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###### Department of Health and Human Services

###### Centers for Medicare & Medicaid Services

          - [CMS-1574-N]

# AGENCY:

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

# ACTION:

Notice.

# SUMMARY:

This notice announces the re-chartering of the Advisory Panel on Ambulatory Payment Classification (APC) Groups (the Panel). The Secretary of the Department of Health and Human Services (the Secretary) re-chartered the Panel on November 21, 2010, for 2 years with the new Charter effective through November 21, 2012.

# FOR FURTHER INFORMATION CONTACT:

Shirl Ackerman-Ross, (410) 786-4474.

# SUPPLEMENTARY INFORMATION:

## I. Background

### A. Purpose

The Secretary of the Department of Health and Human Services (DHHS) (the Secretary) is required by section 1833(t)(9)(A) of the Social Security Act (the Act), to consult with an expert, outside advisory panel on the clinical integrity of the groups referred to as Ambulatory Payment Classification (APC) groups and their associated weights established under the Medicare hospital Outpatient Prospective Payment System (OPPS).

### B. Statutory Authority

Section 1833(t)(9)(A) of the Act (42 U.S.C. 1395l(t)(9)(A)). The Advisory Panel on APC Groups is governed by the provisions of Public Law 92-463, the Federal Advisory Committee Act (FACA) (5 U.S.C. Appendix 2), which sets forth standards for the formation and use of advisory panels.

The Panel was established by statute and has functions that are of a continuing nature. The Panel is re-chartered in accordance with section 14(b)(2) of FACA.

### C. Panel Functions

The Panel must advise the Secretary and the CMS Administrator (the Administrator) about the clinical integrity of the APC groups and their associated weights, which are major elements of the Medicare hospital OPPS. The Panel is technical in nature, and it must deal with the following issues:
    - Addressing whether procedures within an APC group are similar both clinically and in terms of resource use.
    - Reconfiguring APCs (for example, splitting of APCs, moving Healthcare Common Procedure Coding System (HCPCS) codes from one APC to another, and moving HCPCS codes from new technology APCs to clinical APCs).
    - Evaluating APC group weights.
    - Reviewing packaging the cost of some items and services, including drugs and devices, into procedures and services, including the methodology for packaging and the impact of packaging on APC group structure and payment.
    - Removing procedures from the inpatient list for payment under the OPPS.
    - Using claims and cost report data for CMS' determination of APC group costs.
    - Addressing other technical issues concerning APC group structure.

The subject matter before the Panel must be limited to these and related topics. Unrelated topics are not subjects for discussion. Unrelated topics include, but are not limited to, the conversion factor, charge compression, revisions to the cost report, pass-through payments, correct code usage, and provider payment adjustments.

The Panel may use data collected or developed by entities and organizations other than the DHHS and CMS in conducting its review. The Secretary and the Administrator is advised of all matters pertaining to the Panel (that is, membership, recommendations, subcommittees, and meetings).

### D. Structure of the Panel

The Panel must be fairly balanced in its membership in terms of the points of view represented and the functions to be performed. The Panel consists of up to 15 members who are representatives of providers. Members are selected by the Secretary or Administrator among the fields of hospital payment systems; hospital medical care delivery systems; provider billing and accounting systems; APC groups; Current Procedural Terminology codes; HCPCS codes; the use of, and payment for, drugs, medical devices, and other services in the outpatient setting; and other forms of relevant expertise. All members must have a minimum of 5 years experience in their area(s) of expertise, but it is not necessary that any member be an expert in all of the areas listed above. Panel members are full-time employees of hospitals, hospital systems, or other Medicare providers subject to payment under the OPPS.

                    For purposes of this Panel, consultants or independent contractors are not considered to be representatives of providers. All members must serve on a voluntary basis, without compensation, pursuant to advance written agreement. Members of the Panel must be entitled to receive reimbursement for travel expenses and per diem in lieu of subsistence, in accordance with Standard Government Travel Regulations. Panel members may serve for up to 4-year terms. A member may serve after the expiration of his or                           ( print page 78247)                        her term until a successor has been sworn in.                

A Federal official, designated by the Secretary or the Administrator, must serve as the Chair and facilitate the Panel meetings. The Chair's term must usually be for a period of 4 years, but it may be extended at the discretion of the Administrator or his or her duly appointed designee.

In order to conduct the business of the Panel, a quorum is required. A quorum exists when a majority of currently appointed members is present at full Panel or subcommittee meetings or is participating in conference calls.

With the approval of the Secretary or designee, subcommittees consisting of two or more Panel members may be established to perform functions within the Panel's jurisdiction. One of the members will be designated by his or her peers as chair of the subcommittee. The Department Committee Management Officer will be notified upon establishment of each subcommittee and will be provided information on its name, membership, function, and estimated frequency of meetings. The advice or recommendations of a subcommittee or working group must be deliberated by the Panel. A subcommittee may not report directly to a Federal official, but rather it must report to the parent Panel.

The FACA provides that a Designated Federal Officer (DFO) must be appointed to a Federal advisory committee to attend each Panel meeting and to ensure that all procedures adhere to applicable statutory, regulatory, and DHHS General Administration Manual directives. The DFO approves and prepares all meeting agendas; calls all Panel or subcommittee meetings; adjourns any meeting when he or she determines adjournment to be in the public interest; and chairs meetings when directed to do so by the Secretary or the Administrator. The DFO or his or her designee must be present at all full Panel and subcommittee meetings. The CMS must also provide management and support services to the Panel.

### E. APC Panel Meetings

Meetings must be held up to three times a year at the call of the DFO. The agenda, which sets the boundaries for discussion, is developed by CMS and approved by the DFO. Meetings are open to the public, except as determined otherwise by the Secretary or other official to whom the authority has been delegated in accordance with the Government in the Sunshine Act (5 U.S.C. 552b(c)) and FACA. The Panel Chair must facilitate all Panel meetings.

                    Adequate advance notice of all meetings must be published in the                     **Federal Register,**                     as required by applicable laws and departmental regulations, stating reasonably accessible and convenient locations and times. Meetings must be conducted, and records of the proceedings kept, as required by applicable laws and departmental regulations. The records of the Panel and established subcommittees must be managed in accordance with General Records Schedule 26, Item 2, or other approved Agency records disposition schedule. These records must be available for public inspection and copying, subject to the Freedom of Information Act (5 U.S.C. 552).                

### F. Compensation

All members must serve on a voluntary basis, without compensation, pursuant to advance written agreement. Members of the Panel must be entitled to receive reimbursement for travel expenses and per diem in lieu of subsistence, in accordance with Standard Government Travel Regulations.

### G. Annual Cost Estimate

Estimated fiscal year (FY) 2011 annual cost for operating the Panel, including travel expenses for members but excluding staff support, is $77,000. The estimated annual person-years of staff support required for the APC Panel is 1.0 full-time equivalent (FTE) at an estimated annual cost of $105,575. Estimated FY 2012 annual cost for operating the Panel, including travel expenses for members but excluding staff support, is $80,000. The estimated annual person-years of staff support required for the APC Panel is 1.0 FTE at an estimated annual cost of $107,650.

### H. Termination Date

Unless renewed by appropriate action prior to its expiration, the APC Panel must terminate 2 years from the date the charter is filed.

(Catalog of Federal Domestic Assistance Program No. 93.773, Medicare—Hospital Insurance Program; and No. 93.774, Medicare-Supplementary Medical Insurance Program)

Dated: December 2, 2010.

Donald M. Berwick,

Administrator, Centers for Medicare & Medicaid Services.

[FR Doc. 2010-31372 Filed 12-14-10; 8:45 am]

BILLING CODE 4120-01-P