible; and, might be any challenges
for hospitals to meet the proposed requirements when the publicly
available website hosting the MRF is not under direct control of the
hospital. We also seek comment on whether the proposals to require use
of a footer and .txt file, if finalized, are complementary to, or
duplicative of, the requirements at Sec. 180.50(d)(4) and (5) which,
respectively, require that the digital file and standard charge
information contained in that file must be digitally searchable; and
that the file must use the naming convention specified by CMS at Sec.
180.50(d)(5). We also seek comment on whether there is a better or more
efficient standardized label for the link in the footer on the website,
including but not limited to the homepage, that links directly to the
publicly available website that hosts the link to the MRF.
C. Proposals To Improve and Enhance Enforcement
Section 2718(b)(3) of the PHS Act requires the Secretary to
promulgate regulations to enforce the provisions of section 2718 of the
PHS Act, and, in so doing, the Secretary may provide for appropriate
penalties. Our current monitoring and enforcement scheme is codified in
our regulations at 45 CFR 180 subpart C. Section 180.70(a) states that
CMS may monitor and assess hospital compliance with section 2718(e) of
the PHS Act via methods including, but not limited to, evaluating
complaints made by individuals or entities to CMS, reviewing
individuals' or entities' analysis of noncompliance, and auditing
hospitals' websites. Should CMS conclude that a hospital is
noncompliant with one or more of the requirements to make public
standard charges, CMS may take any of the following actions described
at Sec. 180.70(b), which generally, but not necessarily, will occur in
the following order:
Provide a written warning notice to the hospital of the
specific violation(s).
[[Page 49860]]
Request a corrective action plan from the hospital if its
noncompliance constitutes a material violation of one or more
requirements.